
    [Philadelphia,
    April 18th, 1836.]
    The COMMONWEALTH against KING and Others.
    A miller in New Jersey having contracted to deliver a certain quantity of flour in New York, sent it to A. a carrier in Easton in Pennsylvania to be forwarded to New York. The Morris Canal being obstructed by the ice, a,portion of the flour was sent in a canal boat by A. to B. another carrier in Philadelphia, to be forwarded by him by way of the Delaware and Raritan Canal to New York. On the arrival of the boat at Philadelphia, the flour was landed on the wharf of B. and shortly afterwards put on board another vessel belonging to B.; being a packet boat plying on the canal and between the two cities. The flour was in barrels which did not bear the mark or brand of the state of New Jersey; and no offer to submit the flour to inspection was made. Held, under the act of 14th April, 1835, (1) that this flour was liable to inspection; (2) that there was a sufficient “ offer to transport” it out of the state, without inspection; consequently that the inspector had a right to seize it as forfeited; and that the circumstance of B. being ignorant of the fact of non-inspectión was not material.
    This was an indictment against Francis King, Alfred Hayden, George M‘Henry and John OfRourke, which had been found in the Mayor’s Court for the City of Philadelphia, at December Sessions 1835, and removed to this Court by certiorari.
    The indictment contained three counts :
    
      1. For a riotous assault upon one of the deputy-inspectors of flour for the city of Philadelphia, while in the lawful execution of his official duty.
    2. For an assault upon him while .in the lawful execution of such duty.
    3. For a common assault.
    At the trial, which took place at a Court of Nisi Prius held at Philadelphia on the 12th of March, 1836, before the Chief Justice, the following facts appeared.
    In the month of November, 1835, John Qniek & Son, millers, residing at the town of Belvidere in the state of New Jersey, contracted with Messrs. Nevins & Son of New York, to deliver to them 600 barrels of flour in New York. The flour was accordingly sent to Rodenbaugh & Co. carriers at Easton in Pennsylvania, branded for the New York market according to the requisitions of the law of that state. Rodenbaugh & Co. sent 61 barrels of this flour in their boat, by the Delaware Canal, to Messrs. C. & F. King in Philadelphia, to be forwarded in a line of packets, which the latter were engaged in running from Philadelphia to New York through the Delaware and Raritan Canal. The flour arrived at the wharf in Philadelphia on the 25th of November, 1835, when it wasiplaced on board one of the packets of Messrs. King. In the afternoon of that day the deputy inspector of flour, having received information of the facts, proceeded to the boat and requested them to discharge the flour for inspection. He was told that there was none on board; but having ascertained that the fact was otherwise, he placed two watchmen on board. One of the firm of Messrs. King then said, that it should be landed the next morning. On the next day the inspector attempted to seize the flour, on the ground that it was forfeited under the inspection laws. The defendant King forbade him to remove it, and ordered his labourers to roll the flour into the store of C. & F. King. The assault then took place, which was the subject of the indictment.
    The defence was, that the flour was not liable to inspection; and, that if it had been liable to inspection, it would not, under the circumstances, have been forfeited. That this being the case, the inspectors had no right to seize it, and were, therefore, the aggressors; and that the IaW justified the interference of Mr. King to protect his servant, and justified the defendants in repelling force by force under the circumstances.
    The defendants’ counsel asked the Court to charge the jury, that—
    “ 1. If the flour in question was in transitu from New Jersey to New York, it was not liable to inspection;
    2. If the flour came from the mill of Quick &, Son to Easton in execution of the contract of 7th Nov. 1835, and was at the time in question under carriage to New York in pursuance of that contract, it was not liable to inspection.
    3. If the jury believe Quick and Rodenbaugh, the flour was in transitu, while at Philadelphia.
    4. The mere landing of it on a wharf in Philadelphia for the purpose of transhipment in the course of its carriage to New York aforesaid, does not render it liable to inspection.
    5. That the removal of the flour from one boat to another, in the transitas from New Jersey to New York, though in the port of Philadelphia, does not subject the flour to inspection.
    .6. That the inspectors had no right to inspect this flour, if they knew its origin to be in New Jersey, and its immediate destination to be New York.
    7. That the limits of the transit for the above purposes are to be fixed by the two termini, which were New, Jersey and New York.
    8. That the law of the case is in these respects the same, if the termini were Easton and New York.
    9. That if there were no right to inspect, there was under the circumstances of the case, no forfeiture.
    10. That there wa,s no forfeiture, if the lading of the Planet was incomplete, and the shipment or intended shipment, so far as measures had then been taken for making it, was without the participation of any but unauthorized servants, and without the knowledge of their employers at the time of its being discovered by the officers.”
    The Chief Justice charged the jury in substance as follows:—
    “ The material questions are — was the flour subject to inspection? Was it forfeited by evasion? Were the officers resisted? To find any one of these for the defendants is to acquit them.
    1st. They contend, that the article was in a course of transport from an adjoining state through the port of Philadelphia to a market; consequently not within the intent of the inspection laws.
    That if within the intent, they (the laws) are to be controlled by the constitution of the United States.
    Flour passing through a state, along the common highway of the states, is not subject to inspection; a vessel may pass from a point on the Delaware above the state to a point below it; may pass without being challenged, though anchored in the port or made fast to the wharf. But there must be no transhipment to a Philadelphia vessel, or apy vessel receiving a cargo in port — that would break continuity, and make the beginning of a new voyage- The owner cannot use the port for exportation, and not comply with the regulations of the port. Was this an exportation by a Philadelphia forwarding house, or w.as it a continuation of the voyage from New Jersey or from Easton ? Continuity may be one thing for charging carriers for loss, and another for charging the article with local regulations. Flour is certainly within the inspection laws. The object of these is the protection of our local character in foreign markets. This is not accomplished by permitting the article to depart without brand, whether it be of domestic or extra-territorial origin. The foreign dealer knows nothing of acquired character from temporary situs — he judges from the clearance of the ship. The case was the same in principle as if the shipment were to European ports. As to the constitutionality of the law, the right of the states to pass inspection laws has been recognised. These are strictly municipal, not regulations of foreign commerce. To regulate commerce between state and state was given to Congress to prevent oppression, by ruinous burthens of the commerce of a neighbour. But burthens are not ruinous or oppressive when no greater than those imposed on the inhabitants of the same state. An act in the guise of an inspection law might be in substance a regulation to burthen foreign commerce, and then it would be void. Such is not the character of our inspection laws.
    2d. Being liable to inspection, was the flour forfeited ? Did any one in the words of the law ‘ offer to transport’ it ? An article may be forfeited by acts of those who do not own it. The owner is liable for all acts done in the course of the agency, to which he commits It — his remedy is against the agent. The fact of the knowledge of Messrs. King is immaterial — they were bound to know every thing done in the course of their business. Was the flour put aboard by any one with intent to ship it ? The commonwealth has nothing to do with the owner or agents, but only with the article. Forfeiture does not make these criminally responsible — the penalty is attached to the article, and the agent is civilly responsible for misconduct. The offence is complete by the first step taken towards unlawful purpose, even by an offer to execute.
    3d. Was there a riot ? Any unlawful act done with violence by three or more, is a riot. To oppose officers in the execution of their duty, is unlawful. Were the inspectors in execution of their duty? The statute dispenses with a warrant of seizure — such dispensation is not unconstitutional. It is not pretended, that the officers were not opposed — the flour was actually rescued. Wanton violence by ■officers, if any could be pretended, is not to be set against violence offered to them — the cases are separately punishable. These are not the days for presumptions unfavourable to public functionaries— the tendency of the times is not towards official oppression, but towards contempt of authority. When the ministers of the law are incompetent to execute it, freedom is gone, and the weak are the slaves of the strong. Our duty is to sustain the officers while we •can.”
    The jury found the defendants guilty.
    
      A motion for a new trial having been made, the questions of law now came on to be argued.
    Mr. Cadwdlader for the defendants.
    The case turns upon the true construction of the act of 15th of April, 1835, entitled, “ An act relating to inspections,” by which the previous laws were consolidated and revised.
    1. Was this flour forfeited, supposing it to be within the inspection laws ?
    2. Was it liable to inspection?
    1st. The 32d section of the act declares, that “ if any person shall offer to transport any such flour or meal out of this state without being proved or branded in the manner required. by the act, the same shall be forfeited and sold by the inspectors,” &c. The 43d section provides for the entry in the manifest of the number of barrels, &c. and declares, that the inspector shall have free access to such manifests. This section shows when the act of exportation is complete. In a question of this kind, the scienter is of the first importance. Now there is no scienter at all, proved on the part of the principals. The knowledge seems to have been confined to the labourers; by whose acts they could not be bound. In England the rule now is to interpret the revenue and navigation laws favourably for the subject; and to lean against forfeitures, if the law is obscurely worded. Hubbard v. Johnson, (3 Taunt. 220, 1.) So in the United States courts. U. States v. Goodin, (12 Wheat. 477.) ' Upon the opposite construction a person transporting flour from Florida to Maine, ought to be acquainted with the law of every state. There is no case throughout the act of 1835, which does not suppose a criminal intent. Unless knowledge be affirmatively shown by the prosecution, a forfeiture cannot take place. The Betty, (1 Rob. Adm. Rep. 220,226,7.) Sturges v. Maitland, (1 Anthon’s JV. P. R. 153, 6.) Idle v. Vanhecker, (Bunbury, 230.) Mitchell v. Torrup, (Parker, 227, 238.) The Chief Justice charged the jury as if the offence consisted in an offer to lade, whereas the act .speaks of an offer to transport; the difference being material. The Caroline, (7 Cranch, 496, 501.) Moodie v. The Alfred, (3 Dali. 307.) The Active, (7 Cranch, 106.) The Emily Sp Catharine, (9 Wheat. 385, &c.)
    2d. The flour was not liable' to inspection. The act of 1835, intended to give greater facilities to the passage of the produce of other states, not to throw obstructions in the way. The question is, was this flour “ designed for exportation” from Philadelphia, and it is plain from the evidence, that it was not. It was merely in transitu from Belvidere to New York. It certainly had no situs in Philadelphia, and it follows, that it was in transitu. It was in the hands of a carrier at the time, and would not have been brought to Philadelphia at all, if the ice had not prevented the ordinary passage through the Morris Canal. Belvidere and New York then were thé termini. Hyde v. The Navigation Co. (5 Term Rep. 397.) The carriage was not divisible. Could not this flour have been stopped in transitu in case of the failure of the consignees, even after it had left Philadelphia 1 Story’s Abbott, 374. 3 East, 397, note. Gibbons v. Ogden, (9 Wheat. 1.) Under the revenue laws, Philadelphia would be a starting place, which gives a situs; but it is not so under the laws relating to the coasting trade. There is nothing in a vessel of this kind to indicate, that she came from Philadelphia. (Acts of Congress of 1793, 1819 and 1822.) It is surely not an act of exportation to take a wagon or boat at Philadelphia to go to another state. There can be no injury to the trade of this city from the passage of flour under circumstances like the present. Pennsylvania is not responsible, unless her brand is upon it. It was to be inspected in New York; and. to brand it with the name of New Jersey, would be useless, and could not be within the contemplation of the legislature. Actual exportation de novo was what was meant; and the mere touching at Philadelphia, although there was a reshipment, could not be so considered. In Hancock v. Sturges, (13 Johns. Rep. 331,) it was held, that flour situated like the present, was not liable to inspection under the laws of that state. (Laws of N. York; Act of 1813.) In the case of The Appollon, (9 Wheat. 369,) the Court say, “ the question is, whether a mere transit through the waters of the St. Mary , for the purpose of proceeding to the Spanish territory, is to be deemed an arrival within the limits of the United States, from a foreign port within the sense of the 29th section of the act. We are decidedly of opinion, that it cannot be so considered.”
    3d. A grave constitutional question arises, if it can be shown, that the intent of the act was to subject this flour to inspection. The ppwer to regulate commerce among the several states is given in express terms to Congress, (Art. 1, sect. viii. § 3,) and the states are ex/pressly prohibited from laying duties on imports or exports, 'except such as are absolutely necessary for executing its inspection laws, j The power of Congress to regulate commerce is necessarily exclu/sive. Gibbons v. Ogden, (9 Wheat. 198.) Steam Boat Co. v. Livi/ngston, (3 Cowen, 735.) 2 Story’s Comm. 512. Brown v. The State of Maryland, (12 Wheat. 419.) In the last cited case, C. J. Marshall asks, “ If'the states may tax alb persons and property found orjl their territory, what shall restrain them from taxing goods ill their transit through the state from one port to another for the purpose of re-exportation'?” (12 Wheat. 449.) The exception in ijfhe constitution of inspection laws has an obvious reference to duties ¡on exports, not upon articles which are properly said to be transported from one state to another, and so it appears to have been [understood by C. J. Marshall in 12 Wheat. 438, and in Gibbons v. / Ogden, (9 Wheat. 203.) 2 Story’s Comm. 472, 3. If the article in Vquestion could constitutionally be made the subject of a duty under the inspection laws, so might tobacco if found on board of a steamboat passing up the Delaware, and touching at a wharf in the course ■of communication with New York.
    In the course of the argument, various acts of assembly relating to inspections, passed previously to the act of 1835, were cited.
    Mr. St. G. Campbell and Mr. Dallas for the Commonwealth.
    1. The right of the state to pass inspection laws, is an inherent right. It had been exercised long before the adoption of the constitution, and by that instrument is recognized as a reserved right. Gibbons v. Ogden, (9 Wheat. 203.) The constitution has provided for exportation and importation. It has left the subject of transportation as it was, viz. within the power of the several states. In Shuster v. Ash, (11 Serg. ¿y R. 90,) C. J. Tilghman asserted this ■right, in answer to a suggestion similar to that which had been made in.this case. The only question under the constitution is, whether ■the duty laid by the state is more than what is necessary for the execution of the inspection laws. In this case the duty is a minimum one, being only one cent per barrel.
    2. The general rule laid down by the act of 1835, is, that “all flour” designed for exportation is liable to inspection. The only limit to this comprehensive language is to be found in the 5th section, which authorises flour of other states, duly branded, to pass without inspection. The rule is the same with respect to all the other articles. The Legislature thought fit to throw open the canals for the passage of flour, &c. from other states, with , a proviso, which it had a right to impose, that it should bear the mark of the state of its origin, that it might not be confounded with our own manufacture. Is this case then within the meaning and intent of the law l The evidence shows that the flour was landed] on the wharf at Philadelphia, and afterwards put on board of another vessel for exportation. This vessel was well known to comip from Philadelphia, and her cargo would pass for Pennsylvania flomr, unless branded according to law. The distinction between exportation to another state and to a foreign port, has no solidity. It w;as adverted to and denied by C. J. Tilghman, in Shuster v. Ash. \ The act makes no exception of flour in transitu, as to the forfeiture. ‘The act certainly did not intend to require that the inspector should wait until the exportation had actually táken place, since it woqdd be impossible in that case to apply the penalty in rem, as was obviously designed. When an article is taken from a wharf and pmt into a boat destined for another place, this is certainly a suflicienVt “ offer to transport.” It was immaterial whether the defendant, knew of the facts and design or otherwise. The rule is, that if thf law does not require the scienter, it is unimportant. In Mitchell v. Torrup, (Parker, 227,) where the violation of the law was committed by the mariners of a vessel without the privity of the master o> owners, it was held that the vessel was nevertheless forfeited. Cross: v. The United States, (Gallison’s Rep. 28.) The case of Hancock v. Sturges, does not apply, because the New York law did not require that the produce of another state should be branded as such.
    Mr. D. P. Brown, in reply.
    This case differs from all that may be supposed to have been within the view of the Legislature, or that have been cited on the other side. It never was the intention of the miller to send this flour to Philadelphia. It was forced here by stress of weather on its passage from New Jersey to New York. It never was in Philadelphia in contemplation of law. The case is like that of a slave brought from a southern state by the owner in transitu. The constitution never contemplated the application of the inspection laws to articles on board of a vessel, which has merely touched at a wharf or transferred its lading to another vessel. There is a clear distinction to be found in the act between lading and transporting. The case of Hancock v. Sturges, is decisive and in point in all respects. The reasoning of the Judge applies with equal force here.
   The opinion of the Court was delivered by

Huston, J.

This case arises under the inspection law of Pennsylvania, passed on the 14th of April, 1835, and calls the attention of this Court to the construction of several sections of the act. § 1. “ All flour of wheat, flour of rye, and meal made of Indian corn, shall, if designed for exportation from either of the places mentioned in this section, be liable to be inspected at the respective places as follows: — 1. At the city of Philadelphia, by the inspector of flour appointed for the said city,” &c.; and then proceeds to name other places not material in this case.

§ 5. “Provided, That flour and meal manufactured in any other' state, and put up in casks which shall bear the brand or name of such state, may be exported from this Commonwealth, as the manufacture of the state from which it ¿shall come, and not as the flour or meal of Pennsylvania, without being liable to inspection as aforesaid.”

As one great reliance of the defendants was on the construction of these two sections, I shall notice their arguments. We heard it contended that these sections had no application to flour not intended-for trade with nations foreign to the United States; that if the flour or meal was destined to be carred to another state of the Union, it was not within the law; nor, as it was slightly argued, within the power of our Legislature; and we had the situs and transiius distinguished.

The other states of the Union, though to a certain- extent, forming together with this state one government, are nevertheless for other purposes considered foreign states. This has been so often said and decided, that it would not seem necessary to do any thing more than assert it. That the carrying from Philadelphia to a port in another state, is exportation within our inspection laws, has been decided by this Court in Shuster v. Ash, (11 S. & R. 90.) Flour is among the staple commodities of Pennsylvania; almost the whole of our flour is exported to and consumed in other states of the Union, and if inspection laws are proper and even necessary, (and I shall assume that they are,) no one article can be named to which they have been more generally applied, or to the goodness of which they are more essential.

By our law, flour may be carried out of this state, from any other place than those designated in the act, without inspection and without regard to whether manufactured in this state or elsewhere; but if it is at Philadelphia, and start from that port, whether to another state, or the West Indies, or Eui’ope, it must be inspected. The papers of the ship or vessel, must, by the 43d section of the act in question, (and do by all mercantile usage) show that the flour was laden at Philadelphia; and'it will, at its place of delivery, be exhibited as Pennsylvania flour, unless in accordance to the 5th section it is branded or marked as the produce of another state. The inspection is to secure the quality of flour shipped at the port of Philadelphia. The mark of that inspection gives a character to the flour, wherever it is offered for sale; that, and the ship’s papers, show it came from Philadelphia; there is nothing in the foreign port to show when it came to Philadelphia, or from whence it came, (unless it has the brand or mark of some other state); and if all unskilful or dishonest men, who had badly ground flour, or flour mixed with rye or corn meal, could take it to Philadelphia and export it without examination, and. the papers of the vessel only show that it was laden at Philadelphia, such unskilful and dishonest men, might, for a time make great gain, but to the discredit of all Philadelphia flour, and the loss of all skilful and fair manufacturers and exporters of flour. It is not only necessary then, but absolutely necessary to the effect and utility of our inspection laws, that all flour brought to Philadelphia, to be from thence exported, and which at its place of destination, must and will show that it came from Philadelphia, should be subject to inspection there, unless, according to the 5th section, it is so branded or marked, that it cannot be offered for sale as Philadelphia ■ flour. It is no hardship on those of other states, that they shall either show by brand or mark, where their flour was piade, or if they will lade it for exportation at Philadelphia, without such brand or mark, submit to inspection according to our laws. All manufacturers or exporters of flour from other states, who intend to ship from Philadelphia, may do so without its being subject to our inspection laws; but then it will not go into market as Pennsylvania flour. If they do not brand or mark the name of the state where it was manufactured, and it is exported from Philadelphia, it will reach its destination as Pennsylvania flour, and by our laws must be subject to inspection before it is exported; and it is not made material by the law, and cannot be material in the spirit of the law, whether it lay in Philadelphia an hour or a month: if long enough to be shipped from that port, it must be subject to our inspection laws.

Another question in this case, is — was the flour liable to seizure as forfeited under our inspection laws %

Before we proceed to the section creating the forfeiture, it may be proper to notice some things alleged in the argument. It was suggested, that all crime consists in intention; that it would be severe to deprive the owner, who was at a distance, of his flour, for the fault of ignorant men, who did the unlawful act. That many acts derive their criminality from bad.intention, is true; some acts, however, are highly criminal, where no bad intention, but gross carelessness, and disregard to the safety of others, or the enactments of the law exist; but there is a class of offences created by positive law, where acts which in themselves would be innocent are positively prohibited, from motives of general benefit to the community, or a large portion of it; or certain things are enjoined to be done for the general advantage, though to the loss of the person obliged by the law to do those things: and to do, or not to do those acts, is the subject of punishment by the law. All inspection laws, and all laws imposing duties, are of these classes; and under, these laws the penalty is generally, if not universally incurred, by doing the act prohibited, or (not doing the act enjoined; and the cases cited, seemed to prove this, even where not only’- the goods of the individual transgressing, but the ship and cargo were forfeited, though belonging to persons who intended no wrong and had been guilty of nothing, except negligence, and that not personal, but negligence of the officers of the vessel. No casé was cited where ignorance of the law was suggested as a defence of the individual, who actually contravened its provisions.

In cases under the act in question, the manufacturer or owner, or the owner of a warehouse or vessel, seldom personally assists in carrying, unloading or lading flour into a vessel; and if it were admitted as an excuse, that the unlawful act was done by their hirelings, whether white or black, we might as well repeal the whole act at once. The principal persons would never be present when it was intended to violate its provisions.

It was also contended, that if there was a violation of the law, it was of the 31st and not of the 32d section.

§ 31. Provides that “ No person shall lade or ship for transportation out of this state, any flour or meal liable to be inspected, previously to exportation, as aforesaid, before he shall offer the same to the view and examination of the inspector of flour of the port or plage where the same shall be laden or intended to be laden, or before thé same shall be inspected and approved according to law, under the penalty of seventy-five cents for every cask, one half to the use of the person who shall give information thereof to the inspector or any of his deputies, and th.e-other half to the use of the inspector or his deputy.

And by § 32, “If any person shall offer to transport any such flour or meal out of the state, without being proved or branded in the manner required by this act, the same shall be forfeited, and the same shall be sold by the inspector, and the proceeds thereof paid into the treasury of the Commonwealth.” Certainly these sections are different: may act on different persons, are followed by different penalties; and the forfeitures go in different directions. The 31st section is personal to the master or person who lades the flour on board his vessel, and imposes a pecuniary fine on him for the unlawful act; which fine goes to the informer and inspector. The master may or may not be owner of the flour; the 32d section forfeits the flour, and affects the owner of the flour, and it is to be sold and the proceeds go to the state; both sections may be violated as to the same flour; and the 75 cents per barrel may be recovered from the person who lades flour not inspected, and the owner may forfeit the same flour, if he by himself or his agents offers to transport it out of the state.

The expression “ offer to transport out of this state” has been commented on as meaning the same as “ shall transport out of this state,” or at least shall set sail from the mooring, or if not meaning the same, as being of doubtful meaning; and then we are told that this act is to be construed by some rule, which will let all offenders against it escape. I have long disliked exceedingly, the phrases “ to be construed strictly” — “ to be construed favourably,” and such like. If it is said the courts ought not to include in the list of crimes, acts not mentioned in the statute, although they may be thought of a similar grade, or more mischevious to the community, I can understand this and agree to it; but 1 can’t agree to any doctrine which authorises a court to nullify a section of a law plainly expressed in word,s understood by every one. Nor can I agree to put a construction on a law, which will admit its obligation, but prevent its execution, or destroy all benefit intended to be produced by it. The officers of the revenue of the United States have their barges and rowers and marines, and can pursue and bring back an offender against their laws. Our inspector of flour has no such aid or assistants; and if the offence is not complete until the vessel has sailed, the offender escapes. The framers of this law and the Legislature, knew this, and by the provisions of this act the offence consists in, and the penalty is imposed not on the actually transporting the flour, but on “ the offer to transport it out of this state.”

It would not be safe to attempt laying down rules, which, in all cases, would decide what was or was not an offer to transport out of this state; but, in a case like this, where all those connected with the transportation were at the place — where no one was expected to arrive, who would examine what had .been done, and correct any irregularity — where the owners and managers of the warehouse a!nd the vessel, put flour not inspected on board, stowed it away, and stowed on the top of it other articles — made out the papers for the vessel, specifying the flour and the quantity, knowing it had not been inspected, or regardless whether it had or not — where the discovery to the officers of inspection was not made by those transporting — if this is not an offer to transport out of this state, then the section is and must be inoperative.

Some cases have been cited, which I proceed to notice. Hancock v. Sturges, (13 Johns. 331,) differs from this case in most particulars. I shall mention two: the act of New York is essentially different from that of this state; and that flour had been inspected and branded at Baltimore, and never could be sold as New York manufacture. If in this case the flour had carried the brand of another state, it is not pretended that it would have been forfeited.

The cases cited from 7 Cranch, 496, and 9 Wheaton, 385, prove, first, that where the penalty or forfeiture is consequent on an act completed, the penalty or forfeiture does not arise on the offer to do the act; and further, that if the penalty or forfeiture arise on the offer, they are incurred by the offer to do the act. The words and plain meaning of the law must decide when the act becomes a violation of it.

I shall not notice the dicta nor the decisions of the Supreme Court of the United States, respecting inspection laws, nor inquire if we could establish an inspection at Philadelphia, of cotton, rice, or any article of a class not produced in this state. Flour is an article which has been, is, and will be a staple article of production in this state, and of export from this state. I do not know of any decision or dictum, which would forbid this state to enact, that all flour manufactured in the state, should be inspected previous to exportation; and that all flour intended to be exported from Philadelphia, shall be also subject to inspection, unless it is branded or marked as the produce and manufacture of some other state— whether it is destined for another state or for Europe, makes no difference. If such were not the case, corn or rye, or buckwheat, or dust and bran, might be branded as superfine flour, and sent abroad undér a Philadelphia manifest or bill of lading as Philadelphia flour.

The duties of the inspector are important; and not the least so -is the duty of seeing that the laws under which he acts are not evaded : to permit their violation and not to attempt to enforce them, would be a dereliction of duty and violation of his oath. To oppose or molest him in the due and lawful exercise of his powers, or execution of his duties, is, by the 197th section of the law made a misdemeanor, punishable by fine not exceeding 500. dollars; or imprisonment not exceeding one year, or both, at the'discretion of the Court.

After the foregoing opinion had been pronounced, the counsel for •the defendants laid before the Court a copy of an act of Assembly, • passed on the 31st of March, 1836, (but which had not before come to their knowledge,) entitled “ a supplement to an act entitled ‘ An act relating to inspections,’ approved the 15th of April, 1835,” the material passages of which are as follows: ' '

“ Section 2. Nothing in the act, to which this is a supplement, shall -be so construed as to require the inspection, proving or branding of flour or meal of any kind, shipped or laden on the waters of the Susquehanna and Delaware and their 'branches, and intended to be transported by the. waters of said rivers, to a market out of •this state, but within the limits the United States.

Section 3. So much of the 8th section, so much of the 26th section, and so much of the 31st and 32d sections, and so much of the 157th section of the act, to which this is a supplement, as' is hereby altered, and all other acts and parts of acts relating to inspections, except this act and the act to which this a supplement, be and the samé are hereby repealed.

Section 4. The true intent and meaning of the various sections of the act, to which this is a supplement, relating to foreign produce imported into this state, and thence exported, are declared to be, that no produce imported into this state from any other state or country, shall be liable to inspection prior to exportation from this state, if marked or branded with the name of the state or country whence it was originally exported, though the mark or brand may have been affixed thereto, after its importation within this state: Provided, that - nothing herein contained, shall be construed to repeal any of the provisions of the said • act, imposing penalties for the false marking or branding, or exporting produce raised or manufactured within the state, without inspection: and Provided' further, that nothing herein contained, shall be so construed as .to prevent the inspection •of foreign produce, when it is desired by the purchaser or exporter.”

Mr. Cadwalader, for the defendants, now suggested, that the second section of this act clearly provided for the case which was the subject of this indictment, and that the repeal of the 31st and 32d section of the act of 1835, put an end to the prosecution. He cited the •case of The Commonwealth v. Duane, (1 Binn. 601.)

Pee Curiam.'

We think that the act of Assembly applies directly to this case; and upon the authority of The Commonwealth v. Duane, we are .of opinion that we cannot proceed to give judgment.

Judgment arrested. 
      
       Let it be understood, that I do not mean to lay down all the law as to the construction of the 31st section, nor designate the circumstances which may call for its operation; that has not been discussed: I merely mean to show that it does not apply to this case.
     