affect vessels, however remotely or indirectly, but rather the laws which relate to and regulate vessels on the side of commerce and navigation as their original and direct purpose. So that the remission of a fine to which a vessel or her master is liable under section 10 of the Act of March 3, 1891, 26 Stat. L. 1086 (superseded by the Act of Feb. 20, 1907, ch. 1134, sec. 19; see IMMIGRATION), for allowing the escape of three alien immigrants whose deportation had been duly ordered, is unprovided for. (1900) 23 Op. Atty.Gen. 271. See also (1894) 20 Op. Atty.Gen. 705. Remission after suit instituted.- The Secretary of the Treasury may remit a penalty after a suit for its recovery has been instituted by a private person. "If the libelant had, by virtue of his suit, an inchoate interest in such penalties, that interest was acquired subject to the power of the secretary to destroy it by a remission applied for before the right is ascertained and established by the judgment of the proper court." The Laura, (1885) 114 U. S. 411, 5 S. Ct. 881, 29 U. S. (L. ed.) 147. Distinction between compromise and remission. There is a clear distinction between the compromise of a doubtful case, as under R. S. sec. 3469 (see CLAIMS), and the remission of a penalty, forfeiture, or disability, as under this section. The former power is a fiscal one, but the latter is in the nature of a pardoning power. (1895) 21 Op. Atty.-Gen. 264. See also (1900) 23 Op. Atty.-Gen. 18; (1899) 19 Op. Atty.-Gen. 344. But see (1894) 20 Op. Atty. Gen. 727. Amendment as including forfeitures.The Attorney-General advised the Secretary of the Treasury that this section as a amended by the Act of Dec. 15, 1894, ch. 7, did not authorize the remission of forfeitures. "A clear omission irin statute like this cannot be supplied upon any considerations of supposed oversight, inconsistency, or hardship." (1896) 21 Op. Atty. Gen. 291. (This opinion was given on Jan. 10, 1896; and on March 2, 1896, this section was further amended, evidently to supply the omission pointed out.) Authority of Secretary of Commerce and Labor. In (1911) 29 Atty. Gen. 149, it was held that the Act of February 14, 1903, establishing the Department of Commerce and Labor and transferring to it certain duties then performed by the Secretary of Treasury conferred on the Secretary of that department the authority to remit under this section. An application for remission of fines and penalties is obviously based upon an admission that the fine or penalty has been incurred. Findlay v. U. S., (C. C. A. 9th Cir. 1915) 225 Fed. 337, 139 C. C. A. 207. Remission of costs. The costs which are not, as a general rule, charged against the defendant when proceedings are discontinued by the plaintiff, may be remitted or mitigated by the Secretary of Commerce and Labor in accordance with the provisions of this section. (1911) 29 Op. Atty.-Gen. 149. Remission of penalty after final judgment. The Secretary of Commerce and Labor has authority under this section, to remit a penalty after entry of final judg. ment incurred for violating a provision of law relating to vessels and seaman and to discontinue the prosecution. (1911) 29 Op. Atty.-Gen. 149. Sec. 5295. [Officers and informers may be witnesses.] Any officer or other person entitled to or interested in a part or share of any fine, penalty, or forfeiture incurred under any law of the United States, may be examined as a witness in any of the proceedings for the recovery of such fine, penalty, or forfeiture by either of the parties thereto, and such examination shall not deprive such witness of his share or interest in such fine, penalty, or forfeiture. [R. S.] Act of Feb. 28, 1865, ch. 67, 13 Stat. L. 442. Sec. 5296. [Discharge of indigent convicts.] When a poor convict, sentenced by any court of the United States to be imprisoned and pay a fine, or fine and cost, or to pay a fine, or fine and costs, has been confined in prison thirty days, solely for the non-payment of such fine, or fine and costs, such convict may make application in writing to any commissioner of the United States court in the district where he is imprisoned setting forth his inability to pay such fine, or fine and costs, and after notice to the district attorney of the United States, who may appear, offer evidence, and be heard, the commissioner shall proceed to hear and determine the matter. If on examination it shall appear to him that such convict is unable to pay such fine, or fine and costs, and that he has not any property exceeding twenty dollars in value, except such as is by law exempt from being taken on execution for debt, the commissioner shall administer to him the following oath: "I do solemnly swear that I have not any property, real or personal, to the amount of twenty dollars, except such as is by law exempt from being taken on civil process for debt by the laws of (naming the State where oath is administered;) and that I have no property in any way conveyed or concealed, or in any way disposed of, for my future use or benefit. So help me God." Upon taking such oath such convict shall be discharged; and the commissioner shall give to the keeper of the jail a certificate setting forth the facts. [R. S.] Act of June 1, 1872, ch. 255, 17 Stat. L. 198. Similar provisions were made by R. S. sec. 1042, supra, p. 328. SEC. 6. [Customs-revenue law-payment to informers.] That no payment shall be made to any person furnishing information in any case wherein judicial proceedings shall have been instituted, unless his claim to compensation shall have been established to the satisfaction of the court or judge having cognizance of such proceedings, and the value of his services duly certified by said court or judge for the information of the Secretary of the Treasury; but no certificate of the value of such services shall be conclusive of the amount thereof. And when any fine, penalty, or forfeiture shall be collected without judicial proceedings, the Secretary of the Treasury shall, before directing payment to any person claiming such compensation, require satisfactory proof that such person is justly entitled thereto. [18 Stat. L. 187.] This and the following section are from the Act of June 22, 1874, ch. 391, "An act to amend the customs-revenue laws and to repeal moieties.' For the other sections of this Act, see the title CUSTOMS DUTIES. Constitutionality.- The duties sought to be imposed upon the court by this section are administrative, and not judicial, and Congress cannot constitutionally impose them. Fed. 269. U. S. v. Queen, (1900) 105 In Ex p. Riebeling, (1895) 70 Fed. 310, the court said: "It will be observed that the Act confers no power upon the court to render judgment in favor of the informer for the amount which may be found due him. The duty enjoined is not a judicial duty, but a mere direction to the court to ascertain and establish certain facts for the information of the Secretary of the Treasury, and the question for the court to determine is whether it has jurisdiction to proceed in accordance with the prayer of the applicant. After giving the subject careful consideration the court has reached the conclusion that Congress is without authority, under the Constitution, to require the judiciary to discharge other than judicial functions, and hence that the present proceedings must be dismissed for the want of jurisdiction." In Ex p. Gans, (E. D. Mo. 1883) 17 Fed. 471, it appeared that a petition was filed, alleging that the petitioner gave the original information in a smuggling case, theretofore finally disposed of by the court, in which the proceeds of the property were paid into the treasury pursuant to the decree, and the petition prayed for a certificate as provided for in this section, but the court said that the " case had disappeared from the docket and it had no further control of it."What is the supposed function of the court? If to be reviewed by the Secretary of the Treasury, its action is not judicial; and only judicial functions can be devolved on [it]. The Act of 1874 presents several anomalies in this respect. If the decision as to informers is committed solely to the discretion of the secretary, the duty to decide is purely executive, and the information upon which he is to act should come from executive sources. Section 6 provides that where no judicial proceedings are had, the secretary shall require satisfactory proofs; but where such proceedings shall have been instituted, he must, before payment, have the certificate of the court, by which, however, he is not bound as to compensation awarded. This provision may be intended as a check on the secretary, but what function does the court perform? These suggestions are made for the purpose of directing attention to the anomaly of confounding or confusing judicial and executive functions." Informer's right as a share of fund.— There is, by this statute, nothing remaining to the informer analogous to a right in rem to obtain a share of the fund in specie, but only a personal claim against the government to reasonable compensation. In re Jayne, (1886) 28 Fed. 419. Certificate as advisory only. This section contemplates the certificate of the court or judge for the information of the Secretary of the Treasury where judicial proceedings have been instituted against persons violating the law, so as to afford the secretary some knowledge of the character and value of the information given by informers resulting in the institution of proceedings, but the certificate in such cases is only advisory and never conclusive." Eager v. U. S., (1897) 32 Ct. Cl. 571. Act of June 16, 1880.- This section has no application to a case of expenses incurred by the secretary under the Act of June 16, 1880, ch. 235, 21 Stat. L. 265, as to the expenses of detecting and convicting persons engaged in counterfeiting and other felonies, but only to claims of informers under the Act of which this section forms a part. In re Brittingham, (1880) 5 Fed. 191. SEC. 7. [Officer receiving part of informer's fees action to recover money so paid.] That except in cases of smuggling as aforesaid, it shall not be lawful for any officer of the United States, under any pretense whatever, directly or indirectly, to receive, accept, or contract for any portion of the money which may, under any of the provisions of this or any other act, accrue to any such person furnishing information; and any such officer who shall so receive, accept, or contract for any portion of the money that may accrue as aforesaid shall be guilty of a misdemeanor, and, on conviction thereof, shall be liable to a fine not exceeding five thousand dollars, or imprisonment for not more than one year, or both, in the discretion of the court, and shall not be thereafter eligible to any office of honor, trust, or emolument. And any such person so furnishing information as aforesaid, who shall pay to any such officer of the United States, or to any person for his use, directly or indirectly, any portion of said money, or any other valuable thing, on account of or because of such money, shall have a right of action against such officer or other person, and his legal representatives, to recover back the same, or the value thereof. [ [18 Stat. L. 187.] See the note to the preceding section 6 of this Act. SEC. 26. [Refund or remission of fines, etc., illegally assessed under laws relating to vessels or seamen.] That whenever any fine, penalty, forfeiture, exaction, or charge arising under the laws relating to vessels or seamen has been paid to any collector of customs or consular officer, and application has been made within one year from such payment for the refunding or remission of the same, the Secretary of the Treasury, if on investigation he finds that such fine, penalty, forfeiture, exaction, or charge was illegally, improperly, or excessively imposed, shall have the power, either before or after the same has been covered into the Treasury, to refund so much of such fine, penalty, forfeiture, exaction, or charge as he may think proper, from any moneys in the Treasury not otherwise appropriated. [23 Stat. L. 59.] The above section 26 is from the Act of June 26, 1884, ch. 121, "An Act to remove certain burdens on the American merchant marine and encourage the American foreign carrying trade and for other purposes." Still in force. This section is still in force. (1909) 28 Op. Atty.-Gen. 21. Fines and penalties prior to date of Act. The power tc refund moneys under this statute does not extend to payments of fines and penalties exacted and recovered prior to the date of the Act, and of which an application for remission was made within a year from the date of payment. (1885) 18 Op. Atty.-Gen. 282. Necessity that protest accompany payment. A protest need not accompany the payment of a fine, etc., to entitle one to prefer an application to the Secretary of the Treasury for its remission. (1884) 18 Op. Atty. Gen. 63. Head tax under Immigration Act. This statute does not authorize the secretary of the treasury to refund a tax levied on passengers not citizens of the United States, in accordance with the requirement of the Act of Aug. 3, 1882, ch. 376, entitled "An Act to regulate immigration" (superseded by subsequent acts, see IMMIGRATION), where, by a prior treaty between the United States and the country from which the vessel came, the citizens of either country were to be entitled to the same rights as might be granted by the other to its citizens. The secretary cannot regard a legal tax as improperly collected, because it might involve the country in a controversy with a foreign nation. Thingvalla Line v. U. S., (1889) 24 Ct. Cl. 255. The Secretary of the Treasury is author 66 The Secretary of the Treasury is authorized to repay the tonnage tax imposed on a steamer, if on investigation he finds that it was 'illegally, improperly, or excessively imposed," and if the commissioner of navigation shall have first decided under section 3, Act of July 5, 1884, ch. 221 (see SHIPPING AND NAVIGATION), that such tax was erroneously or illegally exacted. (1890) 19 Op. Atty.-Gen. 660. Legally imposed.-This statute does not give the Secretary of the Treasury a power of remission in cases where a competent tribunal shall have decided that such fines and penalties were legally imposed. (1885) 18 Op. Atty.-Gen. 282. FISH AND FISHERIES I. BUREAU OF FISHERIES, 342. II. REGULATION OF FISHERIES, 345. I. Bureau of Fisheries, 342. R. S. 4395. Appointment of Commissioner of Fish and Fisheries, 342. R. S. 4397. Executive Departments to Aid Investigations, 343. Act of May 31, 1880, ch. 113, 344. Sec. 1. Fish Commission Vessels to Be on Same Footing as Coast Act of March 3, 1885, ch. 360, 344. Sec. 1. Detail from Revenue Marine for Fish Commission, 344. Sec. 1. Detailed Statement of Expenditures for "Propagation of Act of Aug. 5, 1892, ch. 380, 344. Sec. 1. Annual Estimates, 344. Act of Jan. 29, 1909, ch. 51, 344. Fish-Culture Stations to Be Established, 344. Act of March 4, 1911, ch. 285, 345. Sec. 1. Designation of Officer to Act During Absence of Commissioner and Deputy Commissioner, 345. II. Regulation of Fisheries, 345. R. S. 4391. Agreement for Fishing Voyage, 345. R. S. 4392. Penalty for Violating Agreement, 346. R. S. 4393. Recovery of Shares of Fish under Agreement, 347. In Alaska, see ALASKA. CROSS-REFERENCES Rules of Navigation, see COLLISIONS. Distribution of Specimens to Educational Institutions, see EDUCATION. In Hawaiian Islands, see HAWAIIAN ISLANDS. Construction of Fishways in Rivers, and Fishing or Dredging in Harbor Channels, see RIVERS, HARBORS AND CANALS. Vessels Engaged in, see SHIPPING AND NAVIGATION. Sponge Fishing, see SPONGES. Exemption of Vessels from Tonnage Duties, see TONNAGE DUTIES. I. BUREAU OF FISHERIES Sec. 4395. [Appointment of commissioner of fish and fisheries.] That there shall be appointed by the President, by and with the advice and consent of the Senate, a person of scientific and practical acquaintance with the |