FINDLAY et al. v. UNITED STATES, 225 F. 337

MORROW, Circuit Judge (after stating the facts as above). [1] 1. When this case on the bond was first heard by the court below the evidence consisted of the bond in suit; its execution and delivery ; the determination by the Acting Secretary of Commerce and Labor that the principal on the bond had incurred penalties amounting to $7,960; the notice of such determination; demand for payment of the sum found due; and the failure to pay. After the case had been submitted the court reached the conclusion that the bond could not, on its face, be sustained as a common-law obligation.

The court thereupon upon its own motion opened the case and received evidence over Hie objection of the plaintiff in error of the negotiations and proceedings leading up to1 the giving of the bond for the purpose of interpreting the sense in which the parties understood the terms of the bond. In other words, the court was of opinion that the condition of the bond was open to

interpretation, and that, it was its duty, in order to decide upon its meaning, to look not only to the language employed, but to the subject-matter and surrounding circumstances. _ This was in accordance with the rule declared by the Supreme Court in Barreda v. Silsbee, 21 How. 146, 161, 16 L. Ed. 86; Nash v. Towne, 5 Wall. 689, 18 L. Ed. 527; Canal Co. v. Hill, 15 Wall. 94, 21 L. Ed. 64; Mobile & Montgomery R. Co. v. Jurcy, 111 U. S. 584, 592, 4 Sup. Ct. 566, 28 L. Ed. 527. We are of opinion that this evidence was properly admitted.

The court also admitted evidence of the subsequent proceedings in presenting the facts to the Department of Commerce and Labor. This evidence was also objected to by the plaintiffs in error.

The bond recited that it was given to insure the payment of such penalties as should be determined by the Department of Commerce and Labor to have been incurred by the master— “after tlie presentation within a reasonable time by the said master or his agents or attorneys, and the ofiieials of the United States at said Honolulu, of the facts to said department.” It was manifestly proper for the court to receive evidence concerning the presentation of the facts to the Department of Commerce and Labor for determination.

It was a condition of the bond that such facts should be presented, and it was a question for the court to- decide whether the facts had been presented to the Department as provided in the bond. In the letter of the Acting Secretary of the Department of Commerce and Labor, determining the master’s liability to penalties, there were recitals referring to this evidence; but it was also competent for the court to receive evidence showing that the facts had been submitted.

Whether all the letters, telegrams, and reports, including’ the report of the grand jury, were admissible in the proceedings before the department we do not decide. That was not a question for the lower court, and it is not a question for this court. We have tio authority to revise the proceedings before the department and determine what evidence it should have received or what evidence it should not have received. The jurisdiction of the court is limited to the question whether the facts had been submitted to the department and a determination by the department had been had upon such facts.

We find no error in the admission of this evidence. It is contended by the plaintiffs in error that the bond in suit was given involuntarily, under dur'ess, and without consideration, and is therefore void. This contention is without merit. The British steamship Orteric arrived at the port of Honolulu on April 13, 1911, on a voyage from the foreign ports of Oporto and Lisbon, Portugal, and Gibraltar, the well-known British port on the southern coast of Spain, with about 1,500 steerage passengers.

An examination of the vessel was made by two inspectors of the customs under the direction of the Collector of the Customs of that district in accordance with the provisions of

section 11 of the act of August 2, 1882 (22 Stat. 186, 190). The inspectors, under date of April 17, 1911, reported to the Collector that the act of Congress had been violated by the master of the vessel in a number of particulars set forth in the report, and thereupon and on the same day the Collector notified the master of the vessel that he was liable to certain penalties for alleged violation of the Passenger Act of 1882, as amended, specifying wherein the act had been violated and the maximum penalties that had been incurred by such violations. The notice called the attention of the master to

section 13 of the act relative to the collection of these penalties. The

section provides that the penalties imposed by the act should be liens upon the vessel, and such vessel might be libeled therefor in any Circuit or District Court of the United States where such vessel shofild arrive or depart. The notice further informed the master that prior to-instituting proceedings for the enforcement of the penalties, he would be given an opportunity to present any statement he might desire to make, and suggested that whatever statement he desired to make should be made in the form of an affidavit.

On April 22, 1911, the agents of the steamship addressed a letter to the Collector of Customs, requesting the Collector to cable to the Secretary of Commerce and Labor at Washington for permission to grant clearance to the steamship upon a satisfactory bond being furnished for the payment of any penalties which might be imposed with respect to the alleged violations of the Passenger Act by the captain, and full particulars regarding the matter to be furnished to the Department of Commerce and Labor for determination of what should be done -in connection therewith.

On the same day the agents addressed a letter to the Collector of Customs stating that in view of alleged violation of the Passenger Act of 1882, aggregating penalties in the sum of $10,000, they would furnish' to the Collector an adequate bond in the sum of $20,000 covering the same, providing that the facts concerning such alleged violations should be submitted to the Secretary of Commerce and Labor for determination.

In answering the cable sent by the Collector at the request of the agents of the vessel to- the Secretary of Commerce and Labor, the latter replied : “With approval of United States Attorney, clear Orteric fifteen thousand dollar bond.” The bond in suit was thereupon given and approved by the United States Attorney as to form and sureties. There is not the slightest evidence of compulsion on the part of the Collector of Customs, the Secretary of Commerce and Labor, or any other officer of the government, in these proceedings.

The offer to give the bond was voluntarily made by the agents of the vessel and the acceptance of the offer by the Secretary of Commerce and Labor was at their request, and was manifestly a matter of favor to the agents and to the master of the vessel. The Collector notified the master that he was about to comply with the law and report the case for proceedings to enforce the payment of the penalties. The application of the agents of the vessel to give a bond was their own proposition.

Its purpose was to obtain an immediate clearance of the vessel and secure a stay of the legal proceedings until the evidence could be considered and the liability of the master for the penalties determined by the Department of Commerce and Labor. It was not proposed by the officers of the government, who were pursuing the method pointed out by the statute to secure the payment of the penalties. We are of opinion. that: the proceedings show conclusively that the bond was voluntarily given and for a valuable and sufficient consideration.

It is further contended by the plaintiffs in error that the .bond in suit is void for the reason that it was not authorized by law. The bond is not a statutory bond, and in that respect was not authorized. But it may be equally valid as a common-law obligation when voluntarily given by the obligors and accepted by the officers of the department as incident to their duties in the administration of die affairs of the department.

The objection is that the condition of the bond provided that the liability of the principals for the penalties charged to have been incurred under the act of August 2, 1882, was ro be submitted for determination to the. Department of Commerce and Labor as a judicial question—a jurisdiction which it: is conceded the Secretary of Commerce and Labor had no authority to exercise with respect to these penalties.

Presumably the determination was to be made by the department in the exercise of its legal authority, and as that authority was executive with respect to these penalties, the presumption is that the determination was to he made in pursuance of its executive authority, and not by the assumption of judicial authority which it did not possess. The first observation to be made with respect to the proceedings is that they do not purport to be an application on the part of the master of the vessel for a judicial determination of his liability by the officers of the department.

Proceedings in court were threatened to determine the master’s liability judicially. The Department of Commerce and Labor was charged with the executive duty of prosecuting the offender if it found the evidence sufficient. The penalties were a lien upon the vessel, and upon a libel being filed the vessel would be seized and held as security for their payment. This would involve delay.

It 'was within the executive authority of the Department of Commerce and T^ibor to suspend these proceedings for the purpose of making a thorough investigation, and to dismiss them altogether if the evidence was found insufficient to sustain the prosecution. This is a well-known practice of the departments having duties of this character. It was at this point that the. bond was given to abide by the determination of the department.

The court below was of opinion that the parties had in view the submission of the facts to the Secretary of Commerce and Labor with the object of securing a remission of the penalties under

section 5294 of the Reyised Statutes, and as that is the contention of the government in this court, it becomes necessary to notice the terms of the submission and the scope of the

section under which it is claimed the ápplication was made. An application for remission of fines and penalties is obviously based upon an admission that the fine or penalty has been incurred.

There is no such admission in this case. 'In the. notification of April 17, 1911, sent by the Collector of the Port to the master of the vessel, the latter is notified of “liability to penalty for alleged violations,” and he is informed that “prior to instituting proceedings' for the enforcement of this penalty, you will be given an opportunity to present any statement you may desire to make.” In each of the letters of April 22, 1911, from the Honolulu attorneys for the. master of the vessel to the Collector of the Port the violations are referred to as “alleged violations.” In the cablegram of the Collector of the Port to the Secretary of Commerce and Labor pursuant to the request on behalf of- the master for clearance of the vessel, the term employed is “alleged penalties.” Coming to the bond itself, the recitals are that notice had been given to the master by the Collector of the Port at Honolulu that the master had incurred certain penalties on account of “alleged violations” of the act, and that such Collector had been authorized to grant clearance to the vessel upon the giving of a bond— “to secure the payment of such penalties for such violations aforesaid as shall be determined by the Department of Commerce and Labor of the United States to have been incurred by the said master, after presentation, within a reasonable time, by the said master, or his agents or attorneys, and the officials of the United States at Honolulu, of the facts to said department.” The condition of the bond is: “That if the said principal, J.

F. Findlay, shall pay to the United States of America through the Collector of Customs at the Port of Honolulu in the territory of Hawaii the amount which the Department of Commerce and Labor of the United States shall, upon such presentation of facts, determine that the said principal is liable for on account of such penalties so alleged to have been incurred, then this obligation shall be null and void.” The language of the bond appears to be clear. It cannot be construed to be either an admission of liability for penalties or an application for remission or mitigation of penalties.

But without dwelling upon this feature of the proceedings we pass to a consideration of the more important question as to the scope of

section 5294 of the Revised Statutes providing for*7the remission of fines, penalties, and forfeitures, for the purpose of determining whether the. Secretary of Commerce and Labor had any authority to entertain the-application under this section.

Section 5294 o.f the Revised Statutes had its origin as

section 64 of the act of February 28, 1871, entitled, “An act to provide for the better security of life on board of vessels propelled in whole or in part by steam, and for other purposes.” 16 Stat. 440, 458. This

section provides that: “The Secretary of the Treasury may, upon application therefor, remit or mitigate any fine or penalty provided for in this act, or discontinue any prosecution to recover penalties denounced in this agt excepting the penalty of •imprisonment, or of removal from office, npon such terms as he, in his discretion, shall think proper; and that all rights granted to informers by this act shall be held subject to the said Secretary’s power of remission, except in cases where Hie 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 said penalty; and that the said 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 limitation here placed upon the authority of the Secretary of the Treasury to remit or mitigate only the fines and penalties provided in that act and to discontinue only the prosecutions to recover penalties denounced in that act is so plainly stated that further inquiry seems out of place, but, in view of the method adopted by the Revision Commission in incorporating the provisions of tins act into the Revised Statutes in 1874, it will be well to notice that every provision of the section, including the exception relating to imprisonment and removal from office, and the rights of informers, had direct and apt relation to other sections of that act.

The act contains 71 sections, and relates^ to the supervision and inspection of hulls, boilers, etc., of vessels navigating the lakes, bays, inlets, sounds, rivers, harbors, or other navigable waters of the United States, when such waters are common highways of commerce or open to general or competitive navigation, including coastwise seagoing vessels, and vessels navigating the Great Rakes when navigating within the jurisdiction of the United States.

It is provided that the act shall not apply to public vessels of the United States or vessels of other countries, nor to boats propelled in whole or in part by steam, for navigating canals. Sixty-six of these sections were carried into the Revised Statutes without substantial change as sections 4399 to 4500, under title 52, entitled “Regulation of Steam Vessels.”

Section 71, llie last

section of the act of 1871, was a repealing

section of previous acts, and necessarily disappeared in the revision. The remaining four sections were, transferred to other titles of the Revised Statutes;

section 64, the.

section now under consideration, becoming

section 5294 of the Revised Statutes, and incorporated under title 68 with other sections of the same general character under the title “Remission of Fines, Penalties, and Forfeitures.” But the

section as revised was nor enlarged in its scope and did not lose its identity or relation to the other sections of the Revised Statutes to which it had previously been related in the original act before the revision. This identity and relation was indicated and preserved by striking out the words “tl;is act” in the original statute and inserting in lieu thereof in the Revised Statutes the words “provided for in laws relating to steam vessels,” pointing directly to title 52, entitled “Regulation of Steam Vessels,” where the remainder of the act of February 28, 1871, had been transferred.

The identity and relation was further indicated and preserved in the Revised Statutes by retaining the exceptions relating to imprisonment and removal from office and the rights of informers, precisely as they appeared in the original section, where they had apt relation to other sections of the original act, and when transferred had apt relation to other sections of title 52. It thus appears that the authority of the Secretary of the Treasury under

section 5294 of the Revised Statutes was limited to the remission or mitigation of the fines and penalties provided for in the laws relating to steam vessels navigating the navigable waters of the United States, and to the discontinuance of prosecutions to recover penalties denounced in such laws as contained in title 52 of the Revised Statutes. This construction of the statute has had the support of two Attorney Generals of the United States.' In 1894 Attorney General Olney was requested by the Secretary of the Treasury to be advised whether the latter had the power, under title 68 of the Revised Statutes, to remit or mitigate the penalties incurred under

section 10, Act March 3, 1891, c. 551 (26 Stat. 1084, 1086), providing for the return of aliens wdio might unlawfully come to the United States by vessel. The Attorney General, under date of February 3, 1894 (20 Op. Atty. Gen. 705, 709), advised the Secretary that he had no such authority under any of the provisions of .that title, and that

section 5294 of the Revised Statutes related to the “remission by the Secretary of fines, etc., provided for in laws relating to steamboats,” etc., and did not apply to a fine or penalty incurred for violation of th*e alien immigration laws. Congress thereupon amended

section 5294, Act Dec. 15, 1894, c. 7 (28 Stat. 595 [Comp. St. 1913, § 1013.5]) by substituting the word “vessels” for the words “steam vessels.” In 1896 (Act March 2, 1896, c. 37, 29 Stat. 39 [Comp. St. 1913, § 10135]), Congress again amended the

section by adding, after the word “penalty” in the third line, the words “or forfeiture,” so that the act was made to read as it now stands: “The Secretary of the Treasury may, upon application therefor, remit or mitigate any fine, penalty or forfeiture provided for in laws relating to vessels,” etc. In 1900 the Secretary of the Treasury submitted to Attorney General Griggs the identical question submitted to the Attorney General in 1894 for the purpose of being advised whether he had authority, under

section 5294, as amended, to remit certain penalties incurred under

section 10, Act-March 3, 1891, c. 551 (26 Stat. 1084, 1086). The Attorney General, in answering the question (23 Op. Atty. Gen. 271, 273), reviews the opinions of his predecessor upon this section, and says: “It cannot well be doubted that

section 5294 contemplates the steamboat laws alone, or the laws relating to steam vessels as the phrase now is” [that, is to say, vessels engaged in navigating the waters of the United States], The Attorney General continues: “I am not of opinion that the act of 1891 relates to vessels within the meaning of

section 5294 as amended. The act of 1891 is

an act amending the various acts relating to immigration and inspection of aliens under contract or agreement to perform labor.

Section 5294 in its origin, its form in the Revised Statues, and under the amendments, belongs to the navigation laws rather than the immigration laws, and the phrase ‘relating to vessels,’ to my apprehension, does not mean to include all laws which may affect vessels however remotely or indirectly, but rather the laws which relate to and regulate on the side of commerce and navigation as their original and direct purpose. It therefore seems to me that the case of a remission of a line under the immigration laws is unprovided for. It is a casus omissus, and I concur in the views upon the subject expressed by Mr.

Olney in 20 Op. Atty. Gen. 705.” The Attorney General gives a further reason why the scope of the statute has not been extended by the amendments: “It should be,observed that the above amendments to

section 5294 have both been enacted since the recent immigration laws were passed, and if Congress meant to give the Secretary this additional power of remission, they would have done so by express language, or In such general terms as clearly to siiow this intent.” It follows that, as advised by the Attorney General, the Secretary of the Treasury during the time this subject was within the jurisdiction of the Treasury Department, applied the provisions of

section 5294 of the Revised Statutes to only such fines, penalties, and forfeitures as had been incurred under the laws embraced in title 52 of the Revised Statutes, regulating vessels engaged in navigating the waters of the. United States, and has not applied them to vessels incurring fines, penalties, and forfeitures under other acts of Congress. By Act Feb. 14, 1903, e. 552 (32 Stat. 825), Congress established the Department of Commerce and Labor. In

section 10 (Comp.

St. 1913, § 859), it was provided, among other things, that: “All duties performed and all power and authority now possessed or exercised by tbe head of any executive department in and over any bureau, office, officer, board, branch, or division of the public service by this act transferred to the Department of Commerce and Labor, or any business arising therefrom or pertaiuing thereto, or in relation to the duties performed by and authority conferred by law upon such bureau, officer, office, board, branch or division of the public service, whether of an appellate or revisory character or otherwise, shall hereafter be vested in and exercised by the head of the said Department of Commerce and Labor.

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” various enumerated subjects, including “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 Burean of Navigation, shipping commissioners, their officers and employés, steamboat-inspection service and any officer thereof, shall be and hereby are transferred to and imposed and conferred upon the Secretary of Commerce and Labor.” The transfer does not in and of itself give to the Secretary of Commerce and Labor any greater power or authority with respect to the subjects mentioned than that previously conferred upon the Secretary of the Treasury, and we do not find elsewhere any additional authority to remit fines, penalties, and forfeitures under

section 5294 of the Revised Statutes. We conclude, therefore, that the practice in the department with respect to that jurisdiction is the same as that previously exercised by the Secretary of the Treasury under the advice of the Attorney General, and that the authority of the Secretary of Commerce and Labor to remit and mitigate fines, penalties, and forfeitures under

section 5294 is limited in practice to fines, penalties, and forfeitures prescribed in title 52 of the Revised Statutes relating to vessels engaged in navigating the waters of the United States, that is to say, vessels of the United States, and that such authority has not been extended to the remission or mitigation of fines, penalties, and forfeitures incurred by foreign vessels coming from foreign ports to ports of the .United States and incurring penalties under the acts of Congress.

Should the court follow the construction placed upon the statute by the Attorney General, and the practice of the Treasury Department and the Department of Commerce and Tabor, in pursuance of such construction ? If the construction placed upon the statute by the department charged with its administration is obviously or clearly erroneous, it is the duty of the court to so adjudge, but if the departmental construction has been followed for many years, it should be respected and not overruled except for cogent reasons. A mere doubt should not be sufficient to reverse such construction. Edwards v.

Darby, 12 Wheat. 206, 210, 6 L. Ed. 603; United States v. Moore, 95 U. S. 760, 763, 24 L. Ed. 588; Hahn v. United States, 107 U. S. 402, 406, 2 Sup. Ct. 494, 27 L. Ed. 527; United States v. Philbrick, 120 U. S. 52, 59, 7 Sup. Ct. 413, 30 L. Ed. 559; United States v. Johnston, 124 U. S. 236, 253, 8 Sup. Ct. 446, 31 L. Ed. 389; United States v. Alabama G. S. R. Co., 142 U. S. 615, 621, 12 Sup. Ct. 306, 35 L. Ed. 1134; United States v. Finnell, 185 U. S. 236, 244, 22 Sup. Ct. 633, 46 L. Ed. 890. But it is said that the construction placed upon

section 5294 of the Revised Statutes by the Attorney General was reached by resort to the act of Congress in which this

section had its origin; that such method of construction is not permissible. The rule upon this subject as laid down by the Supreme Court of the United States is that it is not permissible fi> resort to the original act in the construction of a

section of the Revised Statutes where the meaning of the

section is perfectly plain; but the court has also held that where there is an ambiguity in the

section of the Revised Statutes, resort may be had to the original act from which the

section was taken to ascertain what, if any, change of phraseology there has been, and whether such change should be construed as changing the law. United States v. Hirsch, 100 U. S. 33, 35, 25 L. Ed. 539; United States v. Lacher, 134 U. S. 624, 626, 10 Sup. Ct. 625, 33 L. Ed. 1080; The Conqueror, 166 U. S. 110, 122, 17 Sup. Ct. 510, 41 L. Ed. 937; Barrett v. United States, 169 U. S. 218, 227, 18 Sup. Ct. 327, 42 L. Ed. 723. The phraseology of

section 5294 was slightly, changed in revision, and was not perfectly plain to the Secretary of the Treasury as revised. He accordingly requested and received the opinion of the Attorney General as to its proper construction. He was advised that the

section did not apply to a certain other subsequent act of Congress. The inquiry was repeated by a succeeding Secretary of the Treasury with respect to the

section after it had been amended, and he was advised by the Attorney General that the

section as amended did not apply to the act of Congress in question. This construction of the section, in our opinion, is not only in accordance with the rule prescribed by the Supreme Court, but it is also a fair and reasonable construction of the stai ute, and should be followed in this case. We come now to the act of August 2, 1882, entitled “An act to regulate the carriage of passengers by sea” (22 Stat. 186), some of the pecuniary penalties of which are involved in this case. It is nowhere provided in this act that the authority of the Secretary of the Treasury to remit or mitigate fines and penalties under

section 5294 of the Revised Statutes should be extended to the penalties provided in the act, and if the

section is extended in this respect, it must be presumably capable of being extended in other respects. But the provisions of

section 5294 of the Revised Statutes, relating to exceptions where there are claims for informers’ shares, and the removal from office of certain officers of the customs for neglect of duty, have no application whatever to the act of August 2, 1882. There are no informers’ shares provided for in that act, and no provision for the removal from office of an officer for neglect of duty. In other words, there is nothing iu the act to show that: Congress intended that its penalties should be subject to the authority of the Secretary of the Trcartr-y to remit or mitigate, under

section 5294 of the Revised Statutes ; hut, on the contrary, the character of the act itself indicates that such authority might well have been intentionally omitted, and that, a violation of the act being clearly established, its penalties should he enforced without remission or mitigation.

The act relates to vessels bringing steerage passengers from foreign ports, except ports in foreign contiguous territory, and the penalties are related to such matters as the construction of the vessel for the accommodation oí steerage passengers so that male passengers who do not occupy berths with their wives should he berthed in compartments by themselves in another part of the vessel; to adequate means and appliances for ventilating the compartments of the vessel; the location and construction of water-closets and privies and their maintain nee in a cleanly and sanitary condition; suitable location of compartments for hospitals; causing compartments and spaces occupied by passengers to be kept at: all times clean and in healthy condition; and the delivery to officers of the customs of an accurate list, signed and verified on oath by the master, of all passengers taken on hoard the vessel at any foreign port, specifying, among other things, the location of compartments or places occupied by each passenger during the voyage if the passenger be oilier than a cabin passenger.

Whether this statute has been violated in a particular case must be ascertained preliminarily by inspection, and that is peculiarly the duty of an executive officer charged with the execution of the law under the supervisory and revisory authority of the head of the department.

It was therefore within the jurisdiction of the Secretary of Commerce and Labor, in the exercise of his supervisory and revisory authority over the action of his subordinates (section 10, A.ct Feb. 14, 1903, 32 StaL 825. 829), to inquire and determine preliminarily whether in his opinion the penalties of the statute had been incurred by the master o£ the vessel in this case, and if they had been incurred to direct that proceedings in court be taken for their recovery, providing of course, in the case o£ fixed or maximum pecuniary penalties, the .amount had not been deposited or their payment secured by a suitable bond given for that purpose.

In the event the secretary should determine that some or all of the reported penalties had not been incurred, he would direct that action be taken in accordance with such determination. It must be remembered that prosecutions for violations of the federal statutes are in charge of the department having jurisdiction of the case, and it may determine whether it will prosecute a reported case or not; that is to say, whether the evidence is sufficient to justify a prosecution and the extent of such prosecution if undertaken. In the opinion of the Attorney General heretofore referred to (23 Op. Atty.

Gen. 271, 276), he advised the Secretary of the Treasury that, while the latter had no power under

section 5294 of the Revised Statutes to remit or mitigate the fines imposed by the act of March 3, 1891 (26 Stat. 1086), he did have authority to inquire whether the fines had been in fact incurred; and if he found that the fines had not been incurred under the circumstances stated, he had. authority to return the deposit made to secure their payment. 5.

Applying these constructions of the statute and the practice of the department to the present case, we are of opinion that while the Secretary of Commerce and Labor had no authority to remit or mitigate any of the penalties incurred under the act of August 2, 1882, he had revisory and. supervisory authority to inquire and determine whether the statute had been violated, and the extent of such violation, if any, and in accordance with such determination to direct the prosecution of the case or its abandonment in whole or in part as the facts found upon examination might justify.

That this was the view which the Acting Secretary entertained respecting his authority is shown by the concluding paragraph of his letter to the Collector of Customs at Honolulu, disposing of the application of the master of the vessel to determine his liability. The Acting Secretary says: “In the opinion of the department, penalties aggregating $7,980 were incurred in this case for violations of the sections enumerated, and it declines to interfere in behalf of the offenders.” That the Acting Secretary exercised discretion appropriate to his executive authority is shown by the proceedings in this case.

He de- ■ termined that the full amount of the penalties reported by the officers of the Customs had not been incurred. The number of immigrants reported by the inspectors in the Orteric was over 1,500. The Acting Secretary determined that the number of steerage passengers with respect to whom penalties should be imposed was 1,242. In the application made on behalf of the master to give a bond to secure payment of the penalties it was stated that the penalties aggregated $10,000, doubtless based upon the report of the inspectors. The Acting Secretary determined that the penalties did not exceed the sum of $7,960.

He determined that the reported violations of sections 2, 3, 4, 5, 6, 7, and 9 of the act should be reduced to violations of sections 2, 3, 5, 6, and 9, omitting

section 4, the violation of which is classed as . a misdemeanor, and a fine of $500 is imposed, with imprisonment for a term not exceeding six months, and

section 7, the violation of which is also classed as a misdemeanor with a fine of not more than $100. This-submission oí a question by the accused to the determination of executive officers of the departments is a practice well known, and has many advantages. It avoids delay and saves expense, and generally permits the exercise of a reasonable discretion, which may not be available when the whole case is submitted to judicial determination.

We are of opinion that the master was seeking the benefit of such discretion when he submitted his case to the Department of Commerce and Eabor, and that the. submission was in accordance with the terms of his bond. The judgment of the lower court is therefore affirmed, but for the reasons stated in this opinion.