The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-12-18
WILL NOT
PROSECUTE
Settling Custom
Cases Out of
Court.
PENALTY OF $500
IS ACCEPTED
japanese Alleged TO Have I'm
ported Spirits in Sake
Package.

Il
The prosecution for offenses ag2ins
the customs laws is discountenancei
ia a written opinion given yesterday
by United States District Attorney
Dunno at the request of Collector
Stackable. The matter viii be referred
for a final decision 10 the Secretary
of the Treasury at Washington, as thS
question is one Of considerable impor-
| lance.
This is a case where X. Wakabayashi
was alleged TO have imported spirits in
package said to contain sake. ard
Collector Stackable wished to begin
prosecution because of the alleged
violation OF law, whereupon the fun
amount of the cash bond was rendered
in settlement This was refused by
the collector. but the United states
attorney advises its acceptance and
submission to Secretary Gage in the
following opinion:
Honolulu, II. T.. Dec. Il, 1901
Hon. Z. r.. Stackable.
Collector of Customs,
Port of Honolulu, Hawaii:
SRI have the honor to acknowledge
the receipt from you for collection, in
accordance with Art. 1872. c. L. 1888 OF
a certified copy of the bond of h. Waka-
bayashi, dated Nov. q, 1901. for six
months, in the penal sum of 5000 with
the Pacific Surety Co. as surety, TO COW
er delivery of unexamined packages.
You state the facts of the case to be as
follows: The above named principal i'm
ported certain merchandise per 5. S.
China" of Nov. 9, 1901. part of which
was delivered In accordance with customs
regulations. You state that This office
has reason to believe that one OF the
packages alleged to have contained saki
contained spirits, and is an Illegal impor-
tation under paragraph go, Tariff Act of
July "A, 1897. Accordingly. the importer
was requested to return the package in
question to this Office, and his broker re-
ported for him that the contents of the
package had entered into consumption,
and that il was impossible for him to
comply with the conditions OF said bond"
In this communication, which is dated
Dec. IL, 1901, you enclose a copy of Bond
No. $50, and request that L commence
proceedings to enforce the provisions of
the bond.
In a subsequent communication, dated
Dec. IL. 1901, you do me the honor to OBJ
serve: Referring to my letter of the
18th inst, l have the honor to transmit
herewith, for your consideration, the let
ter of the Pacific Surety Company, by its
attorney, W. J. Robinson, wherein they
tender the full penal sum of the bond OF
X. Wakabayashi in order to avoid Hti-
cation. viz. 500. have to state that L
fail TO find any authority of law author
iZing me to accept the amount of the
penal sum OF the bond in settlement of
this matter. and will thank you for
opinion as to the proper course to pursue
in the premises
The communication Of the Pacific Sure
ty Company. by its attorney, Mr.. Robin
son. after referring In general terms to
the matter under discussion. proceeds to
say: I'm order 10 avoid any litigation
which might ensue as a result of placing
the matter in the hands OF the United
States Attorney. we herewith voluntarily
tender and pay over TO you In cash the
sum OF S2C6. being the fun penal sum of
the bond referred to-.
The Pacific Surety Company. by its at
torney, then proceeds 10 discuss the pro-
priety of laying the entire matter before
the Honorable. the Secretary of the
Treasury, for reimbursement. This com
from the Surety Company is
dated December u 1901
! regret to say that the pending pres
sure OF the Pearl HaTbor Condemnation
suits. Ini CT other matters dcmauJiuS
attention. has prevented me rom reply
ing earlier. and now prevents me from
discussing, this subject ma ter as ily
as I should wish. II seems 20 me. how
ever. In view OF the tender Of the Surety
Company. that the acceptance Of this
tender would be produCJjvs OF results To
the government equivalent 10 tAose
which would flow from successful prose-
cution Of the bond that no higher salts
faction 10 the government could result
from the proposed litigation than would
result from the acceptance az tbs ten
der: and that, therefore. = resort to It'll
cation would be vain AMI unnecessary
II some good purpose could be subserved
by the proposed litigation. one could APP
preciate the propriety Of its institution;
but since tie most complr-r success OF /
such litigation could result IN no higher /
advantage 10 the government: than the !
collection of this bond il would seem, in
view of this voluntary icIde-, that the |
institution of unnecessary legal proceed !
ngs'' would be at variance with the spir- |
L and intent which pervades the customs /
regulation Revenue laws are 20 be fair |
y construed so as TO effectualiy accom- |
oIiSh the intention OF Congress end Sc !
,ure the observance Of tne law; but even /,
revenue laws imposing forfeiture FOR /
fraud. are not technically psna- 50 as 10 /
all for a harsh constructors, O.. +. 1899. /
Art 1is2). Indeed. il is the avowed pur- /
pose OF the regulations Ito avoid Ike in /
,titut,on Of unnecessary legal procee ! Z
ngs. and the expenses Incidental thereto. /
n all cases Of penalties Sc tlcG by Noiun- ,
airy payment thereof I'd, Art. 1886