Page images

of the Treasury and the duplicate (Cat. No. 4623b) to be forwarded to the Auditor for the Treasury Department.

Customs officers will make requisition for a supply of the new forms needed.


JAMES F. CURTIS, Assistant Secretary.

(T. D. 33068.)

Drawback on feathers.

Drawback on down and feathers manufactured by the Robinson-Roders Co., of Newark, N. J., with the use of imported raw unpurified feathers.-T. D. 28807 of February 26, 1908, and T. D. 28986 of May 12, 1908, revoked.


SIR: Drawback is hereby allowed, under section 25 of the tariff act of August 5, 1909, and the regulations promulgated thereunder (T. D. 31695 of June 16, 1911), on purified and refined feathers and down manufactured by the Robinson-Roders Co., of Newark, N. J., with the use of imported raw unpurified feathers.

A special manufacturing record shall be kept, showing, in addition to the usual data, the kinds and quantities of imported and domestic raw unpurified feathers used in the manufacture of each lot of purified feathers and down produced, the quantity of down, feathers, valuable waste, and valueless waste resulting therefrom, stated separately, and the value of such valuable waste. An abstract from such manufacturing record shall be filed with each drawback entry.

The allowance shall not exceed the quantity of imported raw unpurified feathers used in the manufacture of the exported down or feathers, as shown by the abstract from the manufacturing record, the allowance for valuable waste to be reduced according to the number of pounds of the imported raw feathers which will be replaced by the value of such waste.

At the end of each six months the manufacturer shall file in your office a sworn statement showing the average prices received by him for feathers and down during the preceding six months. The average price thus obtained shall be deemed the market value of the products for that period and the drawback on the feathers and down shall be apportioned to the relative values of the feathers and down as thus ascertained.

The sworn statement of the manufacturer, dated March 29, 1912, is transmitted herewith for filing in your office.

T. D. 28807 of February 26, 1908, and T. D. 28986 of May 12, 1908, are hereby revoked.




Assistant Secretary.

(T. D. 33069.)

Forfeiture and destruction of smoking opium--Opinion of Attorney


Smoking opium seized for violation of the act of February 9, 1909, may be summarily forfeited and destroyed by collectors of customs without judicial proceedings.

TREASURY DEPARTMENT, January 7, 1913. The appended opinion of the Attorney General is published for the information and guidance of customs officers and others concerned. (90956-51.) JAMES F. CURTIS, Assistant Secretary.

DEPARTMENT OF JUSTICE, Washington, December 21, 1912. SIR: I have the honor to acknowledge the receipt of your letter of the 25th ultimo in which you state that the collector of customs at Port Townsend, Wash., has under seizure 5 pounds of yen shee, a preparation of smoking opium, valued at $50, and various other seizures of smoking opium, the value of which in each case is less than $500, all of which were seized for violation of section 2 of the act of February 9, 1909 (35 Stat., 614), in that said opium was introduced into the United States contrary to law. You request my opinion whether said opium may be summarily forfeited under the provisions of sections 3074 et seq. of the Revised Statutes or whether the only lawful procedure is by way of judicial condemnation.

The act of February 9, 1909, supra, is entitled "An Act to prohibit the importation and use of opium for other than medicinal purposes," and provides:

Be it enacted, etc., That after the first day of April, nineteen hundred and nine, it shall be unlawful to import into the United States opium in any form or any preparation or derivative thereof: Provided, That opium and preparations and derivatives thereof, other than smoking opium or opium prepared for smoking, may be imported for medicinal purposes only, under regulations which the Secretary of the Treasury is hereby authorized to prescribe, and when so imported shall be subject to the duties which are now or may hereafter be imposed by law.

SEC. 2. That if any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any opium or any preparation or derivative thereof contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such opium or preparation or derivative thereof after importation, knowing the same to have been imported contrary to law, such opium or preparation or derivative thereof shall be forfeited and shall be destroyed, and the offender shall be fined in any sum not exceeding five thousand dollars nor less than fifty dollars, or by imprisonment for any time not exceeding two years, or both. Whenever, on trial for a violation of this section, the defendant is shown to have, or to have had, possession of such opium or preparation or derivative thereof, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant shall explain the possession to the satisfaction of the jury.

Sections 3074 to 3080, inclusive, of the Revised Statutes deal with "cases of seizure of property subject to forfeiture for any of the causes named in any provision of law relating to the customs, or for the registering, enrolling, or licensing of vessels, when, in the opinion of the collector or other principal officer of the revenue making such seizure, the value of the property seized does not exceed $500." They provide for an appraisement of the property (sec. 3074), a notice by publication of the seizure (sec. 3075), the protection of the claimants (sec. 3076), the sale of the property at public auction and the deposit of the proceeds of sale (sec. 3077), the remission of the forfeiture under certain circumstances (sec. 3078), the distribution of the proceeds (sec.

3079), and the sale of perishable articles or articles the expense of whose keeping would be disproportionate (sec. 3080).

These sections, it is clear, are confined in their application to vio ations of the customs or navigation laws and have no bearing on cases not falling within those laws. The act of February 9, 1909, while it provides by section 1 for the collection of revenue on opium other than smoking opium imported for medicinal purposes, is not, in its application to smoking opium and the forfeiture thereof, a customs or navigation law, but is a prohibitory statute enacted by virtue of the police powers of the United States. It does not contemplate the sale of opium seized for violat on of its provisions, but its destruction, so that, clearly, the provisions of sections 3077 to 3080, inclusive, of the Revised Statutes can not be availed of.

In United States v. Caminata (194 Fed., 903) the opium was seized on Delaware Bay before the vessel reached the customs. Counsel for the Government contended that the act of February 9, 1909, supra, was not a customs act, but a prohibitory statute, and that, therefore, the offense was complete when the opium was brought within the territorial limits of the United States, whether it had reached the customs line or not, so that the case of Keck v. United States (172 U. S., 434) did not apply. Judge McPherson said (194 Fed., 905):

I agree with this reasoning, and hold:

(1) That the offense described in section 2 is committed whenever smoking opium is fraudulently and knowingly brought by an offender within the territorial limits of the United States. The offense is then complete, although the opium may not have been landed from a ship or been carried across the customs lines.

See also Williams v. United States (168 U. S., 382, 387, 388.)

I am of the opinion, therefore, that sections 3074 et seq. of the Revised Statutes have no application to opium seized under the provisions of section 2 of the act of February 9, 1909.

For the same reasons, section 3460 of the Revised Statutes, relating to the summary procedure in the forfeiture of goods seized for violation of the provisions of the internalrevenue laws, is likewise inapplicable.

The power of Congress to provide for the summary destruction of articles imported or transported in violation of valid police laws is now established beyond question. In the leading case of Lawton v. Steele (152 U. S., 133), the Supreme Court held the summary destruction of fish nets unlawfully maintained in the waters of the State of New York to be a valid exercise of the police power of the State. In its opinion the court said (152 U. S., 140, 141):


But where the property is of little value, and its use for the illegal purpose is clear, the legislature may declare it to be a nuisance and subject to summary abatement. Instances of this are the power to kill diseased cattle; to pull down houses in the path of conflagrations; the destruction of decayed fruit or fish or unwholesome meats, or infected clothing, obscene books or pictures, or instruments which can only be used for illegal purposes. While the legislature has no right arbitrarily to declare that to be a nuisance which is clearly not so, a good deal must be left to its discretion in that regard, and if the object to be accomplished is conducive to the public interests, it may exercise a large liberty of choice in the means employed. Newark Railway . Hunt (50 N. J. Law, 308); Blasier v. Miller (10 Hun., 435); Mouse's Case (12 Rep., 63); Stone v. New York (25 Wend., 157, 173); Am. Print Works v. Lawrence (21 N. J. Law, 248; 23 N. J. Law, 590).

It is not easy to draw the line between cases where property illegally used may be destroyed summarily and where judicial proceedings are necessary for its condemnation. If the property were of great value, as, for instance, if it were a vessel employed for smuggling or other illegal purposes, it would be putting a dangerous power in the hands of a customs officer to permit him to sell or destroy it as a public nuisance, and the owner would have good reason to complain of such act, as depriving him of his property without due process of law. But where the property is of trifling value, and its destruction is necessary to effect the object of a certain statute, we think it is within the power of the legislature to order its summary abatement. For instance, if 75044-VOL 24-13- -2

the legislature should prohibit the killing of fish by explosive shells, and should order the cartridges so used to be destroyed, it would seem like belittling the dignity of the judiciary to require such destruction to be preceded by a solemn condemnation in a court of justice. The same remark might be made of the cards, chips, and dice of a gambling room.

In Buttfield v. Stranahan (192 U. S., 470, 497) the court sustained a statute of the United States which provided for the destruction, under certain conditions, of imported tea falling below a certain standard of quality.

In Sentell v. New Orleans, etc., Railroad Co. (166 U. S., 698, 705) the court said: It is true that under the fourteenth amendment no State can deprive a person of his life, liberty, or property without due process of law; but in determining what is due process of law we are bound to consider the nature of the property, the necessity for its sacrifice, and the extent to which it has heretofore been regarded as within the police power. So far as property is inoffensive or harmless, it can only be condemned or destroyed by legal proceedings, with due notice to the owner; but so far as it is dangerous to the safety or health of the community, due process of law may authorize its summary destruction. As was said in Jenkins v. Ballantyne (8 Utah, 245, 247), "the emergency may be such as not to admit of the delay essential to judicial inquiry and consideration, or the subject of such action and process may be of such a nature, or the conditions and circumstances in which the act must be performed to effect the protection and give effect to the law may be such as to render judicial inquiry and consideration impracticable."

In North American Storage Co. v. Chicago (211 U. S., 306, 315) the court said:

* * * We are of opinion, however, that provision for a hearing before seizure and condemnation and destruction of food which is unwholesome and unfit for use is not necessary. The right to so seize is based upon the right and duty of the State to protect and guard, as far as possible, the lives and health of its inhabitants, and that it is proper to provide that food which is unfit for human consumption should be summarily seized and destroyed to prevent the danger which would arise from eating it. The right to so seize and destroy is of course based upon the fact that the food is not fit to be eaten. Food that is in such a condition, if kept for sale or in danger of being sold, is in itself a nuisance, and a nuisance of the most dangerous kind, involving as it does the health if not the lives of persons who may eat it.


See also Public Clearing House v. Coyne (194 U. S., 497, 510); Hipolite Egg Co. v. United States (220 U. S., 45); Conway v. Stannard (17 Wall., 398; 22 Op. A. G., 70). It being clearly, therefore, within the power of Congress to provide for the summary destruction, without judicial proceedings, of articles brought into this country contrary to law, the question remaining is whether, in the particular enactment whose violation is claimed, the legislature has shown an intent to take this course or to allow the matter to be determined by the courts. Each case must stand upon its own bottom, for the nature and purpose of the law, the evil to be combated, the character of the articles seized, the practical results of one construction or another, are all proper matters of consideration, and must necessarily vary considerably. Where the statute in question is not specific as to the procedure to be adopted, the surrounding circumstances may disclose a case apt for judicial determination, or, on the contrary, may present a case where compulsory recourse to judicial condemnation would nullify the statute. These considerations are illustrated in the case submitted by you.

The act of February 9, 1909, begins by absolutely prohibiting the importation of opium or any preparation or derivatives thereof. It then excepts opium imported for medicinal purposes, other than smoking opium, and authorizes the Secretary of the Treasury to prescribe regulations to govern the importation of opium for medicinal purposes. Such regulations, providing for the entering in bond of medicinal opium at certain designated ports, for a declaration of the owner or consignee, and for the minimum weight of packages, have been duly promulgated (T. D. 29657).

Section 2 of the act of February 9, 1909, then provides that if any person shall fraudulently or knowingly import or bring into the United States any opium, etc.,

contrary to law "such opium or preparation or derivative thereof shall be forfeited and shall be destroyed." It further makes possession of the opium prima facie evidence of guilt.

The words quoted above, "shall be forfeited," do not, ex necessitate, mean forfeiture by judicial proceedings. Their meaning must be determined by balancing the following considerations:

(1) In the first place, as said by Attorney General Knox in the Fur-Seal case (24 Op., 577, 578):

* * * Undoubtedly the prohibition is intended to be rigorous and absolute in support of the policy of the Government for the protection of fur seals, and the inference that the seizure and destruction shall be by summary executive action rather than under judicial proceedings is manifestly strong. Nevertheless, the statute is not explicit upon the point, and the view indicated is reached by implication. As rights of persons and property are involved, an implied authority which is summary and might be arbitrary is not to be lightly assumed. The inferences should not only be persuasive but irresistible.

It is a fundamental proposition of law that every person charged with an offense or a liability shall have his day in court; that no man shall be deprived of his property without due process of law. While executive determination of rights of property and person has been sustained as due process of law when it was the express and manifest intention of Congress to confer such authority upon administrative officers, it may be safely presumed that without such clear intent judicial proceedings are necessary for the determination of these rights.

The above remarks, however, are to be taken with the qualification, enlarged upon below, that property rights in things which are nuisances per se are not so extensive nor so fully protected as are those in articles ordinarily used for lawful purposes (166 U. S., 700, 701).

(2) To require judicial condemnation in every case of opium seized for violation of the act of February 9, 1909, would evidently nullify that portion of the act, and, to that extent, defeat the legislative intent. Opium imported for smoking purposes, in evasion of law, is, I assume, as a general thing, imported in small packages easily concealed. One seizure may cover a number of such packages in the possession of different persons. To require a libel in each individual case, with the consequent delay and expense, would put such a burden on the administrative officers as to break down the execution of the law and render its enforcement impossible as a practical matter. On the other hand, the importer may always question the decision of the executive officer by judicial proceedings, and will undoubtedly do so if his case justify such a procedure.

(3) There is an entire distinction as to the propriety of summary destruction between articles which are nuisances per se and articles of a lawful character, but brought within the ban of the law by some collateral circumstance. (Freund on Police Power, secs. 520, 521, 525.) Opium belongs to the former class. It is a noxious drug fitted by nature to do harm to the community. It is, in and of itself, a menace. It belongs to the class of things which "carry their own identification as contraband of law" (220 U. S., 57), "which are outlaws of commerce" (ibid., 58). The regulations of the Secretary of the Treasury have clearly separated, as a practical matter, opium which can lawfully be imported for medicinal purposes from all other opium whose importation is absolutely prohibited, and I am informed on the highest authority that it is quite impossible, as a practical matter, to mistake the one for the other. No judicial inquiry is needed, therefore, to determine whether any particular seizure falls within the one class or the other. This feature distinguishes the case submitted by you from the case of the fur-seal skins, decided by Attorney General Knox. Such skins are not harmful per se, and their importation is rendered unlawful only by the collateral fact that they were taken in certain waters and not on the Pribilof Islands, nor under the privilege accorded by a former statute to certain Indians. When, therefore, fur-seal

« PreviousContinue »