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the Treasury to remit or mitigate any fine or penalty provided for in this act, or discontinue any prosecution to recover penalties denounced in this act,” “upon such terms as he, in his discretion, shall think proper," and the provision of section 4438 was taken from section 14 of that same act of 1871 (16 Stat. 440, 446).
In the present case, however, a judgment for the penalty incurred has been entered against Nevins in the district court for the southern district of New York. The question that suggests itself, therefore, is whether Congress, in granting authority to remit a penalty and discontinue a prosecution to recover it, intended to confer upon you power to take such action after a judgment for the penalty had been entered.
In United States v. Morris, 10 Wheat. 246, the act under consideration (1 Stat. 506) was in terms similar to the provisions of section 5294. It authorized the Secretary of the Treasury “to mitigate or remit” fines, forfeitures, and penalties in certain cases,“ if, in his opinion, the same shall have been incurred without willful negligence, or any intention of fraud on the part of the persons incurring the same; and to direct the prosecution, if any shall have been instituted for the recovery thereof, to cease and be discontinued upon such terms or conditions as he may deem reasonable and just.” Certain property condemned as forfeited in a case covered by the statute had been released under bond and a judgment upon the bond for the appraised value thereof had been entered. The court held that the authority of the Secretary to remit the forfeiture and discontinue the proceedings was not limited to the time of the entry of the judgment of condemnation, and said (p. 291):
“That the act does not, in terms, so limit the power, is very certain; nor is such a construction warranted by the general object and policy of the law, which is intended to provide equitable relief, where the forfeiture has been incurred without willful negligence or intentional fraud. It presupposes, that the offense has been committed, and the forfeiture attached, according to the letter of the law, and
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affords relief for inadvertencies and unintentional error. And why should such relief be foreclosed by the condemnation? The law was made for the benefit of those who had innocently incurred the penalty, and not for the benefit of the custom-house officers.
The Secretary is authorized to direct the prosecution to cease and be discontinued. This, undoubtedly, gives him a control over the execution. The suit, or prosecution, does not end with the judgment, but embraces the execution, and it has so been considered by this court at the present term,
In a concurring opinion, Mr. Justice Johnson (p. 297), said:
“I consider the contrary doctrine as neither consistent with the words nor the spirit of the act of 1796. The unavoidable consequence of it would be, that the suitor for grace is shut out of every legal defense; and it would be difficult to assign a reason why justice should be refused by the hand that tenders mercy. Many defenses are not only consistent with the claim for remission, but furnish in themselves the best ground for extending the benefit of the act to the party defendant. He who supposes his case not to come within the construction of a law, or that the law is repealed, expired, or unconstitutional, can not be visited with moral offense, either in the act charged or the defense of it. Yet, how is the question of right ever to be decided, unless he is permitted to try the question before a court of law? In such a case, pertinacious adherence to his offense can not be imputed to him, since, resisting the suit on the one hand, while he sues for remission on the other, amount to no more than this, that he denies having violated the law; but if the court thinks otherwise, he then petitions for grace, on the ground of unaffected mistake; a point on which, of course, he must satisfy the secretary, before he can obtain a remission.
If the question be tested by the technical signification of the terms, in strictness, the power would be confined to cases in which judgment had been obtained, rather than to those of a contrary description. Fines, penalties and disabilities are not incurred, and do not accrue, in the technical sense of the terms, until judgment.
This decision as to the authority of the secretary to remit a forfeiture or penalty subsequent to final judgment was cited with approval in the Confiscation Cases (7 Wall. 454, 461), and in The Laura (114 U. S. 411, 415).
I concur in the views expressed in the Morris case, and advise you that, in my opinion, you are authorized, under section 5294, notwithstanding the entry of the judgment, to remit or mitigate the penalty incurred and discontinue the prosecution upon such terms as you think proper.
As to whether such action may be taken without the payment of costs by the defendant, it should be noted that your authority is to “ remit or mitigate ” the penalty, and to “ discontinue any prosecution.” Costs are not, as a general rule, charged against the defendant when proceedings are discontinued by the plaintiff. Moreover, the action you take is to be “ upon such terms ” as you, discretion, shall think proper. Therefore the fact that the payment to be made by the defendant is a sum less than the accrued interest and costs does not, in my opinion, prevent you from proceeding in accordance with the provisions of section 5294.
The nature of the authority conferred by section 3469, to which you also refer, was considered in my opinion of March 30, 1909, to the Secretary of the Treasury (27 Op. 241). Concurring in the views expressed by my predecessors concerning the authority granted by that section, I held that“ it does not extend to the compromise of a right to or suit for a penalty imposed as a punishment for the violation of law," but that the authority conferred by it is strictly a fiscal one and “to be exercised upon fiscal considerations alone.” It was not decided, however, in that opinion, that a judgment for a fine or penalty can not be compromised under the provisions of section 3469. But, as indicated, the right to compromise such a judgment would depend upon purely fiscal considerations alone. The result would necessarily be to hold that any authority conferred by that section to compromise the judgment in question is vested in the Secretary of the Treasury, since I do not find in the act creating your department or elsewhere a transfer to you of any of his authority with refer
ence to the compromise and settlement of claims in favor of the Government upon fiscal considerations alone.
You do not inquire concerning the authority of the Secretary of the Treasury under this section, and, moreover, a question as to his authority would not be one arising in your department. Thus it becomes unnecessary to determine whether the judgment in question could be compromised under the authority conferred by section 3469. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF COMMERCE AND LABOR.
PURCHASE OF OIL AND GASOLINE FROM PARTY TO
A contract for the purchase of oil and gasoline for the Government
may be awarded to the Standard Oil Co. of Indiana, notwithstanding that company was adjudicated a party to an unlawful trust and combination since under the decision of the court the company can enter into a valid contract and may be required to execute a bond for the faithful carrying out of said contract.
DEPARTMENT OF JUSTICE,
June 15, 1911. Sır: I have the honor to acknowledge receipt of your communication of May 24, 1911, together with documents accompanying the same, from which it appears that the Standard Oil Co. of Indiana has made the lowest bid for furnishing mineral oil and gasoline to the United States Army, Department of Colorado, for the fiscal year 1912; and you ask whether or not, in view of the judgment of the Supreme Court of the United States recently entered in the case of United States v. Standard Oil Company of New Jersey et al., a legal contract for the furnishing of oil and gasoline can be entered into by the United States with the Standard Oil Co. of Indiana.
In a circular dated December 11, 1909, the Secretary of War directed that, since the Standard Oil Co. of New Jersey and other companies named in the decree of the United States Circuit Court for the Eastern District of Missouri,
entered November 20, 1909, in the above-mentioned case, had been adjudicated parties to an unlawful trust and combination, in violation of the antitrust laws, no purchases on behalf of the Government should be made from such parties, or from any middleman or agent of such parties, when known that such middleman or agent was acting for such unlawful concern.
In an opinion transmitted to your department on March 17, 1910, it was held that where a bidder was a bona fide owner of oil purchased from one of the companies embraced in the decree against the Standard Oil Co. and others, the fact of the previous ownership of the oil by one of the companies mentioned in the order did not constitute a valid reason for refusing to award the contract to such bidder. (28 Op. 218, 221.) And, in reply on March 23, 1910, to another communication with reference to the same matter, the view expressed in the former opinion was extended to embrace any parties who should satisfactorily show to your department that they had acquired, bona fide and in their own right, either for immediate possession or for future delivery, the supply which they agreed to sell and deliver to the Government.
On April 19, 1910, another opinion was transmitted to your department upon the following state of facts:
On June 25, 1906 (34 Stat. 835), Congress passed a joint resolution which provided that purchase of equipment and material for use in the construction of the Panama Canal should be restricted to articles of domestic manufacture and production, from the lowest responsible bidder, unless the President should in any case deem the bids or tenders therefor to be extortionate or unreasonable; and on January 6, 1908, the President issued an Executive order applying to the Isthmian Canal Commission which provided that contracts should be made only after due public advertisement in newspapers of general circulation, and should be awarded to the lowest responsible bidder except in case of emergency, when, with the approval of the Secretary of War, advertisement might be dispensed with. The question as stated in the opinion was: