« iepriekšējāTurpināt »
whether the expression referred, by its antithesis, to honorary or civilian members. It is sufficient to hold that those who, under the rules of these orders, were eligible for membership-either because of their own service, or because of their kinship to one who had been in the serviceand were duly made full members, are members in their own right, and are entitled to wear, on occasions of ceremony, the distinctive badges of their respective orders. Respectfully,
P. C. KNOX. The SECRETARY OF THE NAVY.
CIVIL SERVICE-PORTO RICO-PHILIPPINES. There is nothing in the recent decisions of the Supreme Court (in the
Insular cases) that would modify the view taken by the AttorneyGeneral regarding the proposed amendment to the Civil-Service rules that every applicant for examination for appointment to the executive civil service of the United States in Porto Rico must be a citizen of the United States or a citizen of Porto Rico; and that every applicant for appointment to said service in the Philippine Islands must be a citizen of the United States or a native inhabitant of said Islands.
DEPARTMENT OF JUSTICE,
June 18, 1901. Sir: I have the honor to acknowledge receipt of your inquiry whether there is anything in the recent decisions of the Supreme Court of the United States that would modify the view taken by Mr. Griggs regarding the following proposed amendment to the Civil-Service rules:
“Every applicant for examination for appointment to the executive civil service of the United States in Porto Rico must be a citizen of the United States or a citizen of Porto Rico; every applicant for appointment to said service in the Philippine Islands must be a citizen of the United States or a native inhabitant of said islands." The inquiry is answered in the negative. Very respectfully,
P. C. KYOX. The PRESIDENT.
FORFEITURE OF COUNTERFEIT COIN.
Section 4 of the act of February 10, 1891 (26 Stat., 742), which author
izes the Secretary of the Treasury to seize and forfeit all counterfeits of the coin of the United States, does not authorize the Secretary to return to the person from whom such coin is taken, the counterfeit
or the value of the bullion it contains. Under that section the Treasury Department has authority to seize coun
terfeit coin, to decide that it is counterfeit, to determine that it was unlawfully in possession of the party from whom taken, and to forfeit it; and, after forfeiture, to direct in what manner it shall be disposed
of. No judicial condemnation is necessary. Such seizure and forfeiture is not a taking of property without due proc
ess of law within the meaning of the Fifth Amendment to the Constitution. Counterfeit coin is neither property nor the subject of
property; it is the product of a felonious act, and outside the law. The due process of law required by that amendment was never designed
to apply to such rights as a person unlawfully in possession of counterfeit coin may have in it, but was intended for the protection of substantial rights in lawful property.
DEPARTMENT OF JUSTICE,
June 21, 1901. Sir: Section # of the act of February 10, 1891, “An act further to prevent counterfeiting, etc.” (26 Stat., 742), provides as follows:
“That all counterfeits of any of the obligations or other securities of the United States or of any foreign government, or counterfeits of any of the coins of the United States or of any foreign government, and all material or apparatus fitted or intended to be used, or that shall have been used, in the making of any of such counterfeit obligations or other securities or coins herein before mentioned, that shall be found in the possession of any person without authority from the Secretary of the Treasury or other proper officer to have the same, shall be taken possession of by any authorized agent of the Treasury Department and forfeited to the United States, and disposed of in any manner that the Secretary of the Treasury may direct.”
In your communication of February 22 you state that, under the authority granted by this section, it has been the practice of the operatives of the secret-service division to seize all counterfeits and counterfeiting material found in the possession of unauthorized persons, without discrimination as to the material of which the counterfeits are composed, and that, following this practice, there were recently seized 82 counterfeit standard dollars, found in the possession of a New York merchant, who, as an innocent holder, now demands the return of the counterfeits, or the value of the bullion they contain, they being composed of silver of an unknown fineness.
This demand, you state, has been denied by your Department upon the following grounds:
“First. Counterfeit coins are not properly property which would secure to their possessor the protection of a constitutional right
“Second. That property which is forfeited to the United States, under the law, can not be disposed of other than for the benefit of the United States.
“Third. That the words and disposed of in any manner that the Secretary of the Treasury may direct' do not give him the discretionary power to mutilate and destroy the coin after 'forfeiture' and a return of the metal to the innocent holder of the coin so forfeited and destroyed.”
After inviting my attention especially to the third proposition, and advising me that you have been fortified in your position by an opinion of the Solicitor of the Treasury, you request an expression of my views as to whether or not the law applicable to the case stated has been correctly interpreted by your Department.
I have given this matter careful consideration, and I am clear in the opinion that you were right in denying the demand for the return of the counterfeits or the value of the bullion they contained.
In opposition to the position taken by your Department, it is urged.
First. The bullion in the counterfeit coin is the subject of property in a legal sense.
Second. In view of the provision of the Fifth Amendment to the Constitution, the person in whose possession the counterfeits were found, being an innocent holder, could not be deprived of his property in the bullion contained in them, except by due process of law, that is, by a judicial condemnation.
I can not conceive how a thing can be the subject of property in the legal sense which a person can neither lawfully hold nor exchange nor give away. Counterfeit coin is neither property nor the subject of property; it is the product of a felonious act, and outside of the law. It is impossible to separate the stamp from the bullion and say that one is counterfeit and the other is not. The counterfeit coin is the whole thing, and counterfeit coin is not the subject of property in the legal sense.
But if in any sense counterfeit coin is the subject of property, the provision of the statute is plain. This law provides that all counterfeits of any of the coins of the United States that shall be found in the possession of any person without authority from the Secretary of the Treasury or other proper officer to have the same, shall be taken possession of by any authorized agent of the Treasury Department and forfeited to the United States. The statute commands the Secretary of the Treasury to seize and forfeit counterfeit coin found in the possession of an unauthorized person.
It is to be observed that when suspected coin are found in the possession of any person, the only questions to be determined preliminary to seizure and forfeiture are, first, are the coins counterfeit; and, second, if counterfeit, has the person in possession authority to have them. If the coins are counterfeit and a person without authority is in possession, the command of the law is explicit; they must be taken possession of by an authorized agent of the Treasury Department and forfeited to the United States." Both of the material facts preliminary to seizure and forfeiture are facts which, in the proper administration of the law, must be determined by the Secretary of the Treasury. It is for the Secretary of the Treasury, through his authorized agents, to determine whether coin is counterfeit or not, and it is for him, through his agents, to determine whether the person in possession of counterfeit coin, has authority to have it. It would not be in the line of good policy or consistent with the dignity of the Government, to leave the determination of either of these questions to any other authority than the Treasury Department, to which is intrusted the preservation of the integrity of the coin of the United States.
In the present case the facts are conceded, and the conclusion follows irresistibly. It is conceded that the coins are counterfeit, and it is conceded that the merchant, while he may have got them innocently, had them in possession without authority and therefore unlawfully. In view of this, the statute made it the duty of the Treasury Department to seize them and forfeit them to the United States. If the matter were referred to a court, a judgment of forfeiture would follow irresistibly from the conceded facts of the case.
On the other hand, if the merchant who innocently came into possession of the coins, had taken the position, either that they were good, or that he had a right to their possession, it was open for him, after seizure, to replevy them, and thus secure a judicial determination of his right of property and possession. Not disputing either of the facts essential to seizure and forfeiture, he naturally did not invoke this plain remedy.
To counterfeit coin of the realm has always been a crime of the highest grade. During Colonial times, it was high treason under the English law, punishable by death, and a like penalty was imposed by our statute passed by the First Congress. While the punishment has been reduced, the necessity for stringent measures to preserve the purity of our coin, has not ceased. Summary action is essential. Counterfeit coin in possession without authority must be seized and forfeited, otherwise its further circulation is possible. To require the Government to bring a suit in court in order to forfeit a counterfeit coin is a proposition which scarcely merits serious discussion. Such a requirement. would fatally impede the execution of the law. In the present case, the cost of condemning the silver in the 82 counterfeit dollars, would far exceed the value of the silver itself. And it is not usual to find as many as 82 counterfeit standard dollars in the possession of one reputable merchant.
The rule laid down by the Supreme Court in Lawton v. Steele (152 U. S., 133) is not inapplicable. Summary action, without the intervention of judicial proceedings, is necessary here as there in order to effect the object of the statute, which is in the highest sense beneficent. The constitutional provision that no man shall be deprived of his property without due process of law was intended for the protection of sub