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should be acted upon by the collector of customs. It appears that such a decision was rendered recently in the case of certain importations of tea at New York, and that the decision is claimed by attorneys for the importers to be invalid for the reason that the three members constituting the board did not participate in the hearing.
The act of March 2, 1897 (29 Stat., 604), "to prevent the importation of impure and unwholesome tea," provides, among other things, for the examination by an examiner of all teas brought into the United States (sec. 4); and in case either the importer or collector shall protest against the finding of the examiner as to the purity, quality, and fitness for consumption of any tea imported when compared with the proper standards, "the matter in dispute shall be referred for decision to a board of three United States general appraisers, to be designated by the Secretary of the Treasury, and if such board shall, after due examination, find the tea in question to be equal in purity, quality, and fitness for consumption to the proper standards, a permit shall be issued by the collector for its release and delivery to the importer; but if upon such final reexamination by such board the tea shall be found to be inferior in purity the importer or consignee shall give a bond to export said tea out of the limits of the United States
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Section 8 provides that "the decision of such board shall be in writing, signed by them," and transmitted, with the record and samples of tea, to the collector.
As I understand, the doubt that has given rise to your question is not as to the power of a majority of the tea board to act, but as to the validity of such action when the matter was considered by only two of the three members.
There is no provision in the act of 1897 for a hearing by a majority of the tea board. The general rule is that an authority given to several for public purposes may be executed by a majority of their number. (Cooley v. O'Connor, 12 Wall., 391, and auth. cit.; cases cited in Curtis v. County of Butler, 24 How., 435; United States v. Ballin, 144 U. S., 1.) Where, however, the duty is one that requires the exercise of discretion and judgment, although a majority of the
persons to whom the authority is given may act, the full number must meet and deliberate together, unless special provision is otherwise made.. (23 Am. & Eng. Ency., 2d ed., p. 368, and cas. cit.) It is stated in Sutherland on Statutory Construction, sec. 390: "Where any number of persons are appointed to act judicially in a public matter, they must all confer, but a majority may decide." And see also to the same effect, Endlich on interpretation of Statutes, page 605.
I think, however, that these rules do not apply to the present case; that Congress has so far clothed the tea board with judicial powers that it may, like a court, sit whenever a majority of its members are present. With respect to
boards of a similar character, it has been held that such tribunals have the same power that belongs to courts. Thus in Marine v. Lyon (65 Fed. Rep., 992), the court held that the board of classification created by section 14 of the Customs Administrative act has judicial authority conferred upon it by statute, "and the phraseology implies a court." In the case of In re Van Blankensteyn (56 Fed. Rep., 475), the court said that in the circuit court the return of the board is to be considered substantially as the report of a master is considered in that court, or as the record including the opinion of the court in an equity or admiralty suit is considered in an appellate court. And it is evident from the language of the opinion in Sang Lung v. Jackson (85 Fed. Rep., 502), where it was held that the action of the tea board in rejecting certain tea as impure and unwholesome, being a decision of fact by a tribunal to which the matter is referred by law, can not be reviewed by the courts, unless the decision interferes with a vested right and has been induced by fraud or by mistake of law, that the court takes the same view in regard to the tea board.
While the question is not free from doubt, I am of opinion, on the whole, that a majority of the tea board may properly hear and decide the questions presented to it, and that the decision of such majority is valid and binding.
The SECRETARY OF THE TREASURY.
P. C. KNOX.
CHINESE EXCLUSION LAWS-DEBTS "PENDING SETTLEMENT."
An open book account of over $1,000 of a registered Chinese laborer seeking to return to this country, with a Chinese debtor, the existence of which account has been established, is one "pending settlement” under Article II of the treaty with China of December 8, 1894 (28 Stat., 1210), and is one "unascertained and unsettled" within the meaning of section 6 of the act of September 13, 1888 (25 Stat., 476). The term " pending settlement" may mean more than "pending payment;" it may include ascertainment. The word "settlement" in legal use embraces both ideas—the idea of discharging an obligation by payment, and the idea of arriving at its amount by ascertainment and adjustment.
DEPARTMENT OF JUSTICE,
May 9, 1903.
SIR: Your letter of May 2 advises me that Pon Hung, a registered Chinese laborer returning to this country under a return certificate duly issued, has been excluded by the collector of customs at San Francisco and has appealed to you. The ground of exclusion is that a certain debt due the Chinaman is not of the requisite character under the law to entitle him to return. It consists of an admitted liability on open-book account, and its status appears not to have changed since the Chinaman applied for and obtained a return certificate based upon the existence of this debt. Upon this state of facts you request my opinion upon the following points:
First. Assuming that appellant has established the existence of an open account with a certain Chinese debtor, which account shows a net balance due appellant of $1,050.75, is said debt "pending settlement" as described in the language of Article II of the treaty of December 8, 1894, or is it a debt "unascertained and unsettled, and not promissory notes or other similar acknowledgements of ascertained liability" as defined in section 6 of the act of September 13, 1888 (25 Stat., 476)?
Second. If the said debt be not such an one as is pre scribed by the above-quoted treaty and law to be proven to establish the right of a returning Chinese laborer to admission, should it be deemed "property" in the sense in which that word is used for the same purpose in the treaty and law aforesaid?
The treaty (Article II) provides that the absolute prohibition of entry by Chinese laborers into the United States "shall not apply to the return to the United States of any registered Chinese laborer who has property therein of the value of one thousand dollars, or debts of like amount due him and pending settlement." The language of section 6 of the act of 1888 is: "That no Chinese laborer within the purview of the preceding section shall be permitted to return to the United States unless he has * property therein of the value of one thousand dollars, or debts of like amount due him and pending settleIf the right to return be claimed on the ground of property or of debts, it must appear that the property is bona fide and not colorably acquired for the purpose of evading this act, or that the debts are unascertained and unsettled, and not promissory notes or other similar acknowledgments of ascertained liability.”
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The act of April 29, 1902 (32 Stat., 176), provides by its first section that existing Chinese-exclusion laws shall be continued "so far as the same are not inconsistent with treaty obligations."
On behalf of the Chinaman the argument is made that the treaty, being the later expression of the law-making will, has repealed the statute. This presupposes an irreconcilable repugnancy between the two laws. To that I can not assent. It is true that in 23 Opin., 545, I held that the treaty abrogated the statute in respect to that provision of section 7 of the latter which requires consular certification of a cause of delay in returning; but this was because the treaty had changed the particular rule on that subject. Here there is no such inconsistency between the two laws. The treaty and the first paragraph of section 6 of the act use precisely the same expressions. The words of the last paragraph of the act merely amplify and construe the meaning of "property" and "debts pending settlement." It is proper to assume that the meaning thus placed upon these words by existing law was in the minds of the negotiators of the treaty. In general, the act of 1888 has always been regarded as existing law, although doubts have been expressed and it has been held that certain portions did not
take effect or have been replaced (cases cited in 2 Supp. R. S., 141, note 1; Li Sing v. United States, 180 U. S., 486; Fok Yung Yo v. United States, 185 U. S., 296; 23 Opin., 545, ut supra; Id., 619, 621).
Nevertheless, I am of opinion that the law, construed as a whole, contemplates and includes a debt of the kind presented here. "Pending settlement" may mean more than "pending payment;" it may include ascertainment. The word "settlement" in legal use embraces both ideasthe idea of discharging an obligation by payment; the idea of arriving at its amount by ascertainment and adjustment. The extent to which "settlement" in these laws includes ascertainment, the process of reduction to liquidated certainty, so as to shut out an obligation definitely and concretely determined, is shown by the statute itself, where in contrast with debts "unascertained and unsettled" it specifies promissory notes or other similar acknowledgments of ascertained liability. Here, then, is the test. Without undertaking to show what would be included in "other similar acknowledgments," I am satisfied that ordinary book accounts are not to be included. Respecting debts of that character it is obvious that settlement may often include something more than payment. Even when the obligation is generally admitted, collection may require negotiation and the personal attention of the creditor. If it is necessary that the debt. should rest wholly in claim and controversy, that it should be vague and indeterminate, as, for instance, upon complicated and unadjusted mutual accounts, then there is little room left for the operation of the law. Yet its purport and intention seem to be plain to an ordinary understanding, and, consisting in part of a treaty obligation, the principle of fair and liberal construction should be applied.
It is easy to perceive why the law excluded promissory notes from the category of debts entitling to return, since, like colorable transfers of property, they might be given to evade the law and merely to qualify an applicant when no bona fide indebtedness existed. The door would be opened still further to colorable and unfounded claims if it were held that the indebtedness in order to qualify must be wholly indeterminate and unadjusted; or if that avenue