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Section 1216 in its present form (acts of February 9, 1891; 26 Stat., 737: and of March 29, 1892; 27 Stat., 12) provides that when any enlisted man of the Army shall have distinguished himself in the service, the President may, at the recommendation of the commanding officer of the regiment or the chief of the corps to which such enlisted man belongs, grant him a certificate of merit. This is an explicit provision for enlisted men of the Army, not of the Navy or of the Marine Corps. It seems to me to be exclusive, for there is corresponding provision for the Navy, which, in its original form (sec. 1407, Rev. Stat.), conferred upon seamen a gratuity and medal of honor for distinguished and heroic service. By the act of March 3, 1901 (31 Stat., 1099), this reward was expressly extended to any enlisted man of the Navy or Marine Corps who shall have distinguished himself in battle or displayed extraordinary heroism in the line of his profession.

In view of this clear distinction created by the terms of the law between the enlisted men of the Army and of the Navy and the Marine Corps, respectively, in regard to extraordinary reward for distinguished service, it does not seem to me that section 1612, Revised Statutes, assimilating the Marine Corps to the Army in respect to ordinary pay, allowances, and bounty for reenlisting, is applicable to the special reward for gallant service so as to bring the Marine Corps within section 1216. In consequence of these views, I have the honor to answer your inquiry in the negative. Very respectfully,

The SECRETARY OF THE NAVY.

P. C. KNOX.

MEDAL OF HONOR-OFFICER-PRIVATE-MILITARY

SERVICE.

Under section 6 of the act of March 3, 1863 (12 Stat., 751), the President may present a medal of honor to an officer or private in the military service of the United States who has distinguished himself in action, notwithstanding he is not in the military service at the time the case reaches the President for consideration, provided the application or recommendation therefor was made while he was in the military service.

A medal of honor can not be awarded where the application or recommendation therefor is made after the officer or private has been discharged from the military service.

DEPARTMENT OF JUSTICE,

February 6, 1903.

SIR: By your reference dated January 3, you submit for my opinion the following questions propounded by the president of the medal of honor and certificate of merit board relative to cases pending before that board:

"1. When an officer, non-commissioned officer, or private in the military service of the United States has most distinguished or may hereafter most distinguish himself in action, can the President present to such person a medal of honor under section 6 of the act of Congress approved March 3, 1863 (12 Stat., 751), notwithstanding the fact that he is not in the military service at the time the case reaches the President for consideration, provided the application or recommendation therefor was made while he was in the military service?

“2. Can a medal of honor be awarded when the application or recommendation therefor is made after the officer, non-commissioned officer, or private has been discharged from the military service; and if so, what, if any, limit of time will bar the award of a medal in such a case?"

The law cited is as follows:

"That the President cause to be struck from the dies recently prepared at the United States mint for that purpose, medals of honor' additional to those authorized by the act [resolution] of July twelfth, eighteen hundred and sixty-two, and present the same to such officers, non-commissioned officers, and privates as have most distinguished or who may hereafter most distinguish themselves in action; and the sum of twenty thousand dollars is hereby appropriated out of any money in the Treasury not otherwise. appropriated to defray the expenses of the same.”

In an opinion of the Judge-Advocate-General dated September 2, 1891, it is suggested that this act is no longer in effect. It may, indeed, be forcibly argued that the language of the act shows a temporary and special purpose

appropriate to the immediate events of that time, and that the law was probably intended, although without restrictive words, to apply only to the particular President, officers, men, and actions then contemplated by Congress. The officers and men were those then in service who had distinguished themselves or who might distinguish themselves in actions taking place from day to day in the civil war. The act or resolution of 1862, mentioned in the act of 1863, uses the phrase "during the present insurrection," which may qualify the word "hereafter" in the later act. The act of 1863 was not carried into the Revised Statutes. The reasons are apparent for the suggestion that its scope was thus limited and that it is now obsolete.

I do not, however, undertake to decide this point, which I am not strictly called upon to do under your present application. I should, indeed, hesitate to hold that the act is not in force against the uninterrupted practice of your Department. But the doubt regarding it falls in with the opinion of my predecessor (20 Opin., 421) regarding the necessity of prompt application for a medal of honor, so as to convince me that your questions must be answered as indicated by the reasoning and principles invoked in my opinion of September 23 [ante, p. 127], 1902, regarding the somewhat similar "certificate of merit" law. In that case, it is true, unlike the present, the practice of your Department, with substantial uniformity, confirmed the application of the principles indicated. Yet, on consideration of the whole subject, I have no hesitation in reaching the conclusion that your first question must be answered in the affirmative, and the first portion of your second question in the negative, which renders it unnecessary to answer the final portion of that question. I have the honor to advise you accordingly, and remain,

Very respectfully,

The SECRETARY OF WAR.

P. C. KNOX.

SECRETARY OF THE TREASURY-SMUGGLING-SEIZURE

AND FORFEITURE-REMISSION OF PENALTIES.

When property subject to forfeiture for smuggling or cognate offenses is seized, the appraisement should be in accordance with section 3074, Revised Statutes, and not under section 13 of the Customs Adminis trative act (26 Stat., 136).

Smuggling is the actual passage of dutiable goods through the lines of the customs house without paying or securing the payment of the duties thereon.

The purpose of the law as to smuggled or unentered goods, requires the exaction of the so-called "home value" as the condition of release on payment of the appraised value, but not as implying the assessment of duties on such goods.

Smuggled goods are to be associated with prohibited goods and are not liable to duty. The Government should, therefore, limit its action to forfeiture of the goods and prosecution of the offender.

Where, upon the seizure of smuggled or unentered goods, the Secretary of the Treasury, in the exercise of his power to remit fines and penalties, accepts in lieu of forfeiture the payment of such an amount as he deems just and equitable, the amount paid should be treated as a fine imposed rather than as a duty collected.

The power of the Secretary of the Treasury to release and remit fines, penalties, and forfeitures under sections 3081 and 5293, Revised Stattutes, and under sections 17 and 18 of the act of June 22, 1874 (18 Stat., 189), now subject to the restriction of section 7 of the Customs Administrative act as amended (30 Stat., 212), relates only to civil liability and consequences where the value of the property seized or the amount of the fine or forfeiture incurred does not exceed $1,000; but does not include penalties "accrued" or "incurred" which have been "adjudged" as part of the punishment under an “indictment.”

DEPARTMENT OF JUSTICE,

February 17, 1903.

SIR: In your letter of January 22, you refer again to the question of collecting duties on goods imported and entered under a fraudulent invoice, which have been subsequently seized and forfeited, and on goods the importation of which is specifically prohibited, citing my opinions of March 12, 1902 [ante, p. 1], and January 6, 1903 [ante, p. 556], upon this subject. You remain in doubt whether duties should be collected, notwithstanding subsequent seizure and forfeiture, on smuggled goods or unentered goods which, in violation of the revenue laws, have in any way surreptitiously escaped the customs officers.

In connection with this subject, and in relation to sections of the Revised Statutes (secs. 3074, 3081), which, under certain limitations as to value, direct appraisement of merchandise seized for violation of the revenue laws, and authorize release upon payment of the appraised value, you cite 23 Opin., 377, holding that when appraisement relates to dutiable value under section 7 of the Customs Administrative act respecting undervaluation, section 13 of that act and not section 3074, Revised Statutes, prescribes the method of appraisement, although seizure and forfeiture may result from the undervaluation. Thereupon you request my opinion on the following questions:

1. Does section 13 of the Customs Administrative act provide the proper remedy for the appraisement of smuggled or unentered goods seized for violation of the customs revenue laws? If so, is the Treasury Department, in releasing such goods on payment of the appraised value under section 3081, Revised Statutes, required to exact the home value, namely, the foreign value with the duty added, or is the term "appraised value" therein used to be understood as meaning the foreign value alone?

2. Are not smuggled goods, other than those specifically and absolutely prohibited, in principle ideally prohibited goods; and if such, should or should not the Government limit its action to the forfeiture of the goods and the prosecution of the offender?

3. If duties or their equivalent are to be exacted on smuggled or unentered goods seized for violation of law, should such collections be treated as fines or duties?

As to the first question: It is necessary to determine what your words "smuggled or unentered goods" intend to embrace. It is evident from various references in your letter that by unentered goods you indicate violations of the revenue laws which are akin to smuggling, which rest under a certain presumption of willfulness of act or default, as seeking the clandestine entrance of merchandise without paying duty. Smuggling is the actual passage of dutiable goods. through the lines of the custom house without paying or securing the duties. Provision against the end, smuggling, is made by the enactment of numerous distinct and separate

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