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allow to be deducted from the proceeds while in court, and, in substance, provides that he shall ascertain the duties, if any, and retain them, and then, instead of distributing the balance himself, shall pay it into the treasury of the United States. And there is no reason for any different mode of procedure in the case of a forfeiture for a violation of the warehousing act of 1846, nor is there anything in the act of 1867 to indicate that the collector is not to receive the proceeds of such a forfeiture. There may be duties to be ascertained and retained by the collector in cases under the act of 1846, quite as much as in cases under the act of 1799, or under any other customs act. The effect of the change made by the act of 1867, in regard to the channel of distribution, is merely to substitute the treasury of the United States for the coffers of the collector as a place of deposit for the money, when nothing is left to be done in regard to it but to distribute it, and to substitute the secretary of the treasury for the collector as the ministerial agent of distribution. In regard to the distributees, both acts give the same quantum, one-half, to the United States; the act of 1799 divides the other half equally among the collector, the naval officer and the surveyor, except that, where some person other than the naval officer or the surveyor is informer to the collector, such informer receives a moiety of such other half, and the other moiety thereof is divided equally among the collector, the naval officer and the surveyor; the act of 1867 gives one-fourth of the whole to the informer, and, if there be no informer other than the collector, the naval officer or the surveyor, then to the officer making the seizure, and directs that the remaining one-fourth shall be equally divided among the collector, the naval officer and the surveyor. Where an officer of a revenue cutter is the informer, the distributees and their shares are the same under the two acts.

Such being the state of the law on this subject, and the money before named being in court, in this case, D. Henry Burtnett presents a petition to this court, setting forth that he is the person who gave the information which led to the recovery in this case; that he claims an interest, as informer, in said money; that five other persons, named Davis, Webster, Wiggin, Giles and Hefflin, also claim to have given information of the character aforesaid, and claim to be informers herein; and that the petitioner has served notice of his claim as such informer on the collector and on the United States attorney. The prayer of the petition is that the court will refer it to a commissioner of the court, to take proof of the facts and of the respective claims and rights of the several persons claiming to be the informers herein, as such claimants, and report the same to this court, with his opinion thereon, as to who is or are the informer or informers herein. Notice of the presentation of the petition has been served on the United States attorney, and on the collector, and on the other persons named as claiming to be informers. It is contended on the part of the petitioner that the court has jurisdiction to determine the question as to who is or are the person or persons entitled, as informer or informers, to share in the money. The attorney for the United States denies the jurisdiction of the court and contends that, under the act of 1867, the secretary of the treasury has the exclusive power to determine who is the informer. On the part of the petitioner it is urged that, independently of the act of 1867, the court has inherent jurisdiction to determine all claims to moneys which are in court, and that such jurisdiction is not taken away by the act of 1867; that, under the act of 1799, and kindred acts, it has always been held by the courts of the United States that they have jurisdiction to examine and decide contested claims to

the proceeds of forfeitures under the act, while such proceeds are still in court, and to direct in what manner they shall be distributed; that, it having been so held in respect to the act of 1799, there is nothing in the act of 1867 taking away or affecting such jurisdiction; that the act of 1867 confers no authority on the secretary of the treasury to determine or adjudicate who the informer is in case of a dispute; that, in such a case, a resort must be had to a proper judicial tribunal; that the secretary of the treasury has no judicial functions; and that the act of 1867 merely makes him, instead of the collector, the ministerial officer for paying over the money to such persons as the proper judicial tribunal declares are entitled to it under that act.

§ 180. The proper practice under the act of 1867 is for the court to cause the money in court for fines, penalties or forfeitures to be paid to the collector, to be by him, after proper deductions have been made, paid into the treasury and distributed under the directions of the secretary of the treasury to the persons and in the proportions prescribed by the court.

A similar question came before the circuit court of the United States for the district of New Jersey, in 1824, in the case of Westcot v. Bradford, 4 Wash., 492. In that case there was a forfeiture decreed by the district court for New Jersey of certain property for violations of the act of 1799. While the proceeds of the forfeiture were in that court, Bradford presented to it a petition setting forth that the condemnation took place in pursuance of information given by him to the collector, and praying for the payment to him of the informer's share,-one-quarter,- given by the ninety-first section of the act. The district court made a decree establishing the claim of Bradford as informer, and directing that the money in court be paid to the then collector, to be disposed of by him as directed by the decree. The decree disposed, finally, of the whole fund remaining in court, as concerned all the parties interested in it, the United States, the collector who made the seizure and the informer, leaving nothing to be done but to execute the decree. The collector appealed to the circuit court from the decree. The circuit court held that the petition of Bradford was an original suit from the decree in which an appeal would lie. An objection was taken in the circuit court to the power of the district court to direct a distribution of the proceeds of the forfeiture remaining in court. This objection was put on the ground that the eighty-ninth section of the act of 1799, which authorized the collector to receive from the court, or its officer, the sums recovered, after deducting costs and charges, and enjoined upon him the duty of making the distribution, was imperative on the court, and ousted its general jurisdiction to make the distribution. But the court (Mr. Justice Washington delivering the opinion) held that the eightyninth section merely pointed out the officer who was to receive the money from the court and who was to distribute it where no dispute existed respecting the distribution; that the jurisdiction of the court to examine into contested claims to the money while under its control, and to direct the collector in what manner it was to be distributed, was not taken away or even impliedly affected; and that if, upon general principles, this could be questioned, the point was directly settled in the case of Jones v. Shore, 1 Wheat., 462. The decree of the district court was affirmed so far as it directed how the funds in court should be distributed.

In the case of Jones v. Shore, the fund was in the circuit court as the proceeds of a penalty or forfeiture, under the embargo act of December 22, 1807 (2 U. S. Stats. at Large, 451), and was required by the sixth section of the act

of January 9, 1808 (id., 454), to be distributed and accounted for in the manner prescribed by the act of 1799. A contest as to shares in the fund was brought before the circuit court. The case went to the supreme court on a division of opinion. That court directed that the money in the circuit court be paid to the collector, with directions to him as to how he should distribute it. This was in 1816.

In the case of McLane v. The United States, 5 Pet., 404, the supreme court say: "Where a sentence of condemnation has been finally pronounced in a case of seizure, the court, as an incident to the possession of the principal cause, has a right to proceed to decree a distribution of the proceeds, according to the terms prescribed by law; and it is a familiar practice to institute proceedings of this nature wherever a doubt occurs as to the rights of the parties who are entitled to share in the distribution." The same doctrine was held in The

Josefa Segunda, 10 Wheat., 312, 323, 324.

In Hooper v. Fifty-one Casks of Brandy, Daveis, 271, the district court for Maine (Ware, J.) entertained the petition of an informer for a share of the proceeds of a forfeiture incurred under the act of 1799, the collector and surveyor being the adverse parties, and sustained the claim of the informer. The court, in its opinion, expressly upholds its jurisdiction on the authority of the cases in 4 Washington and 6 Peters.

In the case of The United States v. Fifty Thousand Cigars, Ex parte Smith (vol. 2 Internal Revenue Record, page 108), the district court for Massachusetts (Lowell, J.) entertained petitions filed by several persons claiming shares, as informers, in the proceeds, in court, of forfeitures incurred under the act of 1799, and made a decree that one of them was entitled, as informer, to one-fourth of the fund.

§ 181. The court having custody of a fund derived from forfeitures or penalties is the proper forum in which should be settled the claims of informers and others to that fund.

This jurisdiction being well established, there is nothing in the act of 1867. which takes it away, or which confers on the secretary of the treasury any more power to decide disputed claims to the fund than the collector had under the act of 1799. The judicial tribunal which has the custody of the fund is the proper forum to entertain and decide disputes as to shares in the fund, and to direct how it shall be distributed, and to what persons, under the act of 1867, under the direction of the secretary of the treasury, as a ministerial officer.

To this end it is proper to refer the matter to a commissioner of the court, for the taking of testimony on the part of all parties concerned, and for a report. On the coming in of the report, the court will make such decree as is warranted by the facts, in regard to the subject-matter of the petition, and will direct the money to be paid over to the collector, and to be by him, subject to the provisions of the act of 1867, paid into the treasury of the United States, and to be then distributed, under the direction of the secretary of the treasury, to the persons, and in the proportions, prescribed by the decree of this court. The hearing before the commissioner will be on notice to all parties having any claim to the fund.

§ 182. By whom distributed.— "Fines" imposed for obstructing officers of the custom, as well as "penalties," under the act of March 2, 1799, are to be received and distributed by the collector of the customs. Ex parte Marquand, 2 Gall., 552.

§ 183. Interest of United States. Upon the seizure and condemnation of a vessel for violation of the act of congress of February 28, 1806, "to suspend the commercial intercourse between the United States and certain parts of the island of San Domingo," the United States are interested only in one-half of the forfeiture. United States v. Yeaton, 2 Cr. C. C., 73.

§ 184. Collectors, rights of.— No officer of the customs is debarred from receiving a distributive share of fines, penalties and forfeitures, by the act of February 11, 1846, allowed by previous laws, in consequence of having received his maximum of compensation allowed by the law. Hooper v. Fifty-one Casks of Brandy, Dav., 370; 6 N. Y. Leg. Obs., 302.

§ 185. What is received by the officers of the customs for forfeitures constitutes no part of the emoluments to which the limitation of the maximum is applied. Ibid.

§ 186. The acts of 1802, March, 1822 and 1838, regulating the compensation of collectors of the port, do not deprive such officers of their shares in fines, penalties and forfeitures. They are allowed to claim such shares in addition to the annual compensation. Hoyt v. United States, 10 How., 109.

§ 187. Whatever is reserved to the government out of a forfeiture is reserved as well for the seizing officer as for itself; and is distributed accordingly. The government has no authority under its existing laws to release the collector's share as such, and yet to retain to itself the other part of the forfeiture. McLane v. United States, 6 Pet., 404.

$188.

when vacating office before judgment or forfeiture.- A collector of the customs, who makes a seizure of goods for an asserted forfeiture, and before the proceedings in rem are consummated by a sentence of condemnation is removed from office, acquires an inchoate right by the seizure, which by the subsequent decree of condemnation gives him an absolute vested right to his share of the forfeiture under the collection act of March, 1799. Van Ness v. Buel, 4 Wheat., 74.

§ 189. A bond was given to J. S., the collector of the district of Petersburg, Va., under the second section of the embargo act of December 22, 1807, and the bond being forfeited, suit was instituted upon it in the district court by the collector. Before judgment was obtained J. S. died, and T. S., his deputy collector, continued in the discharge of the duties of the office until December 14, 1811. On November 30, 1811, judgment was rendered for the penalty of the bond against one of the co-obligors. On November 26, 1811, J. J. was appointed collector for the same port, but did not qualify until the 14th of December, 1811. The defendant obtained a writ of error to the judgment of the district court, and the judgment of the district court was affirmed in the court above. The amount of the penalty of the bond was then paid into the circuit court, and thereupon T. S., executor of J. S., filed his petition, claiming a moiety of the amount so paid, which the law directed to be distributed among the revenue officers of the district where the penalty was incurred. Held, that the proportion of the penalty given to the collector belonged to the collector who was in office when the bond was given, and who had prosecuted it to judgment, and not to the collector who happened to be in office when the money was paid. United States v. Jones, 1 Marsh., 285.

$ 190. The personal representatives of a deceased collector and surveyor, who was such at the time of the seizure being made, or prosecution or suit commenced, and not his successor in office, are entitled to that portion of fines, forfeitures and penalties, which is, by law, to be distributed among the revenue officers of the district where they were incurred. And where there was no naval officer in the district, the division was adjudged to be made in equal proportions between the collector and surveyor. Jones v. Shore, 1 Wheat., 462.

§ 191. Officers of revenue cutter. It is not necessary that the officers of a revenue cutter should, when they give the information against a vessel for a violation of the non-intercourse law, make a claim for a part of the forfeiture; or that they should take any part in the prosecution of the case, to entitle them to a portion of the proceeds. Sawyer v. Steele, 3 Wash., 464. § 192. Informers.— In an admiralty seizure cause, the court cannot award a proportion of the proceeds of the property condemned to informers, unless the case be within some statute provision. But it will allow compensation for expenses incurred in securing and preserving the property. Ex parte Cahoon, 2 Mason, 85.

$193. Inspector entitled to informer's share, when.-- When a seizure is made by a collector under the collection act of March 8, 1799, in pursuance of information given by an inspector of the customs, the inspector is entitled to the informer's share of the forfeiture. Hooper v. Fifty-one Casks of Brandy, Dav., 370; 6 N. Y. Leg. Obs., 302.

§194. Waiver of right to share. The consent of the plaintiffs, in an action of indebitatus assumpsit, for one-half a forfeiture incurred by a violation of the non-intercourse law, that the vessel should be sent from the district of Delaware to the district of Pennsylvania, or a disavowal by them of having instituted this suit, does not constitute a waiver of their right to their share of the forfeiture. Sawyer v. Steele, 3 Wash., 464.

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V. REMISSION AND PARDON.

SUMMARY - After judgment, § 195; right of informer under act of 1866, § 196.— Before judgment, § 197.— By the secretary of the treasury, §§ 198–201.— Conviction and pardon a bar to suit, §§ 202, 203.

$195. The president's power to pardon and remit fines and penalties, after a judgment ordering a portion of a fine to be paid to a private citizen as informer, is limited to a remission of the share of the government only, and is inoperative to divest an interest vested by such judgment in the citizen. United States v. Harris, §§ 204, 205.

§ 196. Prior to the amended internal revenue act of 1866 (14 Stat. at L., 146), the interest of an informer in a judgment, procured upon his information, for a fine or penalty, vested immediately upon the rendering of the judgment in his favor, and the change made by the above act does not affect the rights of an informer vested before its passage. Ibid.

§ 197. It seems that before judgment rendered in a suit for a fine or penalty, where the prosecution is wholly in the name of the United States, the president has the power to pardon and remit the fine notwithstanding the interest of an informer in the suit. Ibid.

§ 198. Under section 5294, Revised Statutes United States, the secretary of the treasury has power to remit fines or penalties provided for in laws relating to steam vessels, or discontinue any prosecution to recover penalties denounced in such laws, and thus cut off the rights of an informer, except where the informer's share of the penalty shall have been determined by a court of competent jurisdiction prior to the application for the remission of the penalty. The provisions of the above section are valid and not unconstitutional as infringing on the pardoning power vested in the president. The Laura, §§ 206–208.

§ 199. Congress having power to impose a penalty may provide for its remission by vesting the power in the secretary of the treasury of remitting a fine or penalty, or of discontinuing a suit for its enforcement. Ibid.

§200. The power of the secretary of the treasury under section 5294, Revised Statutes United States, to remit a fine or penalty after suit brought, is not restricted to cases where the suit is by the United States and under the control of its officers, nor is the power of the secretary to discontinue prosecutions limited to prosecutions brought by the United States. Ibid. § 201. Within the meaning of section 5294, Revised Statutes United States, which provides that "all rights granted to informers by such laws shall be subject to the secretary's power of remission," a libelant is none the less an informer because he sues in his own name, and is entitled to the whole penalty. The object of the statute was to provide in favor of the party incurring the penalty a mode of mitigating it, and the mischief sought to be remedied is the same whoever is to receive the penalty. Ibid.

§ 202. A conviction for conspiracy to defraud the revenue under section 5440, Revised Statutes United States, is a bar to a civil suit for penalties for the same acts under section 3296, Revised Statutes United States. United States v. McKee, §§ 209, 210.

§ 203. A pardon by the president for an offense is a bar to a civil suit for a penalty incurred by the same acts which constituted the offense for which the pardon was granted. Ibid. [NOTES.-See SS 211-242.]

UNITED STATES v. HARRIS.

(District Court for Kentucky: 1 Abbott, 110-119. 1866.)

Opinion by BALLARD, J.

STATEMENT OF FACTS.- On March 15, 1866, J. G. Harris was convicted of having in his possession merchandise subject to duty for the purpose of selling the same with the design of avoiding the payment of duties imposed thereon, and also of the offense of selling cigars, not being the manufacturer thereof, upon which the duties imposed by law had not been paid, with the knowledge thereof.

On the same day, the court rendered judgment against the convict, that he pay a fine to the United States of $500 on account of the first offense, and $100 for the second offense, in all $600. On the motion of the district attorney, the convict was not committed to prison until the fine should be paid, but a capias was awarded against him.

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