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regular proceedings to condemn and sell in other instances. The power of release or remission, to be exercised under a sound discretion, would then supervene, where the value of the property appraised or the amount of the forfeiture accrued or incurred does not exceed $1,000 under sections 3081 and 5293, or under sections 17 and 18 of the Anti-Moiety act of 1874 (21 Opin., 101; id., 283), when the value exceeds that sum.

As I said to you in another opinion delivered to you this day upon a related subject [ante, p. 588]:

"Since the Secretary may absolutely remit, he may remit and release on terms, as by the payment of such amount as he may determine to be just and equitable. In such case the amount paid should be treated as a fine imposed."



I may add that I see no reason why you may not, if you deem it right, measure the fine by the amount of duty on a regular importation of the same character and value, and impose an equivalent amount by way of fine or penalty, or rather in settlement of the greater penalty of a total forfeiture.

I therefore have the honor to answer your question in the affirmative.

Very respectfully,




The mere transfer from one vessel to another in a port of the United States, of alien passengers en route to their destination in a foreign country, does not subject such persons to the payment of the "head or duty prescribed by section 1 of the act of August 3, 1882 (22 Stat., 214), as amended by the act of August 18, 1894 (28 Stat., 391). Opinions of May 22, 1885 (18 Opin., 185), and June 15, 1897 (21 Opin., 543), concurred in.


February 28, 1903.

SIR: I have the honor to respond to your note of February 12, 1903, in which, with its inclosures, you request my official opinion upon several questions there stated.

In reply, I have to state that some of the questions there submitted do not appear to be questions arising upon an actual case pending in your Department, and for that reason are not specifically answered here.

The principal question is whether the head tax prescribed by section 1 of the act of August 3, 1882 (22 Stat., 214), as amended by the act of August 18, 1894 (28 Stat., 391), is properly collectible on account of three Chinese passengers who arrived in the port of San Francisco July 5, 1902, under the following circumstances:

These persons took passage at Hongkong upon one of the steamships of the Occidental and Oriental Steamship Company, for Jamaica, West India Islands. The usual way for completing such voyage is to trans-ship in the port of San Francisco to a vessel bound for Panama, and there to a vessel bound for Jamaica, and this is what was contemplated in the case of these persons. Upon arrival in the harbor of San Francisco, without landing or going ashore, these passengers were transferred from the vessel in which they arrived to one bound for Panama and went their way to their destination. The transfer was en route and in the prosecution of their original yoyage, and their entry into a port of the United States merely for the purpose of transfer was thus an unavoidable incident of their voyage through to their actual and ultimate destination.

Section 1 of the act of August 3, 1882, provides:

"That there shall be levied, collected, and paid a duty of fifty cents for each and every passenger, not a citizen of the United States, who shall come by steam or sail vessel from any foreign port to any port within the United States."

By the act of August 18, 1894, this duty was increased from 50 cents to $1 per capita.

Either this section must be taken literally and just as it reads or it may require construction dependent upon extrinsic facts. In the first case, all that is necessary in order that the prescribed duty be collectible is that the passenger be an alien, and come by steam or sail vessel from a foreign port into a port within the United States, quite independent of other considerations as, for example, whether such be the

port of his destination or merely a place where the vessel touches en route to the real destination; or whether he lands at such first port; or whether he there trans-ships to another vessel or continues his voyage in the same vessel, so long as he thus comes" to a port within the United States." In the other case construction may be resorted to in order to determine whether, in view of all the facts and circumstances which may and often do exist, Congress intended such literal application of the section, and meant that the duty should be collected and paid in every instance of such entry into a home port, however transitory, or for whatever purpose, and even in case of distress.

Whether the one or the other of these ways of reading this law might be considered correct, were the question one of first instance, this Department has heretofore adopted the latter view, and I am not disposed to question its correctness. (See 18 Opin., 135, and 185; and 21 Opin., 543.) Neither of these proceeded upon the idea that this section requires a literal reading or application, but, in each, resort was had to construction by the aid of attendant extrinsic facts, in order to determine the true meaning and application of the section. And in 21 Opin., 543, the meaning thus determined is quite different from the literal reading of the act. I am not disposed to depart from this ruling of my predecessors, that the act does not require the payment of this duty upon every such entry, however casual or temporary, into a port within the United States, nor to disaffirm the doctrine of the case last referred to. In that case, following some intimations of the Supreme Court, it was held that the capitation tax was imposed only upon alien passengers whose destination was this country, and not upon those who casually come into our ports, en route to some other destination. As said by the Supreme Court in Henderson v. The Mayor of New York (92 U. S., 274), a case involving a somewhat similar tax, this duty is “in effect, a tax on the passenger, which he pays for the right to make the voyage-a voyage only completed when he lands on the American shore." This means, of course, that he pays the tax for the right to make the whole voyage; and the voyage

is not completed, nor the tax payable until he has reached the destination of that voyage; and if that be some country beyond this, the duty does not become payable upon his entry into one of our ports en route to that destination.

This doctrine, and that of the case referred to in 21 Opin., supra, is quite conclusive of the case here considered. Indeed, the latter case is the same as this in principle.

Nor is there, as is suggested, any conflict or discrepancy in that case and the one referred to in 18 Opin., 185. In 21 Opin., 543, it was held that in the case of certain Japanese, sailing from Yokohama bound for Mexico, who came into the harbor of San Francisco and were there trans-shipped to a vessel bound for a Mexican port, this capitation tax was not collectible. This was because their destination was not reached nor their voyage completed. In the case in 18 Opin., 185, certain alien tourists landed in New York for a temporary sojourn in this country, and the tax was held to be payable. This was because they had reached their destination--the United States-and their voyage was completed. The cases are entirely consistent, and their doctrine is that, when the destination of an alien passenger from a foreign port is this country, and he has reached the port of that destination, the tax is payable, no matter what may be his intention as to the length or purpose of his stay here. But when the destination of such alien passenger is some country beyond this, and he enters a port of the United States en route and as part of the voyage or journey to his destination, the tax is not payable on his account. And with this I concur.

Specifically, I have to advise you that in the case of the three Chinese passengers referred to in your note and its inclosures, bound for Jamaica and trans-shipped in the harbor of San Francisco, en route to their destination, the tax or duty prescribed by section 1 of the act of August 3, 1882, is not payable.






The words "is authorized" contained in that provision of the River and
Harbor act of June 13, 1902 (32 Stat., 342), which confers upon the
Secretary of War the power to purchase or build a dredge for use in
harbor improvement and maintenance in Lake Erie, while equivalent
to the word "may," are used in a mandatory sense and are binding
upon the executive, whose duty it is to carry them into effect.
While "may" in any statute is ordinarily to be construed as "shall"
or "must" when public rights or interests are concerned, yet the
construction depends upon the context of the statute, the test being
the intent of the legislature.

February 28, 1903.

SIR: I have the honor to respond to your letter of February 6, in which you cite the provision in the act of June 13, 1902 (32 Stat., 342), which authorizes the Secretary of War to purchase or build a dredge for use in harbor improvement and maintenance upon Lake Erie; and, calling attention to similar provisions in the same statute for the construction of dredges in connection with works of river and harbor improvement in Lake Michigan, you ask my opinion on the question whether the requirements of the law in question in respect to the work of dredge construction provided for are mandatory in character, or whether they are wholly or in part directory.

It is fundamental that the work of river and harbor improvement, and undertakings tributary thereto like the dredge construction now presented, are incidents of the national power to regulate navigation and commerce. The authority and initiative of Congress is complete and exclusive. An illustration of the exercise of this jurisdiction by Congress directing and restricting the executive, is shown by the fourteenth section of the act before us (32 Stat., 376), in which the Secretary of War is directed to cause preliminary examinations or surveys to be made respecting harbor improvement, and which requires such preliminary examination unless a survey or estimate is expressly directed; and provides that, in case after preliminary examination the particular improvement is not deemed

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