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different conclusion from that embodied in my opinion of August 25, 1911.
The act of 1906 requires as a condition to the placing of the stamp “inspected and passed” that the inspectors should by examination and inspection have found all such products to be sound. If as a matter of fact—and upon this point I am concluded by your determination—such soundness can not be ascertained and found except by the inspection provided for in paragraphs 2 and 3 of the act, it must be that Congress did not intend the provisions of the act to apply to cases where such inspection is impossible. The proper construction therefore is to read paragraph 4 in connection with the other portions of the act and to restrict its application to the cases where inspection can be had in conformity with the requirements of the statute, and this necessarily leads me to the conclusion that your question must be answered in the negative.
This construction also leads to a modification of the conclusion stated in my opinion of August 25, 1911, that the product when made with imported oleo stearin is not entitled to be transported in interstate commerce unless inspected, passed, and stamped pursuant to the act of 1906. For imported meats and meat food products are entitled to admission into this country and to interstate commerce subject only to the provisions of the food and drugs act. And in my opinion this continues true of them, even though they should be further manufactured in this country, provided they are not mixed with domestic meat or meat products.
In other words, the Federal mark of inspection may lawfully be placed only upon products of those animals which have been constantly under the examination of your inspectors “from the hoof to the can.” Congress has not prohibited interstate commerce in such foreign products, even though partly manufactured here, but they can in no instance bear the Federal mark of approval provided for by the meat-inspection act of 1906. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF AGRICULTURE.
CLEARANCE OF VESSELS—IMPORTATION OF OPIUM NOT
INCLUDED IN MANIFEST.
A collector of customs has no right to refuse clearance of a vessel,
used as a common carrier, because of the non-payment of a fine imposed under section 2809 of the Revised Statutes, for bringing into the United States merchandise not included in the manifest, unless the master or owner of the vessel was consenting to the
illegal act or privy thereto. Where the vessel is not used as a common carrier, the Government
has, by virtue of section 3088 of the Revised Statutes, a lien on the vessel for the penalty thus incurred by the master, and may enforce that lien by libel and seizure; but where the vessel is used as a common carrier, and the owner or master thereof is not a consenting party to the illegal act, or privy thereto, the only remedy appears to be an action against the master.
DEPARTMENT OF JUSTICE,
March 12, 1912. Sir: I have the honor to acknowledge the receipt of your letter of the 15th ultimo, in which you state that the collector of customs at San Francisco has imposed fines on the masters of several vessels of the Pacific Mail Steamship Co. for violation of section 2809 of the Revised Statutes, for the reason that smoking opium was found concealed on board the vessels on their arrival at San Francisco, which opium was not mentioned or described on the manifest of the importing vessels. It is stated further that, in practically all the cases, the evidence shows that the masters had no knowledge of the presence of the opium on board the vessels, but that the collector acting under authority of article 1251 of the Customs Regulations of 1908, has, in one instance, refused clearance of the vessel. In view of this state of facts you request my opinion as to whether a collector of customs may refuse clearance to a vessel when the master and owners thereof refuse to pay a fine imposed for violation of section 2809 of the Revised Statutes, when it has been ascertained that the master or owners of the vessel were not at the time of the commission of the illegal act consenting parties or privy thereto.
Section 2809, which is part of Title 34 of the Revised Statutes, provides as follows:
“SEC. 2809. If any merchandise is brought into the United States in any vessel whatever from any foreign port
without having such a manifest on board, or which shall not be included or described in the manifest, or shall not agree therewith, the master shall be liable to a penalty equal to the value of such merchandise not included in such manifest; and all such merchandise not included in the manifest belonging or consigned to the master, mate, officers, or crew of such vessel shall be forfeited.”
Section 3088, which is also a part of Title 34 of the Revised Statutes, provides :
“Sec. 3088. Whenever a vessel, or the owner or master of a vessel, has become subject to a penalty for a violation of the revenue laws of the United States, such vessel shall be holden for the payment of such penalty, and may be seized and proceeded against summarily by libel to recover such penalty."
But, by the act of February 8, 1881 (21 Stat. 322), it was provided :
“ That no vessel used by any person or corporation, as common carriers, in the transaction of their business as such common carriers, shall be subject to seizure or forfeiture by force of the provisions of title thirty-four of the Revised Statutes of the United States unless it shall appear that the owner or master of such vessel, at the time of the alleged illegal act, was a consenting party or privy thereto.”
It is clear that, prior to the passage of the act of February 8, 1881, supra, for any violation of section 2809, by which the master became liable to a penalty, the United States acquired a lien on the vessel itself which it could enforce by libel and seizure (The Queen, 4 Ben. 237; The Missouri, 3 Ben. 508, affirmed 9 Blatch. 433); but it is equally well established that, since the passage of that act, no such lien arises and no such seizure can be made in the case of common carriers, unless the owner or master was consenting to the illegal act or privy thereto. (The Saratoga, 9 Fed. 322, affirmed 15 Fed. 382; The Snow Drop, 30 Fed. 79; The Walla Walla, 44 Fed. 796.) If no lien arises in favor of the United States, if the vessel be not “holden for” the payment of the penalty where there is no such consent or privity, it would seem necessarily to follow that
clearance could not be refused. It is provided by section 4197, Revised Statutes, that, on delivery of a sworn manifest to the collector by the master, the former “shall grant a clearance for such vessel and her cargo.” The only other general conditions precedent to the grant of clearance which I can find are a manifest from the owners, shippers, or consignors (R. S. sec. 4200), compliance with the State inspection laws (R. S. 4202), and payment of all accrued fees (R. S. 4206). Expressio unius est exclusio alterius. It must be taken that Congress did not intend clearance to depend on the opinion of the collector as to whether the revenue laws had been violated or not, especially in a case where it is expressly provided that the vessel shall not be liable for the penalty claimed by the collector. The opinion of Attorney General MacVeagh of April 28, 1881 (17 Op. 82), affirming the right of the collector to refuse clearance when the master of the vessel was liable to a penalty under Revised Statutes 2809, was based on the assumption that the Government had a lien on the vessel in such a case, an assumption which the above decisions show is not founded in law.
Where the vessel in question is not used by any person or corporation as a common carrier, a lien would exist in favor of the Government by virtue of section 3088, Revised Statutes, supra, and Attorney General MacVeagh's opinion would apply. In that opinion Mr. MacVeagh, to support his opinion that a collector may refuse clearance when he knows the Government has a lien on the vessel, relies solely on Bas v. Steele (3 Wash. C. C. 381, s. C. Peters C. C. 406). It is doubtful, on a reading of the whole case, whether the language of Mr. Justice Washington in that decision quoted and relied on by Mr. MacVeagh did not have application solely to a case where a Federal statute authorized the collector to refuse clearance under given circumstances. However that may be, it appears to be well settled that section 4197, Revised Statutes, supra, requires the collector to grant clearance, unless he has some distinct statutory authority for refusing. (Otis v. Bacon, 7 Cranch 589; Gilchrist v. The Collector, 1 Hall Law J.
66 * *
429; United States v. Burke, 99 Fed. 895; Hendricks v. Gonzalez, 67 Fed. 351, 353.) In the latter case the Circuit Court of Appeals for the second circuit said:
The plaintiff having complied with the conditions entitling him to clearance by the law of Congress (Rev. St. sec. 4197), it was the duty of the defendant, as collector of the port, to grant a clearance for the vessel and her cargo, unless he was justified in refusing to do so by some other statutory authority. Neither the Secretary of the Treasury nor the President could nullify the statute and, though the defendant may have thought himself bound to obey the instructions of the former, his mistaken sense of duty could not justify his refusal of the clearance, and these instructions afforded him no protection unless they were authorized by law.
This statement of the law is reenforced by the fact that Congress has specifically provided for refusing clearance in cases where it thought such a course proper. For example, the act of March 22, 1794 (1 Stat. 349, ch. 11, sec. 3), (persons suspected of engaging in the slave trade); act of July 6, 1812 (2 Stat. 778, ch. 129, sec. 1), (vessels trading with the enemy); act of April 20, 1818 (3 Stat. 450, ch. 88, sec. 11, Rev. Stat. 5290), (violation of neutrality laws); act of May 20, 1862 (12 Stat. 404, ch. 81, sec. 1, Rev. Stat. 5320), (vessels suspected of voyage to insurgent ports); act of March 3, 1903 (32 Stat. 1215, sec. 9), (nonpayment of fine for bringing in diseased immigrants).
I am, therefore, of the opinion that a collector of customs has no right to refuse clearance to a vessel because of nonpayment of a fine imposed for violation of Revised Statutes 2809.
You further request me to advise you whether there is any remedy which the Government has for the collection of the said fine other than a suit against the master of the vessel. Where the vessel is not used by any person or corporation as common carriers in the transaction of their business as such common carriers, the Government has, by virtue of Revised Statutes 3088, a lien on the vessel for the penalty incurred by the master, and may enforce that lien