*We are unable to discover any federal question in the record. No title, right, privilege, or immunity, under the constitution or laws of the United States, was set up in the pleadings, and no claim of that kind was made at the trial. The whole controversy, at and before the trial, seems to have been as to the right of the holder of a banker's check to recover against a bank having funds of the drawer when presentation has been duly made and payment demanded, and as to the effect of the arrangement between the parties when it was agreed that the bank should pay the checks if the Bradley draft was collected.

2

In the court of appeals it was, among other things, assigned for error that "the judgment was against the right of the defendant to a judgment in his favor under the provisions of the act of congress of the United States, establishing and providing for a uniform system of bankruptcy, in force at the time of the transaction between the parties, out of which the controversy arises," and, from the opinion of the court, section 5073 of the Revised Statutes seems to have been relied on. That section provides: "In all cases of mutual debts or mutual credits between the parties, the account between them shall be stated, and one debt set off against the other, and the balance only shall be allowed or paid." No rights under this section were set up in the pleadings or claimed at the trial; and, besides, the right of the bank to apply whatever credit there may be in its accounts in favor of the bankrupt firm to the reduction of the amount due on the draft is not denied. The only dispute is as to the amount of the credit, and we are unable to see that the bankrupt law is involved in the determination of that question. The court of appeals decided that the presentation of the checks on the fifth of November operated as an equitable assignment at that date of an amount of the fund then standing to the credit of the firm equal to the amount of the checks, and made the savings association from that time, in equity, the creditor of the bank to that extent. Debts are provable against a bankrupt's estate as of the date of the commencement of the proceedings in bankruptcy. Rev. St. § 5067. As section 5073 relates to the amount which may be allowed upon such proof, it is clear that the mutual debts or mutual credits there referred to must be such as are in existence at the same date. In the present case, the question was whether, on the fifth of November, 1874, more than two months before the commencement of the proceedings in bankruptcy, a part of the balance standing to the credit of Cobb, Dolhonde & Co. on the books of the bank had been assigned to the plaintiff in this action. That did not depend on the bankrupt law, but on the legal effect of what was done at and before that time by the parties, and when, so far as appears from the record, no proceedings in bankruptcy were contemplated. The point for determination was whether the presentation of a check, drawn on a banker by a customer having funds to his credit, transferred in equity to the holder of the check so much of the debt due from the bank to the drawer as was sufficient to pay the check. This clearly is not a federal question.

It follows that we have no jurisdiction of the case, and it is dismissed.

(114 U. S. 262)

THE BRADSTREET Co. v. HIGGINS.
(April 13, 1885.)

COSTS UPON MOTION TO DISMISS APPEAL.

Upon a motion to dismiss an appeal the right of the supreme court to decide, implies the right to adjudge as to all costs which are incident to the motion.

In Error to the Circuit Court of the United States for the Western District of Missouri. Motion for an order that the plaintiff in error be required to pay the costs of printing the record, and the clerk's fee for supervising the

same

W Hallett Phillips, for the motion. W. Wise Garnett, in opposition. WAITE, C. J. This writ of error was dismissed at a former day in this term, on motion of the defendant in error, for want of jurisdiction, because the value of the matter in dispute did not exceed $5,000. 112 U. S. 227; S. C. ente, 117. In order to present his motion to dismiss, it became necessary for the defendant in error to cause the record to be printed, and to do that he was compelled to pay the cost of printing and the fee of the clerk for superviving. The judgment, as entered on the motion to dismiss, made no order as to costs, and the defendant in error now moves that the cost of printing and the clerk's fee for supervising be taxed against the plaintiff in error. I; has been often decided that if a suit is dismissed for want of jurisdiction in this court, no judgment for the costs of the suit can be given. Inglee v. Coolidge, 2 Wheat. 368; McIver v. Wattles, 9 Wheat. 650; Strader v. Graham, 18 How. 602; Hornthall v. Collector, 9 Wall. 566. A different rule prevails when there has been a reversal here because the circuit court did not have jurisdiction, as this court has authority to correct the error of the circuit court in taking jurisdiction. Turner v. Enrille, 4 Dall. 7; Winchester v. Jackson, 3 Cranch, 514; Montalet v. Murray, 4 Cranch, 47; Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 387; S. C. 4 SUP. CT. REP. 510.

Here, however, the question is not as to the right of the defendant in error to recover his costs in the suit, but only such as are incident to his motion to dismiss. It has been decided that the writ of error was wrongfully sued out by the plaintiff in error. To get rid of the writ and the supersedeas which had been obtained thereunder, the defendant in error was compelled to come to this court and move to dismiss. That motion we had jurisdiction to hear and decide. The right to decide implies the right to adjudge as to all costs which are incident to the motion. Under rule 10, § 2, of this court, it was the duty of the plaintiff in error to cause the record to be printed, and to pay all the costs and fees incident thereto in time for use when required in the progress of the cause. If it failed in this, the defendant in error might pay the costs and fees, and thus secure the printing. Under section 7, in case of reversal, affirmance, or dismissal with costs, the amount of the cost of printing the record and the clerk's fee are to be taxed to the party against whom the costs were given.

In this case the plaintiff in error neglected to have the record printed by the time it was wanted by the defendant in error on his motion to dismiss. Under these circumstances we do not doubt our authority to adjudge the costs incident to the printing against the plaintiff in error as part of the costs of the motion to dismiss. It is accordingly ordered that the judgment heretofore entered be amended so as to charge the plaintiff in error with all the costs of the motion to dismiss, which shall include the cost of printing the record, and the clerk's fee for supervising.

(114 U. S. 411)

THE LAURA.1

POLLOCK v. BRIDGEPORT STEAM-BOAT Co.1

(April 13, 1885.)

OVERCROWDING STEAM-VESSELS

REMISSION OF PENALTY

1. CARRIERS OF PASSENGERS
BY SECRETARY OF TREASURY-REV. ST. 2 5294.

A remission by the secretary of the treasury, under section 5294 of the Revised Statutes, of penalties incurred by a steam-vessel for taking on board an unlawful number of passengers, where the remission is applied for before a suit in rem, brought for the penalties against the vessel, by an informer, is tried, is effectual to destroy all liability in the suit.

2. SAME-AUTHORITY OF SECRETARY OF TREASURY.

The practice of granting remissions of pecuniary penalties and forfeitures, by officers other than the president, sanctioned by statute and acquiescence for nearly a century, as a valid exercise of authority, and no invasion of the power of pardon granted by the constitution to the president, is too firmly established to be questioned.

Appeal from the Circuit Court of the United States for the Southern District of New York.

18. C. 5 Fed. Rep. 133, and 8 Fed. Rep. 612. V.5s-56

H. G. Atwater, for appellant. Dennis McMahon, for appellee.

2

HARLAN, J. The statutes regulating the transportation of passengers by steam-vessels on such of the waters of the United States as are common highways of commerce, or are open to general or competitive navigation,-other than public vessels of this country, vessels of other countries, and canal-boats propelled in whole or in part by steam,-provide that every certificate of inspection granted to steamers carrying passengers, other than ferry-boats, shall show the number of passengers of each class for whom the steamer has accommodations, and whom it can carry with prudence and safety; that it; shall not be lawful to take on board a greater number of passengers than is stated in the certificate of inspection; and that “for every violation of this provision the master or owner shall be liable, to any person suing for the same, to forfeit the amount of passage money and ten dollars for each passenger beyond the number allowed." Rev. St. §§ 4399, +400, 4464, 4465; Act Feb. 28, 1871, (16 St. 440, 454.) These penalties are declared to be a lien upon the offending vessel. Section 4469. Another section in the same title provides: "If any vessel propelled in whole or in part by steam be navigated without complying with the terms of this title, the owner shall be liable to the United States in a penalty of $500 for each offense, one-half for the use of the informer; for which sum the vessel so navigated shall be liable, and may be seized and proceeded against, by way of libel, in any district court of the United States having jurisdiction of the offense."

The libel in this case was filed by the appellant to enforce a lien, in his favor, upon a steam-vessel of the class to which the above regulations apply, for penalties amounting to the sum of $5,661; which, it is claimed, accrued to the appellant, as the person suing for them, by reason of the transportation, on that vessel, at certain specified times, of a larger number of passen gers than its certificate of inspection permitted. Before the trial in the district court, the owner of the vessel, a corporation which had intervened, filed an amended answer, setting up, in bar of the further prosecution of the suit, a warrant in due form, by the secretary of the treasury, remitting to the appellee "all the right, claim, and demand of the United States, and of all others whatsoever, to said forfeiture of passage money and penalties, on payment of costs, if any there be." The provision of the statute under which this warrant of remission was issued is in these words: "The secretary of the treasury may, upon application therefor, remit or mitigate any fine or

*413

penalty provided for in laws relating to steam-vessels, or discontinue any prosecution to recover penalties denounced in such laws, excepting the penalty of imprisonment, or of removal from office, upon such terms as he, in his discretion, shall think proper; and all rights granted to informers by such laws shall be held subject to the secretary's power of remission, except in cases where the claims of any informer to the share of any penalty shall have been determined by a court of competent jurisdiction, prior to the application for the remission of the penalty; and the secretary shall have authority to ascertain the facts upon all such applications, in such manner and under such regulations as he may deem proper." Rev. St. § 5294. The costs having been taxed and paid into court, the libel was, by order of the court, dismissed. Pollock v. The Laura, 5 Fed. Rep. 133. Upon appeal to the circuit court, the decree was affirmed; that court concurring with the district court in holding that the remission by the secretary of the treasury discharged all liability for the penalties. The Laura, 19 Blatchf. 562; S. C. 8 Fed. Rep. 612.

The warrant of remission, it is contended by the libelant, is without legal effect, and should have been disregarded, because the statute upon which it rests is in conflict with the clause of the constitution investing the president with power "to grant reprieves and pardons for all offenses against the United States, except in cases of impeachment." The argument advanced in support of this position, briefly stated, is that the power of the president to grant pardons includes the power to remit fines, penalties, and forfeitures imposed for the commission of offenses against, or for the violation of the laws of, the United States; that such power is in its nature exclusive; and that its exercise, in whatever form, by any subordinate officer of the government, is an encroachment upon the constitutional prerogative of the president.

It is not necessary to question the soundness of some of these propositions. It may be conceded that, except in cases of impeachment, and where fines are imposed by a co-ordinate department of the government for contempt of its authority, the president, under the general, unqualified grant of power to pardon offenses against the United States, may remit fines, penalties, and forfeitures of every description arising under the laws of congress; and, equally, that his constitutional power in these respects cannot be interrupted, abridged, or limited by any legislative enactment. But is that power exclusive, in the sense that no other officer can remit forfeitures or penalties incurred for the violation of the laws of the United States? This question cannot be answered in the affirmative without adjudging that the practice in reference to remissions by the secretary of the treasury and other officers, which has been observed and acquiesced in for nearly a century, is forbidden by the constitution. That practice commenced very shortly after the adoption of that instrument, and was, perhaps, suggested by legislation in England, which, without interfering with, abridging, or restricting the power of pardon belonging to the crown, invested certain subordinate officers with authority to remit penalties and forfeitures arising from violations of the revenue and custom laws of that country. St. 27 Geo. III. c. 32. See, also, St. 51 Geo. III. c. 96, and 54 Geo. III. c. 171.

By an act passed March 3, 1797, (1 St. 506,) the secretary of the treasury was authorized to mitigate or remit any fine, penalty, forfeiture, or disability arising from any law providing for the laying, levying, or collecting duties or taxes, or any law concerning the registering and recording of ships or vessels, or the enrolling or licensing ships or vessels, employed in the coasting trade or fisheries, or regulating the same, if, in his opinion, the same was incurred without willful negligence or fraudulent intention by the person or persons subject to the same. He was also authorized to direct a prosecution, instituted for the recovery thereof, to cease and be discontinued upon such terms and conditions as he deemed reasonable and just. This act expired by limitation at a designated time. But by an act passed February 11, 1800, it

was revived, to continue in force without limitation as to time. 2 St. 7, c. 6. From the adoption of the constitution to the present moment, congress has asserted its right, by statute, to invest the secretary of the treasury and other officers of the executive branch of the government with power to remit fines, penalties, and forfeitures imposed for the violation of the laws of the United *States. And in none of the cases in this court or in the circuit and district courts of the United States, involving the operation or effect of such warrants of remission, was it ever suggested or intimated that the legislation was an encroachment upon the president's power of pardon,—so far, at least, as it invested the secretary of the treasury or other officers with authority to remit pecuniary penalties and forfeitures. Indeed, the case of U.S. v. Morris, 10 Wheat. 246, may be regarded as a direct adjudication in favor of the validity of that part of the act of 1797, brought forward in all of the subsequent statutes upon the same subject, which confers upon the secretary the power to remit fines, penalties, and forfeitures.

In that case-which involved the right to a share in a forfeiture declared by statute the question related to the power of the secretary under that act, after final sentence of condemnation and judgment for the forfeiture accruing under the revenue laws, to remit the forfeiture. The court held that the power could be exercised, under that act, at any time before the money was actually paid over to the collector for distribution. It was said: "The authority of the secretary to remit, at any time before condemnation of the property seized, is not denied on the part of the plaintiff, [the officer claiming the forfeiture;] and it cannot be maintained that congress has not the power to vest in this officer authority to remit after condemnation; and the only inquiry would seem to be whether this has been done by the act referred to." Evidently the court, and the eminent counsel who appeared in that case, accepted it as a proposition not open to discussion, that the power of the president to pardon for offenses did not preclude congress from giving the secretary of the treasury authority to remit penalties and forfeitures. Touching. the objection now raised as to the constitutionality of the legislation in question, it is sufficient to say, as was said in an early case, that the practice and acquiescence under it, “commencing with the organization of the judicial system, affords an irresistible answer, and has, indeed, fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course, the question is at rest, and ought not now to be disturbed." Stuart v. Laird, 1 Cranch, 308. The same principle was announced in the recent case of Lithographic Co. v. Sarony, 111 U. S. 57; S. C. 4 Sup. CT. REP. 279, where a question arose as to the constitutionality of certain statutory provisions reproduced from some of the earliest statutes enacted by congress. The court said: "The construction placed upon the constitution by the first act of 1790, and the act of 1802, by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight; and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is conclusive." See, also, Cooley v. Board of Wurdens, 12 How. 315; Martin v. Hunter's Lessee, 1 Wheat. 304: Cohens v. Virginia, 6 Wheat. 264.

It is, however, insisted that if the statute in question is constitutional, it cannot be construed as giving the secretary of the treasury the power to remit

11 St. 122, c. 12; Id. 275, c. 35; 2 St. 454, c. 8, 26; Id. 502, c. 66, 8 14; Id. 510, c. 5, 12; Id. 701, c. 49, 4; 3 St. 92, c. 1, 14; Id. 617, c. 14, 33; Id. 739, c. 21, ? 35; 9 St. 593, c. 21, 23; 11 St. 95, c. 159, ? 10; 12 St. 257, c. 3, 8 8; Id. 271, c. 10, 3; Id. 405, c. 81, 4; Id. 737, c. 76, 1; 13 St. 198, c. 164, 8; 14 St. 169, c. 184, 63; 15 St. 242, c. 273, 28; 16 St. 179, c. 185, 9; 17 St. 325, c. 335, 316; 18 St. 190, c. 391, 2 18; Rev. St. 22 2858, 3001, 3078, 3115, 3220, 3412, 3461, 5292-5294.