Jungbluth v. Redfield

NELSON, Circuit Justice.

It is insisted, on the part of the counsel for the plaintiff, that the power of the secretary of the treasury, under the act of March 3, 1797, to remit, can only be .exercised by granting the remission of the forfeiture absolutely, and cannot be conditionally, except as to the costs of prosecution; and, hence, that the condition as to the payment of the illegal duties or penalties is void. 1 differ with the learned counsel in the construction to be given to the statute. The power, no doubt, is absolute —that is, the secretary may remit, at discretion, the whole of the forfeiture — but this power carries with it an authority to remit any part less than the whole, or upon a condition consistent with law. “Omne majus in se continet minus.”

I am. also, inclined to think, that the act confers, in express terms, the power claimed by the secretary. The power given is “to mitigate or remit” the forfeiture, or any part thereof, and to direct the prosecution, if any, to be discontinued, “upon such terms or eon-*53ditions as he may deem reasonable and just.”

Besides, in this case, the whole subject was submitted to the judgment of the secretary, and passed upon by him, and, if the plaintiff was dissatisfied with the decision, he should have refused to accept the remission on the terms granted. Instead of this, he has taken up his bond, and paid the costs of the prosecution, and is enjoying the benefit of the remission of the forfeiture. There must be judgment for the defendant, on the case made.