William Hepner v. United States, 626

CourtUnited States Supreme Court
Writing for the CourtHarlan
Citation53 L.Ed. 720,29 S.Ct. 474,213 U.S. 103
Docket NumberNo. 626,626
Decision Date05 April 1909

Mr. S. P. McConnell for Hepner.

Assistant to the Attorney General Ellis for the United States.

Mr. Justice Harlan delivered the opinion of the court:

This action of debt was brought by the United States to recover a penalty under the statute of Congress of March 3d, 1903, regulating the immigration of aliens into this country. 32 Stat. at L. 1213, 1214, chap. 1012. The case is now before this court upon a question certified by the judges of the circuit court of appeals under the authority of § 6 of the judiciary act of March 3d. 1891. 26 Stat. at L. 828, chap. 517, U. S. Comp. Stat. 1901, p. 549.

Sections 4 and 5 of the act of 1903 are as follows:

'§ 4. That it shall be unlawful for any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation or in any way to assist or encourage the importation or migration of any alien into the United States, in pursuance of any offer, solicitation, promise, or agreement, parol or special, expressed or implied, made previous to the importation of such alien to perform labor or service of any kind, skilled or unskilled, in the United States.

'§ 5. That for every violation of any of the provisions of section four of this act the person, partnership, company, or corporation violating the same, by knowingly assisting, encouraging, or soliciting the migration or importation of any alien to the United States to perform labor or service of any kind by reason of any offer, solicitation, promise, or agreement, express or implied, parol or special, to or with such alien, shall forfeit and pay for every such offense the sum of one thousand dollars, which may be sued for and recovered by the United States, or by any person who shall first bring his action there- for in his own name and for his own benefit, including any such alien thus promised labor or service of any kind as aforesaid, as debts of like amount are now recovered in the courts of the United States; and separate suits may be brought for each alien thus promised labor or service of any kind as aforesaid. And it shall be the duty of the district attorney of the proper district to prosecute every such suit when brought by the United States.'

In the present action there was a judgment for the United States against the defendant, Hepner, for the prescribed penalty of $1,000. It is certified by the judges of the circuit court of appeals, to which the case was taken upon writ of error, that the testimony showed that an alien was induced by an offer, solicitation, or promise of the defendant, to migrate to the United States for the purpose of performing labor here.

The question propounded to this court by the judges of the circuit court of appeals is: 'When it appears by undisputed testimony that a defendant has committed an offense against §§ 4 and 5 of the act of March 3, 1903, may the trial judge direct a verdict in favor of the government, plaintiff, which has sued for the $1,000 forfeited by such offense under said § 5?'

Is this to be deemed as, in all substantial respects, a civil suit, as distinguished from a strictly criminal case or criminal prosecution? This must be first determined before answering the specific question propounded by the judges below. It is well to look at some of the adjudications in suits for statutory penalties.

In Stockwell v. United States, 13 Wall. 531, 542, 543, 20 L. ed. 491, 493, which was an action of debt, brought by the United States to recover forfeitures and penalties incurred under the act of Congress of March 3d, 1823 (3 Stat. at L. 781, chap. 58, U. S. Comp. Stat. 1901, § 3099), relating to the entry of merchandise imported into the United States from any adjacent territory, the question arose whether a civil action could be maintained by the government. That act provided, among other things, that anyone receiving, concealing, or buying goods, wares, or merchandise, knowing them to have been illegally imported and liable to seizure, 'shall, on conviction thereof, forfeit and pay a sum double the amount or value of the goods, wares, or merchandise so received, concealed, or purchased.' The defendant in that case insisted that the government could not proceed by a civil suit to recover the penalty specified in the statute—based, as that penalty was, on an offense against law except by indictment or information. The court rejected that view, and, speaking by Mr. Justice Strong, said: 'No authority has been adduced in support of this position, and it is believed that none exists. It cannot be that whether an action of debt is maintainable or not depends upon the question who is the plaintiff. Debt lies whenever a sum certain is due to the plaintiff, or a sum which can readily be reduced to a certainty,—a sum requiring no future valuation to settle its amount. It is not necessarily founded upon contract. It is immaterial in what manner the obligation was incurred, or by what it is evidenced, if the sum owing is capable of being definitely ascertained. The act of 1823 fixes the amount of the liability at double the value of the goods received, concealed, or purchased, and the only party injured by the illegal acts which subject the perpetrators to the liability is the United States. It would seem, therefore, that whether the liability incurred is to be regarded as a penalty, or as liquidated damages for an injury done to the United States, it is a debt, and, as such, it must be recoverable in a civil action. But all doubts respecting the matter are set at rest by the 4th section of the act, which enacted that all penalties and forfeitures incurred by force thereof shall be sued for, recovered, distributed, and accounted for in the manner prescribed by the act of March 2d, 1799, entitled, 'An Act to Regulate the Collection of Duties on Imports and Tonnage.' By referring to the 89th section of that act [1 Stat. at L. 627, 695, chap. 22], it will be seen that it directs all penalties accruing by any breach of the act to be sued for and recovered, with costs of suit, in the name of the United States of America, in any court competent to try the same; and the collector within whose district a forfeiture shall have been incurred is enjoined to cause suits for the same to be commenced without delay. This manifestly contemplates civil actions, as does the proviso to the same section, which declares that no action or prosecution shall be maintained in any case under the act, unless the same shall have been commenced within three years after the penalty or forfeiture was incurred, accordingly, it has frequently been ruled that debt will lie, at the suit of the United States, to recover the penalties and forfeitures imposed by statutes. It is true that the statute of 1823 imposes the forfeiture and liability to pay double the value of the goods received, concealed, or purchased, with knowledge that they had been illegally imported, 'on conviction thereof.' It may be, therefor, that an indictment or information might be sustained. But the question now is whether a civil action can be brought; and, in view of the provision that all penalties and forfeitures incurred by force of the act shall 'be sued for and recovered,' as prescribed by the act of 1799, we are of opinion that debt is maintainable. The expression, 'sued for and recovered,' is primarily applicable to civil actions, and not to those of a criminal nature.'

In Jacobs v. United States, 1 Brock, 520, 525, Fed. Cas. No. 7,157, the question arose whether the United States could maintain an action of debt to recover the specific sum which an act of Congress (1 Stat. at L. 76, chap. 20) providing for additional revenue declared should be forfeited and paid by any person guilty of the offense of forcibly rescuing or causing to be arrested, any spirits, etc., after the same had been seized by the collector. Chief Justice Marshall held that an action of that kind was a 'civil cause' within the meaning of the 9th section of the judiciary act of 1789, defining the jurisdiction of the district courts of the United States. In Stearns v. United States, 2 Paine, 300, Fed. Cas. No. 13,341, Mr. Justice Thompson, in the circuit court of the United States for the district of Vermont, held thatactions for penalties were civil actions, both in form and in substance, citing 3 Bl. Com. 158, and Atcheson v. Everitt, 1 Cowp. 382, 391. In the latter case, which was an action of debt, based upon an English statute, Lord Mansfield said that a penal action 'is as much a civil action as an action for money had and received.' A similar ruling was made by Mr. Justice Iredell in United States v. Mundell, 1 Hughes, 415, 423, 6 Call (Va.) 245, 253, Fed. Cas. No. 15,834, which was an action of debt by the United States to recover a penalty prescribed by an act of Congress. The court said: 'It is scarcely necessary to stop here to observe that the proceeding in question was not a proceeding in a criminal case within the meaning of the provisions of Congress, but was in truth a civil suit, though for an act of disobedience for which a criminal prosecution might possibly have been commenced if the act of Congress does not expressly or impliedly exclude it,—a point not now material to consider, because the civil suit has, in this instance, been in fact adopted. A criminal proceeding, unquestionably, can only be by indictment or information. The proceeding in question was neither.' Similar views as to the civil nature of actions for penalties were expressed in United States v. Younger, 92 Fed. 672; United States v. Baltimore & O. S. W. R. Co. 86 C. C. A. 223, 159 Fed. 33, 38; Hawlowetz v. Kass, 23 Blatchf. 395, 25 Fed. 765. See also Chaffee v. United States, 18 Wall. 516, 538, 21 L. ed. 908, 911; Wilson v. Rastall, 4 T. R. 753; Roberge v. Burnham, 124 Mass. 277, 279; People v. Briggs, ...

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