Lapas attēli
PDF
ePub

letter commits to the Government the whole series of consequences which may arise from mailing, including the adjustments of rights and pursuits of remedies. It was stated in the charge to the jury in United States v. Jackson (29 Fed. Rep., 503), that the control and custody of mail matter by the Post-Office Department is the custody of the law for the benefit of the person to whom it is addressed. I am not able to accept the view of the case which requires the Government to step back on preferring a criminal charge, which remits the sender of the letter to the fruitless right of suing a discredited and bankrupt thief on the chance of bringing hidden assets to light, and which dismisses the surety company, to whose contract the owner is not a party, after the statutory liability of the Government has been settled.

The case appears to me as follows: There is an evident necessity for limiting the legal liability of the Government in the case of registered mail. I do not pretend to determine what the responsibility of the Government employee is in case of loss, say through negligence, of a registered letter containing value. The present case is, however, one not of loss, but of theft. The primary question to be determined is whether the employee is liable to the Government for the entire amount stolen by him. If he is not, neither is his surety; but if he is, I think the surety is also. In the determination of this primary question, we should not be turned aside by the liability of the Government to the owner of the letter, or the money contained therein. The surety company has bound itself as surety that the clerk will discharge his obligations to the Government. If the clerk steals a letter he is responsible to the Government for the entire 'amount of money contained in the letter; that responsibility constitutes his obligation, and is one of the duties and trusts imposed upon him by law and the rules and regulations of the Post-Office Department. I have no doubt that the Government is fully entitled to recover the money from him, and I have no doubt, this being so, that the surety on the bond is responsible to the extent of his obligation to the Government, except as limited by the amount of the principal sum named in the bond. This legal proposition is certainly enforced by the view that the Government is morally bound to recover from a dishonest official the entire amount of his embezzlement, and, of course, is equally bound in conscience, as the statutes recognize, to return to the owner of the registered letter the entire amount thus recov. ered from its dishonest employee or from his surety.

I am unable to find any authorities which precisely cover the particular point. I may, however, note one case. In German American Bank v. Auth (87 Pa., 419), it was held that the sureties of a bank messenger, who stole the bank's moneys under an opportunity which lay, perhaps, outside of the scope of his employment, were nevertheless liable on the general ground that the theft was a breach of the condition of the bond that the messenger should conduct himself honestly and faithfully. The court ignores the technical defense indicated, and looks to the duty of the bank employee to act honestly, and to the language of the bond, assuring honesty and faithfulness. “He was not an honest and faithful messenger, and therefore, the condition of his bond was broken." So here, the technical defense, resting on a different reason for disclaiming liability, and one quite as readily laid aside as immaterial, must not prevent us from seeing the vital elements in the case, which are the obligation of the employee to perform his duty honestly and faithfully, the surety company's bond covering this obligation by language of unmistakable meaning; and, finally, the undoubted breach of the employee's obligation and the condition of the bond.

Merely noting, then, the want of exact authorities and precedents, I am of the opinion that the liability of the surety company in this case is not limited by the amount of the indemnity payable by the Government to the sender or owner of a registered letter lost in the mails.

This being my conclusion, it becomes unnecessary for me to answer your further question respecting the proper form of bond, since the form before me appears to be authorized by law, and to bind the surety beyond the sum tendered for each of the stolen letters--that is, to the extent claimed by the Government. Very respectfully,

P. C. KNOX. The POSTMASTER-GENERAL.

CHINESE EXCLUSION LAWS-RETURNING MERCHANT

READMISSION.

A Chinese person, resident in the United States, and member of a firm

engaged in the manufacture of cigars within the l'nited States and of selling the cigars so manufactured, who, having temporarily left the United States, desires readmission, is a returning merchant in the sense in which that word is used in the treaty and the laws relating to the exclusion of Chinese, and, as such, is entitled to re

admission into this country. The true theory is, not that all Chinese persons may enter this country

who are not forbidden, but that only those are entitled to enter who

are expressly allowed to do so. The fact that a bona fide Chinese merchant also a manufacturer, makes

him none the less a merchant within the meaning of the treaty and the laws referred to.

DEPARTMENT OF JUSTICE,

August 12, 1901. Sir: Your letter of July 31 duly presents for my opinion the question whether a member of an enterprise engaged in the manufacture or preparation of goods for sale may be considered a merchant in the sense in which that word is used in the treaty and laws in relation to the exclusion of Chinese, where the mercantile part of such business, either wholly or in part, is the selling of the goods so manufactured."

It seems that the Chinese person in this case is a member of a firm at San Francisco, whose principal business is the manufacture of cigars, the firm occupying a fixed place of business and selling as merchandise the product of their manufacture, as all or part of the commercial side of their business.

The question is raised by the application of this Chinese person for readmission to this country as a returning merchant.

Although the applicant has been a resident of the United States and domiciled therein for several years, and is now seeking to return to his home, business, and property, and although he may not be a laborer, I do not think a manufacturer, as such, is entitled to admission to the United States, because the executive construction of the laws, including the opinion of this Department, holds that the law explicitly defines the permitted classes, and that no other classes are entitled to admission.

“The true theory is not that all Chinese persons may enter this country who are not forbidden, but that only those are entitled to enter who are expressly allowed.” (22 Opin., 130, 132).

But I am not disposed to think that a bona fide merchant is any the less a merchant because he is also a manufacturer. It is understood that the firm sells as merchandise the product of their own manufacture. It does not appear that the applicant performs any manual labor which is not within the permitted exception of such as is incident to his mercha character, or incident to his manufacturing activities as tributary to the merchant character. Upon this point your own letter and the accompanying papers show nothing regarding manual labor by the applicant, other than such as is fairly part of his functions as merchant.

The language of the law is: “A merchant is a person engaged in buying and selling merchandise, at a fixed place of business, which business is conducted in his name, and who, during the time he claims to be engaged as a merchant, does not engage in the performance of any manual labor, except such as is necessary in the conduct of his business as such merchant.” (Sec. 2, act of November 3, 1893; 28 Stat., 8).

I find nothing in the case which excludes the applicant from this category.

It has been ruled, as to the requirement that the business shall be conducted in the name of him who claims to be a merchant, that this does not make the appearance of his name in the firm designation or formal title the sole response to the test (Lee Kan v. United States, 15 U. S. Appeals, 576). The definition by the law is “broad enough to pro-. tect every man legitimately engaged in that industry, and narrow enough to prevent the designation being used as an instrument of fraud by laborers." (Ibidem.)

A familiar and close analogy is suggested by the term “merchant tailor." In any such case the distinction between “laborer” and “merchant" must depend upon the bona fides and actual facts shown.

As the applicant here conforms substantially and fairly to the letter of the statutory definition, and certainly to its reasonable meaning and spirit (Lee Kan v. United States, supra), I have the honor to answer your question in the affirmative. I return herewith the inclosures of your letter. Respectfully,

P. C. KNOX. The SECRETARY OF THE TREASURY.

CHINESE-ENTRANCE INTO HAWAII.

There is nothing in the Resolution of Annexation of the Hawaiian

Islands (30 Stat., 750), nor in the Organic Act which provides a government for that Territory (31 Stat., 141), nor in any law of Congress, which would prevent the entrance into those Islands of Chinese, now legally resident in the United States and holding certificates of registration provided for by the acts of May 5, 1892 (27 Stat., 25) and

November 3, 1893 (28 Stat., 7). The “further importation" of Chinese forbidden by the Resolution of

Annexation is immigration from countries other than the United

States. The question of the right of such Chinese persons to return to the United

States from the Hawaiian Islands, not decided.

DEPARTMENT OF JUSTICE,

August 12, 1901. Sir: It seems from your letter of July 31, that certain Chinese persons, legally resident in the United States, are about to depart from this country to enter the Territory of Hawaii, and thereupon you propound to me the following question: Is there any statutory provision to prevent the entrance into the Territory of Hawaii of Chinamen, now legally resident in the United States and holding certificates of registration provided for by the acts of May 5, 1892, and November 3, 1893?

The certificates of registration or of residence referred to are those which Chinese laborers must, and other Chinese persons may, obtain under the acts mentioned as evidence of their right to be and remain within the United States. These certificates give no right to Chinese persons who leave the United States to reenter after temporary absence. For

« iepriekšējāTurpināt »