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My opinion of October 10 held substantially that the provisions of section 7 of the act of 1888, indicating our consular representative in China as the proper officer to certify the cause of delay, have been replaced by the provision of Article II of the treaty of 1894, indicating the Chinese consul at the proper port in the United States as such officer, partly because the treaty is express and is the later provision of law, and partly because it is difficult to say what sections, if any, of the act of 1888 are now in force.

As I point out in that opinion, Federal courts have differed on this question. Many of them have held that sections 2-4 and section 15 have no field of operation, but that the rest of the act is in force. "It will be noted that section 13 has been uniformly held, by the Federal courts which have directly passed upon it, to be in force, while there is a divergence of opinion as to the other sections" (2 Sup. Rev. Stat., 141, note). The Supreme Court, in the case of Li Sing v. United States, 180 U. S., 486, while declining to pass upon other sections of the act, have held that section 12 is not in force.

It appears to me, then, that among the reasons which might be given for declining to answer your inquiry, respecting those portions of the act of 1888 which have not already been finally passed upon, is the fact that this point is a judicial question rather than one for executive determination (20 Opin., 210; id., 314; 21 Opin., 369; id., 583; 22 Opin., 181); that the courts have already considered it and are not in accord (20 Opin., 729). In saying this, I am aware that under the Li Sing decision, supra, and authorities therein. cited, and in view of the act of August 18, 1894, it is now fully established that the executive decision upon the application of an alien for admission into this country is beyond review by the courts. Yet, it is conceivable that the legality of regulations to be framed by you under section 8 of the act of 1888 might be brought before the courts. Indeed, I am just to-day advised of the case of Fok Young Yo v. United States, recently decided in the Circuit Court of Appeals for the Ninth circuit, and likely to be brought before the Supreme Court, in which the right of the Secretary of the Treasury to frame regulations under the eighth section of

the act of September 13, 1888, appears to be involved to a certain extent.

The fact can not well be concealed that the proposed regu lation seeks to avail of the Secretary's general power, under section 8 of the act of 1888, when the special authority for the object to be attained expressed in section 7 has been found to be unavailable. That is to say, the regulation seeks to do indirectly what the formulated law has not done directly. Nor is there a mere omission, or failure to act: the law, as I have found, seems to forbid the rule at which the regulation aims. I need not consider generally the foundations of the right to make regulations which have the force of law, nor the restrictions on that right, for, as I have noted, the right in this case is explicitly referred to section S. It is worthy of remark on the one hand that there is no conflicting law respecting this authority to make regulations, as was found in the treaty respecting the rule of section 7 as to the disability certificate; and it is to be assumed that the purpose of your proposed regulation is necessary and proper, while it is evident that that purpose is meant to be carried into effect after due notice and warning of the additional requirement to Chinese interested. On the other hand, I note again that the regulation undertakes to import into the law, through the provisions of section 8, a rule which in its explicit form in section 7 has been held to be without validity, and that the status of the entire act is a matter of grave doubt.

Yet I shall not assume in this opinion to determine directly whether or not section S is an existing enactment, for my conclusion is that your inquiry falls under the ban of the rules of this Department which forbids me to render an opinion upon a question which is hypothetical. Your inquiry, in the last analysis, asks me what would be the standing of such a regulation if you should determine to promulgate and enforce it. This is not a question actually or presently arising in the administration of your Department. It is, it seems to me, evidently contingent and hypothetical in its nature, and as such I must decline to pass upon it. (9 Opin., 421; 13 Opin.. 531; 20 Opin., 703; 21 Opin.. 201; id., 506; 22 Opin., 77.)

If in the exercise of your official discretion, believing that

this new rule respecting the delayed return to this country of Chinese laborers entitled to return, is a necessary and proper requirement, you determine to impose this additional condition, and then the question should arise in your Department, as upon an appeal to you under the Act of August 18, 1894, the case would be different. If in that event you choose to refer this question of law, then actually arising in your Department, to me for my opinion, my right and duty to reply would be untrammeled. As it stands, however, I feel compelled, because of the various reasons heretofore stated or indicated, to decline with regret to respond to your request.

Very respectfully,




The question of the right of transit of Chinese persons from a port of the United States to the territory of Mexico, or from a port of the United States directly by sea to a foreign port, being now before the courts, it would not be proper for the Attorney-General to express an opinion thereon.

November 15, 1901.

SIR: Acknowledging the receipt of your letter of November 13, with its inclosures, in relation to the cases of Chinese persons who have been refused permission by the collector of customs at the port of San Francisco to pass in transit from the said port across the United States territory to Mexico, or from said port directly by sea to foreign ports, I have the honor to say that inasmuch as the question of the rights of Chinese persons under the transit privilege is now before the courts, and the point of the right. of appeal to the Secretary of the Treasury is likely to be involved, upon consideration of the proper jurisdiction in hearings before the Supreme Court or in the lower Federal courts, I conceive that this point is now so far committed to judicial review, that it will not be proper for me

to express an opinion thereon (see opinion of November 14, 1901, and other opinions therein cited). I must, therefore, decline to comply with your request.

I return the papers herewith.
Very respectfully,




The Attorney-General declines to express an opinion upon the authority of the Secretary of the Treasury to refund the fine exacted, in lieu of the payment of duties, upon certain merchandise brought into the United States from Porto Rico after the ratification of the treaty of 1898 with Spain and before the taking effect of the Porto Rican act, due protest against the exaction not having been made. That duty by section 8 of the act of July 31, 1894 (28 Stat., 207), is imposed upon the Comptroller of the Treasury.

November 16, 1901.

SIR: I have the honor to acknowledge the receipt of your letters of September 4 and 13, with their inclosures, relative to the refund of moneys paid as duties, or as a fine equal to the duty, on certain merchandise brought into this country from Porto Rico. The following facts appear:

The merchandise was brought in after the ratification of the treaty with Spain and before the Porto Rican act of 1900 took effect. No protests against the duties levied were filed, but a protest was filed against the exaction of the fine. The Treasury Department holds that such moneys, paid as duties without protest, constitute voluntary payments which are not recoverable, and that, therefore, there is no authority to refund; while the applicants contend that the exactions were unlawful, the payments involuntary, and protest It is further contended that if protests were necessary, they should have been made at the time of payment, and that protests made two or three months later, but within ten days after liquidation, would be no more effective than if made two or three years later. As to the fine, the applicant asserts, and the Government is inclined to


deny, that the authority to refund extends to cases of seizure and fine.

Thereupon you request an expression of my opinion as to the necessity of filing protest in the case where the moneys were paid as duties, and as to the authority to refund in the case where the goods were seized and a fine exacted equal to the duty.

After careful consideration of all the facts I was inclined to advise you that under various established authorities the payment here as duties was involuntary, and that so far as the absence of protest is concerned, you are not forbidden to refund; and then to point out that the general legality of a refund amounts to a nugatory right unless you are specifically authorized and empowered to make refunds in given cases by force of statutory provisions and under the language of appropriation acts which clearly apply.

But it will not be necessary, for the reasons given below, for me to pursue this course, which seems to reach the result that there is no available appropriation unless a protest has been filed in the case of moneys paid as duties ("to repay to importers the excess of deposits for unascertained duties, or duties or other moneys paid under protest," sec. 3689, Rev. Stat., pp. 724, 726); and that in the case of a fine equal to the duty sections 5292 and 5293 may apply. I say "may apply," because it is a question whether the Secretary's power to mitigate or remit a fine under those sections is restricted to the waiver of collection where the penalty is incurred or has been imposed, but the money has not been paid into the Treasury, or also includes the authority to repay after deposit in the Treasury on the ground that the amount in the Treasury so collected is not the money of the United States but belongs to the claimant of right, under such facts as here appear, as money had and received to his use which he is entitled to have refunded. On this point I may say that where the law intends to deal with a particular case of a fine which has actually been paid, it seems that the Secretary of the Treasury is specifically authorized to refund. Thus, by section 26 of the act of June 26, 1884 (23 Stat. 53), referring to fines, etc., arising under laws relating to vessels or seamen, the Secretary of the Treasury

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