The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1901-12-20
WILL NOT
PROSECUTE
Settling Custom
Cases Out of
Court.

The prosecution for offenses agains
the customs laws is discountenancet
liz a written opinion given YESTERDAY
by United States District Attorne,
Bunne at the request of Collector
Stackabe. The matter will be referred
for a final decision to the Secretar,
of the Treasury at Washington, as tn,
question is one of considerable impor'
lance.
This is a case where X. Wakabayash
was alleged to have imported spirits II
package said to contain sake, and
Collector Stackable wished to beSil
prosecution because of the alleged
violation of law, whereupon the full
amount of the cash bond was rendered
in settlement. This was refused by
the collector, but the United states
attorney advises it's acceptance and
submission to Secretary Gage in the
following opinion:
Honolulu, II. T, Dec. II, 1901.
Hon. T.. II. 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. r. 1899, of
Il certified copy of the bond of X. Waka-
bayashi, dated Nov. q. 1901. for six
months, in the penal sum of 500. with
the Pacific Surety Co. as surety, to COW
err 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 s. s.
China" of Nov .. 1901, a 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 it was impossible for him to
comply with the conditions of said bond"
In this communication, which Is dated
Dec. u, 1901. you enclose copy of Bond
No. sac. and request that / commence
proceedings to enforces the provisions of
tho bond.
In subsequent communication, dated
Dec. II, 1901. you do me the honor to OBJ
serve: referring to my letter of the
12th inst. 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 liti-
cation. viz. 500. ! have to state that
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 an
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 to 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 s2tG. being tire full penal sum of
the bond referred to-
The Pacific Surety Company by its at
torncy, then proceeds to discuss the pro-
priety of laying the entire matter before
the Honorable, the Secretary of the
Treasury. for readjustment. This COM
munication from the Surety Company is
dated December ~, 1901.
! regret to say that the pending pres
sure of the Pearl Harbor Condemnation
suits, in1 Of other ma tiers demanding
attention. has prevented Inc rom reply
ing earlier and now prevents me from
discussing this subject matter as - lly
as l should wish. 1t seems 10 me, how
ever, in view of the tender of the Surety
Company. that the acceptance of this
tender would be productiv. Of results to
the government equivalent to those
which would flow from successful prose-
cution of the bond: that no higher salts
faction to the government could result
from the proposed litigation than would
result from the acceptance Of this ten
der: and that, therefore, a resort to It'll
cation would be vain AMI unnecessary.
If some good purpose could be subserved
by the proposed litigation. one cuuil APP
preciate the propriety of It's institution:
but since the most complete success of
such litigation could result III no higher
advantage to the government ,han the
collection of this bond. it would SEEM in
view Of this voluntary tcnder, that 1.-The
institution of unnecessary legal proceed
ings' would be at variance with the spir-
1t and intent which pervades the customs
regulations Revenue laws are to be fair.
ly construed. so as to effectualiy accom-
plish the intention of Congress and Sc
cure the observance of tne law: but even
revenue laws imposing forfeiture for
fraud, are not technically pena, so as 10
call for a harsh construction &C. r. 1929.
Art. 1882. Indeed it Is the avowed pur-
pose of the regulations 'to avoid The in
sututon of unnecessary legal procee l.
ings, and the expenses incidental thereto.
in all cases of penalties Sc tied by volun-
tary payment thereon I'D, Art. 1886;
collectors should "avoid involving the
government in litigation upon slight
cause" I'D. Art. 1880; fines imposed by
the customs laws may, in some cases. be
collected without legal proceedings I'D,
Art. 1889: and the general spirit of the
regulation touching the collection of
bonds is quite in line with the main in
tent and purpose of the customs regula-
tons, seeks to exempt defendants from
unnecessary costs, and provides in GER
tain classes of cases. that a reasonable
opportunity will be afforded obligors to
discharge bonds without suit. I'D, Art
l5H)
Hearing In mind these provisions of the