(Circuit Oourt, 8. D. New York. September 12, 1881.)
1. PENALTIES AND FORFEITURES-POWER OF THE SECRETARY OF THE TREASURY
-STEAM-VESsELS-CARRYING PASSENGERS IN ExCESS.
The secretary of the treasury mayl'emit claims of informers and of the United States to penalties and forfeitures incurred, under sections 4465 and , 4469 of the Revised Statutes, for carrying a greater number of passengers than the certificate of inspection permits, and such remission will operate as a. full discharge.
CONSTITUTIONAL LAW-REV. ST. § 5294.
Section 5294 of the Hevised Statutes, providing that the secretary of the treas-ury may, in certain cases, remit fines and penalties, etc., is not U!lco!lstitu tional. - It does not infringe the pardoning power of the president.
In Admiralty. In this case I nndthe following
, On the thirty-first of May, 1880, the steam-boat Laura, then a vessel propelled wholly by steam, and not a public vessel of the United States, nor a vessel of any other country, nor a vessel propelled in whole or in part by steam for navigating canals, and also then a steam-vessel navigating waters of the United States, which then were highways of commerce and open to competitive navigation, and also then a steam-vessel within the meaning of and subject to the provisioIlB of title 52 of the Revised Statutes of the United States, entitled" Regulation of Steam-vessels," and which had theretofore been duly inspected both as to her hull and as to her boilers, and to which a certificate of inspection had been granted on or about July 2, 1879, in accordap.ce with the provisions of said title, in which certificate of inspection it was stated that said vessel had suitable accommodations for and was allowed to carry 142 passengers, carried as passengers on board of her from Bridgeport, in the state of Connecticut, the city of New York, in the state of New: York, 422 passengers. On the same day the said vessel carried, as passengers on board of her, from the said city of New York to Bridgeport, aforesaid, 417 passengers. Each of the said 839 passengers paid or became liable for the sum of at least 20 cents as passage money. On the seventeenth of November, 1880, the Bridgeport Steam-boat Company, a: corporation, the owner of the said vessel, received, on its application therefor, a warrant of remission from the secretary of the treasury of the United States, of which the following is a copy: "Warrant of remission. To all to whom these presents shall come: I, John Sherman, secretary of the treasury of the United States, send greeting: Whereas, a petition, bearing date the eighteenth day of October, 1880, has been made before me by the Bridgeport Steam-boat Company, by J. B. Hubbell, superintendent, for the remission of a forfeiture of the passage money and certain penalties, amounting to $5,661, alleged to have been incurred by the steam-boat Laura, on the thirty-first day of May, A. D. 1880, by carrying an excess of passengers over the number allowed lJy law, viz" on a trip from Bridgeport to New York 280 passengers in excess, and on a trip from :New York to Bridgeport 275 passengers in excess, under the Revised Statutes of
the United States, §§ 4465 and 4469; and whereas, I, the said secretary of the treasury, having maturely considered the said petition, and being satisfied that the said offences were committed without wilful negligence, or intention to evade the requirements of the law, and that no danger to human life was caused thereby; Now, therefore, .know ye, that I, the said secretary of treasury, in considerationof the premises, and by virtue of the power and authority to me given by the 5294th section of said statutes, do hereby decide to remit to the petiHoner all the right, claim, and demand of the United States, and of all othe1's\\"hatsoever, to said forfeiture of passage money and penalties, on payment of costs, if any there be. Given under my hand and seal of office.in the city ,of Washington, the seventeenth day of November, in the year of 9ur Lord, one thouof the sand eight hundred and eighty, and the one hundred and fifth independence of the United States. ' [SeaL] "JOHN SHERMAN, "Secretary of the Treasury." The costs were taxed and paid into the district court by the claimant. This suit was commenced in the district court October 6, 1880. The answer was filed November 3, 1880. The exceptions to the answer were filed November 11, 18150. The order disposing of said exceptions was filed December 22, 1880. The supplemental answer was filed December 23, 1880. The exceptions to the supplemental answer were filed December 29, 1880. '.Dhe order disposing of said exceptions was filed January 5, 1881. The final decree was filed on same day. The appeal of the libellant is only from that decree, and is made on the ground that the secretary of the treasury had no power to remit the penalties sued for in this case. On the foregoing facts I find, as a conclusion of law, that the said warrant of remission is a complete of said penalties and passage money, and that the claimant is entitled to a decree that the lib!"l be dismissed; that the clerk of this court payout to the proctor for the lilJellallt his portion of the taxed costs of the libellant in the district court on deposit herein; that the remainder thereof be distributed among the omcers of the district court entitled thereto; and that the libellant pay to the claimant its costs in this court, to be taxed. ISAlVlU.KL BLATCHFORD, Circuit Judge.
Henry G. Atwater, for libellant. Dennis McMahon, for claimant. BLATCHFORD, C. J. This suit is founded on sections 4465 and 4469 of the Revised Statutes. The former section provides as follows:
"It shall not be lawful to take on board of any steamer a greater number of passengers than is stated in the certificate of inspection j and for every violation of this provision the master or owner shall be Hable to any person suing for the same, to forfeit the amount of passage money, and $10 for each passenger beyond the number allowed."
The latter section provides that the penalties imposed by the former section "shall be a lien upon the vessel, '" '" · but a bond may, as provided in other cases, be given te secure the satisfaction of the judgment." The provisions of section 5294, under which the warrant of remission in this case was granted, are as follows;
," The secretary of the treasury may, upon application therefor, remit or mitigate,any fine or penalty provided for in laws relating. to steam-vessels, or discontinue any prosecution to recover penalties demanded in such laws, excepting the penalty of imprisonment, or of removal from office, upon such terms as he in his discretion shall think proper; and all rights granted to informers by such laws shall be held, subject to the secretary's power of remission, except in cases where the claims of any informer to the share of any penalty shall have been determined by a court of competent jurisdiction, prior to the application for the remission of the penalty: and the secretary shall have authority to ascertain the facts upon all such applications, in such manner and under such regulations as he may deem proper."
Title 52 of the Revised Statutes, in which sections 4465 and 4469 are found, is entitled "Regulation of Steam-vessels." Those sections and section 5294 were originally enacted as part of the act of February 28, 1871, entitled" An act to provide for the beUer securityof life on board of vessels propelled in whole or in part by steam, and for other purposes," (16 St. at Large, 440;) section 4469 being a part of section 48 of that act, and section 4469 being a part of section 49, and 5294 being, in substance, section 64. ' It is contended for the libellant that the warrant of remission is void and of no effect, because section 5294 is unconstitutional in that it infringes on the pardoning power vested in the president. The constitution (article 2, § 2) provides that the president "shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment." It is contended that this power is exclusive, and that congress cannot lawfully grant to the secretary of the treasury the power conferred on him by section 5294. The power of the president to pardon has always been construed to extend to the remission of fines, penalties, and forfeitures accruing to the United States for offences against the United States. Opt Attys. Gen. 418. In U. S. V. Lancaster, 4 Wash. 64, a vessel had been seized by the collector and libelled for forfeiture for a violation of the embargo laws, and released on a bond for her value. She was condemned as forfeited, and a suit was brought by the United States on the bond. Afterwards the president remitted to the defendant all the right and interest of the United States in and to said bond, and required all proceedings on the part of the United States to be forthwith discontinued. 'fhe question arose in the suit whether the pardon of the president affected the rights of the officers of the customs to the moiety of the forfeiture. It was held that the terms of the pardon were such as to remit only the interest of the United States, and not
the rights of the offioers. The qnestion as to the power of .the president, by pardon, to defeat the inchoate rights of the officers was not passed upon. In U S v. Morris, 10 Wheat. 246, it was held that the interests of officers of the customs in forfeitures were subordinate-to the Ilitithority of the secretary of the treasury, under section 1 of the'act of March 3,1797, 1 St. 'at Lllrge, 506, (now section 5292 of the Revised Statutes,) to remit In the case of a vessel condemned as forfeited to the United States for a violation of the slave-trade act, the presidentwaaadV'ised to remit only the interest of the 'United Statell, on the ground that: his' pardon could not defeat the vested rights of the seizing officer. 4 Op. Attys. Gen. 573. On the question whether the president had the power to pardon offences committed by the owners or masters of steam-vessels in respect to the tranfiportationof passengers ln violation of certain statutes, he was advised that he had such power ;attd the question whether he had authority to remit, by pardon, it penalty accruing to individuals, was suggested, but not discussed. 6 Op. Attys. Gen. 393. In the. calle of a vessel arrested for violating a statute in regard to the transportation of passengers, a rE;lmission being applied for to the secretary of' the treasury, under section 1 of the act of March a, 1797, the question oJcurred whether the case came within the pardoning power of the president. The secretary was
(1) That the president had power to pardon the imprisonment, fines,and forfeitures imposed for violating the provisions in regard to space for, and number of, passengers, unless, perhaps, as regarded a forfeiture, the right of which had duly vested in the custom-house officers, or others, except the United States; (2) that it was doubtful whether the president had power to remit such forfeiture; (3) that the secretary of the treasury had power to remit all forfeitures of vessels for carrying an excess of passengers; (4) that the president had power to pardon in all cases of vessels libelled by reason of liens on them for penalties imposed by the statute; (5) that the secretary of the treasury had the concurrent power to remit in the last-named cases, but any doubt could be cured by the authority of the president, as no .interest but that of the States was affected; (6) that, as the act of 1797 afforded the means of judicial investigation as to the question of remis8lion, it was more convenient in the cases of seizures, and prosecutions instituted by officers of the customs, to dispose of that class of seizures in that way, than to refer them to the unaided discretion of the president. Id. 488.
In U. S. v. Harris, 1 Abb. (U. S.) no, a person was convicted and fined for violating the internal revenue law. Afterwards the court adjudged that H. was the informer, and that one-half of the fine should be for his use and the remainder for the use of the United
States. Afterwards, the president, by a pardon, remitted to the defendant the payment of two-thirds of the tine. One-third of the fine, with interest, was paid into court. The informer claimed, and was allowed, .by the court therefrom the whole of the sum adjudged to him, on the ground that the president had no right to remit any of the part of the fine so adjudged to the informer, and that he was entitled to the whole of such part as if there had been no remission. The conviction was under a statute-act of June 30, 1864, § 41, (13 St. at Large, 23H)-which provided that all suits for fines under it should be in the name of the United States. The court remarkei that where the prosecution was wholly in the name of the United States it saw nothing in any of the authorities which denied to the president the power, by pardon, to remit the interest of an informer before judgment. The view urged by the libellant is that the power of the president to pardon is exclusive; that no part of it can be exercised by any one else without infringing on the power of the president; that if the secretary of the treasury can pardon without the president's concurrence, he may grant pardons W 11ich the president WOUld. refuse; that if congress can authorize the secretary to grant pardons, it can itself grant them, and prescribe the terms and conditions under which they shall be granted; and that if it can authorize the secretary to remit penalties incurred under the statute in question it can authorize him, or anyone else, to remit the punishment of any offence, and can so legislate that after the president has refused to grant a pardon it can still be granted under authority conferred by congress. In support of this view, the case of Ex parte Garland, 4 Wall. 333, is cited, as holding that the power of the president to pardon is unlimited, extending to every offence known to the law, and not subject to legislative control, and that congress can neither remit the effect of such pardon nor exclude from its exercise any class of offenders. The case of U. S. v. Klein, 13 Wall. 128, is also referred to, as holding that congress cannot impair the effect of a pardon, because that would be to infringe the constitutIonal power of the president. There is not, in this case, any question raised Cj,S to the effect of a pardon which has been granted by the president, as thet'e was in Ex parte Garland and in U. S. v. Klein, The question is not as to any restriction of the pardoning power of the president. It is not claimed that the secretary alone could remit this forfeiture, and that the president could not.. The practice of the govel'l1ment, as is seen from the citations, has been to regard the power of the secretary
to remit penalties and forfeitures, of the character of those in the
present case, as a valid power, in concurrence with the power of the president to pardon in the same cases. The existence of the power in the secretary is not regarded as interfering with the pardoning power of the president. The decision in U. S. v. Morris, 10 Wheat. 246, that the secretary's remission of the entire forfeiture-the sel having been seized as forfeited to the United States, and prosecuted in the name of the United States, amt the effect to extinguish the interest of the officers :df the customs in the property, necessarily recognized the fact that the power of these'6retary to remit was a valid power, and did not infringe on tlie pardbti. ing power of the president. A power in the secretary to penalties and forfeitures has existed by statute since 1790, never been regarded as invalid because of the existence of the power in the president to remit, by pardon, the same penalties and forfeitures. Even assuming, then, that the p'resident could discharge; by pardon, the interest of the libellant in the forfeiture of this vessel, it does not seem that the secretary could not be lawfully authorized to discharge it. But it may well be doubted whether the president's power of patdon extends to taking away the interest given by the statute to ,the libellant. If so, then there is no power of pardon to be interfered with by the remission of the secretary. The statute gives nothing to the United States. It does not authorize any prosecntion by the United States by indictment or civil suit. It imposes a penalty, which is made a lien on the vessel, for doing what it declares it shall not be lawful to do; but the penalty is declared to be a pecuniary liability, not to the United States, but to anyone who will sue for it. lt is wholly to such person. While the unlawful act which gives rise to the suit, if to be called an offence, is one denounced by a statute of the United States, yet it may well be doubted whether it is an offence against the United States, in the sense of the constitution; and, still more, whether, if the United States could sue for the penalty which is given to "any person suing for the same," there is any offence against the United States which can be pardoned by the president beyond what is involved in such right of the United States to sue. The power, however, of the president to pardon has never been construed to extend to taking away such rights as' the' statute in this case vests in the libellant, where they have been asserted by a suit brought by an informer in his own name, and whete they belong wholly to him, and the United States have no share in the
penalty. The case of U. S. v.lIarris,8t']Jra, refers to the power pf the president over the wp.ole case, before judgment, as existing only where the prosecution is wholly in the .the United States. 'l'here is, therefore, nothing in the existence of the pardoning power which affects the present case. This. being 80, there can be no doubt that congress, which created the penalty, could provide any method of remitting it. The next q:uestion is as to the construction of section. 5294. It is contended, for the libellant, that that section does not give to the secretary power to remit a penalty after a' suit has been brought by a it. The matter, is a very plain one. The private person to power ex.tends to "any or penalty;" that is, to all fines and penalties. It includes those given to individuals as well.as those given to whether the pardonthe United States.. l?robably, because of a could all cases, and because cases ing power of proper for remis.sion'wQuld arise,tlie power of remission was confided to the secretary to be exercised on an ascertainment of facts, with the rel!trictions, however, tb,at the powe.r should not extend to remittingthe penalty of imprisonment or of removal from office, or to affecting the informers after they had been judicially determined. bElIore the application for, remisl3ion. , It is contended that the power to remit is restricted by the statute, after suit, to cases where the suit is by the United States and under the control of its ,officers. It is also contended that the power given to remit applies only to cases before suit is brought, and that the power to discontinue prosecutions is limited to prosecutions brought by the. United States. ,These views do not .seem well founded.. The statute covers the remiseion of "any" fine or penalty, and although, under the words "discontinue any pl'osecution, " the secretary should be held to pe restricted to discontin"uing prosecutions in the name of the United States, 'yet he may remit any penalty. The limitation of the power of discont.inuing prosecutione does not restrict the power of remission. A prosecution may be discontinued without remitting penalty, and there may be reasons for doing so.; but no reaSOn is perceived why the power to "discontinue any prosecution" does include a suit like the present. Thereis nothing in section to suggest that the power of remission or of discontinuance was not intended to be as broad as the imposition of penalties, except asto the particular matters specially excepted. It is argued that the libellant is not an informer, within scctioll 5294, because he is not a person on whose information the United
Stutes bring suit. But this is too restricted a meaning of the word. , When the section speaks of "rights granted to informers by such laws" it means rights granted to individuals, and not to the United States. The libellant is none the less an informer because he sues in bis own name, and is entitled to the whole penalty. The object of the statute was to provide in favor of the party the penalty a mode of mitigating it, and the mischief sought to be remedied was the same whoever was to receive the penalty. In section 976 the person to whom the whole. of a penalty in a penal statute is directed to accrue, and who sues for it in his own name, is called an "il former." The suggestion that in section 5294 only a person who is entitled to part of a penalty is an informer is too narrow a view. If a person has the whole of a penalty he has all its shares, and his claims are fairly included within the words "the claims of any informer to the sharl:) of any penalty." A person may be an informer without being a "plaintiff on a penal sta.tute," ill the sense of section 975; but a "plaintiff on a penal statute," such as the libellant is, is an informer within section 5294. The fact that by section 41 of the act of August 30,1852, (10 St. at Large, 75) in regard to steam-vessels, all the penalties imposed by it were given to any person who would sue for tliem, and that no p<:>wer of remission of penalties was given by that act, has no tendency to show that under the act of 1871 all penalties;, Som"e[of which al'e to go wholly to the informer and .some partly to the informer and partly to the United States, are not within the power given to the secretary. The warrant of remission must be held to be a complete discharge of the penalties and the passage money lIued Jar in this case, and there must be a decree dismissing the libel and directing the clerk of this court to payout to the proctor for the libellant his portion of the taxed costs of the, libellant in the district conrt, on deposit herein, and to distribute the remainder thereof among the officers of the trict court entitled thereto, and ordering that the libellant pay to the claimant its costs in this court, to be taxed.
See 5 FED. REP. 133.
THE MAGGm MOORE. (Circuit Court, D. MaIl'1/Zana.
May 28, 1881.)
CHARTER- PARTy-SAFE PORT.
The owner of a veRsel chartered her to carry a cargo of grain from Baltimore to a sajeport on the continent between Bordeaux and Hamburg, or as near thereto as she could always float with safety; order to be given on signing bill of lading; charterer's liability to cease as soon as the cargo was shipped, but vessel to have a lien on the cargo for all freight, dead freight, and demurrage. When cargo had been put aboard, the master, without objection to the port, executed bills of lading for delivery of the cargo to charterers or their assigns at France. The vessel was delayed in getting into the port of Calais by want of water on the bar at the mouth of the harbor, and also sutIered delay in discharging because the dock was' out of repair and could not admit her, and the owner in this libel in personam sued the charterers for damages for ordering the vessel to an unsafe port. Held, that Calais being a well-known commercial port, the master, by signing the bills of lading in which Calais was named, and agreeing to deliver the cargo there, had accepted that port as a safe· one, and thereby bound his owner; that the risk of the ignora:ilceof the master, or his to decide whether or not it was a safe port for the vessel, was to be borne by the owner and not by the charterer. Held, also, that tlle master, having accepted the port as a safe one, was bound to tender the cargo as near thereto as the vessel could get and float with safety, and that for demurrage and expenses thereafter the consignee of the bill of lading would be liable, and not· the under the limitation of contained in the charter·· party. .
Appeal in Admiralty.
Sebastian Brown, for libellant. Marshall et Fisher, for respondents.
WAITE, Chief Justice. Andrew K. Moore, the appellant and libellant, was the owner of the bark Maggie Moore, and on the twentyfifth of August, 1879, through agents at Baltimore, he chartered his vessel to Milmine, Bodman & Qo., the appellees and respondents, to take a cargo of wheat or Indian corn "from the port of Baltimore, Mdj, to a safe port on the continent between Bordeaux and Hamburg, both included; orders to be given on signing bills 01 lading; one port only to be used, or as near thereunto as she can always float with safety," Twenty-seven running days were given for loading and discharging; and for detention beyond that, by default of the charterers or their agent, demurrage at the rate of £18 per day, day by day, was to be paid. The Charter-party also contained the following:
"The cargo or cargoes to be received and delivered alongside of the vessel, where she can load and discharge always afloat, within reach of her taekles.