Pollock v. The Laura

• Decision Date: 01 December 1880
• Citation: 5 F. 133
• Parties: POLLOCK v. STEAM-BOAT LAURA, etc.
• Court: U.S. District Court — Southern District of New York

5 F. 133

POLLOCK v. STEAM-BOAT LAURA, etc.

United States District Court, S.D. New York.

December, 1880

Henry G. Atwater, for libellant.

D McMahon, for claimant.

CHOATE D. J.

This is a libel to recover penalties under Rev. St. Sec. 4465, for carrying a greater number of passengers than the certificate of inspection permitted. By Rev. St. Sec. 4469, penalties so incurred are made a lien on the vessel. After the filing of the libel the claimants, who are owners of the steam-boat applied to the secretary of the treasury for a remission of the penalty, and after they had served their answer a warrant of remission was issued, wherein the secretary, by authority given him by Rev. St. 5294, remits to the petitioners claimants herein, 'all the right, claim, and demand of the United States, and of all others whatsoever, to the forfeiture of passage money and penalties, on payment of costs, if any there be. ' On the warrant of remission the claimant now moves for a perpetual stay of the libellant's suit, or for other relief. On the libellant's behalf it is objected that the warrant of remission is void for want of power in the secretary to grant it. The section under which the warrant is issued (Rev. St. Sec. 5294) is as follows: 'The secretary of the treasury may, on application therefore, remit or mitigate any fine or penalty provided for in laws relating to steam-vessels, or discontinue any prosecution to recover penalties denounced in such laws, excepting the penalty of imprisonment or removal from office, upon such terms as he, in his discretion shall think proper; and all rights granted to informers by such laws shall be held subject to the secretary's power of remission, except in cases where the 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 the penalty; and the secretary shall have authority to ascertain the facts, upon all such applications, in such manner and under such regulations as he may deem proper. ' This section is a re-enactment, without any substantial change, of St. 1871, c. 100 Sec. 64, (16 St. 458,) and the laws relating to steam-vessels here referred to are, or at least include, the provisions of title 52 of the Revised Statutes, entitled 'Regulations of steam-vessels,' Secs. 4399 to 4500, which are substantially a re-enactment of the statute of 1871 above referred to.

It is argued that the power to remit or mitigate fines and penalties here given to the secretary does not, upon a proper construction of section 5294, extend to the remission of a penalty given by the laws referred to, to any person suing for the same, after a suit therefor has been commenced; that this power of remission, after suit brought, does not apply at all to the case of a penalty in which the United States is not interested, which is the present case; and that the subsequent words in the statute clearly thus restrict the power of remission granted to the secretary. The argument is that the power to remit fines and penalties is a branch of the pardoning power, and that a statute conferring such power of remission should be construed with reference to the law governing the extent and limitations of the power to pardon; that by the settled law of England and of this country the pardoning power cannot be so exercised as to take away or impair a vested private right or interest; that after suit brought in a popular action-- this is, a suit for a penalty given by statute to any person suing for the same-- the plaintiff acquires such a vested right or interest in the penalty that it cannot be impaired or taken away by a pardon; that what was before by the statute the right of everybody, has become the plaintiff's by his appropriating the same in the mode prescribed by law by the bringing of his action; that this gives him such an interest in the penalty that no pardon could divest him of that interest

The general proposition that the power to pardon is subject to such a limitation as is thus contended for is well supported by the authorities. Howell v. James, 2 Str. 1272; Coke, 3 Inst. 236, 237, 238; U.S. v. Harris, 1 Abb U.S. 110; U.S. v. Lancaster, 4 Wash.C.C. 66; Shoop v. The Commonwealth, 3 Pa.St. 126; Rowe v. The State, 2 Bay (S.C.) 565. Nor does our law of pardons differ from the English. Ex parte Wells, 18 How. 307. It seems, also, that the bringing of an action for a penalty given by statute to any person suing for the same creates an interest which a pardon cannot take away. Coke, 3 Inst. 237. But the question here is one of the construction of the statute. Whatever power of remission in the secretary congress chooses to annex, as a condition to the grant of the penalties given, is not a power to pardon, but is simply a restriction, limitation, or condition annexed to the grant of the penalty. 4 Wash.C.C. 67. If this were a statute conferring the power to pardon offences against the United States, it must, of course, be construed with reference to all those limitations and restrictions which attach to the power to pardon. The power to pardon appears to be vested by the constitution in the president alone. Article 2, Sec. 2. But this statute, not being a statute regulating the exercise of the power to pardon, must be construed, not with reference to the restrictions on the power to pardon, but in all points doubtful or obscure with reference to the principle of public policy which dictated its enactment, so far as that principle may be discovered from the law itself, and the purposes aimed to be accomplished by it, and from other statutes in pari materia; and the mere fact that the words in which the powers granted are expressed would be appropriate in a statute granting a power to pardon, if such a statute were possible, is no reason for applying to them the strict limitations to which they would be liable in such a statute, unless such limitations are also called for by the principle of public policy intended to be subserved by the enactment, or are necessary for the purpose of giving it a fair and reasonable application to the subject-matter legislated upon. Applying this rule to the reading of this statute, I think it is clear that the power to remit or mitigate penalties extends as well and as fully to penalties given to the person suing for the same as to those given to the United States, or one-half to the government and one-half to the informer, all of which classes of penalties are given in title 52 of the revised Statutes. I think there is no reason to construe the statute as giving to the secretary alternative powers, as claimed by libellant's counsel--first, as to cases where no suit has been instituted, only a power to remit or mitigate the penalty to be exercised before suit brought; and, secondly, if a suit has been instituted, a power only to discontinue the suit. The word 'or' may, it is true, be used in such a sense as indicating that the power is to do one only of two things; but quite as frequently the use of the word 'or' denotes that the power granted is to do either; that is to say, both of the two things mentioned. Thus, here, the reading that is called for, as well by the text of the law as by the evident purpose to be subserved by the statute, is that as to all the penalties referred to, except those which are purely punitive, as imprisonment or removal from office,-- that is to say, as to all pecuniary penalties given by the statute,-- the secretary has power, on ascertaining the facts, to remit or mitigate the same, and, if a suit has been commenced, to discontinue it. The additional power given to 'discontinue any prosecution to recover penalties' may, perhaps, be applicable, as argued, only to suits in which the United States is plaintiff; but the addition of this power in such cases, which is rather the means, or one means, of carrying into effect a remission, than a power to remit or mitigate, does not impair or take away the larger and more general power to remit or mitigate, which is expressly extended to all the pecuniary penalties of the statute, without exception. It seems to me to be doing violence to the meaning of the statute to infer from its terms that while the secretary can mitigate or reduce the amount of penalty before suit brought, yet after suit brought he can do nothing but discontinue the suit; that he has not power to let it go on to judgment for the reduced penalty. Nor can any sound reason be suggested for presuming an intent of the legislature to discriminate between a case where suit has been brought in which half the penalty will go to the informer in the event of a judgment, which is undoubtedly subject to remission, even after suit brought, and a case where the whole of the penalty will go to him. The vesting of an interest in the informer by the beginning of the suit is the same in either case, and the evil intended to be guarded against by giving these powers to the secretary is the same in either case; or, if possible, the mischief is greater where the entire penalty goes to the informer. The obvious and humane purpose to be attained by this grant of power was to enable some responsible officer of the government, upon examination into the facts of the particular case, to prevent these penalties, some of which are severe, and might be ruinous from being used oppressively in cases where the violation of law was...