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only when it shall have become an actual obstruction to the free navigation of the river.
As to any portion of the filled-in land occupied by the west abutment of the bridge in question, which of course could not be removed prior to the removal of the bridge, a different question would be presented. If the filled-in land is removed up to the bridge, or as far as the maintenance of the bridge will permit, I have no doubt as to your authority to proceed under section 18 of the act of March 3, 1899, for the alteration of that structure and the removal of the filling necessary to its maintenance. In such contingency the filled-in land should be regarded as constituting a part of the bridge, that being the only purpose which it would subserve. In effect the situation would be precisely the same as if the river had been filled in expressly for the purpose of constructing the bridge. Whether, in the contingency referred to, the railway company or the sanitary district should remove the filling used for the maintenance of the bridge, it is unnecessary to determine. Notice to remove the same should be given to both.
In this connection it is to be noted that the Supreme Court of Illinois has held that the sanitary district, although the owner of the land referred to, was estopped from disputing the right of the railway company to use the same for its bridge, in view of the fact that its grantor, the city of Chicago, had permitted the erection of the bridge after it had been acquired for the purpose of widening the river. (Sanitary District v. Metropolitan West Side Elevated Railway Company, 241 Ill. 622.) Such estoppel, however, does not affect the Federal Government, and the decisions are clear as to your authority to proceed under section 18 of the act of March 3, 1899, for the alteration of the bridge when, by reason of the widening of the channel up to that point, it has become an actual obstruction to the free navigation of the river. (West Chicago Street Railroad Company v. Chicago, 201 U. S. 506; Union Bridge Company v. United States, 204 U. S. 364; Monongahela Bridge Company v. United States, 216 U. S. 177; Northern Pacific Railway Company v. Duluth, 208 U. S. 583; St. Paul, Minneapolis & Manitoba Railway Company v. Minnesota, 214
U. S. 497; Cincinnati, Indianapolis and Western Railway Company v. City of Connersville, 218 U. S. 336; Hannibal Bridge Company and Wabash Railroad Company v. United States, decided May 15, 1911, not yet reported.)
While this bridge was built in accordance with plans approved by the Secretary of War, as required by section 7 of the act of Congress approved September 19, 1890 (26 Stat. 426), it is necessarily subject to the power conferred upon the Secretary of War by sections 4 and 5 of the same act to require the alteration of “any railroad or other bridge now constructed, or which may hereafter be constructed, over any of the navigable waterways of the United States” to meet the needs of navigation, which provisions are now embodied in section 18 of the act of March 3, 1899. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF WAR.
REMISSION OF PENALTY AFTER ENTRY OF FINAL JUDG
The Secretary of Commerce and Labor has authority, under section
5294, Revised Statutes, to remit or mitigate a penalty after entry of final judgment incurred for violating a provision of law relat
ing to vessels and seamen and discontinue the prosecution. The costs which are not, as a general rule, charged against the de
fendant when proceedings are discontinued by the plaintiff, may also be remitted or mitigated by the Secretary in accordance with the provisions of section 5294, Revised Statutes.
DEPARTMENT OF JUSTICE,
June 9, 1911. Sir: I beg to respond to your request of the 20th ultimo for my opinion as to your authority to remit or mitigate the penalty incurred by Daniel Nevins and discontinue the proceedings against him for a violation of the provisions of section 4438 of the Revised Statutes.
You state in your letter that:
“Judgment by default was entered in the district court of the southern district of New York in the sum of $139.82
against Daniel Nevins. The defendant is not able to pay the amount of the judgment and the United States attorney in a letter to the Solicitor of the Treasury dated February 3 last recommends that the judgment be compromised and settlement made by the payment of the sum of $10. In the total amount of the judgment there were included items of $18.50 interest and $21.32 costs."
The question upon which you desire advice, as it is stated by you, is “ whether, under the provisions of section 5294, R. S., or of section 3469, R. S.,” your “department has authority to withdraw prosecution after a case has gone to judgment on the payment of a sum less than the interest and costs which attach."
Section 4438 of the Revised Statutes, under which the penalty in question was incurred by Nevins, as amended by the act of December 21, 1898 (30 Stat. 764), reads as follows:
“ SEC. 4438. The boards of local inspectors shall license and classify the masters, chief mates, and second and third mates, if in charge of a watch, engineers, and pilots of all steam vessels, and the masters and chief mates of sail vessels of over seven hundred tons and all other vessels and barges of over one hundred tons burden carrying passengers for hire. It shall be unlawful to employ any person, or for any person to sérve, as a master, chief mate, engineer, or pilot of any steamer, or as master or chief mate of any sail vessel of over seven hundred tons who is not licensed by the inspectors; and anyone violating this section shall be liable to a penalty of one hundred dollars for each offense.”
Section 3469 of the Revised Statutes is as follows:
“Sec. 3469. Upon a report by a district attorney, or any special attorney or agent having charge of any claim in favor of the United States, showing in detail the condition of such claim, and the terms upon which the same may be compromised, and recommending that it be compromised upon the terms so offered, and upon the recommendation of the Solicitor of the Treasury, the Secretary of the Treasury is authorized to compromise such claim
accordingly. But the provisions of this section shall not apply to any claim arising under the postal laws.”
Section 5294, as amended by the act of March 2, 1896 (29 Stat. 39), reads:
“Sec. 5294. The Secretary of the Treasury may, upon application therefor, remit or mitigate any fine, penalty, or forfeiture provided for in laws relating to vessels or discontinue any prosecutions to recover penalties or relating to forfeitures denounced 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 powers 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 or forfeiture; 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."
The act of February 14, 1903 (32 Stat. 825, 829), to establish the Department of Commerce and Labor, provides, section 10, that:
“All duties, power, authority and jurisdiction, whether supervisory, appellate or otherwise, now imposed or conferred upon the Secretary of the Treasury by acts of Congress relating to merchant vessels or yachts, their measurement, numbers, names, registers, enrollments, licenses, commissions, records, mortgages, bills of sale, transfers, entry, clearance, movements and transportation of their cargoes and passengers, owners, officers, seamen, passengers, fees, inspection, equipment for the better security of life, and by acts of Congress relating to tonnage tax, boilers on steam vessels, the carrying of inflammable, explosive or dangerous cargo on vessels, the use of petroleum or other similar substances to produce motive power and relating to the remission or refund of fines, penalties, forfeitures, exactions or charges incurred for violating any provision of law relating to vessels or seamen or to informer's shares
of such fines, and by acts of Congress relating to the Commissioner and Bureau of Navigation, Shipping Commissioners, their officers and employees, Steamboat-Inspection Service and any of the officials thereof, shall be and hereby are transferred to and imposed and conferred upon the Secretary of Commerce and Labor from and after the time of the transfer of the Bureau of Navigation, the Shipping Commissioners and the Steamboat-Inspection Service to the Department of Commerce and Labor, and shall not thereafter be imposed upon or exercised by the Secretary of the Treasury. And all acts or parts of acts inconsistent with this Act are, so far as inconsistent, hereby repealed.”
It is apparent that the penalty in question was, in the language of the act last above quoted, incurred for “ violating a provision of law relating to vessels or seamen," and that, therefore, the “duties, power, authority, and jurisdiction” of the Secretary of the Treasury“ relating to the remission or refund” of the penalty were 6 transferred to and imposed and conferred upon the Secretary of Commerce and Labor.” The authority vested in the Secretary of the Treasury by section 5294 to“ discontinue any prosecution to recover penalties or relating to forfeitures” denounced in laws relating to vessels is not expressly transferred to and conferred upon you by the provisions of the act of February 14, 1903, but“ all duties, power, authority and jurisdiction, whether supervisory, appellate or otherwise, now imposed or conferred upon the Secretary of the Treasury, relating to merchant vessels,” their “ licenses officers, seamen
inspection,” were transferred to you by the terms of that act. It is my judgment that Congress thereby intended to confer upon you the
power, theretofore vested in the Secretary of the Treasury, not only to remit penalties provided for in laws relating to vessels, but to discontinue prosecutions to recover such penalties, upon such terms as you, in your discretion, shall think proper.
That section 5294 applies in the case of a penalty imposed under section 4438 is evident from the fact that it originated as section 64 of an act of February 28, 1871 (16 Stat. 440, 458), which section authorized the Secretary of