Imágenes de páginas
PDF
EPUB

reference only to seamen who were engaged in good faith in the business of navigation; for while the exclusion acts referred to have no reference to seamen, whose presence in this country is but temporary and for the purposes of navigation, yet it is obvious that aliens otherwise excluded by law can not be brought within this country to remain here permanently under any pretense that they are brought here

as crews.

In this connection I refer you to my opinion given to your Department on September 10, 1901 (23 Opin., 521). I mention this, as your request for an opinion does not state any facts with reference to the present applications for leave to transfer crews. I therefore can not express any opinion as to whether the crews now under consideration should be transferred. This opinion has no further purpose than to advise you that this Department adheres to its opinion of August 29, that the Chinese exclusion laws and the alien contract labor laws have no application to seamen, who in good faith are engaged in navigation, and who are temporarily within a port of entry for that purpose. The application of these principles to the facts of particular cases is a matter of administrative judgment, which may involve questions of fact as to the good faith of the application, and upon such exercise of judgment I am not called to, and therefore do not, express any opinion.

I find nothing in the cases of Fok Yung Yo v. U. S. (185 U. S., 296) and Lee Gon Yung v. U. S. (185 U. S., 306) in conflict with the views above stated. These cases have reference to Chinese laborers who came to the United States as passengers, and therefore have no application to cases of Chinese seamen.

The papers with your letter of transmittal are herewith returned.

Respectfully,

JAMES M. BECK,

Acting Attorney-General.

The SECRETARY OF THE TREASURY.

ATTORNEY-GENERAL-OPINION.

The Attorney-General declines to express an opinion upon the question whether the joint resolution of July 1, 1902 (32 Stat., 750), construing the pension act of June 27, 1890 (26 Stat., 182), has any retroactive force, for the reason that the question is not predicated upon an actual case arising in the Interior Department, and for the further reason that that Department has an officer clothed with authority to determine questions of that nature, in the first instance, coming up on appeal from the Pension Bureau.

DEPARTMENT OF JUSTICE,
January 2, 1903.

SIR: Your request of July 12, and subsequent correspondence, submit for my opinion the question whether the joint resolution approved July 1, 1902, construing the pension act of June 27, 1890, has a retroactive force.

It does not appear that this question is predicated on an actual case which has arisen in your Department, although there is among the papers submitted a statement of a pro forma case which does not refer to any particular individual. Upon this ground I must respectfully decline to comply with your request (19 Opin., 332; 20 Opin., 536; 21 Opin., 109; id., 568), and on the further ground that it seems in the organization of your Department an officer thereof is clothed with authority to determine questions of this nature, in the first instance at least, coming up on appeal from the Pension Bureau.

Very respectfully,

JOHN K. RICHARDS,

Acting Attorney-General.

The SECRETARY OF THE INTERIOR.

CUSTOMS LAWS-COLLECTION OF DUTY ON GOODS PROHIBITED FROM ENTRY.

The Treasury Department is not required by the statutes to levy and collect duty or its equivalent on goods, the importation of which is specifically and absolutely prohibited.

DEPARTMENT OF JUSTICE,

January 6, 1903.

SIR: Your letter of August 18, 1902, refers to certain decisions of the courts (Gray v. United States, 113 Fed.

Rep., 213; Baldwin v. United States, Id., 217), and to an opinion of my own dated March 12, 1902, and proceeds to call my attention to the case of MeLane v. United States, 6 Pet., 427, in which it was held that

*

*

"In point of law, no duties, as such, can legally accrue upon the importation of prohibited goods; they are not entitled to entry at the custom-house or to be bonded. They are ipso facto forfeited, by the mere act of importation. It is impossible, in a legal sense, to sustain the argument, that the importation could be deemed innocent, and the Government could be entitled to duties, as upon a lawful importation. It was entitled to the whole property, by way of forfeiture; and to nothing by way of duties."

Thereupon you ask my opinion on the following questions: 1. Whether the Treasury Department is required by the statutes to levy and collect duty or its equivalent on prohibited goods by which you refer to goods the importation of which is specifically and absolutely prohibited. I answer this question in the negative.

2. Whether in all other cases of seizure for violation of the customs revenue laws the Department is authorized to levy and collect a fine equivalent to and in lieu of duty, and treat the collection as a fine, or to levy and collect duty and to account for the collection as duty. As to your second query, I must respectfully request a specific statement of "all other cases of seizure" to which you refer before I give my opinion.

Very respectfully,

The SECRETARY OF THE TREASURY.

P. C. KNOX.

AWARD OF CONTRACT FOR COAL FOR POST-OFFICE
DEPARTMENT.

Section 412, Revised Statutes, does not prohibit the Postmaster-General from awarding a contract for furnishing coal for his Department to a firm, it being the lowest bidder, one of the members of which is an officer of that Department; but if the contract was one for "carrying the mail," it clearly would be within the general prohibition of that section.

Nor does section 1783, Revised Statutes, prevent the awarding of such contract to the firm, if the officer does not "act as an officer or agent of the United States" with reference to the purchase of the coal. That section, being quasi-penal in character, must be strictly construed; and, under such construction, a partner can not be held to be an "agent," for he is a principal, and the act is essentially the act of principals.

While there is no statute forbidding the Postmaster-General from awarding the contract to such firm, he is under no legal obligation to do so. As the question of the acceptance of any bid is a matter of administrative judgment and discretion, the Attorney-General is without authority or obligation to express an opinion with reference to it.

DEPARTMENT OF JUSTICE,

January 15, 1903.

SIR: I have the honor to acknowledge the receipt of your letter of the 8th instant, in which you ask my opinion as to whether you can award a contract for the purchase of coal for the use of your Department under the following circum

stances:

On December 30, 1902, sealed proposals were invited for furnishing the Post-Office Department with bituminous coal for the remainder of the fiscal year ending June 30, 1903. An advertisement was placed therefor in three Washington papers, and a typewritten copy thereof was sent to about twenty-two coal dealers. Four bids were submitted in response thereto, the lowest being that of Machen Brothers, who propose to furnish 2,000 tons (the amount probably needed by the Department for the balance of the present fiscal year) for $5.75, which is $2.55 per ton cheaper than the next lowest bid. You state that the proposal is properly executed, and that no question has arisen in this respect. The fact is presented, however, that the firm of Machen Brothers is composed of William A. Machen and August W. Machen, the latter being Superintendent of Free Delivery in the Post-Office Department.

The question thus submitted involves a construction of the following sections of the Revised Statutes:

"SEC. 412. No person employed in the Post-Office Department shall become interested in any contract for carrying the mail, or act as agent, with or without compensation, for any contractor or person offering to become a contractor,

in any business before the Department; and any person so offending shall be immediately dismissed from office, and shall be liable to pay so much money as would have been realized from said contract, to be recovered in an action of debt, for the use of the Post-Office Department."

"SEC. 1783. No officer or agent of any banking or other commercial corporation, and no member of any mercantile or trading firm, or person directly or indirectly interested in the pecuniary profits or contracts of such corporation or firm, shall be employed or shall act as an officer or agent of the United States for the transaction of business with such corporation or firm; and every such officer, agent, or member, or person, so interested, who so acts, shall be imprisoned not more than two years, and fined not more than two thousand dollars nor less than five hundred dollars."

If

In my judgment, section 412 does not forbid you from awarding the contract to the firm of Machen Brothers. the contract was one "for carrying the mail" it would clearly be within the general prohibition which forbids any employee of the Post-Office Department from having any interest in such a contract. Congress did not see fit, however, to apply such general prohibition to every kind of a contract, but limited its inhibition to the special kind of contract above referred to. It did, however, prohibit any employee from acting "as agent, with or without compensation, for any contractor or person offering to become a contractor, in any business before the Department."

The statute is in derogation of common right, and is quasipenal in character. It provides for the immediate dismissal of any post-office employee who does act as such agent, and subjects him to a heavy liability. It must, therefore, be strictly construed. Under such construction a partner can not be held to be an "agent," for he is a principal, at least in making a joint bid for a contract. The act is essentially the act of principals. Without deciding that a partner could not act as the "agent," within the meaning of the act of Congress, for the firm of which he is a member in the transaction of business before your Department, I am of the opinion that the mere joinder with his partner as principals

« AnteriorContinuar »