While, in strictly criminal prosecutions, the jury may not
return a verdict against the defendant unless the evidence
establishes his guilt beyond a reasonable doubt, in civil actions,
it is the duty of the jury to resolve the issues of fact according
to the reasonable preponderance of the evidence, and this although
they may involve a penalized or criminal act.
In an action brought by the United States under § 5 of the Alien
Immigration Act of February 20, 1907, c. 1134, 34 Stat. 898, to
recover the prescribed pecuniary penalty for an alleged violation
of § 4 of the act, it is not essential to a recovery by the
government that the evidence establish the violation beyond a
reasonable doubt, as in a criminal case, but a reasonable
preponderance of proof is sufficient.
203 F. 433 reversed.
The facts, which involve the construction of the penalty
provisions of the Alien Immigration Act of 1907, are stated in the
opinion.
Page 232 U. S. 40
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was an action of debt prosecuted by the United States,
under § 5 of the Act of February 20, 1907, 34 Stat. 898, c. 1134,
known as the Alien Immigration Act, to recover $1,000 as a penalty
for an alleged violation by the defendant of § 4 of that act, and
the question now to be considered is whether it was essential to a
recovery that the evidence should establish the violation beyond a
reasonable doubt. The district court instructed the jury that this
measure of proof was required, and the instruction was approved by
the circuit court of appeals. 183 F. 293. The two sections are as
follows:
"SEC. 4. That it shall be a misdemeanor for any person, company,
partnership, or corporation, in any manner whatsoever, to prepay
the transportation or in any way to assist or encourage the
importation or migration of any contract laborer or contract
laborers into the United States unless such contract laborer or
contract laborers are exempted under the terms of the last two
provisos contained in section two of this Act."
"SEC. 5. That for every violation of any of the provisions of
section four of this Act, the persons, partnership, company, or
corporation violating the same by knowingly assisting, encouraging,
or soliciting the migration or importation of any contract laborer
into the United States shall forfeit and pay for every such offense
the sum of one thousand dollars, which may be sued for and
recovered by the United States, or by any person who shall first
bring his action therefor in his own name and for his own benefit,
including any such alien thus promised labor or service of any kind
as aforesaid, as debts of like amount are now recovered in the
courts of the United States, and separate suits may be brought for
each alien thus promised
Page 232 U. S. 41
labor or service of any kind as aforesaid. And it shall be the
duty of the district attorney of the proper district to prosecute
every such suit when brought by the United States."
These sections are largely copied from the like-numbered
sections of the Act of March 3, 1903, 32 Stat. 1213, c. 1012, the
words "shall be unlawful" in § 4 being changed to "shall be a
misdemeanor," and the words "shall forfeit and pay for every such
offense," § 5, with what follows them, remaining as before.
Whether cases like this are civil or criminal, and whether they
are attended by the incidents of the one or the other, have been so
often considered by this Court that our present duty, as we shall
see, is chiefly that of applying settled rules of decision.
In
Stockwell v. United
States, 13 Wall. 531, the question arose whether
the United States could maintain a civil action of debt to recover
a penalty incurred under the Act of March 3, 1823, 3 Stat. 781, c.
58, providing that any person receiving, concealing, or buying
merchandise, knowing that it was illegally imported and subject to
seizure, should, "on conviction thereof," forfeit and pay double
the value of the merchandise, there being also a provision that the
penalty might be "sued for and recovered," in the name of the
United States, in any court of competent jurisdiction, and this
Court held that the civil action was maintainable, saying (p.
80 U. S.
542):
"But it is insisted that, when the government proceeds for a
penalty based on an offense against law, if must be by indictment
or by information. No authority has been adduced in support of this
position, and it is believed that none exists. It cannot be that
whether an action of debt is maintainable or not depends upon the
question who is the plaintiff. Debt lies whenever a sum certain is
due to the plaintiff, or a sum which can readily be reduced to a
certainty -- a sum requiring no future valuation to settle its
amount.
Page 232 U. S. 42
It is not necessarily founded upon contract. It is immaterial in
what manner the obligation was incurred, or by what it is
evidenced, if the sum owing is capable of being definitely
ascertained."
And again (p.
80 U. S. 543):
"The expression
sued for and recovered' is primarily applicable
to civil actions, and not to those of a criminal nature."
In
United States v. Zucker, 161 U.
S. 475, the government, by an action of debt, sought to
recover, as a penalty, the value of imported merchandise the entry
of which had been fraudulently secured in violation of § 9 of the
Act of June 10, 1890, 26 Stat. 131, c. 407, which subjected one
committing that offense to a forfeiture of the merchandise, or its
value, and to a fine and imprisonment. At the trial, the United
States sought to read in evidence the deposition of an absent
witness, theretofore taken in the cause, but the deposition was
excluded upon the theory that the case, though civil in form, was
in substance criminal, and therefore that the defendants were
entitled, under the Sixth Amendment to the Constitution, to be
confronted with the witnesses against them. This resulted in a
judgment for the defendants, and, when the case came here, this
Court pronounced the trial court's theory untenable, sustained the
government's right to read the deposition, and reversed the
judgment, saying (p.
161 U. S.
481):
"A witness who proves facts entitling the plaintiff in a
proceeding in a court of the United States, even if the plaintiff
be the government, to a judgment for money only, and not to a
judgment which directly involves the personal safety of the
defendant, is not, within the meaning of the Sixth Amendment, a
witness against an 'accused' in a criminal prosecution, and his
evidence may be brought before the jury in the form of a
deposition, taken as prescribed by the statutes regulating the mode
in which depositions to be used in the courts of the United States
may be taken. The defendant, in such a case, is no more entitled to
be confronted at the trial with the witnesses
Page 232 U. S. 43
of the plaintiff than he would be in a case where the evidence
related to a claim for money that could be established without
disclosing any facts tending to show the commission of crime."
In
Hepner v. United States, 213 U.
S. 103, the government had brought an action of debt,
under § 5 of the Alien Immigration Act of 1903, to recover the
penalty prescribed for a violation of § 4 of that act -- they being
the sections from which those now under consideration are largely
copied -- and, in the progress of the cause, it became necessary
for this Court to consider whether a verdict for the government
could be directed under the rule applicable in civil actions. Upon
an extended review of the cases bearing upon the subject, including
Atcheson v. Everitt, 1 Cowp. 382, the question was
answered in the affirmative, and it was said:
"[P.
213 U. S. 108] It must be
taken as settled law that a certain sum, or a sum which can readily
be reduced to a certainty, prescribed in a statute as a penalty for
the violation of law, may be recovered by civil action, even if it
may also be recovered in a proceeding which is technically
criminal. Of course, if the statute by which the penalty was
imposed contemplated recovery only by a criminal proceeding, a
civil remedy could not be adopted.
United States v.
Claflin, 97 U. S. 546. But there can be no
doubt that the words of the statute on which the present suit is
based are broad enough to embrace, and were intended to embrace, a
civil action to recover the prescribed penalty. It provides that
the penalty of one thousand dollars may be 'sued for' and recovered
by the United States or by any 'person' who shall first bring his
'action' therefor 'in his own name and for his own benefit,' 'as
debts of like amount are now recovered in the courts of the United
States;' and 'separate suits' may be brought for each alien thus
promised labor or service of any kind. The district attorney is
required to prosecute every such
Page 232 U. S. 44
'suit' when brought by the United States. These references in
the statute to the proceeding for recovering the penalty plainly
indicate that a civil action is an appropriate mode of
proceeding."
"
* * * *"
"[P.
213 U. S. 111] But the
decision in the
Zucker case is important in that it
recognizes the right of the government, by a civil action of debt,
to recover a statutory penalty, although such penalty arises from
the commission of a public offense. It is important also in that it
decides that an action of that kind is not of such a criminal
nature as to preclude the government from establishing, according
to the practice in strictly civil cases, its right to a judgment by
depositions taken in the usual form, without confronting the
defendant with the witnesses against him."
"
* * * *"
"[P.
213 U. S. 115] The defendant
was, of course, entitled to have a jury summoned in this case, but
that right was subject to the condition, fundamental in the conduct
of civil actions, that the court may withdraw a case from the jury
and direct a verdict, according to the law, if the evidence is
uncontradicted and raises only a question of law."
In
Atcheson v. Everitt, approvingly cited in that case,
the question for decision was whether certain testimony, admissible
by statute in civil, but not in criminal, causes could be received
in an action of debt for the pecuniary penalty for bribery at an
election of a member of Parliament -- an act not merely prohibited,
but indictable as a crime. Notwithstanding the defendant's
insistent objection, the testimony was held to be rightly
receivable, it being said by Lord Mansfield, who spoke for the
entire court (p. 391):
"Penal actions were never yet put under the head of criminal
law, or crimes. The construction of the statute must be extended by
equity to make this a criminal case. It is as much a civil action
as an action for money had and received. "
Page 232 U. S. 45
In
Wilson v. Rastall, 4 T. R. 753, 758, also
approvingly cited in the
Hepner case, one of the questions
was whether, after a verdict for the defendant, a new trial could
be granted, upon the plaintiff's motion, in an action of debt for
the pecuniary penalty for bribing voters, an indictable crime, and
the court gave an affirmative answer and awarded a new trial, Lord
Kenyon, Ch.J., observing:
"All the cases of indictments I lay out of the case, because
they are criminal cases, and are exceptions to the general rule.
But I consider this as a civil action."
In
United States v. Stevenson, 215 U.
S. 190, which was a prosecution by indictment for a
violation of § 4 of the present alien immigration act, the question
for decision was whether that mode of enforcing the penalty was
admissible in view of the provisions of § 5 permitting a civil
action. It was held that an indictment would lie, and, in the
course of the opinion, after observing that, in the absence of some
provision to the contrary, a statutory penalty may be recovered by
either a criminal prosecution or a civil action of debt, it was
said (p.
215 U. S.
198):
"It is to be noted that this statute (§ 5 of the Immigration
Act) does not in terms undertake to make an action for the penalty
an exclusive means of enforcing it, and only provides that it may
be thus sued for and recovered. There is nothing in the terms of
the act specifically undertaking to restrict the government to this
method of enforcing the law. It is not to be presumed, in the
absence of language clearly indicating the contrary intention, that
it was the purpose of Congress to take from the government the well
recognized method of enforcing such a statute by indictment and
criminal proceedings."
And then, after commenting upon the change in § 4 whereby the
words "shall be unlawful" were replaced by "shall be a misdemeanor"
and observing that the only purpose in this was to make clear the
right of the government to prosecuted as for a crime, it was
further said (p.
215 U. S.
199):
"Congress having
Page 232 U. S. 46
declared the acts in question to constitute a misdemeanor, and
having provided that an action for a penalty may be prosecuted, we
think there is nothing in the terms of the statute which will cut
down the right of the government to prosecute by indictment if it
shall choose to resort to that method of seeking to punish an
alleged offender against the statute. Nor does this conclusion take
away any of the substantial rights of the citizen. He is entitled
[meaning in a prosecution by indictment] to the constitutional
protection which requires the government to produce the witnesses
against him, and no verdict against him can be directed, as might
be the case in a civil action for the penalty.
Hepner v. United
States, 213 U. S. 103."
The latest case in this Court bearing upon the subject is
Chicago, Burlington & Quincy Railway Co. v. United
States, 220 U. S. 559,
which was an action to recover penalties incurred by the violation
of the safety appliance acts of Congress. In the trial court, the
government prevailed, and when the judgment came here for review,
the railway company contended that the action was in effect a
criminal prosecution, and in consequence not controlled by the
prior decision in
St. Louis, Iron Mountain & Southern
Railway. Co. v. Taylor, 210 U. S. 281 -- a
strictly civil case arising under the same statutes, and upon which
the government relied -- but it was held otherwise, the Court
saying (p.
220 U. S.
578): "This contention is unsound, because the present
action is a civil one."
It is a necessary conclusion from these cases (1) that, as
respects a pecuniary penalty for the commission of a public
offense, Congress competently may authorize, and in this instance
has authorized, the enforcement of such penalty by either a
criminal prosecution or a civil action; (2) that the present action
is a civil one, and appropriate under the statute, and (3) that, if
not directed otherwise, such an action is to be conducted and
determined according
Page 232 U. S. 47
to the same rules and with the same incidents as are other civil
actions.
It is of no moment in this case that the act penalized, which
theretofore was declared unlawful and styled an offense, was by the
statute of 1907 denominated a misdemeanor, for the purpose in that,
as was explained in
United States v. Stevenson, was merely
to make clear the government's alternative right to prosecute as
for a crime. There was no purpose to revoke the existing right to
resort to a civil action, or to take from the action any of the
usual incidents of a civil case. Indeed, a purpose to the contrary
is shown by the reenactment, without change, of the provision
authorizing the action. It not only specifies who shall have the
civil right of recovery, but also the mode of its exercise and
enforcement, for it declares that the penalty "may be sued for any
recovered" by the United States, or by any person, including the
alien, who shall first being the action in his own name and for his
own benefit, "as debts of like amount are now recovered in the
courts of the United States." This plainly contemplates that the
proceedings in the action are to be in conformity with the
recognized mode of adjudicating and enforcing debts of like amount
in those courts, and this whether the action be by the government
or by an individual.
While the defendant was entitled to have the issues tried before
a jury, this right did not arise from Article III of the
Constitution or from the Sixth Amendment, for both relate to
prosecutions which are strictly criminal in their nature
(
Counselman v. Hitchcock, 142 U.
S. 547,
142 U. S. 563;
United States v. Zucker, 161 U. S. 475,
161 U. S. 481;
Callan v. Wilson, 127 U. S. 540,
127 U. S.
549), but it did arise out of the fact that in a civil
action of debt involving more than $20 a jury trial is demandable.
And while, in a strictly criminal prosecution, the jury may not
return a verdict against the defendant unless the evidence
establishes
Page 232 U. S. 48
his guilt beyond a reasonable doubt, in civil actions, it is the
duty of the jury to resolve the issues of fact according to a
reasonable preponderance of the evidence, and this although they
may involve a penalized or criminal act.
So, in providing that the penalty may be sued for and recovered
as debts of like amount are recovered, we think it was intended
that a reasonable preponderance of the proof should be sufficient,
that being one of the recognized incidents of an action of debt as
well as of other civil actions.
This is the view which other federal courts have generally
applied in the administration of statutes authorizing a civil
recovery of such penalties.
United States v. Brown, 24
Fed.Cas. No. 1248;
3880 Boxes of Opium v. United States,
23 F. 367;
Hawlowetz v. Kass, 25 F. 765;
The Good
Templar, 97 F. 651;
United States v. Southern Pacific
Co., 162 F. 412;
New York Central & Hudson River
Railroad Co. v. United States, 165 F. 833;
United States
v. Illinois Central Railroad Co., 170 F. 542;
Atchison,
Topeka & Santa Fe Railway Co. v. United States, 178 F. 12;
St. Louis Southwestern Railway Co. v. United States, 183
F. 770. And such also is the prevalent course of decision in the
state courts. 4 Wigmore on Evidence § 2498;
People v.
Briggs, 114 N.Y. 56;
State v. Chicago, Milwaukee & St.
Paul Railway Co., 122 Ia. 22;
Hitchcock v. Munger, 15
N.H. 97;
Sparta v. Lewis, 91 Tenn. 370;
O'Connell v.
O'Leary, 145 Mass. 311, 312;
Munson v. Atwood, 30
Conn. 102;
State v. Kansas City &c. Co., 70 Mo.App.
634;
Deveaux v. Clemens, 17 Ohio C.C. 33;
Semon v.
People, 42 Mich. 141;
Walker v. State, 6 Blackf. 1;
Roberge v. Burnham, 124 Mass. 277. In the last case, the
Supreme Judicial Court of Massachusetts, in applying this measure
of persuasion in an action for a penalty, said:
Page 232 U. S. 49
"The rule of evidence requiring proof beyond a reasonable doubt
is generally applicable only in strictly criminal proceedings. It
is founded upon the reason that a greater degree of probability
should be required as a ground of judgment in criminal cases, which
affect life or liberty, than may safely be adopted in cases where
civil rights only are ascertained. 2 Russell, Crimes (7th Am. ed.)
727. It often happens that civil suits involve the proof of acts
which expose the party to a criminal prosecution. Such are
proceedings under the statute for the maintenance of bastard
children, proceedings to obtain a divorce for adultery, actions for
assaults, actions for criminal conversation or for seduction, and
others which might be named. And in such actions, which are brought
for the determination of civil rights, the general rule applicable
to civil suits prevails -- that proof by a reasonable preponderance
of the evidence is sufficient."
The cases upon which the defendant relies do not compel or lead
to a different conclusion. While, in
United
States v. The Burdett, 9 Pet. 682, language was
used giving color to the contention that, in an action such as
this, the true measure of persuasion is that applied in criminal
prosecutions, the Court was careful, in
Lilienthal v. United
States, 97 U. S. 237, to
point out (pp.
97 U. S.
266-267) the distinction in this regard between criminal
prosecutions and civil cases, and to show (p.
97 U. S. 272) that
the case of
The Burdett is not an authority for
disregarding the distinction, and that, in an action to enforce a
forfeiture, the jury, if satisfied of the truth of the charge upon
which the forfeiture depends, "may render a verdict for the
government, even though the proof falls short of what is required
in a criminal case prosecuted by indictment." In
Chaffee v.
United States, 18 Wall. 516, the trial court,
probably in deference to what was said in the case of
The
Burdett, had instructed the jury that proof beyond a
reasonable doubt was essential to a recovery, but, as the
government
Page 232 U. S. 50
had a verdict and judgment, and was not in a position to assign
error upon the instruction, the case hardly can be regarded as
settling the propriety of such an instruction, especially as, in
Coffey v. United States, 116 U. S. 436,
116 U. S. 443,
thirteen years later, it was plainly assumed that, in such actions,
the true measure of persuasion is not proof beyond a reasonable
doubt, but the preponderating weight of the evidence. The cases of
Boyd v. United States, 116 U. S. 616, and
Lees v. United States, 150 U. S. 476, are
without present application, for they deal with the guaranty in the
Fifth Amendment to the Constitution against compulsory
self-incrimination, which, as this Court has held, embraces
proceedings to enforce penalties and forfeitures as well as
criminal prosecutions, and is of broader scope than are the
guaranties in article 3 and the Sixth Amendment governing trials in
criminal prosecutions.
Counselman v. Hitchcock,
142 U. S. 547,
142 U. S. 563;
United States v. Zucker, 161 U. S. 475,
161 U. S. 481;
Hepner v. United States, 213 U. S. 103,
213 U. S. 112.
See also Callan v. Wilson, 127 U.
S. 540,
127 U. S. 549;
Schick v. United States, 195 U. S. 65,
195 U. S.
68.
We conclude that it was error to apply to this case the standard
of persuasion applicable to criminal prosecutions, and the judgment
is accordingly reversed, with a direction for a new trial.
Judgment reversed.