UNITED STATES v. RENDELL, 27 F. Cas. 779

CURTIS, Circuit Justice. It is not denied that in this case a report of the arrival of the vessel was made by the master, to the only officer of customs resident at the place of arrival, or that this report was made within the prescribed time, and contained all the required particulars. The objection is, that it was not made at the right place; that the act imperatively requires the report to be made, at the office of the principal officer of the customs; and that the penalty is to be inflicted upon the master, if it be made elsewhere.

The act undoubtedly directs the master to repair to the office of the chief officer of the customs, as well as to make report; but it does not necessarily follow, that it inflicts a penalty upon the omission to repair thither. The penal clause applicable to this case, is as follows: “And if the master, or the person having the command of such vessel, shall neglect or omit to make the said report, or shall not fully comply with the true intent and meaning of this section, as the ease may he, he shall, for each and every offence, forfeit and pay the sum of one thousand dollars.” 1 Stat. 649-651.

It is to be considered, then, whether it was the intention of congress to impose a' penalty only upon the omission to make the required report, or also upon the omission to repair to the office of the principal officer of customs to make it. And in the first place, it is to be observed, that in terms, it is only the omission to make the said report, or fully to comply with the true intent and meaning of the section, which renders the master liable to the penalty.

And if, in point of fact, he do not omit to make the report, the only question would seem to be, whether he has not fully complied with the true intent and meaning of the section, by making the required report at a place within the port, where the officer actually received it. It is somewhat remarkable, that among all the acts required to be done by masters of vessels, in the way of reports and otherwise, there is no other case, under this statute, in which express mention is made of doing

an act, at the office of the principal officer of the customs. Thus, in the 19th section, vessels bound to ports of delivery, are required to come to, at the port of entry of the district, “and there make report and entry in writing,” &c. And so in very many other cases, the act is required to be done at the port, but not at any particular office. Nor do I find that the statute requires the principal officers to keep one stated and fixed place as and for an office. The 21st

section directs them to attend in person at the ports to which they are respectively assigned, but does not make it necessary for them to transact their business at any one place therein. Undoubtedly, this

section under consideration implies an expectation on the part of congress, that the officer will have an office, as it does that he will have stated hours for business, but it makes no requisition to that effect, and leaves both these particulars to be regulated by the executive. And whether the officer shall have one fixed place, or several different places, for the transaction of his business, is manifestly a matter entirely beyond the control of masters of vessels, arriving from foreign ports, who must make the reports to the officer, where he chooses to be found and to receive them.

Moreover, if the required report is in fact made in person to the proper officer, and is received by him, the substantial purpose of the law is answered. It might tend to produce somewhat more regularity and exactness, to have these reports made and received at a stated office; but to secure these, cannot be considered as forming a substantial part of the purpose of a law, which does not even require such an office to be kept, but leaves them to be secured by proper regulations of the treasury department, the head of which has ample powers for that purpose.

I am strongly inclined to think, that what is said in this

section concerning repairing to the office, was designed for the relief of masters, by affording them, in some cases, au excuse for not making a report, and to limit more distinctly their obligation to do so, rather than to impose upon them the necessity, in all cases, of repairing thither. It exempts the master from the necessity of looking elsewhere for the officer.

But however this may be, I am of opinion, that if the master does make the required report, in due season, to the proper officer, who receives it. he is not liable to the penalty for omitting to repair to the office, because for this last omission, the act does not in terms impose a penalty, and because the master has, on his part, fully complied with the true intent and meaning of the act, by doing all that is needful to answer its purpose; the clause respecting his repairing to the office, being directory merely, and not intended to compel him to go thither, if the business can be, and in fact is, completely done elsewhere, within the port.

Por these reasons I am of opinion, that there was no error in the judgment; for though the court below, apparently for the purpose of submitting a question of fact to the jury, took a somewhat different view of the act, the substantial result arrived at was, that a report, seasonably made to the officer, at the port, and received by him, was a compliance with the act. The judgment is, therefore, affirmed.