ARMY OFFICERS-- RETIREMENT-- INCAPACITY; 27 Op.Att'y.Gen. 162, January 22, 1909

An officer of the Army can not be retired under sections 1245-1252, Revised Statutes, because of ill-temper, irritability, lack of self-control, boorishness, discourtesy, nor for any similar cause, unless they are such as to render him incapable of performing the duties of his office; but if any or all of them are such as to render him unable to perform such duties, even though he desires to perform them, he may be retired just as he might be for incapacity from any other cause.

Sections 1245-1252, Revised Statutes, deal with the actual incapacity of an officer and not with its cause or causes, except in determining what shall be done in case the officer is found incapacitated.

Objections to the promotion of an officer of the Army constitute no ground for retiring him from service, unless resulting in the actual incapacity contemplated by the above-named sections.

DEPARTMENT OF JUSTICE,

January 22, 1909.

The SECRETARY OF WAR.

SIR: I have the honor to respond to your letter of January 8, 1909, in which you ask an expression of my opinion:

" * * * Whether an officer comes within the operation of the statute governing retirement for disability who is found, by a retiring board, to be permanently incapable of performing the duties of his office, such incapacity being temperamental in character and the result of the operation of one or more of the causes above stated; that is, by mental bias or oversensitiveness of such degree and character as to render an officer incompetent to exercise sound judgment or discretion, and as to create a marked tendency toward unjustifiably questioning the justice or motives of the acts of his superior officers touching himself personally, sometimes carried to an extent bordering on chronic insubordination; marked lack of capacity to entertain sound views as to his relations and obligations to other persons in the military service, resulting in a quarrelsome, hypercritical, and querulous disposition; or where the disability or incapacity is due to infirmity of temper, to a gradual but serious loss of self-control, to impatience or irritability shown by the officer in exercising the functions of his office and in dealing with the officers and enlisted men under his command; to physical or mental deterioration due to indolence, excesses in eating and drinking, to the impairment of vigor, not due to advancing age, or to indecision and want of alertness in the performance of the duties with which he is charged as an incumbent of military office."

On July 10, 1908 (ante, 14), in reply to a very similar question by your predecessor, I rendered an opinion which seems to cover substantially your present question.

That opinion was not based upon any idea of the culpability of the officer, either in the acts manifesting his incapacity, or in the causes which led to it; but proceeded upon the view that, if the officer was incapable of performing his duties, he was subject to compulsory retirement under the sections referred to, no matter what were the causes of his incapacity. If, however, the officer was capable of performing the duties of his office, in case he desired to do so, he could not be retired under the sections creating these retiring boards, even though he could not perform such duties as efficiently or as well as other officers of the same rank might perform them, or though his infirmities of temper, and the mental and bodily characteristics referred to, might render him an undesirable superior colleague or subordinate, and might severely tax the patience of the members of the service necessarily brought in contact with him.

By confining the cause for this compulsory retirement of an officer, under the sections mentioned, to cases of actual inability to perform the duties of his office-- no matter what was the cause of the inability-- that opinion will be found to cover such cases as those to which you refer.

The law governing such cases is found in sections 1245 to 1252 Revised Statutes, inclusive, and mainly, as far as is here relevant, in section 1245, which is as follows:

"When any officer has become incapable of performing the duties of his office, he shall be either retired from active service, or wholly retired from the service by the President, as hereinafter provided."

This section is plain and unambiguous, and means and must be taken to mean just what it so plainly says. As said in my former opinion (ante, 18):

"It is to be remembered that the incapacity to discharge his duties contemplated by the statute is not an incapacity to discharge them as well as they ought, theoretically, to be discharged, or as well as they are discharged by officers generally of the same rank and intrusted with similar duties. The law does not say that he must be incapable of performing his duties well, but that he must be incapable of performing them at all, or, in other words, he must be unable to so perform them as to reasonably fulfill the purposes of his employment."

It is with the actual incapacity of the officer that these sections deal, and not with its cause or causes, except in determining what shall be done in case the officer is found incapacitated. For illustration, take the case of the medical officer referred to in your letter and accompanying paper. If his professional and general skill and knowledge and his intelligence are such as to make him capable of performing the duties of his office, he can not be retired therefrom under these sections because of ill temper, irritability, lack of self-control, boorishness, discourtesy, nor for any of the other causes named, unless they are such as render him incapable of performing the duties of his office. But, if any or all of them are such as to render him unable to perform such duties, even though he desires to perform them, he may be retired just as he might be for incapacity from any other cause. Here, too, it is with actual incapacity alone that these sections deal.

In the paper referred to, fear is expressed that, as he is the medical officer second in rank, and his promotion would place him in charge of the medical department at Fort Leavenworth, his infirmities of temper, disposition, and otherwise, would be of great detriment to the service. But with such considerations retiring boards have nothing to do. He can not be thus promoted except under the provisions of the act of April 23, 1908 (35 Stat. 66). Under that act, he can not be promoted until he has successfully passed an examination as to his fitness for promotion; and the examining board will then consider all which the law requires to be considered in determining whether such officer is fitted for the higher grade, so that if any of the matters to which you refer constitute a legal objection to his promotion, they will then be considered. But objections to the promotion of an officer constitute no ground for retiring him from the office he now holds, unless resulting in the incapacity contemplated by the section above quoted.

If any of the matters referred to as objectionable in an officer, are in violation of the law or the regulations of the army, he is subject to its discipline, but they do not subject him to compulsory retirement, unless they render him incapable of performing the duties of his office, when he is willing and desires to do so.

It must be remembered that the section referred to, while making no attempt to fix a standard of official usefulness, sound judgment, discretion or good sense, good habits, agreeableness, good manners, self-control or courtesy, or as to any of the matters to which you refer, makes one criterion, and one only, for the compulsory retirement of an officer; namely, that he has "become incapable of performing the duties of his office." All other subjects of criticism in an officer, and such as those you name, must be either dealt with in a disciplinary way, or borne with as unfortunate incidents of the service, due to imperfect human nature.

Answering your question more directly, I have to say, that if any or all of the matters referred to in your question have rendered the officer incapable of performing the duties of his office, even though willing to perform them, and is so found by a retiring board, he may be retired under sections 1245 to 1252, inclusive, Revised Statutes, just as he might be so retired if the incapacity has been the result of any other cause. But if he is still capable of performing such duties, if he desires, he can not be thus retired on account of any of the matters which you mention, or for any other cause under these sections.

An important distinction must be observed between actual incapacity and the cause or causes which produced it. No officer can be compulsorily retired under these sections because of any or all of the infirmities, peculiarities, or characteristics which you mentioned. He may have all of these and yet be capable of performing his official duties, if he desires to do so. And the law has not said that he may be retired for any of these. But if from these, or if from any other cause, he has become incapable of performing the duties of his office, he may be retired for that, but not for the causes which produced the incapacity.

Respectfully,

CHARLES J. BONAPARTE.

PAYMASTERS' CLERKS-- OFFICERS OF THE NAVY; 27 Op.Att'y.Gen. 157, January 22, 1909

Paymasters' clerks are "officers of the Navy" within the meaning of the act of May 13, 1908 (35 Stat. 128), which provides for the retirement of officers of the Navy who have been in the service thirty years.

DEPARTMENT OF JUSTICE,

January 22, 1909.

The SECRETARY OF THE NAVY.

SIR: I have the honor to acknowledge the receipt of your letter of December 17, 1908, in which you ask my opinion on the question whether a paymaster's clerk is an "officer of the Navy" within the meaning of the act approved May 13, 1908, providing for the retirement of such officers (35 Stat. 128). That act contains the following provision:

"When an officer of the Navy has been thirty years in the service, he may, upon his own application, in the discretion of the President, be retired from active service and placed upon the retired list with three-fourth of the highest pay of his grade."

The question submitted by you is a very narrow one, involving simply the determination whether a paymaster's clerk has the status of an officer in the Navy.

If he has, there would seem to be no doubt, under the express words of the statute, that he is entitled to the benefit of the above provision. In Ex parte Reed (100 U.S. 13) it was determined that a paymaster's clerk was a person forming part of the naval forces so as to be subject to trial by court-martial, and not entitled to the benefit of the first clause of the Fifth Amendment to the Constitution. In that case the court, speaking by Mr. Justice Swayne, says of such clerks (p. 22):

"Their acceptance and agreement to submit to the laws and regulations for the government and discipline of the Navy must be in writing, and filed in the Department. They must take an oath, and bind themselves to serve until discharged. The discharge must be by the appointing power, and approved in the same manner as the appointment. They are required to wear the uniform of the service; they have a fixed rank; they are upon the pay roll, and are paid accordingly. They may also become entitled to a pension and to bounty land. (Navy Regulations of August 7, 1876, p. 95; In re Bogart, 2 Sawyer, 396; United States v. Bogart, 3 Benedict, 257; Rev. Stat., secs. 4695 and 2426.) * * *

"If these officers are not in the naval service, it may well be asked who are?"

The court, in the passage above cited, appears to have assumed that, if the clerks in question are in the naval service at all, they are officers, that particular question not being before it for determination. This question, however, was directly presented in the two cases of United States v. Mouat (124 U.S. 303) and United States v. Hendee (ib. 309). In the first case it was determined that--

"A paymaster's clerk, appointed by a paymaster in the Navy with the approval of the Secretary of the Navy, is not an officer of the Navy within the meaning of the act of June 30, 1876 (19 Stat. 65, c. 159), so as to be entitled to the benefit of the mileage allowed by that act."

The court, speaking by Mr. Justice Miller, thus explains the grounds for his decision (pp. 306, 307):

"The class of persons thus relieved from the effect of the act of 1874 is designated as 'officers of the Navy.' No other person holding an employment or appointment under the United States, although in the Navy, was thus relieved from the effect of that act. As this is a special statute, exempting for particular reasons a certain class of persons from the operation of a general law, which was left to include all other persons in the employment of or holding an appointment under the Government of the United States it is obviously proper to confine that class to those who are, properly speaking, officers of the Navy. There is nothing in the context, nor in the reason which may have been supposed to influence Congress in making this exception out of the general law, justifying its application to any other persons than those who are, strictly speaking, officers of the Navy.

"What is necessary to constitute a person an officer of the United States, in any of the various branches of its service, has been very fully considered by this court in United States v. Germaine, 99 U.S. 508. In that case it was distinctly pointed out that, under the Constitution of the United States, all its officers were appointed by the President, by and with the consent of the Senate, or by a court of law, or the head of a Department; and the heads of the Departments were defined in that opinion to be what are now called the members of the Cabinet. Unless a person in the service of the Government, therefore, holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of Departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States.

"We do not see any reason to review this well established definition of what it is that constitutes such an officer."

In answering the contention that the appointment of the plaintiff in that case had been approved by the Secretary of the Navy, the court said further (pp. 307, 308):

"If there were any statute which authorized the head of the Navy Department to appoint a paymaster's clerk, the technical argument that the appointment in this case, although actually made by Paymaster Whitehouse and only approved by Harmony as Acting Secretary in a formal way, with the approval of a half dozen other officers, might still be considered sufficient to call this an appointment by the head of that Department.

But there is no statute authorizing the Secretary of the Navy to appoint a paymaster's clerk, nor is there any act requiring his approval of such an appointment, and the regulations of the Navy do not seem to require any such appointment or approval for the holding of that position.

"The claimant, therefore, was not an officer, either appointed by the President, or under the authority of any law vesting such appointment in the head of a Department."

The Navy Regulations of 1905 contain the following provision:

"1751. (1) Clerks to pay officers of ships, and principal clerks to pay officers at shore stations, will be appointed by the Secretary of the Navy upon the nomination of pay officers.

"(2) In accepting appointments they shall be required to bind themselves to be subject to such laws and regulations for the government and discipline of the Navy as have been or may be enacted by Congress, or established by other competent authority. The acceptance must be accompanied by the oath of office prescribed by law. * * *

"(3) The acceptance of an appointment as clerk shall be considered as binding such person to serve with the officer who nominated him until regularly discharged by the Department."

These regulations were promulgated by the President under the authority conferred by section 1547 of the Revised Statutes, which is, as follows:

"The orders, regulations, and instructions issued by the Secretary of the Navy prior to July 14, 1862, with such alterations as he may since have adopted, with the approval of the President, shall be recognized as the regulations of the Navy, subject to alterations adopted in the same manner."

By article 1751, above quoted, a change was made in the method of appointment of paymasters' clerks, whereby they were brought within the definition of officers of the United States given in United States v. Mouat, supra, and the authority there cited.

It would seem that, if such clerks had then been appointed as they are now, the decision in United States v. Mouat would have been different. This conclusion is strengthened by the decision in United States v. Hendee (124 U.S. 309) above referred to. That case determined that--

"A paymaster's clerk in the Navy is an officer of the Navy within the meaning of the provision in the act of March 3, 1883 (22 Stat. 473, c. 97), respecting the longevity pay of officers and enlisted men in the Army or Navy."

Mr. Justice Miller, who again delivered the opinion of the court, thus distinguished that case from United States v. Mouat (pp. 313, 314, 315):

"We have just decided, in the case of United States v. Mouat (ante, 303), that a paymaster's clerk is not, in the constitutional sense of the word, an officer of the United States; but we added also that Congress may have used the word 'officer' in a less strict sense in some other connections, and in the passage of certain statutes might have intended a more popular signification to be given to that term. And in regard to the act of 1883, we think that its proper construction requires that the officer, when subsequently coming to compute what increase shall be made to his statutory salary by reason of his previous service, has a right to count other service than that rendered in the character of an officer, as defined by the Constitution of the United States. Its language is, that 'all officers of the Navy shall be credited with the actual time they may have served as officers or enlisted men.'

"The claimant here is an officer of the Navy, and is, therefore, to be credited with the actual time that he served as an officer or enlisted man in the Regular or Volunteer Army or Navy, or both. * * * We are of opinion that the word 'officer' is used in that statute in the more general sense which would include a paymaster's clerk; that this was the intention of Congress in its enactment * * * . While we do not concede that a paymaster's clerk is, for all purposes and in the general sense of that term, an officer of the Navy, we believe that within the meaning of the statute now under consideration, providing for increase of pay to officer of the Navy according to length of service, that it was the purpose of the framers of that act to include service rendered as a paymaster's clerk in the Navy."

The general purpose of the act approved May 13, 1908, was, in substance, the same as that of the act approved March 13, 1883, that is to say, to make provision for officers who have a just claim to such consideration by reason of long and meritorious service. I can see no reason why the construction placed by the Supreme Court in Hendee's case on the act of 1883 should not be placed upon the act of 1908, even if the circumstances of the two cases were thus similar; but it is not necessary to express any opinion on this point, for under the provisions of article 1751 of the present Navy Regulations, the situation has been materially altered, and altered in the precise feature deemed by the court decisive, for the purposes of the present inquiry, in Mouat's case. Paymasters' clerks are now officers of the Navy in the constitutional sense, as well as in the more general and popular sense attributed to the word "officer" by the court in Hendee's case. Under the decision in Reed's case they form a part of the naval forces, and if they are both officers and a part of the Navy, it seems impossible to avoid the conclusion that they are "officers of the Navy" for the purposes of the act of 1908. I have the honor, therefore, to answer your question in the affirmative.

I remain,

Yours, very respectfully,

CHARLES J. BONAPARTE.

COMMISSIONER OF CORPORATIONS-- RIGHT OF SENATE COMMITTEE TO ASK FOR INFORMATION; 27 Op.Att'y.Gen. 150, January 22, 1909

The Commissioner of Corporations is not permitted by section 6 of the act of February 14, 1903 (32 Stat. 828), creating the Department of Commerce and Labor, to disclose the data and information collected by him or his predecessors under that section, unless by the special direction of the President, and this notwithstanding the request is made by a subcommittee of the Senate.

He should, however, immediately present such a request to the President, submit to him, if practicable, all the documents containing relevant information upon the subject referred to, and obtain his instructions as to what part, if any, of such data is suitable for publication by direction of the committee preferring the request.

DEPARTMENT OF JUSTICE,

January 22, 1909.

The COMMISSIONER OF CORPORATIONS,

Department of Commerce and Labor.

SIR: I have the honor to acknowledge the receipt of your letter of this date, by direction of the President, asking my opinion on a question set forth in your letter, in substance, as follows:

"I was subpoenaed to appear before the subcommittee of the Senate Committee on the Judiciary on January 22 at 10 a.m. at the Capitol. A copy of the said subpoena is hereto annexed. On appearing there, after some preliminary discussion, I was asked to furnish to the subcommittee certain information in regard to the United States Steel Corporation and the Tennessee Coal, Iron and Railway Company, presumably in my office, obtained by me as Commissioner of Corporations. I stated in substance that it had been the uniform construction of the Bureau, placed from the beginning of its operations upon its organic act, and also my personal opinion, that the necessary implication of section 6 of that organic act, February 14, 1903, prohibited me from giving to anyone, or making public in anyway, the information obtained by me as Commissioner of Corporations, except through and upon the direction of the President. I then stated that I desired an opportunity to lay this question before the Attorney-General for determination as to whether the construction above outlined was correct or not."

In this connection you furnish we with the following memorandum showing the view taken of the question by one of the Senators serving on the subcommittee of the Committee on the Judiciary before which you appeared:

"Senator KITTREDGE. Speaking personally, I think this committee is entitled to have every particle of information which he (the witness) has in his office, either by way of personal knowledge, books, records, papers, confidential information, or otherwise; that as between this committee of the Senate and his office, there is no confidential bar possible to be interposed.

"The CHAIRMAN. I think you had better limit that, Senator Kittredge, to the inquiry which the Senate has authorized us to make with relation to the Tennessee Coal and Iron Company and the United States Steel Corporation.

"That is understood, of course, Mr. Chairman."

The act approved February 14, 1903, and entitled: "An act to establish the Department of Commerce and Labor" (32 Stat. 825, 828) contains the following provision, being part of section 6 of the said act, by which it is provided that there shall be in the Department of Commerce and Labor a bureau to be called "The Bureau of Corporations" and a Commissioner of Corporations, who shall be the head of said Bureau.

"The said Commissioner shall have power and authority to make, under the direction and control of the Secretary of Commerce and Labor, diligent investigation into the organization, conduct, and management of the business of any corporation, joint stock company or corporate combination engaged in commerce among the several States and with foreign nations excepting common carriers subject to 'An act to regulate commerce,' approved February 4, 1887, and to gather such information and data as will enable the President of the United States to make recommendations to Congress for legislation for the regulation of such commerce, and to report such data to the President from time to time as he shall require; and the information so obtained or as much thereof as the President may direct shall be made public."

It is obvious from the language of this provision, first, that the Congress contemplated at the time of its enactment a possibility and even probability that some part of the information thus collected by the Commissioner of Corporations might be of a character which justice to the parties interested and also the public interest might require to be deemed confidential. Secondly, that the Congress intended the President should judge whether any portion of the information and data obtained by the Bureau of Corporations, in accordance with the terms of the law, should or should not be made public. The information in question might involve the private affairs and trade secrets of citizens engaged, as members of corporations, joint stock companies, or corporate combinations, in commerce among the several States and with foreign nations; and these circumstances, as well as the language of the act itself, justified the assumption that it was enacted with appropriate regard to the spirit as well as the letter of the Fourth Amendment to the Constitution, providing that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized."

This construction is, according to my information, sustained by uniform and consistent departmental practice. The urgency of the present matter has not permitted a careful inquiry as to precedents, but two of great cogency are furnished by the experience of this Department. In the prosecution of the cases against the so-called "beef trust" during the incumbency of Attorney-General Moody, and in the prosecution of the "tobacco trust" since I have been Attorney-General, the counsel in especial charge of these two cases, respectively, who were, of course, appointed and sworn officers of this Department, requested access to the information collected by your Bureau, with a view to its use in the said prosecutions, and on each occasion, after careful consideration of the language and reasonable intendment of the law, it was decided that the data in your possession were so far confidential in character that such inspection, although in the interest of the administration of justice and conducted by counsel of the highest standing as well as intrusted with important public duties, would be inappropriate; and such access was therefore in each case refused, the President not having passed, and it being impracticable that he should pass personally, upon the propriety of such inspection in regard to the class of data to be investigated.

The legislative history of the measure shows that the same view of the effect of the clause was taken during the debates which preceded its adoption. When it was before the House of Representatives in Committee of the Whole, Mr. Mann, of Illinois, said:

"Mr. Chairman, the report of the bill from the committee provides for a Bureau of Corporations for the very purpose of providing an Executive agency on publicity."

During a discussion of the conference report in the House, on February 10, 1903, Mr. Richardson, of Alabama, criticised the provision by saying:

"The purpose and object of this measure or of this substitute is to enable the President of the United States to do what? To take, under the supervision of the Secretary of Commerce and Labor, action against the trusts? No. It is to provide a way to gather such information and data as will enable the President of the United States to make recommendations to Congress for legislation. * * * When the President picks up the data, under the qualifications and limitations that I have explained, he is to come back to Congress and ask for additional legislation."

Again, the same speaker said:

"I appeal to the honest construction that any man will give to the ordinary English language-- what does that mean? 'As much thereof as the President may direct shall be made public.' He can suppress all data, every scintilla of information. He can hold it secret and stand pat and say and do nothing, and no law can move him."

In the same debate, Mr. Ball, of Texas, said of this provision:

"It creates a Bureau of Corporations at a considerable expense to gather information for the President, who makes public such as he sees proper."

And, finally, Mr. Smith, of Kentucky, said in that same connection:

"I apprehend that this provision of the amendment which says it shall lie in the discretion of the President as to what shall be made public of these reports would preclude the Commissioner from laying before Congress what the official report developed in his investigation."

It is not necessary to pass upon the question whether the last-named gentleman was correct in the construction he placed upon the act. This is not the case of a demand in the form of a joint resolution or otherwise made by the Congress for access to the information which you thus hold. On August 23, 1854, Hon. Caleb Cushing, then Attorney-General, advised the Secretary of the Interior as follows (6 Op. 680):

"Joint resolutions of Congress are not distinguishable from bills, and, if approved by the President, or if duly passed without the approval of the President, they have all the effect of law.

"But separate resolutions of either House of Congress, except in matters appertaining to their own parliamentary rights, have no legal effect to constrain the action of the President or of the Heads of Department."

And, in that opinion, Attorney-General Cushing used the following language (pp. 684, 685):

"But the Constitution has not given to either branch of the legislature the power, by separate resolution of its own, to construe, judicially, a general law, or to apply it executively to a given case. And its resolutions have obligatory force only so far as regards itself or things dependent on its own separate constitutional power.

"Any other view of the subject would result in the absurd conclusion that a separate vote of either House could repeal or modify an act of Congress. For, as the Supreme Court well said, in one of the cases before cited, a head of Department 'must exercise his judgment in expounding the acts and resolutions of Congress under which he is, from time to time, required to act.' That exposition of the law, conscientiously made by him, and with the aid of the law officer of the Government, is the law of the case. If the question be one of judicial resort, the exposition of the statute by the Supreme Court will constitute the law. But, if it be a mere executive question, then the exposition of the particular Secretary, or of the Attorney-General, is just as much the law, and, as such, binding on the conscience of the head of Department, as any other part of the statute, which may happen to be of unquestionable import, and so not to require exposition. In fine, it becomes the law; that is, the authorized construction of the legal intendment of the act of Congress. That ascertained legal intendment of a statute can not be authoritatively changed by a separate resolution of either or of both Houses; but only by a new act of Congress."

If this be true as to the want of authority on the part of either House of the Congress to constrain the discretion of the head of an Executive Department exercised under the provision of an existing law, it must be still more clearly true with respect to such an attempt when the discretion has been vested in the President himself.

I am therefore compelled to advise you that, according to the proper construction of section 6 of the act to create a Department of Commerce and Labor, it is not permissible for you to disclose the data and information collected by you or by your predecessor as head of the Bureau of Corporations, unless by the special direction of the President; and I am confirmed in this view because the law itself furnishes not only to the Congress, but to either House thereof, another method of obtaining such information as may be needful in the discharge of its public duties. Section 8 of the same act, after directing "that the Secretary of Commerce and Labor shall annually at the close of each fiscal year make a report in writing to Congress," adds (32 Stat. 829):

"He shall also from time to time make such special investigations and reports as he may be required to do by the President, or by either House of Congress, or which he himself may deem necessary and urgent."

It is, however, of obvious propriety that each branch or department of the Government shall do all that in it lies to facilitate and render effective the labors of another branch or department in the discharge of its appropriate public duties. You have been requested by a subcommittee of the Senate to furnish it information in your possession to aid in the discharge of a duty imposed upon it by a resolution of the Senate. It appears to me clearly appropriate that you should immediately call this request to the attention of the President, submit to him, if practicable, all the documents containing relevant information upon the subject referred to, and obtain his instructions as to what part, if any, of such data is suitable for publication by disclosure to the subcommittee of the Senate. I say this without reference to the cogency of the subpoena served upon you. This calls for the production of "all papers and documents in your possession, custody, or control as Commissioner of Corporations, or otherwise, relating in any manner to the United States Steel Corporation and the Tennessee Coal, Iron and Railroad Company."

While, in the interpretation of legal documents "and" is often construed "or," and vice versa, nevertheless, in view of the terms of the resolution under which this investigation is in progress and of the language of the Fourth Amendment to the Constitution above quoted, it is my opinion that you were clearly right in construing the said subpoena as requiring only the production of such documents as related to both of the two corporations named; and I understand you did produce a printed copy of the one document in your possession having these characteristics, the said document being itself a printed copy of the same issue.

I remain, sir,

Yours, very respectfully,

CHARLES J. BONAPARTE.

FOOD AND DRUGS ACT-- ACETPHENETIDINE-- "DERIVATIVE"; 27 Op.Att'y. Gen. 143, January 15, 1909

The word "derivative" in subsection 2 of section 8 of the food and drugs act of June 30, 1906 (34 Stat. 770) should be understood in its chemical sense.

Acetphenetidine is to be considered a "derivative" of acetanilide, within the meaning of subsection 2 of section 8 of the food and drugs act, if it is so related to the latter substance that it would be rightly regarded by recognized authorities in chemistry as obtained from the latter "by actual or theoretical substitution," and it is not indispensable that it should be actually produced therefrom as a matter of fact.

The food and drugs act must be so interpreted in regard to the labeling of drugs as to give effect, if possible, to the purposes of that statute.

It is within the power of the Secretaries of the Treasury, Agriculture, and Commerce and Labor, under section 3 of the food and drug act of June 30, 1906 (34 Stat. 768), to promulgate a rule or regulation which requires that the name of the parent substance shall follow that of the derivative on labels placed on packages containing drugs which come within the provisions of section 8 of that act; but in the absence of such a rule, no offense would be committed under the act by the omission, nor could the article for that reason alone be dealt with as misbranded.

DEPARTMENT OF JUSTICE,

January 15, 1909.

The SECRETARY OF AGRICULTURE.

SIR: I have the honor to acknowledge the receipt of your letters of November 23, 1907, and December 14, 1908, in which you ask my opinion upon two questions, namely:

1. Is acetphenetidine a derivative of acetanilide, within the meaning of section 8 of the food and drugs act?

2. If acetphenetidine be held to be such a derivative of acetanilide, is it sufficient to declare it on labels merely as acetphenetidine, or must it be stated to be a derivative of acetanilide?

From the papers transmitted and such further information as I have received from your Department, I understand that the Secretaries of the Treasury, Agriculture, and Commerce and Labor, in Rule 28, promulgated by them under section 3 of the food and drugs act (34 Stat. 768), designated acetphenetidine as one of the derivatives of acetanilide; and that the Secretary of Agriculture, on March 13, 1907, ruled that the name which should be employed in stating the quantity or proportion of the ingredients required by the act to be stated on the labels in the case of derivatives should be the trade name of the derivative, accompanied by the name of the parent substance used in the act; that is to say, acetphenetidine should be labeled "acetphenetidine (derivative of acetanilide)" or words to that effect.

We must consider, in the first place, whether the regulation adopted by the three Secretaries is conclusive of the first question, in so far as it designates acetphenetidine as a derivative of acetanilide. Section 3 of the food and drugs act provides that the Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce and Labor shall make uniform rules and regulations for carrying out the provisions of this act, etc. I do not think that it was intended by this section to confer absolute power upon the three Secretaries to determine what particular drugs are derivatives of those mentioned in section 8, subsection 2, with reference to drugs. In my opinion, it was only intended by section 3 to confer upon those Secretaries the power to adopt such rules and regulations as are appropriate to secure the enforcement of the act, and not to vest in them any judicial powers to determine when the act of a manufacturer or dealer in drugs or foods constitutes an offense under the statute. If the statute could be so construed, I should entertain serious doubt as to its constitutionality. It appears to me, therefore, that the first question which you submit is essentially one of fact to be determined, in the first instance, by yourself, and, in the event of judicial proceedings based upon your determination, by the appropriate tribunal (court or jury, according to circumstances) called to pass finally upon issues of fact joined in such proceedings.

The papers submitted with your letters show, moreover, that the question is not merely one of fact, but a question of fact very earnestly controverted. It is, of course, evident that this Department is neither required nor qualified to give an opinion as to such a question. Nevertheless, deeming it appropriate to afford you any possible assistance which it may be within the province of this Department to furnish, I proceed to give you my opinion as to a question of statutory construction and, therefore, of law, which may be, and appears from some of the papers to be, in fact, involved in the question whether acetphenetidine is a derivative of acetanilide; that is to say, the meaning of the word "derivative" as used in section 8 of the food and drugs act.

It is claimed by the manufacturers of acetphenetidine, in the documents submitted on their behalf, that a derivative, as used in the act, means substantially a product, and that unless it can be shown that the acetphenetidine which they manufacture is, in fact, produced by the use of acetanilide or, at all events, that such is the normal process whereby acetphenetidine is made, their goods can not be described, with propriety, as a "derivative" of acetanilide. In support of this contention they refer to the cases of Pickhardt v. United States (99 Fed.Rep. 719) and Farbenfabriken of Elberfeld & Co. v. United States (102 Fed.Rep. 603). In the last mentioned case (which was the same as the former on appeal) the circuit court of appeals said (p. 605):

"There is little room for the claim that, if the word 'derived' is to have its ordinary meaning, coal-tar dyes not made from anthracene or from madder are in the free list. It is, however, said in the Pickhardt case that while the dyes in that case were not a product of anthracene, they were 'derived' from anthracene, 'in the chemical sense of having anthracene as a base, or responding to the chemical tests for anthracene.' For example, Professor Chandler, recognized everywhere as an accurate and learned chemist, says that, to a chemist, the term 'derived from' signifies that the body to which the term is applied bears a certain chemical relation to the one from which it is said to be derived; being a typical group of chemical atoms, which group, more or less modified, appears in every substance said to be derived from it."

The court then stated:

"It is not important to determine whether these dyes were derived from anthracene, in the chemical sense, for they were not a product of or made from anthracene; and the term 'derived from' is to be understood in its commonly received and popular sense. 'It is entirely well settled that, in the interpretation of the revenue laws, words are to be taken in their commonly received and popular sense, or according to their commercial designation, if that differs from the ordinary understanding of the word.' (Lutx v. Magone, 153 U.S. 105, 14 Sup.Ct. 777, 38 L.Ed. 651; U.S. v. Fuel Co., 172 U.S. 339, 19 Sup.Ct. 200, 43 L.Ed. 469.) It is obvious that the popular meaning of the term is the meaning given in lexicons, and which is obtained by transmission or produced from, and refers, in this case, to its physical origin."

In the decision of the circuit court, Townsend, D. J., says, (99 Fed.Rep. 720):

"Counsel for the importers contends that these colors are dyes derived from anthracin, and that the word 'derived' is here to be used in the chemical sense of having anthracin as a base or responding to the chemical tests for anthracin. * * * I am satisfied, from a careful examination of the evidence and of the exhaustive opinion of the board of general appraisers, that these contentions are not sufficiently proved. The importers have failed to show that the dyes in question were derived from alizarin or from anthracin as a source. They have failed to show that Congress intended that the term 'derived' should be used in this connection in the technical or chemical sense, as distinguished from its ordinary sense."

I see no reason to question the authority of these decisions; but it is to be observed that, in the cases cited the courts were construing a provision of the tariff law.

In my opinion to the Secretary of the Treasury on the marking and branding of distilled spirits as affected by the pure food law (26 Op. 474), I said (p. 481):

"The primary purpose of the pure-food law is to protect against fraud consumers of food or drugs; as an incident or secondary purpose, it seeks to prevent, or, at least, discourage, the use of deleterious substances for either purpose; but its first aim is to insure, so far as possible, that the purchaser of an article of food or of a drug shall obtain nothing different from what he wishes and intends to buy. * * *

"It is obvious that the purpose of this act, as thus defined, is an altogether different purpose from that of the provisions of law relating to internal revenue."

This is no less obvious with respect to laws relating to the tariff, and, although it is reasonable to suppose that the Congress may have used the participle "derived" in a customs law in its ordinary and popular sense of "produced," I think the substantive "derivative" in the second subsection of section 8 of the food and drugs act may be reasonably, and, indeed, ought to be understood in its chemical sense. The said subsection provides that a drug shall be deemed to be misbranded, "if the package fail to bear a statement on the label of the quantity or proportion of any alcohol, morphine, opium, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate, or acetanilide, or any derivative or preparation of any such substances contained therein."

I have reached this conclusion mainly for two reasons. The word itself is seldom used in its general and popular meaning, and is ordinarily employed in one or the other of certain technical senses relating habitually either to grammar, music, medicine, mathematics, or chemistry. Secondly, it is employed here only with respect to various drugs, and may be appropriately understood as those called upon to deal in drugs would naturally understand it. The chemical definition of "derivative" is thus given in Webster's International Dictionary:

"A substance so related to another substance by modification or partial substitution as to be regarded as derived from it; thus, the amido compounds are derivatives of ammonia, and the hydrocarbons are derivatives of methane, benzene, etc."

The corresponding definition of the verb "derive" is:

"To obtain one substance from another by actual or theoretical substitution; as to derive an organic acid from its corresponding hydrocarbon."

Applying this definition to the subject-matter of discussion, I can answer your first question only by saying that, in my opinion, acetphenetidine is to be considered a "derivative" of acetanilide, if it is so related to the latter substance that it would be rightly regarded by recognized authorities in chemistry as obtained from the latter "by actual or theoretical substitution;" and it is not indispensable that it should be actually produced therefrom as a matter of fact.

Your second question requires a construction of the subsection of section 8 of the food and drugs act, above quoted. This subsection establishes what may be called an artificial definition of misbranding, by providing that, in addition to certain other contingencies, a drug shall be deemed to be misbranded if the package fail to bear a statement on the label of the quantity or proportion of certain designated drugs, including acetanilide, "or any derivative * * * of any such substances contained therein." In my opinion to the President in regard to the labeling or branding of whisky, I said, with respect to this statute: "According to the recognized canons of statutory construction, the language of its provisions must be interpreted with reference to and in harmony with this" (its) "primary general purpose;" and, as above stated, I found that such primary purpose was "to insure, so far as possible, that the purchaser of an article of food or of a drug shall obtain nothing different from what he wishes and intends to buy." It seems clear that the Congress thought the purchasers of drugs might be materially influenced in their determination to buy or not to buy any particular drug by knowing what quantity or proportion of the substances designated in this subsection-- all of them more or less poisonous in their nature-- might be contained in each package sold; and we must therefore so interpret this law as to give effect, if possible, to this purpose of the statute.

If, however, the package contains something which is itself a derivative or preparation of one of the drugs enumerated, the trade or technical name which it bears may not, and generally would not, indicate this fact; and the information intended by the Congress to be conveyed to a purchaser by the label would surely not be conveyed by merely marking it 100 per centum of the article in question. Supposing, for the sake of illustration, but only for such purpose, that acetphenetidine is decided to be a derivative of acetanilide, no information to this effect would be given to one having no special knowledge of chemistry by marking the package "100 per cent acetphenetidine."

I am therefore of the opinion that a rule or regulation requiring the name of the parent substance to follow that of the derivative would be in harmony with the general purpose of the act, and an appropriate method by which to give effect to its provisions. In the absence, however, of a regulation to this effect, I do not think you can hold a package misbranded because the name of the parent substance does not follow that of the derivative, for it would certainly be a harsh construction of a penal provision such as this to hold that the package and its owner shall incur the grave consequences of misbranding under the statute because of this omission, since there is nothing in the law itself to inform the said owner that such omission would constitute an offense. In the language of Mr. Justice Brewer in Railway Company v. Dey (35 Fed.Rep. 876):

"No penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it."

Or, as is said by the same justice in Tozer v. United States (52 Fed.Rep. 919):

"In order to constitute a crime, the act must be one of which the party is able to know in advance whether it is criminal or not."

The subject appears to me one eminently appropriate for regulation by the three Secretaries under the power conferred upon them by section 3 of the act, since it seems plain that the method of designating the derivative or preparation is one of those matters properly to be determined by a general rule applicable to all such cases; the purpose of section 3 being to enable the three Secretaries to specialize, for practical purposes, the general language of the act, so as to adapt it to the circumstances of particular cases arising in its enforcement.

Until such action shall be taken it would seem that the effective enforcement of this provision with respect to "derivatives" or "preparations" will be virtually impracticable.

In answer to your second question, therefore, I advise you that a rule or regulation requiring the name of the parent substance to follow that of the derivative would be within the power of the board constituted by section 3 of the act; but that, in the absence of such a rule, no offense would be committed, under the act, by the omission of the name of the parent substance, nor could the article in such case be dealt with as misbranded for that reason alone.

I remain, sir,

Yours, very respectfully,

CHARLES J. BONAPARTE.

HOURS OF LABOR-- TIMBER CUTTING ON MENOMINEE INDIAN RESERVATION; 27 Op.Att'y.Gen. 139, January 13, 1909

Persons employed by the Indian service on the Menominee Indian Reservation, Wis., under the act of March 28, 1908 (35 Stat. 51), for the cutting of timber thereon and its conversion into logs and other lumber, are not employees of the United States Government and are not subject to the restrictions imposed by the act of August 1, 1892 (27 Stat. 340), as regards hours of labor.

DEPARTMENT OF JUSTICE,

January 13, 1909.

The SECRETARY OF THE INTERIOR.

The SECRETARY OF AGRICULTURE.

SIRS: I have the honor to acknowledge the receipt of your letter of December 19, 1908, in which you ask my opinion whether persons employed by the Indian service, under the act of March 28, 1908 (35 Stat. 51), on the Menominee Indian Reservation, in Wisconsin, are employees of the Government and subject to the restrictions of the act of August 1, 1892 (27 Stat. 340), generally known as the "eight-hour law." You call to my attention the fact that, in my letter of June 8, 1908, to the Secretary of Agriculture, this question is answered (informally) in the affirmative; and you request that I review the conclusion announced in that letter. In accordance with your request, I have considered the question with care, and, as a result of such consideration, have decided that I was in error in the expression of views contained in my letter of June 8, above mentioned. In the letter of the Secretary of Agriculture, bearing date June 3, 1908, and to which my letter of June 8 was a reply, exemption from the prohibitions of the eight-hour law was claimed for the Indian laborers and mechanics engaged in the work above mentioned, substantially on two grounds, namely, that the mill construction and log driving in which these Indians were engaged did not constitute "public works of the United States," and, secondly, because the situation constituted an "extraordinary emergency" such as is contemplated in the exception to the eight-hour law. In determining the insufficiency of these claims, I did not find it necessary to determine whether the works in question amounted to "public works of the United States," for conceding, for the sake of argument, that they are not, it was held by Attorney-General Miller that the limitation in the statute to employment upon public works concerns only the laborers and mechanics employed by contractors and subcontractors, and does not apply to the services of employees of the Government (20 Op. 459).

I was also satisfied that, although the probability of injury to the timber from decay or other causes might render it advisable, in the interest of the Indians, that this work should be done as rapidly as possible, this situation did not constitute an "extraordinary emergency" in the contemplation of the exception to the eight-hour law. (Ellis v. United States, 206 U.S. 256-257.)

I adhere to my informal ruling on both of these questions; but, in my letter of June 8, 1908, it was rather assumed than decided after due consideration that the Indians employed upon this work here "employed by the Government of the United States" within the contemplation of the eight-hour law; and this question now requires a reconsideration.

The act approved March 28, 1908 (35 Stat. 51), "To authorize the cutting of timber, the manufacture and sale of lumber, and the preservation of the forests of the Menominee Indian Reservation in the State of Wisconsin," authorizes the Secretary of the Interior, under certain limitations not material to be here considered, to cut down portions of the timber on the Menominee Reservation, construct sawmills and other necessary buildings for its conversion into logs and other lumber, and sell the products at auction to the highest bidder. The net proceeds of the sale of the lumber are to be deposited in the Treasury to the credit of the Menominee tribe of Indians. Such proceeds shall bear interest at the rate of 4 per cent annually, and the interest shall be used for the benefit of the tribe in the discretion of the Secretary of the Interior. All the expenses of the work are to be paid out of the funds of the tribe, and the Secretary of the Interior is authorized to sell the sawmills and equipment whenever he shall find that the necessity for their use no longer exists, the net proceeds of such sales to be deposited, bear interest, and be used for the same purposes as are provided with respect to the net proceeds of the sales of lumber.

The whole of this work constitutes essentially a private enterprise for the benefit of this particular tribe of Indians. The beneficial ownership of the timber is in them, the sales are to be made on their account, and the work constitutes essentially an investment of trust property made by the United States as quasi guardian for certain of its Indian wards.

I do not think work of this character is within the purview of the eight-hour law. In a sense, the persons engaged in such work may be said to be in the employ of the United States, but it can hardly be assumed that the Congress contemplated employees of this character, whose compensation comes virtually out of the pocket of the wards of the nation, and whose employment is made by the Government, not for the general benefit of the nation, but as a trustee for the benefit of a comparatively small number of individuals, toward whom it stands in a special fiduciary relation imposing upon it different duties and conferring upon it different powers from those it exercises and fulfills toward its citizens generally. This is a case where, as is said in Holy Trinity Church v. United States (143 U.S. 459):

"A thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. This has been often asserted, and the reports are full of cases illustrating its application. This is not the substitution of the will of the judge for that of the legislator, for frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act."

I think the principle of this decision applies to the question under consideration, and I am much strengthened in this view by the provision contained in section 2 of the act of March 28, 1908 (35 Stat. 51), which is as follows:

"The Secretary of the Interior in so far as practicable shall at all times employ none but Indians upon said reservation in forest protection, logging, driving, sawing, and manufacturing into lumber for the market such timber, and no contract for logging, driving, sawing timber, or conducting any lumber operations upon said reservations shall hereafter be let, sublet, or assigned to white men, nor shall any timber upon any such reservations be disposed of except under the provisions of this act. Whenever any Indian or Indians shall enter into any contract pursuant to this Act, and shall seek by any agency, copartnership agreement, or otherwise to share in the same with any white man, or shall employ in its execution any labor or assistance other than the labor and assistance of Indians, such act or acts shall thereupon terminate such contract, and the same shall be annulled and canceled."

The purpose of the act of 1892 was undoubtedly to prevent the lengthening of hours of labor in work done for the Government through the unrestricted operation of competition among laborers and mechanics thus employed. In this case competition of the character described is substantially eliminated by the restriction of the work to Indians, and, for practical purposes, to Indians of this particular tribe. The same persons who will be paid for their labor in doing the work will have an interest in the net proceeds representing the profits of the enterprise, so that, in large measure at least, the work contemplated by this act constitutes a cooperative undertaking in which the tribe furnishes the capital, the raw material, and, so far as possible, the labor employed. It seems reasonable to suppose that if the Congress had intended work done under such peculiar conditions to be affected by the prohibitions in the general statute enacted in 1892 it would have expressly provided that no mechanic or laborer employed in this work should labor for more than eight hours a day. In the absence of any such provision, and in view of the peculiar nature and circumstances of the work, I think it must be held that the special provisions of the act of 1908 are a substitute pro tanto for the general provision of the act of 1892, and that the restriction upon the hours of labor does not apply to the employees engaged in the work provided for in section 2 of the above-mentioned act.

I answer, therefore, your question in the negative.

I remain,

Yours very respectfully,

CHARLES J. BONAPARTE.

CANAL ZONE-- PROCESS AGENTS-- STATUTORY CONSTRUCTION; 27 Op.Att'y. Gen. 136, January 5, 1909

The Canal Zone is not within the contemplation of the act of August 13, 1894 (28 Stat. 279), which provides that surety companies doing business outside of the States or Territories under which they are incorporated shall appoint agents residing within the jurisdiction of the court where such suretyship is to be undertaken, upon whom process may be served.

The principle that a matter may be within the intent of the law, though without the letter, does not warrant going beyond what that intent can be regarded as embracing because it may be conjectured that, had the case been foreseen, Congress would have embraced it within the intent.

DEPARTMENT OF JUSTICE,

January 5, 1909.

The SECRETARY OF THE TREASURY.

SIR: I have your request for an opinion, as follows:

"Will you please advise this department whether the Panama Canal Zone is to be treated as a judicial district, as reported in your last list of process agents, in which companies doing business under the act of August 13, 1894, must appoint process agents?

"This information is desired in view of the provisions of section 2 of said act, which provides as follows: (Quotes the first paragraph of section 2.)

"I have the honor to request that you give this matter your early attention, as it concerns a bond the approval of which is pending in this office."

In order that your question and this opinion may be better understood, I quote section 1 and the first paragraph of section 2 of the act referred to (28 Stat. 279):

"That whenever any recognizance, stipulation, bond, or undertaking conditioned for the faithful performance of any duty, or for doing or refraining from doing anything in such recognizance, stipulation, bond, or undertaking specified, is by the laws of the United States required or permitted to be given with one surety or with two or more sureties, the execution of the same or the guaranteeing of the performance of the condition thereof shall be sufficient when executed or guaranteed solely by a corporation incorporated under the laws of the United States, or of any State having power to guarantee the fidelity of persons holding positions of public or private trust, and to execute and guarantee bonds and undertakings in judicial proceedings: Provided, That such recognizance, stipulation, bond, or undertaking be approved by the head of department, court, judge, officer, board, or body executive, legislative, or judicial required to approve or accept the same. But no officer or person having the approval of any bond shall exact that it shall be furnished by a guarantee company or by any particular guarantee company.

"SECTION 2. That no such company shall do business under the provisions of this act beyond the limits of the State or Territory under whose laws it was incorporated and in which its principal office is located nor beyond the limits of the District of Columbia, when such company was incorporated under its laws or the laws of the United States and its principal office is located in said District, until it shall by a written power of attorney appoint some person residing within the jurisdiction of the court for the judicial district wherein such suretyship is to be undertaken, who shall be a citizen of the State, Territory, or District of Columbia, wherein such court is held, as its agent, upon whom may be served all lawful process against such company, and who shall be authorized to enter an appearance in its behalf. A copy of such power of attorney, duly certified and authenticated, shall be filed with the clerk of the district court of the United States for such district at each place where a term of such court is or may be held, which copy, or a certified copy thereof, shall be legal evidence in all controversies arising under this act."

The only theory upon which this law can be regarded as embracing the Panama Zone seems to me to be that the Zone is a place within the intent of the law, though without the letter. The act, being a beneficial and directory one, might be regarded as intended to apply wherever, under our flag, it could apply or be enforced. While the Zone is not a "Territory," but a place held by us for a very special and peculiar purpose, and is not a "judicial district" having a "district court of the United States," yet it has a corresponding court, is similar to a judicial district, and there is no practical reason why the law could not be applied there had Congress in 1894 contemplated such a place. But the principle that a thing may be within the intent of the law, though without the letter, does not warrant us in going beyond what the intent can be regarded as embracing, because we may conjecture that, had the case been foreseen, Congress would have embraced it within the intent. The intent in this case could well be held to extend to any new territory created a judicial district and given a district court of the United States, with whose clerk "such power of attorney" could be filed; and even the letter of the law would cover such new territory. But I can not persuade myself that a place held and treated as has been the Panama Zone was within the intent of Congress. It would be to amend the act of 1894, rather than to interpret it, if we should hold it applicable where there is not "a Territory," nor a "district court of the United States," nor "judicial district" such as is the residence of such a court, nor a "clerk of the district court of the United States for such district."

I am of opinion, therefore, that the Canal Zone is without the province of the act of 1894.

Respectfully,

CHARLES J. BONAPARTE.

EXTRADITION-- UNITED STATES COMMISSIONER-- UNITED STATES MARSHAL; 27 Op.Att'y.Gen. 128, January 4, 1909

The United States marshal at New York was justified in refusing to receive and hold an extradition prisoner under a warrant issued by a United States commissioner at Warren, Pa., who had examined the prisoner and found that the evidence was sufficient to sustain the charge against him.

The commissioner's jurisdiction over the case ended after he certified the result of his finding to the Secretary of State and committed the prisoner to the proper jail. He was clearly without authority to order the prisoner transported out of the judicial district in which he was arrested.

DEPARTMENT OF JUSTICE,

January 4, 1909.

The SECRETARY OF STATE.

SIR: In your note of December 8, 1908, you request my opinion whether the United States marshal at New York had the right to refuse to receive and hold an extradition prisoner under a warrant issued by a United States commissioner at Warren, Pa.

The pertinent facts, as set forth in the letter to the consul for Sweden at New York, upon which your request for my opinion is based, are as follows: Israel Jansson, charged with having committed embezzlement, one of the crimes enumerated in the existing treaty between the United States and Sweden (27 Stat. 972), was brought before United States Commissioner Shawkey at Warren, Pa., on November 3, 1908, as a fugitive from justice, upon a warrant regularly issued. A hearing was had, as a result of which the commissioner certified that he deemed the evidence of criminality sufficient to sustain the charge set forth in the complaint and warrant, and, after committing the prisoner to jail, transmitted the usual documents to the Secretary of State the request of the Swedish consulate, the commissioner issued a writ, directed to the United States marshal for the southern district of New York, commanding him to receive and hold the prisoner. The commissioner delivered this writ to two men, who are not named or shown to have been officers of the United States.

These two men took the writ and the fugitive to New York City, but the United States marshal declined to receive and hold the prisoner upon the writ, claiming that said commissioner was without jurisdiction to issue a warrant of detention in New York.

A United States commissioner is neither a court nor the judge of a court; he is simply an officer of the United States district court. (Todd v. U.S., 158 U.S. 282.) "United States commissioners are purely statutory officers." (19 Op.A.G. 443.) Their duties are those of examining and committing magistrates. (U.S. v. Schumann, 27 Fed. Cases, No. 16235.) "The powers of the commissioners are stricti juris." (In re Perkins, 100 Fed.Rep. 950, 954.) No powers are conferred upon a United States commissioner by implication; he can perform only such functions and exercise such powers as are expressly conferred upon him by law. (Sec. 627, R.S., as amended by the act of May 28, 1896, 29 Stat. 184; U.S. v. Curtis, 107 U.S. 671, 674-675.) Any writ or process issued by a commissioner without express authority of law is improvidently issued and void. (Chittenden v. Darden, 5 Fed. Cases, No. 2688.) The jurisdiction and powers of a commissioner in extradition matters are specifically set forth in section 5270 of the Revised Statutes, as follows:

"Whenever there is a treaty or convention for extradition between the Government of the United States and any foreign government, any * * * commissioner, authorized so to do by any of the courts of the United States, * * * may, upon complaint made under oath, charging any person found within the limits of any State, district, or Territory with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may be brought before such * * * commissioner, to the end that the evidence of criminality may be heard and considered. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made."

Under this statute, after Commissioner Shawkey found the evidence against Jansson sufficient to sustain the charge, his jurisdiction and powers were limited to certifying his findings to the Secretary of State and issuing "his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made." It is understood that the commissioner actually issued his warrant committing Jansson to the jail at Warren, Pa., and that Jansson was confined in the said jail, after his hearing, under and by virtue of said warrant; that, later in the same day, the commissioner issued the warrant in question, directed to the United States marshal at New York. If these be the facts, it is very clear that the latter warrant was issued without authority of law and was void. When the commissioner committed the prisoner to "the proper jail" his jurisdiction over the case finally ended. The prisoner was in the jail "there to remain" until delivered to the demanding country upon the writ of extradition issued by the Secretary of State, or until discharged from custody by order of a judge of the United States or of the State of Pennsylvania, under the provisions of section 5273, R.S.

However, as it is not conclusively shown by the statement of facts submitted by you that the commissioner did actually issue a warrant committing the fugitive to the jail at Warren, Pa., and as the marshal at New York based his refusal to receive the prisoner on the contention that the commissioner was without jurisdiction to issue a warrant for the detention of the prisoner in New York, it is deemed appropriate to examine that question, on the assumption that no prior warrant was issued for the commitment of the prisoner at Warren.

Article I of the treaty with Sweden provides that the accused shall be delivered up only " * * * upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his or her apprehension and commitment for trial, if the crime or offense had been there committed."

Article III of said treaty contains the following provision:

"The extradition of fugitives under the provisions of this treaty shall be carried out in the United States and Sweden, respectively, in conformity with the laws regulating extradition for the time being in force in the state on which the demand for surrender is made."

Section 1014, R.S., provides that the procedure for the arrest and commitment of persons charged with crimes or offenses against the United States shall be "agreeably to the usual mode of process against offenders in such State," the State where the arrest is made. While it authorizes a United States commissioner to conduct such proceedings and to commit the accused, yet, where the accused is arrested in any other district than the one in which the offense was committed, it provides that "it shall be the duty of the judge of the district where such offender or witness is imprisoned, seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had." No authority is granted the commissioner to order the accused transported out of the district in which he is arrested.

Sections 1028 and 1029, R.S., provide for the imprisonment authorized by section 1014, as follows:

"SEC. 1028. Whenever a prisoner is committed to a sheriff or jailer by virtue of a writ, warrant, or mittimus, a copy thereof shall be delivered to such sheriff or jailer, as his authority to hold the prisoner * * * .

"SEC. 1029. Only one writ or warrant is necessary to remove a prisoner from one district to another. One copy thereof may be delivered to the sheriff or jailer from whose custody the prisoner is taken, and another to the sheriff or jailer to whose custody he is committed * * * ."

There is no provision of law conferring any greater powers upon a United States commissioner in extradition matters than he possesses in regard to offenses against the United States. In Benson v. McMahon (127 U.S. 457, 463) the court say of an extradition hearing before a commissioner:

"the proceeding before the commissioner is not to be regarded as in the nature of a final trial by which the prisoner could be convicted or acquitted of the crime charged against him, but rather of the character of those preliminary examinations which take place every day * * * ."

In these preliminary examinations the commissioner is clearly without power to order the prisoner transported out of the judicial district in which he is arrested; that can be done only by the "judge of the district." In extradition matters he can be removed from the district only upon the writ of extradition issued by the Secretary of State.

In Pettit v. Walshe (194 U.S. 205) the United States marshal for the district of Indiana arrested a fugitive from the justice of Great Britain, in Indiana, upon a warrant issued by a United States commissioner in New York City. This warrant directed that the accused be taken before said commissioner in New York City, which the marshal attempted to do. The prisoner was discharged on a writ of habeas corpus on the contention that, even though he might be lawfully arrested on said warrant in Indiana, yet he could not be taken out of that State and be delivered, in another State, before the commissioner who issued the warrant; but must be taken before the nearest United States commissioner, in Indiana, and be given a hearing. The Supreme Court sustained this contention upon the authority of the proviso to the sundry civil appropriation act of August 18, 1894 (28 Stat. 372, 416), and a stipulation in the treaty with Great Britain identical with the quotation, supra, from Article I of the treaty with Sweden. The court held (p. 217):

"Walshe could not be extradited under the treaties in question, except upon such evidence of criminality as, under the laws of the State of Indiana-- the place in which he was found-- would justify his apprehension and commitment for trial if the crime alleged had been there committed."

Referring to the proviso to the act of August 18, 1894, the court held (p. 219):

"The commissioner or judicial officer here referred to is necessarily one acting as such within the State in which the accused was arrested and found. * * * If such magistrate found that the evidence sustained the charge, then, under section 5270 of the Revised Statutes, it would be his duty to issue his warrant for the commitment of the accused to the proper jail, there to remain until he was surrendered under direction of the National Government, in accordance with the treaty."

In U.S. v. Harden (10 Fed.Rep. 802) the sole question considered was the proper procedure in committing a prisoner by a United States commissioner. The court held (p. 807):

"The mittimus must be directed to the marshal commanding him to convey the prisoner into the custody of the jailer, and it must also direct and command the jailer to receive the prisoner and keep him in close custody until discharged, or taken from his custody by some process of law. The marshal must deliver a copy of such mittimus to the jailer as his authority to hold the prisoner, and the original warrant, with due entry of service, must be returned to the proper officer. A jailer ought never to receive a prisoner into his custody without some written authority to detain him, issued by a person having power to grant such authority."

In U.S. v. Ewing (140 U.S. 142, 144), which involved a preliminary examination by a commissioner, the court said: "It is proper to look at the law of the State in which the services in such case are rendered, to determine what is necessary and proper to be done," and after finding that the pertinent statute of Tennessee provided that the prisoner should be "committed to jail in the meantime,: the court said (p. 145): "As there are no federal jails or other places of temporary confinement under the control of the marshal, such commitment must be made to the state jail."

As Jansson was arrested in Pennsylvania, it is proper to look at the laws of that State to determine what "laws regulating extradition" were applicable to his case, "agreeably to the usual mode of process against offenders in such State." It is assumed that Jansson's criminality was sufficiently established to justify his commitment if his offense had been committed in Pennsylvania.

Section 3 of the act of the Pennsylvania General Assembly of May 24, 1878 (Purdon's Digest, 13th ed., vol. 2, p. 1762), makes it a misdemeanor punishable by imprisonment for one year for any person or officer to take any fugitive from justice, even with the consent of such fugitive, out of said State "without a requisition first had and obtained" from the governor of the State, which must be "served by the sheriff or his deputy." Section 5 of said act, as amended by the act of June 4, 1879 (P.L. 95, sec. 2), authorizes the arrest and commitment of fugitives from justice, under certain conditions, for a period not to exceed ninety days, before the issuance of the governor's requisition. These provisions of the Pennsylvania law clearly indicate that the fugitive is to be committed to the jail of the county in which the arrest is made until the requisition issues. Section 2 of the act of May 24, 1878, requires that, before a fugitive is taken out of the State, he shall be conducted before a judge of a court of record and be given an opportunity to sue out a writ of habeas corpus, unless he shall waive such right in writing. It therefore appears that the issuance of the writ under discussion and the taking of Jansson to New York were in direct contravention of the "usual mode of process" against such offenders in Pennsylvania instead of being agreeably thereto.

In view of these conclusions, was the United States marshal at New York justified in declining to receive the prisoner? Section 787, R. S., provides that--

"It shall be the duty of the marshal of each district * * * to execute, throughout the district, all lawful precepts directed to him, and issued under the authority of the United States * * * ."

In Insurance Co. v. Adams (9 Peters, 603) the Supreme Court held that--

"It is the duty of the marshal to execute all process which may be placed in his hands; but he performs this duty at his peril, and under the guidance of law. He must, of course, exercise some judgment in its performance."

U.S. v. Kelly (108 Fed.Rep. 538) arose out of a treaty made in 1892 between the United States and Great Britain and section 5280, R.S., which provides that, upon certain contingencies, deserting seamen "shall be delivered up to the consul or vice-consul" of a foreign government. In this case a United States commissioner committed certain deserting seamen "to be surrendered and restored by the marshal to the ship Cedarbank, under the direction of the British consul." The consul directed the marshal, in writing, to restore said deserting seamen to said ship by delivering them on board thereof to the master of the vessel. While deputy marshals were executing this order Kelly and his associates forcibly took the seamen from the custody of the officers. They were prosecuted under section 5398, R.S., for obstructing an officer in the discharge of his duties. In sustaining a demurrer to the information the court said (p. 540):

"The commissioner had no authority to direct the restoration of the seamen to the ship Cedarbank. The statute only permits their delivery to the consul. I am satisfied that the commissioner had authority to order the delivery of the deserting seamen to the consul on board the Cedarbank at Astoria, either to the consul himself, or to some one authorized to act for him in that behalf. * * * At the time of the act charged as a crime, the deputies were acting, not in pursuance of such an order as the statute provides for, but under the direction of the British consul. The officers, therefore, were obstructed, not in the performance of a duty enjoined by law, but in the performance of an act directed by the British consul."

And if the marshal at New York had received and held Jansson under the writ issued by Commissioner Shawkey he would not have been acting in pursuance of such an order as the statute provides for, nor in the performance of a duty enjoined by law.

In my opinion the United States marshal at New York was justified, under the circumstances, in refusing to receive and hold Jansson under the writ issued by Commissioner Shawkey.

Very respectfully,

CHARLES J. BONAPARTE.

FACSIMILE IMPRINTS OF CANCELED POSTAGE STAMPS; 27 Op.Att'y.Gen. 125, December 26, 1908

A canceled postage stamp is not an obligation or security within the meaning of section 5413, Revised Statutes of the United States.

Lithographic prints bearing facsimile imprints of canceled postage stamps of foreign countries are not liable to seizure under section 4 of the act of February 10, 1891 (26 Stat. 742); but if the marks of cancellation are imposed by a separate impression upon the facsimiles of the canceled stamps, the apparatus for making such uncanceled stamps would be liable to seizure, as well as the stamps themselves in their uncanceled state.

DEPARTMENT OF JUSTICE,

December 26, 1908.

The SECRETARY OF THE TREASURY.

SIR: I am in receipt of your letter of the 22d instant, in which you say:

"There arrived at New York per SS. America from Hamburg, on November 23, 1908, three cases of lithographic prints consigned to Messrs. Wolf & Co., of Philadelphia. Delivery of said merchandise has been refused by the collector as being in violation of section 4 of the act of February 10, 1891 (26 Stat. 742).

"The inclosed cards are representative samples of the said lithographic prints. These cards appear to bear facsimile imprints of canceled stamps of various foreign countries.

"I have to request an expression of your opinion whether cards bearing facsimile imprints of canceled stamps of a foreign government are articles prohibited by said section 4 of the act of February 10, 1891."

Section 4 of the act of February 10, 1891 (26 Stat. 742), provides:

"That all counterfeits of any of the obligations or other securities of the United States or of any foreign Government, or counterfeits of any of the coins of the United States or of any foreign Government, and all material or apparatus fitted or intended to be used, or that shall have been used, in the making of any of such counterfeit obligations or other securities or coins hereinbefore mentioned, that shall be found in the possession of any person without authority from the Secretary of the Treasury or other proper officer to have the same, shall be taken possession of by any authorized agent of the Treasury Department and forfeited to the United States, and disposed of in any manner the Secretary of the Treasury may direct."

The question here presented is practically resolved by the opinion of Attorney-General Olney of December 30, 1893 (20 Op. 691), wherein he held that while postage stamps were included in the definition of the words "obligation or other security of the United States," given in section 5413 of the Revised Statutes, and that the "printing, photographing, making, or executing any engraving, photograph, print, or impression in the likeness of any such obligation or other security, * * * except under the authority of the Secretary of the Treasury," is made a criminal offense by section 5430, yet, in his opinion, "postage stamps are not representatives of value and are not obligations or securities of the United States except so long as they remain uncanceled and unused."

This opinion, so far as it relates to the proposition whether canceled postage stamps are "obligations or securities," is not qualified by the subsequent opinion of Attorney-General Olney of January 16, 1894 (20 Op. 697), in which he said that his former opinion had no reference to the use of dies for printing the facsimiles of uncanceled postage stamps, his attention having been called to the fact that the die used in printing the imitation stamp submitted for his former opinion was a perfect likeness of the die for printing an uncanceled 2-cent postage stamp, and that in printing the advertisement then submitted the cancellation mark was made by a separate and distinct die.

In the latter opinion he held that an uncanceled postage stamp is an "obligation or other security of the United States," within the meaning of section 5430, but whether any particular dies or plates possessed such similarity as to come within the section was a question of fact upon which he could not render an official opinion.

In the present case the only question presented is whether cards bearing facsimile imprints of canceled stamps of a foreign government are articles prohibited by section 4 of the act of February 10, 1891. Interpreting the words "obligations or other securities" to include postage stamps, as I think they should be in view of section 5413, Revised Statutes, I think I should adhere to the opinion of Attorney-General Olney that a canceled postage stamp is not an obligation or security within the meaning of the statute. At the same time this opinion, like Attorney-General Olney's first opinion, has no reference to the material or apparatus for the making of uncanceled postage stamps, and if, as appears to be the case with the samples of the lithographic prints accompanying your letter, the marks of cancellation are imposed by a separate impression upon the facsimiles of uncanceled stamps, the apparatus for making such uncanceled stamps would be subject to seizure under the act, as well as the stamps themselves in their uncanceled state.

Respectfully,

CHARLES J. BONAPARTE.

ERECTION OF PROPOSED BRIDGE ACROSS THE NIAGARA RIVER-- SANCTION OF CONGRESS; 27 Op.Att'y.Gen. 120, December 14, 1908

The sanction of Congress is required for the construction of a proposed bridge across the Niagara River, connecting Niagara Falls, N. Y., with Niagara Falls, Ontario, Canada.

DEPARTMENT OF JUSTICE,

December 14, 1908.

The SECRETARY OF WAR.

SIR: Your letter of November 25 transmits an application from the International Railway Company, a corporation of the State of New York, requesting the War Department to consent to the construction of a bridge across Niagara River, connecting Niagara Falls, N.Y., with Niagara Falls, Ontario, Canada, and to approve the location and plans of said bridge. You state that your power as Secretary of War is not free from doubt; that the river, an international boundary stream, is navigable above the Falls and again at some distance below the Falls, but that the intervening portion, about eight miles long, embracing the Falls and rapids, is not navigable in fact, although the pool just below the Falls, making a stretch of about a mile and a half, where it is proposed to build this bridge, is actually navigated by excursion steamboats carrying passengers for the purpose of viewing the natural scenery. It is stated, however, in some of the papers that these boats do not undertake to navigate the entire stretch of this pool and do not venture so far down as the existing bridge and the adjacent point where the proposed bridge is to be. Thereupon you ask:

"1. Is the specific sanction of Congress required for the construction of the proposed bridge, having in view the provisions of section 9 of the river and harbor act of March 3, 1899 (30 Stat. 1151)?

"2. In the absence of such sanction, is the Secretary of War vested with legal authority to grant the request of the applicant and approve the plans presented?"

In connection with these questions you cite the act of Congress approved June 29, 1906 (34 Stat. 626), entitled "An act for the control and regulation of the waters of Niagara River, for the preservation of Niagara Falls, and for other purposes."

It appears that an act of the New York State legislature of 1906 (N. Y. Laws of 1906, Vol. 2, p. 1510, c. 576) and a Canadian statute of the same year, incorporated the Trans-Niagara Bridge Company and granted said company the right to construct and maintain a bridge across the Niagara River between the cities of Niagara Falls, N.Y., and Niagara Falls, Ontario; that the commissioners appointed in pursuance of the grant by the New York charter have met and selected the location for the bridge, and have advertised for the opening of subscriptions to the capital stock. Under section 13 of that act the bridge must be commenced in good faith on or before December 31, 1908. It is to be noted that the application to you was not made until November 23, 1908, little more than a month before the right to begin construction in good faith under the New York statute expired.

The river and harbor act of March 3, 1899 (30 Stat. 1121, 1151), provides (sec. 9):

"That it shall not be lawful to construct or commence the construction of any bridge, dam, dike, or causeway over or in any port, roadstead, haven, harbor, canal, navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained, and until the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of War: * * * "

By section 12 violation of the provisions of section 9 is made a misdemeanor punishable by a fine not exceeding $2,500, nor less than $500, or by imprisonment (in the case of a natural person) not exceeding one year, or by both such punishments.

It is therefore necessary to ascertain whether the river in question is a navigable river of the United States.

It appears from the papers transmitted by you that the river is navigable from Lake Erie to the upper rapids near the Falls, a distance of about 20 miles; and also from Lewiston to the point where the river flows into Lake Ontario, a distance of about 7 miles; but that from the beginning of the rapids above the Falls through to the lower rapids and as far as Lewiston, for a distance of about 8 miles, the river is unnavigable except for the fact that the pleasure boats already referred to make trips across the river in a small area below the Falls and above the lower rapids.

The definition of navigable rivers given by the Supreme Court in The Daniel Ball (10 Wall. 557, 563) is as follows:

"Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water."

This definition is quoted with approval in the case of The Montello (11 Wall. 411), and in The Montello (20 Wall. 430, 441, 443), where the court used the following language:

"The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent and manner of that use. If it be capable in its natural state of being used for the purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact, and becomes in law a public river or highway. * * *

The vital and essential point is whether the natural navigation of the river is such that it affords a channel for useful commerce. If this be so, the river is navigable in fact, although its navigation may be encompassed with difficulties by reason of natural barriers, such as rapids and sand-bars."

Chief Justice Shaw, in Rowe v. Granite Bridge Corporation (21 Pick. 347), said that in order to give a river the character of a navigable stream "it must be generally and commonly useful to some purpose of trade or agriculture." This language is quoted in many decisions of the Supreme Court, including the case of United States v. Rio Grande Irrigation Co. (174 U.S. 699), where it was held that while the Rio Grande is, speaking generally, a navigable river, it is not so within the limits of New Mexico, being a stream over which in its ordinary condition trade and travel can not be conducted in the customary modes of trade and travel on water; that is to say, the point had been reached at which the river finally ceased to be navigable.

Reviewing the cases which define the term "navigable waters," the court said in Leovy v. United States (177 U.S. 621, 632):

"It is a safe inference from these and other cases to the same effect which might be cited, that the term "navigable waters of the United States" has reference to commerce of a substantial and permanent character to be conducted thereon."

Niagara River would seem to come fairly within these definitions of a navigable water of the United States. It forms a continued highway from Lake Erie to a point above the Falls over which commerce is carried on between the State of New York and a foreign country. The fact that commerce is interrupted for a few miles between the Falls and Lewiston, where it is again resumed, can not be said to affect the character of the river so as to take it out of the class of navigable waters of the United States. It seems to me an error to contend that because it can not be navigated throughout its entire course from Lake Erie to Lake Ontario, it is therefore not a navigable river of the United States, when for nearly 28 miles in all it forms a highway of commerce between this country and Canada, and I may add, when, as such, it constitutes an international boundary between this country and Canada.

In Water Power Company v. Water Commissioners (168 U.S. 349, 359), it was said by Mr. Justice Peckham, referring to a part of the Mississippi River in the State of Minnesota:

"In order to be navigable, it is not necessary that it should be deep enough to admit the passage of boats at all portions of the stream. One witness for the plaintiff in error said that in its natural state the river at this point was not navigable at ordinary stages of the water for half a mile below St. Anthony's Falls, and in its natural state it was not navigable immediately above the falls, but that it was navigable in its natural state above Nicollet Island." And the court held that the river at the point in question was a navigable stream in spite of the interruption to navigation caused by the falls and rapids referred to.

The fact that Niagara River is an international boundary stream suggests an additional reason for the exercise of exclusive jurisdiction by Congress if it be navigable in law.

The act of June 29, 1906, which you cite, providing for the regulation of the waters of Niagara River, and giving the Secretary of War authority to grant permits for the diversion of water and transmission of power, does not appear to affect the present question, except that it is to be noted that the Acting Chief of Engineers in his indorsement on the petition of the International Railway Company states that the committee appointed by the Secretary of War under the act of 1906 to consider the preservation of natural scenic effects at Niagara Falls, reported as to the proposed construction of this bridge that if erected it would greatly interfere with or destroy the most satisfactory view obtainable of the Falls from the brink of the gorge, which is already impaired by the steel arch highway bridge already existing between the city of Niagara Falls, N.Y., and Clifton, Ontario.

The result of the opposite view to that indicated in this opinion is that in order to make permission by Congress necessary under the act of 1899 the river must be navigable at the particular point where the bridge is to be constructed, but I think it is manifest that in using the words "navigable river * * * of the United States" Congress was referring to the general character of navigable rivers and not to the condition as to navigability at the particular point.

In view of the foregoing considerations and authorities, I have the honor to advise you that my answer to your first question is in the affirmative, which makes an answer to your second question unnecessary.

Respectfully,

CHARLES J. BONAPARTE.

CUSTOMS LAW-- WITHDRAWAL OF WHISKY FROM BOND, TRANSPORTATION TO FOREIGN PORTS, AND REIMPORTATION; 27 Op.Att'y.Gen. 113, December 4, 1908

A withdrawal of whiskies from bonded warehouses under sections 3329 and 3330, Revised Statutes, and transportation thereof to foreign ports with the intention of holding the same for a time and then having them returned as reimportations of manufacturers of the United States, the purpose being to postpone payment of the taxes on the whiskies shipped, is not an exportation within the meaning of these sections.

Such withdrawal, not being a bona fide exportation, is unlawful, and a forfeiture of the whiskies involved can be enforced if found within the jurisdiction of the United States. The parties withdrawing the same are also liable to punishment.

To constitute a bona fide exportation it is necessary that the owner of the whisky should intend that it should not only be landed in a foreign port, but that it should enter into the commerce of some foreign country.

DEPARTMENT OF JUSTICE,

December 4, 1908.

The SECRETARY OF THE TREASURY.

SIR: In your letters of June 14 and July 13, 1907, you submit to me the following facts:

Certain whisky manufacturers have been accustomed to withdrawing their products from bonded warehouses under sections 3329 and 3330, Revised Statutes, and transporting them to certain foreign ports, with the intention of holding them for a time and then having them returned as reimportations of manufacturers of the United States, their purpose being to postpone the payment of the taxes on the whiskies shipped until they wish to place them upon the market; and the question is whether such a transportation is an exportation of the whisky within the meaning of sections 3329 and 3330, Revised Statutes, and whether a withdrawal of whisky from a bonded warehouse for such purpose is lawful.

The statutes which are material for a determination of these questions are the following:

By section 3329, Revised Statutes, it is provided that--

"Distilled spirits upon which all taxes have been paid, may be exported with the privilege of drawback * * * " and specific directions are given therein governing such exportations.

By section 3330, Revised Statutes, it is provided that--

"Distilled spirits may be withdrawn from distillery bonded warehouses, at the instance of the owner of the spirits, for exportation * * * without the payment of tax, under such regulations, and after making such entries and executing and filing with the collector of the district from which the removal is to be made such bonds and bills of lading, and giving such other additional security as may be prescribed by the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury: Provided, That bonds given under this section shall be canceled under such regulations as the Secretary of the Treasury shall prescribe: And provided further, That the bonds required to be given for the exportation of distilled spirits shall be canceled upon the presentation of satisfactory proof and certificates that said distilled spirits have been landed at the port of destination named in the bill of lading, or upon satisfactory proof that after shipment the same were lost at sea without fault or neglect of the owner or shipper thereof."

By the last clause of this section it is provided that--

"Every person who intentionally relands within the jurisdiction of the United States any distilled spirits which have been shipped for exportation under the provisions of this act, or who receives such relanded distilled spirits, and every person who aids or abets in such relanding or receiving of such spirits, shall be fined not exceeding five thousand dollars, and imprisoned not more than three years; and all distilled spirits so relanded, together with the vessel from which the same were relanded within the jurisdiction of the United States, and all boats, vehicles, horses, or other animals used in relanding or removing such distilled spirits, shall be forfeited to the United States."

By section 27 of the customs act of 1897 it is provided (31 Stat. 210):

"That upon the reimportation of articles once exported, of the growth, product, or manufacture of the United States, upon which no internal tax has been assessed or paid, or upon which said tax has been paid but refunded by means of drawback, there shall be levied, collected, and paid a duty equal to the tax imposed by the internal revenue laws upon such articles; except articles manufactured in bonded warehouses and exported pursuant to law, which shall be subject to the same rate of duty as if originally imported."

This question does not appear to be an open one. On July 2, 1883, precisely the same question was considered by Solicitor-General Phillips in an opinion which was examined and approved by Attorney-General Brewster (17 Op. 579-585); and it was held that if it was the purpose of the owner of the whisky, when exporting it, to bring it back into the United States, it was not an exportation within the meaning of section 3330, Revised Statutes. The theory upon which this conclusion was based was that the various transactions must be considered as one, and that the question of exportation must be determined by the ultimate destination had in mind by the owner when the shipment was made; and that if that ultimate destination was a point within the United States, then it was not in fact an exportation. The decision was largely rested on the question of intent, it being held that in order to constitute a bona fide exportation it was necessary that the owner of the whisky should intend that it should not only be landed in a foreign port, but that it should enter into the commerce of such country.

Upon this point the following language was used (p. 583):

"As the legal notion of emigration is going abroad with an intention of not returning, so that of exportation is a severance of goods from the mass of things belonging to this country, with an intention of uniting them with the mass of things belonging to some foreign country or other."

This expression was quoted with approval by the Supreme Court of the United States in the case of Swan & Finch Co. v. United States (190 U. S. 145). That was a case involving the right of drawback on lubricating oils, which were placed on board a vessel going to a foreign port, but which were to be consumed on the voyage; and this quotation from the Attorney-General's opinion was cited as an illustration of what constituted an exportation within the meaning of the tariff laws.

The question again came before this department during the administration of Attorney-General Harmon, and he held that the exportation of alcohol, with the intention of its reimportation, in order to take advantage of the drawback privilege, is to be regarded as colorable only, the alcohol is forfeitable, all persons engaged in the transaction are punishable, and there is no right to a drawback. (21 Op. 501.)

There has never been a contrary view expressed by this department.

It is true that Attorney-General Moody held that distilled spirits withdrawn for shipment to Panama or Colon, although ultimately to go to the Canal Zone, are withdrawn for shipment to a foreign country within the letter and spirit of the statutes. (25 Op. 324.) But this opinion was based upon a treaty between the United States and the Republic of Panama, and an order of the President issued in pursuance thereof, whereby it was ordered that there should be no importation of goods, wares, or merchandise at Ancon or Cristobal, the terminal ports of the canal, except such as were specified in said order, the manifest purpose being to require all other goods, except those expressly excepted, to be landed at some port in the Republic of Panama in order that said Republic might collect taxes thereon. Of course, under this treaty and the President's order, the landing and discharging of such goods at Panama or Colon, which were ports in the Republic of Panama, was an importation within the meaning of the revenue laws.

This same question was presented to the Circuit Court for the Northern District of New York in the case of Kidd v. Flagler (54 Fed. 368). In that case the facts were that Kidd and others owned a distillery at Des Moines, Iowa, while their principal place of business was in New York. In July, 1884, they withdrew certain liquor from a bonded warehouse in Des Moines for export to Canada without paying the internal-revenue tax, intending to remove it to New York and pay the tax there. The route by which they proposed to send the whisky was to Detroit, and thence to New York via Windsor, Canada, and Suspension Bridge. It arrived at Windsor in July, 1884, was taken from the cars, measured by Canadian officers and placed in a warehouse in the charge of Canadian customs officers, where it remained until August 10, 1884. No duty was paid to the Canadian government. On the 10th of August it was shipped from Windsor, invoiced to the collector of the port of New York for the benefit of Kidd, the cars in which it was placed being under the seal of the United States consul at Windsor. It reached Suspension Bridge August 18, 1884, where it was detained by Flagler, the collector, acting under instructions from the Secretary of the Treasury. District Judge Cox held that the whisky was not subject to taxation, that it was an importation within the meaning of the statute, and consequently rendered judgment in favor of the plaintiffs for the damages resulting from the detention of the whisky. An appeal was taken therefrom to the Circuit Court of Appeals, and the judgment was by that court reversed, all judges concurring (78 Fed. 341). That court held that a landing of the whisky within the United States, after being withdrawn for exportation under these circumstances, was in violation of the last clause of section 3330, Revised Statutes, which is above quoted; and, in speaking with reference to the scope of that clause, the court said (p. 344):

"But the statute itself denounces such an interpretation by making it criminal to 'intentionally reland' within the jurisdiction of the United States distilled spirits which have been shipped for exportation, and declared them forfeited to the United States.

Articles can be relanded without having been exported, but they can not be reimported without being relanded; and the term includes both the cases. The language, in effect, forbids the reimportation of spirits upon which the tax has not been paid when they have been withdrawn from warehouse, and does not rationally permit a less comprehensive import to be given to it. If the spirits have been shipped for exportation, it matters not whether they have been actually exported or not. If they are intentionally relanded, the penalty is incurred. Unless this language is ignored, the statute can not mean to permit the withdrawal of spirits for an exportation which is to be followed by a reimportation. The provision may be designed to reach a case where spirits might be warehoused, and before the expiration of the three years from entry within which the tax must be paid, be withdrawn for exportation, and then reimported, thus obtaining an indefinite extension of the time of paying the tax. This part of the section is one of the stringent provisions calculated to enforce a strict compliance with all the requirements of the law taxing distilled spirits."

That an importation depends upon the purpose of the importer to not only discharge the goods from the vessel, but that they shall enter into the commerce of the country, is further shown in the opinion delivered by Chief Justice Marshall in the case of Brown v. Maryland (12 Wheat. 419, 442). That case arose out of an effort upon the part of the State of Maryland to impose a privilege tax upon importers; and in discussing the purpose of importation, the court said:

"The counsel for the plaintiff in error contend that the importer purchases, by payment of the duty of the United States, a right to dispose of his merchandise, as well as to bring it into the country, and certainly the argument is supported by strong reason, as well as by the practice of nations, including our own. The object of importation is sale; it constitutes the motive for paying the duties; and if the United States possesses the power of conferring the right to sell, as the consideration for which the duty is paid, every principle of fair dealing requires that they should be understood to confer it.

The practice of the most commercial nations conforms to this idea. Duties, according to that practice, are charged on those articles only which are intended for sale or consumption in the country. Thus, sea stores, goods imported and reexported in the same vessel, goods landed and carried over land for the purpose of being reexported from some other port, goods forced in by stress of weather, and landed, but not for sale, are exempted from the payment of duties. The whole course of legislation on the subject shows that, in the opinion of the legislature, the right to sell is connected with the payment of duties."

I am clearly of the opinion, therefore, that a transportation abroad of whiskies for the purposes above mentioned is not an exportation within the meaning of sections 3329 and 3330, Revised Statutes.

If the intention of the parties owning the whisky can be ascertained before its withdrawal from the warehouse, such withdrawal can of course be refused ano the tax thereon collected at the time required by law; or, if the tax has been paid, the application for a drawback on the ground of exportation can be refused.

But, if the whisky is withdrawn under section 3330, Revised Statutes, and the intent is not learned until after its withdrawal, I think sections 3296 and 3299, Revised Statutes, would apply.

By section 3296, Revised Statutes, it is provided that--

"Whenever any person removes, or aids or abets in the removal of any distilled spirits on which the tax has not been paid, * * * or removes, or aids or abets in the removal of any distilled spirits from any distillery warehouse, or other warehouse for distilled spirits authorized by law, in any manner other than is provided by law, * * * he shall be liable," etc.

Section 3299 provides that--

"All distilled spirits found elsewhere than in a distillery or distillery warehouse, not having been removed therefrom according to law, shall be forfeited to the United States."

Manifestly, if the exportation is not a bona fide one, then there is no legal warrant for the withdrawal of the whisky, and it is a fraud upon the Government for it to be so withdrawn, and consequently it is not withdrawn according to law; and a forfeiture of the whisky could be enforced if found within the jurisdiction of the United States, and the parties withdrawing it would be liable to punishment.

Respectfully,

CHARLES J. BONAPARTE.

RAILROADS-- FINES FOR DELAYS IN CARRYING THE MAILS-- STATUTORY CONSTRUCTION; 27 Op.Att'y.Gen. 108, December 3, 1908

The provisions in the appropriation acts of June 26, 1906 (34 Stat. 472), ano March 2, 1907 (37 Stat. 1212), directing the Postmaster-General to impose upon and collect from railroads reasonable fines for delays in carrying the mails, were applicable only to the appropriation periods covered thereby and are no longer in force.

The Postmaster-General is, however, empowered by section 3962, Revised Statutes, to make deductions from the pay of railroads and others for failures to perform service according to contract and to impose fines upon them for their delinquencies, within the scope of that statute and under such rules and regulations as may seem reasonable and just.

No clause, phrase, or section of an appropriation act ought to be construed as permanent legislation unless such words are used therein as make that purpose clear.

DEPARTMENT OF JUSTICE,

December 3, 1908.

The POSTMASTER-GENERAL.

SIR: Your letter of November 30 asks whether or not in the opinion of this department certain provisions in the acts making appropriations for the postal service for the fiscal years ended June 30, 1907, and June 30, 1908, which require that the Postmaster-General shall impose and collect fines from railroads carrying the mails for avoidable delays in such service, are still in force.

In the act of Congress approved June 26, 1906 (34 Stat. 472), making appropriation for the postal service for the fiscal year ended June 30, 1907, the provision referred to reads as follows:

"That the Postmaster-General shall require all railroads carrying the mails under contract to comply with the terms of said contract as to time of arrival and departure of said mails, and it shall be his duty to impose and collect reasonable fines for delay, when such delay is not caused by unavoidable accidents or conditions."

In the act of Congress approved March 2, 1907 (34 Stat. 1212), making similar appropriation for the year ended June 30, 1908, the provision referred to reads thus:

"That the Postmaster-General shall require all railroads carrying the mails to maintain their regular train schedules as to time of arrival and departure of said mails, and it shall be his duty to impose and collect reasonable fines for delay when such delay is not caused by unavoidable accidents or conditions."

In the act approved May 27, 1908 (35 Stat. 406), making appropriations for the postal service for the current fiscal year, no such provision appears. The question thus presented is, what effect, if any, shall be given to the omission of Congress to incorporate in the appropriation bill for the current year a clause similar to those above set forth? Or, to put it otherwise, are the provisions with respect to the fining of railroads for delays in carrying the mails, which were made a part of the appropriation acts for the fiscal years ending June 30, i907, and June 30, 1908, to be regarded as permanent or as temporary legislation?

In my judgment, these clauses in the appropriation bills are meant to be and are the law for the appropriation period, and for that only. This conclusion is reached by a study of several considerations.

First. Congress itself has given a legislative construction to the words used. The language employed in the first of these appropriation acts is "that the Postmaster-General shall require all railroads carrying the mails under contract to comply with the terms of said contract," while in the second it is declared "that the Postmaster-General shall require all railroads carrying the mails to maintain their regular train schedules;" the remaining words in both clauses being identical. Now, so far as the prompt arrival and departure of mails is concerned, there is no difference between requiring the railroads to keep their contracts and requiring them to maintain their regular train schedules.

What the railroads contract to do is to carry the mails in accordance with the schedules fixed by them. These two provisions being thus designed to accomplish the same purpose, it follows that Congress would not have incorporated such a clause in the second appropriation bill referred to if it had thought that a similar clause in the first appropriation bill was permanent legislation. So, further, the omission of any provision on the subject in the last appropriation act indicates a conscious purpose thereafter to abandon the requirement altogether. In this connection it may be added, that, while the intent of a legislative body can not be ascertained by a resort to debates or discussions, either on the floor or in committee, the view here expressed is in harmony with that entertained by members of the House Committee on Post-Offices and Post-Roads at the last session of Congress, as indicated in the hearings which preceded the formulation of the appropriation bill for the present fiscal year.

Second. An examination of numerous authorities on the subject confirms the opinion that no clause, phrase, or section of an appropriation act ought to be construed as permanent legislation unless such words are used therein as make the purpose clear. Mr. Justice Story in Minis v. United States (15 Pet. 423, 445) states the rules as follows:

"It would be somewhat unusual to find engrafted upon an act making special and temporary appropriation any provision which was to have a general and permanent application to all future appropriations. Nor ought such an intention on the part of the legislature to be presumed, unless it is expressed in the most clear and positive terms, and where the language admits of no other reasonable interpretation."

In the case of United States v. Jarvis (2 Ware's Reports) the court in construing a general regulation incorporated in an appropriation act says at page 278:

"The act itself is one of those annual acts which spend their power in the course of the year, to which we are not accustomed to look for permanent regulations. If the legislature annex to such an act any special provision which has a proper application to the subject-matter of the act, and use no words indicating an intention to give it a more extensive operation, the just conclusion would seem to be that the special regulation was intended to be confined to the matters embraced by the act."

In Lewis's Sutherland on Statutory Construction (vol. 2, 2d ed., p. 663) many authorities are cited to sustain the general proposition that when the subject-matter of a statute is once clearly ascertained, all portions of it, even when couched in broader terms, will be restrained within the scope and purpose of the act itself, unless the legislative intent to give a broader effect is unmistakably revealed. As an instance of the application of this rule the author says:

"Thus in the construction of a temporary appropriation act the presumption is that any special provisions of a general character therein contained are intended to be restricted in their operation to the subject-matter of the act, and not permanent regulations, unless the intention of making them so is clearly expressed."

It is true that in 1879 Congress by a clause in one appropriation bill expressly repealed a provision in a previous appropriation bill on the subject of deductions by the Postmaster-General from the pay of railroads for carrying the mails (20 Stat. 355, 358), and the Supreme Court, subsequently considering the legislation, seems to have treated such provisions as if they were general laws. (C.M. & St. P. Ry. Co. v. United States, 127 U.S. 406.) But in that instance the two provisions were clearly inconsistent, and, in the case which followed, the question as to whether such clauses in appropriation bills were permanent or temporary legislation was not raised, nor was an answer to it necessary to the decision. It is also true that on several occasions where the construction of special clauses in appropriation bills have been considered they have been held to have the effect of permanent statutes. (United States v. Ewing, 140 U.S. 142; Strong v. United States, 34 Fed.Rep. 17; Calvert v. United States, 37 Fed.Rep. 762; 7 Op.A.G. 304, 306.) But in all these instances the intention of Congress is clearly defined by the words used, and in none of them is the safe rule of Mr. Justice Story in Minis v. United States (supra) questioned, to wit, that provisions in appropriation acts ought never to be construed as permanent legislation unless expressed "in the most clear and positive terms, and where the language admits of no other reasonable interpretation."

Finally, there is no consideration of public welfare or necessity which should incline us to the view that these provisions in annual appropriation acts authorizing the Postmaster-General to impose penalties upon railroads for avoidable delays in carrying the mails are meant to be extended beyond the year for which the sums are appropriated to the use of the postal service. The Postmaster-General already has abundant power under a general and permanent statute (sec. 3962, R.S.) to insure fidelity in the performance of mail contracts through the imposition of fines and penalties. The statute referred to reads as follows:

"The Postmaster-General may make deductions from the pay of contractors for failures to perform service according to contracts, and impose fines upon them for other delinquencies. He may deduct the price of the trip in all cases where the trip is not performed; and not exceeding three times the price if the failure be occasioned by the fault of the contractor or carrier."

This section has been expressly held to apply to contracts with railroads for the carrying of the mails, and no temporary provision is necessary. (Chicago, Milwaukee & St. Paul Railway Company v. United States, 127 U.S. 406.) The only difference between this act and the provisions in the appropriation bills on the same subject is that under the permanent law the Postmaster-General has power in his discretion to impose penalties for delays in carrying the mails, while under the temporary provisions he was required to impose such penalties. The broad nature of the authority and discretion conferred by section 3962 has been many times affirmed. (United States v. McCoy, 193 U.S. 593; Allman v. United States, 131 U.S. 31; J.P. & M. Railroad Company v. United States, 21 Ct.Cls. 155; Otis v. United States, 24 Ct.Cls. 61; Minn. & St. L. Ry. Co. v. United States, 24 Ct.Cls. 350; Parker v. United States, 26 Ct.Cls. 344; 14 Op.A.G. 179; 18 Op.A.G. 313.)

My conclusion, therefore, is that the provisions in the appropriation acts for the fiscal years ended June 30, 1907, and June 30, 1908, on the subject of fines to be imposed upon railroads for delays in carrying the mails are no longer in force, but that you are empowered by virtue of section 3962 of the Revised Statutes to make deductions from the pay of railroads and others for failures to perform service according to contract and to impose fines upon them for other delinquencies, within the scope of such statute and under such rules and regulations as may seem reasonable and just.

Respectfully,

CHARLES J. BONAPARTE.

IRRIGATION BONDS OF PORTO RICO; 27 Op.Att'y.Gen. 104, November 30, 1908

The irrigation bonds of Porto Rico issued in conformity with the requirements of section 38 of the organic act (31 Stat., 86), and sections 1 and 3 of the Porto Rican act of September 18, 1908, will constitute a valid and binding obligation of the people and government of Porto Rico, when they shall have been executed with due formalities, and their issue and sale (made or proposed) has been authenticated by the executive council, acting upon the approval and adoption of plans and specifications for the irrigation system as required by local law.

DEPARTMENT OF JUSTICE,

November 30, 1908.

The SECRETARY OF THE TREASURY.

SIR: I have the honor to respond to your request of November 11 for my opinion as to the legality of a certain issue of bonds of the Territory of Porto Rico recently authorized by the legislative assembly for irrigation purposes.

You state that the authorities of Porto Rico have requested you to extend certain privileges to these bonds, from which I necessarily assume that your legal authority and the relations of the Treasury of the United States, under the laws of the United States, are involved, and that the question is one of law actually arising in the administration of your department.

Authority for the issuance of bonds by the Porto Rican legislature is found in the act of Congress approved April 12, 1900, "temporarily to provide revenues and a civil government for Porto Rico, and for other purposes" (31 Stat. 77), section 38 of which provides in part:

"And where necessary to anticipate taxes and revenues, bonds and other obligations may be issued by Porto Rico or any municipal government therein as may be provided by law to provide for expenditures authorized by law, and to protect the public credit. * * * Provided, however, That no public indebtedness of Porto Rico or of any municipality thereof shall be authorized or allowed in excess of seven per centum of the aggregate tax valuation of its property."

On September 18, 1908, the legislative assembly of Porto Rico passed an act denominated the "Public Irrigation Law," providing "for the construction of an irrigation system for the district situated approximately between the river Patillas on the east and the river Portugues on the west and irrigable lands on both sides of said rivers," and temporarily appropriating the sum of $200,000 for the commencement and prosecution of the work.

On the same day an act was passed authorizing and directing the treasurer of Porto Rico to issue bonds to an amount not exceeding $3,000,000, for the purpose of providing funds for the construction of the system of irrigation provided for in the "Public Irrigation Law" just referred to, and "of anticipating the revenues provided by the aforesaid act."

Section 3 of the act provides that the bonds shall bear interest at not to exceed 4 1/2 per cent per annum; that the period of maturity shall be fixed by the executive council, none of the bonds to run longer than thirty years, provided that the first series shall be payable in not less than five years from the date of issue; and that principal and interest shall be payable in gold coin of the United States of the present standard of weight and fineness.

Section 4 gives the executive council "entire charge and authority in respect to all matters relating to said bonds, * * * the issue and the sale thereof," etc., and the right to provide for the issue, pending the preparation of definitive bonds, of interim bonds or interim certificates.

By section 5 the bonds are declared exempt from taxation of any kind.

Section 8 provides that the revenues derived from assessments levied upon the property included in the irrigation district shall be devoted to the payment of the interest and principal of the bonds.

Section 10 declares that the bonds and the obligation created thereby shall not be impaired by any act or legislation of the legislative assembly or any interpretation thereof, but shall constitute a legal and binding obligation on the government of Porto Rico until redeemed and paid.

Other provisions of the act authorize the acceptance of the bonds as security for deposits of funds of Porto Rico in banking institutions, and expressly vest the legal and beneficial title to all property acquired in connection with the development of the irrigation system in the people of Porto Rico, as a pledge for the payment of the bonds, until extinction of the liability.

It will be observed that the authority given by Congress for the issuance of such bonds is broad and general, the only restriction being in the proviso limiting the amount of public indebtedness to be incurred.

Referring further to the territorial laws, the act "to provide for the construction of an irrigation system, and to provide revenues therefor," specifically contemplates this issue of bonds and devotes the proceeds of the sale of the bonds to the construction and maintenance of the irrigation system. Section 4 of that act provides for a report upon the plans and specifications of the irrigation system from the Director of the United States Reclamation Service or from engineers selected by him, and requires the submission of that report for approval to a joint commission of the executive council and the house of delegates of the Territory, and requires such approval before the work of construction shall be let by contract or undertaken and performed "by administration" of the territorial government.

The validity of tax assessments for benefits conferred by public works and improvements is fully recognized in the law of taxation. In Fallbrook Irrigation District v. Bradley (164 U.S. 112) it was held that water used for irrigation purposes upon arid lands "is used for a public purpose, and the tax to pay for it is collected for a public use, and the assessment upon lands benefited is also levied for a public purpose," citing authorities. The Supreme Court has also held that such special assessments do not constitute the taking of property without due process of law unless so made as to be a charge upon the lands in excess of the benefits conferred. (Norwood v. Baker, 172 U.S. 269, and cases cited.) In the present instance it is provided that no lands shall be included in the irrigation district except such as are ascertained by the irrigation commission to be of such character and situation that they will be benefited in excess of the assessments to be levied against them. (Sec. 21, Public Irrigation Law.)

The question whether an entire government or municipality is liable and its obligation and the pledge of its credit and assets valid, when the immediate and direct benefit is conferred and the assessment is laid upon a smaller district or subdivision included within the same, presents no difficulty and must in this case be answered in the affirmative in view of the broad grant of power conferred by section 38 of the Foraker Act quoted above, and the adjudicated cases relating to the analogous instance of state and municipal bonds and holding such obligations valid where the credit of the larger political subdivision is pledged in order to obtain funds for local improvements, or where have been required to contribute for improvements beyond their own borders. (United States v. Saunders, 124 Fed.Rep. 124, 129; Kingman and others, petitioners, 153 Mass. 566; Commonwealth v. Newburyport, 103 Mass. 129; Law v. San Francisco, 144 Cal. 384; Gardner v. Haney, 86 Ind. 17; Davidson v. Commissioners, 18 Minn. 482.)

Assuming that this issue of irrigation bonds of Porto Rico conforms to the restrictions and requirements of section 38 of the organic act and sections 1 and 3 of the act authorizing their issuance (as to which you will have been duly advised by the proper local authorities), and when the bonds have been executed with the due formalities and the issue and sale (made or proposed) has been authenticated by the executive council, acting upon the approval and adoption of plans and specifications for the irrigation system, as required by the local law, I am of opinion that the bonds will constitute a valid and binding obligation of the people of Porto Rico and the government thereof.

Very respectfully,

CHARLES J. BONAPARTE.

CIVIL SERVICE-- TRANSFER FROM FIELD FORCE OF ONE EXECUTIVE DEPARTMENT TO ANOTHER EXECUTIVE DEPARTMENT; 27 Op.Att'y.Gen. 100, November 30, 1908

The transfer of a clerk's name from the roll of the Department of Agriculture, Forest Service, in Washington, D.C., to that of the field force of the same Service is effective from the date of the transfer, notwithstanding such employee may not actually have entered upon the discharge of her duties as a member of that force.

The Civil Service Commission has authority under clause (a), section 8, of civil-service Rule X, within its discretion and in view of all the circumstances of the case above described, to waive the three-year limit of time required by section 5 of the act of June 22, 1906 (34 Stat. 389, 449), for service of clerks in one Executive Department before transfer to another.

DEPARTMENT OF JUSTICE,

November 30, 1908.

The PRESIDENT.

SIR: I have the honor to acknowledge the receipt of your letter of the 21st instant, in which you request an opinion as to the questions arising in connection with the desired transfer of Mrs. Katherine B. Calhoun from the Department of Agriculture to the Treasury Department. This case arises under the provision contained in section 5 of the legislative, executive, and judicial appropriation act approved June 22, 1906 (34 Stat. 389, 449). This provision is as follows:

"It shall not be lawful hereafter for any clerk or other employee in the classified service in any of the Executive Departments to be transferred from one Department to another Department until such clerk or other employee shall have served for a term of three years in the Department from which he desires to be transferred."

In an opinion rendered on March 29, 1907 (26 Op. 209), I held that this provision affected only transfers from the service of one Executive Department at Washington to that of another Executive Department at Washington. The letter from Hon. Henry F. Greene, Civil Service Commissioner, enclosed with your communication, states that--

"In clause (a), section 8, of Civil Service Rule X, the President has extended the three-year requirement of the statute to include, also, transfers within the remainder of the classified service, with the proviso that in the case of a transfer not between one Executive Department and another at Washington, the Commission may waive the three-year requirement under certain given conditions."

It appears from the same letter-- "that Mrs. Calhoun was regularly appointed as skilled laborer in the Forest Service in Washington by transfer from the Government Printing Office on December 1, 1906. She was promoted to clerk at a salary of $600 per annum, in accordance with the civil-service rules on June 1, 1907. Under date of November 19 request was received from the Secretary of the Treasury for the Commission's authority for the transfer of Mrs. Calhoun from the position of clerk in the Forest Service to the position of clerk in the Treasury Department in exchange for Miss Eva Slocum."

The papers accompanying your letter show likewise that, as a part of the recent reorganization of the Forest Service, Mrs. Calhoun, together with a number of other clerks, has been enrolled as a member of the field service, and that she has been assigned for duty to an office at Missoula, Mont. She says, however, in a letter filed with your communication:

"I am unable to go West with my section which has been transferred there. I am compelled to stay in Washington as I have a mother, an invalid sister, and one child to support and find it utterly impossible to make such a move;" and it appears that sundry other employees are in the same position. The letter of Commissioner Greene, above quoted, says:

"The questions which have been raised and upon which the opinion of the Attorney-General is desired are: (1) Whether or not the transfer of Mrs. Calhoun's name from the roll of the Department at Washington to the roll of a field office under the Department, without her actual or bodily transfer to the field office, operates to take the case of her proposed transfer out of the three-year requirement of the statute and to place it, rather, under the three-year requirement of Rule X, which may be waived by the Commission? and (2) Whether or not the Commission has authority under the act of June 22, 1906, and Civil Service Rule X, to approve the proposed transfer of Mrs. Calhoun from the Department of Agriculture to the Treasury Department?"

In the same letter it is further stated:

"The transfer of Mrs. Calhoun from a position in the Executive Department at Washington to a field office of the Department appears to be merely and solely a constructive or paper transfer. If an employee may be said to be in the field service without leaving the Washington office, it is a grave question if such a practice would not be a colorable evasion and work a practical defeat of the three-year requirement of the law quoted above. While it is not positively known that these constructive or paper transfers from the Washington office to the field service have been made for this purpose, it is altogether possible that they have been made for the very purpose of technically avoiding the three-year requirement of the statute."

I do not find any sufficient reason in the papers submitted to me for believing that the transfer of Mrs. Calhoun from the Washington to the field force of the Forestry Service was a device to evade the prohibition against a transfer to the other Department. It would seem, from the papers submitted, that she was transferred to the field force because, although she had been an efficient employee, there was no longer any need for her services in Washington; and it seems clear that, so far as the Forest Service is concerned, she must either accept the assignment to duty at Missoula or leave the employ of the Government. Treating, as I feel bound to do for the purpose of this opinion, the transfer from the rolls of the Washington to those of the field force to have been made in good faith and not with a view to evade any provision of the law, I do not think that Mrs. Calhoun is obliged to take a journey to Missoula in order to constitute her an employee of the field force. If she had been transferred to the field force, but given a leave of absence, her legal connection with that force would undoubtedly begin at the time of the transfer, although she might not be required to report for duty until thirty or sixty days later; and I think, therefore, that the first question in Commissioner Greene's letter must be answered in the affirmative.

I feel bound to add that, if the Commission shall be satisfied with respect to this or any other employee that a transfer from the force of a Department employed at the capital to the force employed elsewhere is, in fact, made with a view to evade the prohibition against transfer, this fact would be eminently relevant and appropriate for consideration by the Commission in determining whether or not to waive the three-year requirement under the terms of Rule X, section 8, clause (a), of the civil-service rules, the requirement of such approval being obviously intended, among other purposes, as a safeguard against evasions of the civil-service law or rules.

It appears to me further that the second question contained in Commissioner Greene's letter must also be answered in the affirmative, in conformity with the effect of my opinion of March 29, 1907. I therefore respectfully advise you that, in my opinion, Mrs. Calhoun's transfer to the field force of the Forest Service was effective from its date, notwithstanding the fact that she has not actually entered upon the discharge of her duties as a member of such force; and, secondly, that the United States Civil Service Commission has, in its discretion, to be exercised in view of all the circumstances of the case, authority to waive the three-year limit of time required for a transfer in her case, and to approve such transfer, if it shall see fit, under all the circumstances aforesaid, so to do.

I remain, sir,

Yours, very respectfully,

CHARLES J. BONAPARTE.

CIVIL SERVICE-- APPOINTMENT-- CLERKS TO UNITED STATES ATTORNEYS; 27 Op.Att'y.Gen. 95, November 25, 1908

Clerks of the several United States attorneys, with the exception of the one clerk in each office mentioned in clause 2 of section IV of Schedule A of the civil-service rules, must be chosen through examination and certification, as provided with respect to other employees of the classified civil service.

Section 15 of the act of May 28, 1896 (29 Stat. 183), which authorizes United States attorneys to employ "necessary clerical assistance," applies only to clerical assistance which shall become temporarily necessary by reason of some emergency, and not to permanent employees of the several United States attorneys' offices.

DEPARTMENT OF JUSTICE,

November 25, 1908.

The PRESIDENT.

SIR: I have the honor to acknowledge the receipt of your letter of November 6, 1908, enclosing a letter to you of November 5, 1908, from the Civil Service Commission, and requesting an opinion on the question presented in the said last-mentioned letter. This question is thus stated:

"The civil-service rules provide for the exception from examination of one clerk to each United States district attorney (see Schedule A, IV, 2, of the civil-service rules). The question which has been raised and upon which opinion from the Attorney-General is desired is whether or not, under the act of May 28, 1896, authorizing district attorneys to employ necessary clerical assistance, all clerks to United States district attorneys are excepted from examination, notwithstanding the limitation of the civil-service rules to one clerk to each United States district attorney."

Rule II, clauses 1, 2, and 3, of the civil-service rules promulgated by the President on April 15, 1903, is as follows:

"1. The classified service shall include all officers and employees in the executive civil service of the United States, heretofore or hereafter appointed or employed, in positions now existing or hereafter to be created, of whatever function or designation, whether compensated by a fixed salary or otherwise, except persons employed merely as laborers and persons whose appointments are subject to confirmation by the Senate; but no right of classification shall accrue to persons whose appointment or assignment to classified duties is in violation of the civil-service rules."

"2. No person shall be appointed, employed, promoted, or transferred in the classified service, or perform the duties of any position therein, until he passes an examination in conformity with these rules, unless specially exempted thereunder."

"3. Appointments to the excepted positions named in Schedule A of these rules may be made without examination or upon noncompetitive examination; but the proper appointing officer may fill an excepted position as competitive positions are filled, in which case the person appointed will receive all the rights of a competitive employee."

Schedule A, intended to show the classified positions excepted from examination under Rule II, clause 3, contains the following provision:

"No office or position shall be deemed excepted unless it is specifically named herein. Not more than one position shall be treated as excepted under the title of any such position unless a different number be indicated."

Under the head of "The entire classified service" the following positions are excepted:

"Attorneys, assistant attorneys, and special assistant attorneys."

The following are the exceptions in Schedule A especially relating to the Department of Justice:

"IV. DEPARTMENT OF JUSTICE.

"1. Wardens, chaplains, and physicians in the United States penitentiaries or prisons.

"2. One clerk to each United States district attorney.

"3. Examiners.

"4. Any person employed as office or field deputy in the office of a United States marshal.

"5. All positions and employments deemed by the Attorney-General to be legal or confidential in their character, and which relate to temporary service or which grow out of appropriation acts committing to the Attorney-General the execution of some purpose of the law and the expenditure of the funds therefor, but not creating specific positions."

It seems quite clear, from a consideration of the foregoing provisions of the civil-service rules, first, that it is intended to classify the entire executive civil service, with those exceptions and those only which are imposed by the express language of section 7 of the civil-service act (22 Stat. 406), this section containing the following language:

" * * * nor shall any officer not in the executive branch of the government, or any person merely employed as a laborer or workman, be required to be classified hereunder; nor, unless by direction of the Senate, shall any person who has been nominated for confirmation by the Senate be required to be classified or to pass an examination."

Secondly, that employment in the classified service is to be secured through competitive examination, and not otherwise, in all cases not expressly excepted from the operation of the general rule; and that it is in no case to be considered that a position is excepted unless the language relied upon to establish the exception is so plain and unequivocal as to admit of no doubt. Such being the established rules of interpretation prescribed by the terms of the Executive order itself, we must construe clauses 2 and 5 of Section IV of Schedule A in the light of these recognized principles. Clause 5 exempts from examination "all positions and employments deemed by the Attorney-General to be legal or confidential in their character," provided they have one or the other of two prescribed additional characteristics, namely, that they "relate to temporary service" or else that they "grow out of appropriation acts committing to the Attorney-General the execution of some purpose of the law and the expenditure of the funds therefor;" and, in the last contingency, the rule does not apply if the appropriation act referred to creates "specific positions." The services of clerks to United States attorneys do not materially differ in character from those of clerks employed in the Department of Justice itself. Of course, a large proportion of the clerical work in both cases relates to legal matters, and, at times, to matters of a confidential nature; but this is no less clearly true of the departmental work than of work in the district offices; in fact, such will probably be the case more frequently with regard to the former than with regard to the latter. It being clear, as above stated, that, unless the exception is plainly expressed, the rules must be so construed as to exclude it, I think Section IV, clause 5, of the rules can not be held to exempt from examination persons appointed to clerical positions under the several United States attorneys. I base this conclusion upon the fact that the duties under such officers are not of a character which can be deemed "legal or confidential" in the view of clause 5; and it makes, therefore, no difference whether these positions could be construed as coming within either one of the other descriptions necessary in addition to their legal or confidential character to bring them within the exempt class under the terms of this clause.

The Department of Justice has occasion in the discharge of its duties under the law to employ, from time to time, many subordinates not included within the classes of "attorneys," "assistant attorneys," or "special assistant attorneys," and yet whose services are often distinctly "legal" in their character; such, for example, are conveyancers, detectives, and special agents to conduct investigations of different kinds. The clause in question was intended, in my opinion, to enable the Attorney-General, if necessary, to secure the services of such employees when selection by competitive examination would be obviously impracticable. It wisely leaves to his determination whether, in any particular case, these employees are or are not within the class lastly above mentioned; but it can not be reasonably construed as permitting him arbitrarily to decide that a copyist or a stenographer was such an employee, since the only reasons which could be suggested that the latter's duties were "legal or confidential" would apply with equal force to practically all the clerical subordinates of the Department.

This conclusion is, to my mind, greatly strengthened by the language of clause 2. It would be wholly unnecessary to exclude one clerk for each United States attorney from the competitive class if all the employees of such attorneys were among those exempted. The maxim expressio unius est exclusio alterius applies with obvious and, to my mind, irresistible force to the construction of these two clauses.

In the letter of the Civil Service Commission, above quoted, attention is called to section 15 of the act approved May 28, 1896 (29 Stat. 183). This section is as follows:

"That the district attorney of any judicial district, when the facts showing the necessity therefor are certified by the district judge to the Attorney-General, may, with the approval of the Attorney-General, and no longer than such approval lasts, employ necessary clerical assistance at such salary or salaries as shall be from time to time fixed by the Attorney-General."

I think it clear that this provision applies only to "clerical assistance" which shall become temporarily "necessary" by reason of some emergency, and not to permanent employees of the United States attorney's offices. The necessity for such additional assistance occurs very frequently in the case of stenographers and typewriters, whose services are needed to transcribe the evidence during important and protracted trials. There is no question in these cases of permanent appointments, but the employees needed are engaged for a comparatively short time, often only a few days, under circumstances which would render their classification altogether impracticable. They could not be, therefore, included within the competitive classified service, and the rules relating to examination and exemption from examination have no application to their cases. I do not, therefore, consider that this provision of the statute approved May 28, 1896, affects the status of the additional clerks permanently employed in the offices of the several United States attorneys.

I have the honor to advise you that, in my opinion, clerks of the several United States attorneys, with the exception of the one in each office mentioned in clause 2 of Section IV of Schedule A, above cited, must be chosen through examination and certification, as provided with respect to other employees of the classified civil service.

I remain, sir,

Yours, most respectfully,

CHARLES J. BONAPARTE.

MARINE BAND-- NAVY BANDS-- COMPETITION WITH LOCAL MUSICIANS; 27 Op. Att'y.Gen. 90, November 9, 1908

The provisions of the act of May 13, 1908 (35 Stat. 153), which prohibit Navy bands or members thereof from receiving remuneration for furnishing music outside the limits of military posts, when the furnishing of such music places them in competition with local musicians, do not apply to the Marine Band.

DEPARTMENT OF JUSTICE,

November 9, 1908.

The SECRETARY OF THE NAVY.

SIR: I have the honor to acknowledge the receipt of your letter of May 29, 1908, in which you ask my opinion whether or not a certain clause of the act approved May 13, 1908 (35 Stat. 127, 153), applies to the Marine Band. The clause in question is as follows:

"Navy bands or members thereof, other than the United States Naval Academy band at Annapolis, Md., shall not receive remuneration for furnishing music outside the limits of military posts, when the furnishing of such music places them in competition with local civilian musicians."

No light is thrown upon the purpose of the Congress in this enactment by an examination of the debates preceding its adoption.

This particular provision in the naval appropriation bill appears to have been adopted without discussion, and no comment upon it is contained in the report of any committee of either House of the Congress. It is therefore necessary to determine, first, whether in strict propriety of language the term "Navy bands" should be held to include the Marine Band, and, second, whether any sufficient reason can be found to indicate that the Congress used the term in a sense which would alter the conclusion reached in answer to the first question.

I am favored in this connection with a memorandum from the Judge-Advocate-General of the Navy, with one from the Solicitor of the Navy Department, and with one from the Major-General Commandant of the Marine Corps; also with two letters and briefs from the American Federation of Musicians. These several papers discuss at much length and with commendable industry in the collation of authorities the question whether the Marine Corps is or is not an integral part of the Navy. For reasons hereinafter given I do not think the determination of the question submitted to me requires this point to be decided; inasmuch, however, as there seems to be some difference of opinion on the subject, I deem it appropriate to say that, in my opinion, the Marine Corps is clearly organized under the authority conferred by clause 13 of section 8 of Article I of the Constitution, which declares that the Congress "shall have power to provide and maintain a Navy," and that it is governed under so much of the authority conferred by clause 14 of the same section as empowers the Congress "to make rules for the government and regulation of the * * * naval forces." This conclusion seems to me established by the decision of the Supreme Court in Wilkes v. Dinsman (7 How. 89), in which it was determined that a private in the Marine Corps was a person "enlisted for the Navy" in the language of the act under consideration in that case. This decision was cited with approval in United States v. Dunn (120 U.S. 249), and upon these two decisions I based what I said while Secretary of the Navy (In re the Marine Brigade in the Philippines, March 31, 1906) when, referring to the Marine Corps, I stated: "Its legal status is, beyond all doubt or question, a part of the naval forces of the country, if not a part of the Navy in the strictest sense."

While, however, this conclusion seems to me clearly established, it is to be noted that in the case of United States v. Dunn, above cited (120 U.S. 252), the Supreme Court, speaking by the late Mr. Justice Miller, says:

"It must be conceded that the Marine Corps, a military body in the regular service of the United States, occupies something of an anomalous position, and is often spoken of in statutes which enumerates 'the Army, the Navy, and the Marine Corps,' or 'the Army and the Marine Corps,' or 'the Navy and the Marine Corps,' in a manner calculated and intended to point out that it is not identical with either the Army or the Navy."

Many instances might be cited of the use of language in statutes illustrating the foregoing statement. It will suffice to refer to the opinion of Attorney-General Miller (19 Op. 616), in which the words "any enlisted man * * * of the Navy" were held not to include an enlisted man of the Marine Corps. In fact, I think it is quite safe to say that, in the absence of language or attendant circumstances indicating a different intention, the term in a statute "officers of the Navy" would not include officers of the Marine Corps, and, as was determined by Attorney-General Miller, "enlisted men of the Navy" would not include enlisted men of the Marine Corps. It would seem to follow as an irresistible conclusion that "Navy bands" do not include the Marine Band, since, if officers of the Marine Corps are not officers of the Navy, and enlisted men of the Marine Corps are not enlisted men of the Navy, an organization composed of such officers and such men would not be accurately described as a "Navy" organization, and I note that the Judge-Advocate-General of the Navy and the Solicitor of your Department concur in the statement that, in the service, the term "Navy bands" would not be ordinarily understood to include a band made up of marines.

It should be observed on this subject that section 1613, Revised Statutes of the United States, confers upon the band in question, or recognizes it as having, a particular title of its own.

This section is as follows:

"The marines who compose the corps of musicians known as the 'Marine Band' shall be entitled to receive at the rate of four dollars a month, each, in addition to their pay as non-commissioned officers, musicians, or privates of the Marine Corps, so long as they shall perform, by order of the Secretary of the Navy, or other superior officer, on the Capitol grounds or the President's grounds."

In construing a subsequent act of the Congress we are bound to assume that the language employed was used with this provision of the Revised Statutes present in the mind of the legislative body, and that the Congress then appreciated the significance of the fact, so as aforesaid recognized in section 1613, that this organization of musicians was generally "known as the 'Marine Band.'" It is suggested in certain of the documents submitted to me with your letter that the words "Navy bands" should be understood in a colloquial or popular sense and not in a technical or precise sense. I find nothing either in the act itself or in the arguments submitted to this Department which sustains this hypothesis; but, admitting it to be true, since we have a legislative declaration that the generally accepted designation of this band was not a "Navy" but a "Marine band," if the terms are supposed to be used in a popular sense, the inference to be drawn would seem, to my mind, to be that the Congress did not intend to include the band in question.

I reach, therefore, the conclusion that, interpreting the language of the provision in question according to the appropriate import of the words, the Marine Band is not included within the designation "Navy bands," and its members are not, therefore, subject to the restriction imposed by the provision in question. It is, however, undoubtedly true that attendant circumstances might show an intention on the part of the Congress to include the Marine Band by this term, just as in the statute construed in Wilkes v. Dinsman it was held that men "enlisted for the Navy" included men enlisted for the Marine Corps. I have carefully examined all the papers transmitted to the Department and given attentive consideration to the arguments advanced to show that such was the case in the present instance, but I can find no unequivocal proof of any such intention on the part of the Congress.

It is true that in the Army appropriation bill for the same year, approved May 11, 1908 (35 Stat. 106, 110), there is an identical provision with respect to Army bands, the language being:

"Provided, That army bands or members thereof shall not receive remuneration for furnishing music outside the limits of military posts when the furnishing of such music places them in competition with local civilian musicians."

It follows that the Marine Band is the only one attached to either branch of the military service, except the band at the Naval Academy, which is excluded from the operation of the restrictions in these two provisions; but this fact does not at all show that the Congress did not intend to exclude it; for section 1613 of the Revised Statutes, above quoted, recognizes the Marine Band as rendering peculiar service and entitled to exceptional treatment, and I can see nothing irrational in holding that the Congress may have deemed it proper to exempt this band from the restrictions imposed on others, especially in view of the facts stated in your letter and in the lengthy memorandum from the Commandant of the Marine Corps tending to show that to subject the band to these restrictions would greatly impair its merit as a musical organization. It is also true that the express exception of the band at the Naval Academy from the operation of this provision shows an intention on the part of the Congress to include within the terms of the provision any band which could be appropriately denominated a "Navy band," but this argument appears to beg the question at issue. If the Marine Band would not be generally understood, either in the service or in common parlance, as covered by the term "Navy band," there could be no reason for excluding it.

It is stated in some of the papers submitted that complaints as to the competition of this particular band were the original moving cause of this special legislation. There is nothing in the records of the Congress to show this fact, but, admitting it to be true, it would seem that the contrary inference might be reasonably drawn from the fact as to the meaning of the provision, for, if the Congress really wished particularly to extend this restriction to the Marine Band, it seems quite inexplicable that they should not have mentioned that band by name or used language unequivocally covering it; and this view seems the more reasonable when we remember that the statute is, in a sense, quasi penal; that is to say, it restricts the rights and privileges heretofore and for a long time enjoyed by the members of the bands in question.

Such statutes are to be strictly construed, not, indeed, so strictly as to defeat their obvious purpose, but without extending their application by any doubtful construction or far fetched conclusion. I am, therefore, led to believe that it was not the purpose of the Congress to include the Marine Band within the term "Navy bands" as used in this statute. Of course, if I am mistaken in this respect, the Congress can readily correct the error by appropriate action at its approaching session.

I advise you that, in my opinion, the terms of the provision of the law approved May 13, 1908, and quoted in your letter, do not apply to the corps or musicians known as the Marine Band.

I remain, sir,

Yours, very respectfully,

CHARLES J. BONAPARTE.

DEPORTATION OF A LEPER FROM THE DISTRICT OF COLUMBIA; 27 Op.Att'y. Gen. 85, October 28, 1908

There is no law of the United States which justifies the deportation from the District of Columbia, in order that the District may be relieved of his support, of a resident of North Carolina who, while temporarily in the city of Washington, D.C., was discovered to be afflicted with leprosy, which disease he probably contracted in the Philippine Islands while serving as an enlisted man in the Army of the United States; neither is there any law which authorizes the Secretary of the Treasury to make rules or regulations under which such a person could be legally removed for the purpose named.

The right of the Secretary of the Treasury to make regulations for such a deportation depends upon whether he considers the action necessary for the specific purpose of preventing the introduction of leprosy into a State or Territory or the District of Columbia from another State or Territory or the District of Columbia, but such rules, when made, must be general in their nature and can not apply to the case of a single individual.

If the circumstances are such that the deportation of the leper to a designated locality would tend to prevent the introduction of the disease into States or Territories to which it might otherwise spread, and would therefore be an appropriate method of attaining the ends enumerated in section 3 of the act of February 15, 1893 (27 Stat. 450), then the question is within the administrative discretion of the Secretary of the Treasury.

DEPARTMENT OF JUSTICE,

October 28, 1908.

The SECRETARY OF THE TREASURY.

SIR: I have the honor to acknowledge your request for an opinion as to whether you have power, under the acts approved March 27, 1890 (26 Stat. 31), and February 15, 1893 (27 Stat. 449), to make a regulation whereby a person afflicted with leprosy can be legally deported from the District of Columbia to the State of North Carolina, under the circumstances stated in the papers accompanying your request.

These circumstances are substantially as follows: The patient in question was born in Yancey County, N.C., and was a resident of Lynn, in that State. He enlisted in the Army of the United States and served in Cuba and in the Philippine Islands. After his discharge from the Army he resided temporarily in various places in the United States, and finally at Lynn, in his native State, with the intention of making this his permanent home. On August 14, last, he visited Washington for a temporary purpose only, namely, to present his claim for a pension, and one week later it was discovered that he was ill as a result of leprosy, probably contracted while in the Philippines. Since then he has been under quarantine in the District of Columbia. The act approved March 27, 1890 (26 Stat. 31), contains the following provision:

"That whenever it shall be made to appear to the satisfaction of the President that cholera, yellow-fever, smallpox, or plague exists in any State or Territory, or in the District of Columbia, and that there is danger of the spread of such disease into other States, Territories, or the District of Columbia, he is hereby authorized to cause the Secretary of the Treasury to promulgate such rules and regulations as in his judgment may be necessary to prevent the spread of such disease from one State or Territory into another, or from any State or Territory into the District of Columbia or from the District of Columbia into any State or Territory, and to employ such inspectors and other persons as may be necessary to execute such regulations to prevent the spread of such disease. The said rules and regulations shall be prepared by the Supervising Surgeon-General of the Marine-Hospital Service under the direction of the Secretary of the Treasury."

It seems to me very obvious that this act has no relation whatever to the disease from which this patient is suffering, and, whatever powers might be conferred upon you or upon the President if the patient were a victim of one of the four diseases therein mentioned, namely, cholera, yellow fever, smallpox, or plague, it confers no authority upon any officer to take any action with respect to one suffering from leprosy.

The material part of the act approved February 15, 1893 (27 Stat. 449), is section 3 thereof. This section provides--

"That the Supervising Surgeon-General of the Marine-Hospital Service shall, immediately after this act takes effect, examine the quarantine regulations of all State and municipal boards of health, and shall, under the direction of the Secretary of the Treasury, cooperate with and aid State and municipal boards of health in the execution and enforcement of the rules and regulations of such boards and in the execution and enforcement of the rules and regulations made by the Secretary of the Treasury to prevent the introduction of contagious or infectious diseases into the United States from foreign countries, and into one State or Territory or the District of Columbia from another State or Territory or the District of Columbia; and all rules and regulations made by the Secretary of the Treasury shall operate uniformly and in no manner discriminate against any port or place; and at such ports and places within the United States as have no quarantine regulations under State or municipal authority, where such regulations are, in the opinion of the Secretary of the Treasury, necessary to prevent the introduction of contagious or infectious diseases into the United States from foreign countries, or into one State or Territory or the District of Columbia from another State or Territory or the District of Columbia, and at such ports and places within the United States where quarantine regulations exist under the authority of the State or municipality which, in the opinion of the Secretary of the Treasury, are not sufficient to prevent the introduction of such diseases into the United States, or into one State or Territory or the District of Columbia from another State or Territory or the District of Columbia, the Secretary of the Treasury shall, if in his judgment it is necessary and proper, make such additional rules and regulations as are necessary to prevent the introduction of such diseases into the United States from foreign countries, or into one State or Territory or the District of Columbia from another State or Territory or the District of Columbia, and when said rules and regulations have been made they shall be promulgated by the Secretary of the Treasury and enforced by the sanitary authorities of the States and municipalities, where the State or municipal health authorities will undertake to execute and enforce them; but if the State or municipal authorities shall fail or refuse to enforce said rules and regulations the President shall execute and enforce the same and adopt such measures as in his judgment shall be necessary to prevent the introduction or spread of such diseases, and may detail or appoint officers for that purpose." * * *

Of the last-mentioned act it is said, in an opinion prepared by Solicitor-General Richards (22 Op. 108):

"It will be observed that these provisions of the act of 1893, under which the Federal authorities cooperate with the State and municipal authorities and only adopt and execute their own regulations where the State or municipal authorities fail or refuse to act, are general in their nature, applying to all contagious and infectious diseases and designed to prevent their introduction as well as their spread."

Subsequently, by an act approved March 3, 1897 (29 Stat. 635), Congress regulated the control of contagious diseases within the District of Columbia, the said act being entitled "An act to prevent the spread of contagious diseases in the District of Columbia." So far as I am aware, the last-mentioned statute is the only law in force which governs the treatment of persons found to be suffering from the disease of leprosy within the District. It is not necessary to state its provisions in detail, as these contain no reference whatever to the deportation of persons thus affected.

Your right to make regulations providing for such deportation depends upon whether you consider it necessary to make such regulations for the specific purpose of preventing the introduction of leprosy, or some other contagious or infectious disease, into a State or Territory or the District of Columbia from another State or Territory or the District of Columbia, but such rules, when made, must be general in their nature, and can not apply to the case of a single individual. In other words, if a regulation should be made whereby this patient may be deported, it must apply to the case of all other persons similarly situated, and, by the express language of the act, it must also "operate uniformly and in no manner discriminate against any port or place."

Moreover, the end of such regulations must be to prevent the introduction of a disease either from foreign countries into the United States, or, as above stated, from one State or Territory or the District of Columbia into another State or Territory or the District of Columbia, there being a further provision that, if your regulations are not carried out by municipal authorities, the President may adopt such measures as in his judgment shall be necessary to give effect to them and prevent the introduction or spread of such disease.

It is conceivable that circumstances might exist which would render the deportation to a designated locality of a person suffering from such a disease as leprosy an appropriate measure with a view to preventing the introduction of the disease into States or Territories to which it might otherwise spread. For example, there might be established in some suitable locality a leper colony or establishment for the care and treatment of lepers, and the removal of a leper to such an establishment, while perhaps involving in itself some slight danger of thereby spreading the disease, would be well calculated to promote not only the comfort and possible recovery of the unfortunate person, but also the health and safety of the population at large. I am not informed by the papers submitted whether any such circumstances exist in the present case. If you find that they do and that the deportation of the leper in question would be an appropriate method of attaining the ends enumerated in the act approved February 15, 1893, it is my opinion that the question is one within your administrative discretion. The papers submitted, however, indicate that the deportation of this particular leper has been suggested, not with a view to preventing the introduction or spread of the malady from which he suffers from the District of Columbia into some State or Territory, but in order that the District may be relieved of the burden of his support. I am clearly of the opinion that neither of the statutes called to my attention, and no other law of the United States, justifies his deportation for this purpose or authorizes you to make any rules under which he could be legally removed.

Whether it would be competent for the Congress to relieve the District of the burden of caring for an unfortunate person, afflicted as this one is, by imposing this burden on some State or Territory in which he may be deemed to have a legal residence, it is not necessary to consider. The Congress has made no law for this purpose, and you are therefore entirely without authority to promulgate or enforce regulations looking to an end not itself contemplated by any existing statute.

I remain, sir,

Yours, very respectfully,

CHARLES J. BONAPARTE.

CUSTOMS LAW-- DRAWBACK-- BLENDED FLOUR; 27 Op.Att'y.Gen. 68, September 19, 1908

Drawback is allowable under section 30 of the act of July 24, 1897 (30 Stat. 211), on blended flour produced by thoroughly mixing and aerating an imported flour ground from Manitoba hard spring wheat, containing a high percentage of glutin, with a domestic flour of medium strength, of a high color, and great keeping qualities, thus producing a superior flour differing from the imported flour in color, texture, and keeping qualities, and having a distinct commercial designation.

Blended flour is a "manufacture" within the meaning of section 30 of the tariff act of 1897.

While debates in Congress are not ordinarily appropriate sources of information from which to discover the meaning of a statute, yet the statements of those who had charge of an act prior to its passage, made to the legislative body who afterwards passed it, as to its meaning and purpose, are always competent.

The preexisting law, and the reason and purpose of a new enactment, are considerations of great weight in determining the proper construction to be placed upon a statute.

DEPARTMENT OF JUSTICE,

September 19, 1908.

The SECRETARY OF THE TREASURY.

SIR: Reading together in their proper order the several statements submitted by you, the following appear to be the facts upon which an opinion is sought:

First. Blending flour consists in selecting the kinds, qualities, and quantities of flours necessary to make the required blend, and in thoroughly mixing and aerating the same, which is purely a mechanical process and involves no chemical action.

Second. This is done by machinery especially manufactured for that purpose, and the labor is principally unskilled, but is performed under the direction of a skilled miller.

Third. Blended flours have different qualities and characteristics from and are better adapted to the uses for which intended than flours not blended. Their qualities and characteristics are the mean between the corresponding qualities and characteristics of the flours unblended. They remain wheat flour, having the same uses as unblended flours, but being better adapted to sound preservation for those uses in tropical climates.

Fourth. The blended flour produced by the Copland-Raymond Company, to whom the drawback in question has been allowed, is produced from Manitoba hard spring wheat, containing a high percentage of gluten, blended with domestic flour of medium strength, of a high color, and great keeping qualities, thus producing a flour having the proper proportion of gluten to obtain the best results in bread making and also superior keeping qualities, which are necessary for flour used in warm climates. It differs from the imported flour used in the blending, in color, texture, and keeping qualities, and in the quantity and quality of the gluten contained therein.

Fifth. The proportion of the imported flour used varies from 33 1/ 3to 45 per cent, according to the varying requirements of the seasons and climatic conditions.

Sixth. The cost of blending is about 2 1/2 per cent of the value of the blended flour, which is exclusive of the packages in which the same is exported.

Seventh. Blended flours have a distinct commercial designation in the markets of this country, the imported flour being known in the trade and commerce of this country as spring-wheat flour, and the flour produced by blending being known and sold in the market as blended flour; but this term is applied commercially to all flour to the ultimate production of which spring and winter wheat, wherever grown, have contributed, whether through the blending of flours or through the blending of the grain prior to its manufacture into flour.

The question for consideration is whether the Copland-Raymond Company, when exporting the blended flour above described, is entitled to a drawback on the imported flour used in producing said blended flour, under section 30 of the tariff act of 1897 (30 Stat. 211), which reads as follows:

"That where imported materials on which duties have been paid, are used in the manufacture of articles manufactured or produced in the United States, there shall be allowed on the exportation of such articles, a drawback equal in amount to the duties paid on the materials used, less one per centum of such duties."

The only question now presented being whether or not the imported flour upon which a drawback is being allowed is used in the "manufacture" of an article "manufactured or produced in the United States," within the meaning of said act.

Numerous authorities have been called to my attention by those interested in the determination of this question, of which the following are the most important:

In Hartranft v. Wiegmann (121 U.S. 609), decided in 1887, the Supreme Court held that shells cleaned by acid and then ground on an emery wheel, and some of them afterwards etched by acid, and all intended to be sold for ornaments as shells, were not dutiable at 35 per cent ad valorem as "manufactures of shells," but were exempt from duty as "shells of every description not manufactured."

Congress, however, does not appear to have taken the view that such a treatment of shells was not a manufacture, as in paragraph 450 of the tariff act of 1897, it was provided that "shells engraved, cut, ornamented, or otherwise manufactured," should be assessed 35 per cent ad valorem, thus clearly indicating that engraving, cutting, and ornamenting shells is a manufacture within the meaning of that act.

In Dejonge v. Magone (159 U.S. 562), it was held that papers coated, colored, and embossed to imitate leather, and papers coated with flock, to imitate velvet, were not "manufactures of paper, or of which paper is a component material." This decision, however, turned very largely on what the court understood from the classification of the several varieties of paper and the well-known signification of the word "paper" in commerce Congress had in mind when the act was passed. This is apparent from the following language of the court:

"But it is established by the evidence beyond dispute that at the time of the passage of the tariff act of 1883 'fancy papers' were largely dealt in in commerce and were well known in the commerce and trade of this country; that there were a great variety of fancy papers, and that such designation covered both the importations out of which this controversy arose. It is not reasonable to suppose that Congress assumed that the manipulation or treatment of particular paper in the completed condition in which produced at a paper mill, by mere surface coating, a process which did not change its form, but only increased the uses to which such paper might be put, had the result to cause the article to cease to be paper and to become a manufacture of paper, especially in view of the continued commercial designation of the article as a variety of paper and its sale and purchase in commerce as paper."

In Tide Water Oil Co. v. United States (171 U.S. 210), the facts were that box shooks had been manufactured in Canada by planing boards and cutting them into required lengths and widths for making into boxes without further labor than nailing them together.

They were then tied into bundles and imported, and made into boxes or cases by nailing the proper parts together with nails manufactured in the United States out of imported steel rods. The drawback was claimed under section 3019, Revised Statutes, which provided that--

"There shall be allowed on all articles wholly manufactured of materials imported, on which duties have been paid when exported, a drawback," etc.

The court interpolated the words "in the United States" after the word "manufactured," making it read--

"There shall be allowed on all articles wholly manufactured in the United States of materials imported," etc., and held that the putting together of the shooks by fitting, nailing, and trimming them, was not an entire manufacture, and that, consequently, the boxes were not "wholly manufactured" within the United States, as required by the statute. The opinion in this case is an interesting one, and in the discussion of the general subject of what processes constitute a manufacture, throws some light upon the question under consideration.

In United States v. Dudley (174 U.S. 670), the question was whether boards, dressed on one side and tongued and grooved, should be assessed with a tax of 25 per cent ad valorem as "manufactures of wood, or of which wood is the component material of chief value," or be exempt as "sawed boards, plank, deals, and other lumber, rough or dressed." The court held that the boards were dressed lumber, and not manufactures of lumber within the meaning of that provision.

The case of Anheuser-Busch Brewing Association v. United States (207 U.S. 556) is much relied on by those who oppose the drawback. In that case it appeared that the company had imported corks, and had subjected them to a special and rather elaborate treatment, as a result of which they would not permit the escape of gas from the bottled beer, or impart thereto the cork flavor. It was insisted by the company that when it shipped bottled beer corked with these corks, it was entitled, under the statute now in question, to a drawback thereon.

The court disallowed the claim, holding incidentally that the corks were not manufactured after their importation, but mainly resting the case on the opinion of the court in the case of Joseph Schlitz Brewing Co. v. United States (181 U.S. 584), in which it was held that "bottles and corks in which beer is bottled and exported for sale are not 'imported materials used in the manufacture' of such beer within the meaning of the drawback provisions of the customs-revenue laws, although the beer be bottled and corked and subsequently heated for its better preservation." In the opinion in the Schlitz case, the court said:

"The fact that the beer must be steamed after bottling to a point necessary to kill the germs of yeast, and for that purpose must be enclosed in some vessel to prevent the escape of the carbonic acid gas, only shows that the beer is bottled before it is finally manufactured and ready for the market. This process certainly does not convert a bottle from an incasement into an ingredient. In this particular beer does not materially differ from a hundred other articles which require to be encased for their proper preservation. Thus, champagne and other sparkling wines must be bottled while yet effervescing, or they will lose the tang which gives them their principal value. The same remark may be made of Appollinaris and other effervescing water, though not manufactured, and of certain canned fruits and vegetables which are required to be encased while hot and still in the process of preservation."

This reasoning was equally conclusive of both the Schlitz and the Anheuser-Busch cases; and the opinion of the court in the latter case contains no intimation as to what the result would have been had the claimant imported corks and united them with other varieties of corks, if such a process were possible, and subjected the corks thus made to special treatment fitting them for certain uses, and had then exported the corks thus produced as corks and not as beer. Such a state of facts would have presented a case something similar to the question now under consideration; and it must be conceded that there is little in common between the facts in the Anheuser-Busch case and the facts here presented.

In The Brooklyn Cooperage Co. v. City of New Orleans et al (47 La. Ann. 1314), it was held that the putting together, by means of machinery, of staves, hoops, and heads, thus forming a barrel, does not constitute a manufacture of an article of wood. This case is similar in its facts to that of Tide Water Oil Co. v. United States, supra, wherein it was held that the nailing of hooks together in the form of a box is not a whole manufacture of the box.

In The People ex rel v. Roberts (145 N.Y. 375), the relator claimed that it was exempt from taxation because it was a manufacturing corporation. It appeared that the company took tea in the original state and mixed together various kinds, thus producing a compound which was called "combination tea," and that it took coffee in the raw bean and roasted and ground it, and in some instances different kinds of coffee were mixed together, forming, as in the case of tea, a combination article. The court held that the handling of tea and coffee in that manner was not a manufacture in any legal sense, and that the relator was not a manufacturing corporation. It is apparent that if the roasting and grinding of coffee, and thus putting it in shape for use, is not a manufacture, then the grinding of corn into corn meal, or of wheat into flour, is not a manufacture. In fact, the same may be said of lumber when cut from the logs. The material is subjected to only a mechanical process and still remains wood, but in a different form. Yet it is conceded by all authorities that it is a manufacture to make lumber from logs.

This case of The People v. Roberts does not appear to have been uniformly followed, even in the State of New York, as in The People ex rel. Devoe v. Roberts (51 App.Div. 77), the mixing of paint was held to be a manufacture; and in The People ex rel. Waterman Co. v. Morgan (48 App.Div. 395), it was held that the mere assembling and fitting together of gold pens and holders which were made by others and purchased by the Watermans, and assembled by them, was a manufacture entitling the corporation to exemption from taxation on its capital stock under the same statute.

In Murphy v. Arnson (96 U.S. 131), it was held that a substance which was obtained by the chemical action of benzole and nitric acid upon each other and then refined and cleaned by distillation was a manufacture from those substances.

The material distinction between the facts in that case and those herein presented is that in the process there involved there was chemical action, and the resulting article was wholly different from and in fact possessed none of the properties of either of the substances from which it was made. The word "blend" is hardly appropriate to describe the union between those two substances, as that word implies a mechanical mixture.

In Meyer v. United States (124 Fed. 296), District Judge Townsend held that hemstitched cotton lawns made by subjecting cotton cloth to the processes of turning over the edges, drawing certain threads, and other manipulation, but not appropriated by these processes to any particular ultimate use, were advanced beyond the condition of "cotton cloth," and were dutiable as "manufactures of cotton."

The above cited cases involve about all the principles which have been considered by the courts in determining what constitutes a manufacture.

In applying these decisions, it must be kept in mind that each case presented a peculiar state of facts, and especially that those facts were applied to peculiar statutes, and that in no case did the court intend to lay down a general and inflexible definition of the word "manufacture," which should govern under all conditions and in all cases. For illustration, in United States v. Dudley, supra, the question was whether boards dressed on one side and tongued and grooved fell within the classification "manufactures of wood or of which wood is a component material of chief value," or, "sawed boards, plank, deals, and other lumber, rough or dressed." Since dressed lumber was within the express terms of the second clause, such lumber could not be taken as a manufacture of wood within the meaning of the first clause; and the court held that merely tonguing and grooving the lumber, therefore, did not convert it into such a finished product as to constitute a manufacture of wood within the meaning of that statute, but that it still fell within the classification of dressed lumber.

It is apparent that this decision furnishes no criterion as to what the court would hold were a case presented wherein rough lumber had been imported into the United States and had been dressed and tongued and grooved, and thus prepared for use as ceiling, flooring, and numberless other uses to which such lumber can be put, and by this means had been fitted for foreign markets, when otherwise it could not have been sold in such markets, and when exported a drawback had been demanded thereon. Or, an illustration more apt to the question under consideration: Suppose lumber be imported and then dressed and veneered with domestic walnut lumber, or by machinery dressed and joined with another class of common lumber, as is often done for the manufacture of doors and other articles, and as a result of such combination and alteration of the original materials, the product can be sold in a foreign market; can it be doubted that Congress intended that a drawback should be allowed in such a case, or that such veneered lumber is a manufacture or product within the meaning of this statute, and could the case of United States v. Dudley be considered as an authority against such a view?

It is insisted that the principle that a governmental grant of a privilege or benefit, where doubt as to its meaning exists, is to be construed in favor of the Government, should be here applied. This principle has been repeatedly recognized by the United States Supreme Court (Hannibal &c. Railroad Co. v. Packet Co., 125 U.S. 260, 271; United States v. Allen, 163 U.S. 499, 504; Swan & Finch Co. v. United States, 190 U.S. 143, 147; Cornell v. Coyne, 192 U.S. 418, 431).

The cases of United States v. Allen and Swan & Finch Co. v. United States each involved a claim for a drawback, and in the first case it was held that the provision of the tariff act of 1883, whereby a drawback was allowed on imported coal used for fuel on vessels engaged in the coasting trade of the United States, was repealed by implication by the tariff act of 1890; and in the second case it was held that the placing on board a vessel bound for foreign ports, lubricating oils manufactured from imported rape seeds, which oils were used in and to be consumed by the vessels, was not an exportation of the oils within the meaning of the drawback provision.

Neither of these cases, therefore, involved an exportation of a manufactured product, or had any bearing upon our foreign trade. On the other hand, it was manifestly the intention of Congress that, when the question involved affected domestic manufacturers in their efforts to build up a foreign trade, the drawback provision should be liberally construed in favor of the exporter; and such has been the rule of construction adopted by your Department and the more recent rule adopted by this Department. The purpose of this provision is thus stated in Tide Water Oil Co. v. United States, supra:

"The object of the section was evidently not only to build up an export trade, but to encourage manufactures in this country, where such manufactures are intended for exportation, by granting a rebate of duties upon the raw or prepared materials imported, and thus enabling the manufacturer to compete in foreign markets with the same article manufactured in other countries."

When this provision was under consideration by Congress, Mr. McKinley, who was chairman of the Ways and Means Committee and the author of the tariff act under discussion, said:

"We have extended this provision and in every way possible liberalized it, so that the domestic and foreign product can be combined and still allow to the exporter 99 per cent upon the duty he pays upon his foreign material intended for export, which is, in effect, what free traders and our political opponents are clamoring for, namely, free raw material for the foreign trade. And, if you are desirous of seeing what you can do in the way of entering the foreign market, here is the opportunity for you. * * * It completely, if the provision be adopted, disposes of what has sometimes seemed to be an almost unanswerable argument that has been presented by our friends on the other side, that if we only had free raw material we could go out and capture the markets of the world.

We give them now within 1 per cent of free raw material, and invite them to go out and capture the markets of the world."

It is true that it has been held that debates in Congress are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body (United States v. Freight Association, 166 U.S. 318); but in Ex parte Farley (40 Fed. Rep. 69) it was said that "The statements of those who had charge of the law, made to the legislative body passing it, as to its meaning and purpose, are always competent." Moreover, it is one of the oldest and best recognized principles of construction that "The preexisting law, and the reason and purpose of the new enactment, are considerations of great weight" (Smythe v. Fiske, 90 U.S. 380), and that the court should consider the external or historical facts which lead to the enactment of the statute (26 Am.&E.Ency. 632, and the many cases there cited). And Mr. McKinley was but stating the purpose of this provision and the reasons for its enactment, which were a part of the political history contemporaneous with its passage.

It is also worthy of consideration that in every instance but one in this entire section the words "produced," "production," and "producer" are used in connection with the words "manufactured," "manufacture," and "manufacturer." The section thus begins: "Where imported materials on which duties have been paid, are used in the manufacture of articles manufactured or produced," etc.; and the second proviso reads: "That the imported materials used in the manufacture or production of articles entitled to drawback * * * when exported shall * * * be identified * * * the facts of the manufacture or production * * * shall be determined and the drawback due thereon shall be paid to the manufacturer, producer, or exporter, to the agent of either, or to the person to whom such manufacturer, producer, exporter, or agent shall, in writing, order such drawback paid."

Why this careful and repeated use of the idea of production in connection with that of manufacture? Was it intended as mere surplusage and to add nothing whatever to the meaning of the act?

It can hardly be thought that such was the purpose of Congress. But if it means anything at all, it must broaden the provisions of the act and make it include cases which would not be embraced in the word "manufacture." The fourth definition of the word "produce," as given by Webster, and the only one that can be here applicable, is, "To give being and form to; to manufacture; to make." There can, therefore, be but little difference between the two words "produce" and "manufacture," as used in this provision, but under this definition the word "make" can very properly be substituted for the word "produce;" and, since the technical meaning of the first part of the word "manufacture" has long since disappeared, the word "make" has substantially the same meaning as the word "manufacture," stripped of its strict legal interpretation; and it is but reasonable to suppose that Congress intended that this drawback provision should apply to cases which might not fall within the strict and limited construction given to the word "manufacture" by the courts, and for this reason added the word "produce" or its proper derivative.

This is further indicated by the use of the single word "manufacture" in the beginning of the section, to wit: "Where imported materials * * * used in the manufacture of articles manufactured or produced * * * ," etc., that is, before the drawback can be allowed, the resultant article must have been "manufactured" somewhere, but it is sufficient if it be either manufactured or produced (made) in the United States. The statute under consideration in Tide Water Oil Company v. United States, supra, did not contain the word "produce" or "production" at all, and the decision rested upon the theory that all the processes of manufacture had to be carried on in the United States; and the addition of the words "produced," "production," and "producer" in the present law would indicate that a different construction in this particular was intended.

Your Department has, as I understand, with but one exception, interpreted this drawback provision favorably to the contention of the Copland-Raymond Company.

In the order directing that the drawback be allowed to said company, Assistant Secretary Reynolds cited the following decisions of the Treasury Department, which bear more or less upon the question here involved (T.D., vol. 9, p. 400):

Lubricating oil formed by mixing imported rape-seed oil and products of domestic petroleum. (T.D. 16747, February 6, 1896.)

Blended oil produced by mixing imported olive oil and domestic cotton-seed oil. (T.D. 25141, March 23, 1904.)

Diamond dyes formed by mixing dry colors imported in bulk. (T.D. 22714, January 9, 1901.)

Butter color produced by mixing imported coal-tar colors. (T.D. 22580, November 2, 1900.)

Newfoundland cod oil produced by mixing imported crude cod oil and domestic fish oil. (T.D. 24791, November 21, 1903.)

Mixed sirups formed by combining glucose and sugar sirup manufactured from imported raw sugar. (T.D. 23625, March 31, 1902.)

However, when this question was presented to Secretary Shaw, on June 19, 1902, he held that "The mere admixture of imported and domestic flour does not constitute manufacture within the meaning of the drawback laws" (T.D., vol. 5, p. 510); but on March 7, 1905, while Mr. Shaw was still Secretary of the Treasury, the former ruling disallowing the drawback on such flour was reversed, and the drawback was allowed.

This practically uniform construction of the statute by the Department having its enforcement in charge is entitled to great weight, and should be followed unless the meaning of the statute is clearly to the contrary. (United States v. Hill, 120 U.S. 180; United States v. Tanner, 147 U.S. 663; United States v. Alger, 152 U.S. 397; United States v. Johnson, i73 U.S. 378.)

The previous expressions of this Department in construing this drawback provision of the tariff act of 1890 are not quite uniform. While it has not heretofore been called upon to determine what constitutes a manufacture or product within the meaning of the act, yet four opinions have heretofore been given your Department with reference to the effect of the proviso,

"That when the articles exported are made in part from domestic materials, the imported materials, or the parts of the articles made from such materials, shall so appear in the completed articles that the quantity or measure thereof may be ascertained." (22 Op. 111.)

Attorney-General Olney held--

"That this proviso forbids the allowance of a drawback except in cases where the article manufactured or produced can be so separated chemically or mechanically into its component materials that the relative proportions of each material may be ascertained without reference to past books of account." (21 Op. 111.)

This view was subsequently concurred in by Attorney-General Harmon (21 Op. 229); but in a carefully considered opinion subsequently prepared by Solicitor-General Richards and approved by Attorney-General Griggs, this view was overruled, and it was held sufficient if the quantity or measure of the imported product in the completed article could be shown by books and accounts, and such other evidence as would convince the judgment of the administrative officers. (22 Op. 111.) One of the principal grounds for this conclusion is thus expressed in that opinion:

"In view of this change from a policy excluding domestic materials to one permitting their use, it may fairly be inferred that Congress intended to encourage the use by our manufacturers of domestic in connection with imported materials, thus promoting home industries which produce such domestic materials. This evident object of the law should not be forgotten in construing it."

In an opinion prepared with equal care and thoroughness, Attorney-General Moody subsequently concurred in this view adopted by Attorney-General Griggs, and held that the drawback should be allowed on flour manufactured partly from imported and partly from domestic wheat, basing his concurrence largely upon the manifest purpose of Congress in passing the act to encourage home manufactures.

(25 Op. 344.)

In the present instance, while the ratio of the value of the labor required to the value of the completed product is small, yet if a foreign trade is thereby created, it will not only be beneficial to the manufacturers of blended flour, but also to the domestic wheat growers, because from the facts submitted it appears that from 55 to 66 2/3 per cent of the flour thus made is ground from domestic wheat; and every bushel of wheat thus ground will find its way into a market which would not have existed had not the foreign trade been acquired.

We may now return for a moment to a consideration of what constitutes a manufacture, as defined by the courts. In Hartranft v. Wiegmann, supra, the court incidentally remarked:

"They (the shells) had not been manufactured into new and different articles, having a distinctive name, character, or use from that of a shell," and from this remark it has been said in some cases that to constitute a manufacture a "different article must emerge, having a distinctive name, character, or use." This would imply that if the product had either a distinctive name, character, or use, it would be a manufacture. Of course, if the material is changed in no respect except in name, no court would hold it to be a manufacture. In fact, I am unable to see how the name of the product can be of any material moment in determining whether or not it is a manufacture.

Again, the word "character" is too general to give any definite idea as to what change is necessary to constitute a manufacture. Many articles may have a distinct character in some respects from that from which it is made and yet not be a manufacture. For illustration, the boxes in the Tidewater Oil Co. case had an entirely different character from the box shooks, but the mere process of putting them together was not held to be a manufacture.

It appears to me that the matters to be principally considered in determining whether or not a certain process constitutes a manufacture are--

First. The character and extent of the process or processes to which the substance or substances are subjected. For certainly, where complicated and expensive machinery is involved, and the substance or substances subjected to repeated manipulations, such facts are entitled to some consideration. However, they are of minor importance and can never be wholly determinative of whether or not the resultant product is a manufacture.

Second. The extent of the difference between the character of the product and the substance or substances from which it is made. This different may be in the form or in the use or uses to which it may be put or in the degree and manner in which it may be applied to the same uses. For I fail to see any good reason in laying it down as a rule for universal application that the product shall be susceptible of different uses from those to which the material from which it is made can be applied; and I do not understand that the courts have adopted any such rule. Certainly, if by expensive and elaborate manipulation, a product is adapted in a much higher degree, or in an essentially different manner, to the same uses to which the substance or substances from which it is produced can be put, the process is just as important and is as much entitled to be called a manufacture as if it should result in rendering the article manipulated susceptible of a different use; and there is nothing in the inherent meaning of the word "manufacture" contrary to this view.

Applying these various principles to the matter in hand, is blended flour, having the characteristics and uses described, and made in the manner described, from flour, a part of which is imported from a foreign country, a "manufacture" or "product," within the meaning of the drawback law?

In the first place, it can not be denied that blended flour is a manufacture. It is a finished product, ready to be converted into all kinds of bread, cakes, pastries, etc., and possesses every element of a manufacture. It finds its being as a result of the process of mixing and aerating other flours, as described in the facts submitted by you. Before being subjected to this process there exist different varieties of flour, the one imported being known as spring wheat flour, each of which possesses certain characteristics peculiar to itself, but does not possess those characteristics which will enable the miller to find a market in warm climates, and thus to acquire a certain class of foreign trade.

After the manipulation and treatment by expensive machinery, as above described, there results a product known as "blended flour," which is in form like the several component flours, and possesses the same ingredients as those flours, with a certain degree of moisture extracted, but so combined as to possess the required richness of breadmaking and keeping qualities, which gives the manufacturer or producer an opportunity to obtain a foreign trade, and thus to aid in "capturing the markets of the world."

Is not, therefore, this process a manufacture or production within the meaning of this statute? It may be urged with reason that it falls within the technical description of a manufacture, as described by the court in the Tide Water Oil Co. case. There it was held that the nailing together of box shooks, thus forming a box, was not the whole manufacture of the box from the boards; the reason being that the shooks themselves, being adapted for only the one use, were not a finished manufacture. That is, in order for there to be a completed manufacturing process, it must begin with a completed product and end with a completed product. But if we apply this principle to the facts here presented, the blended flour is a finished product or manufacture, and with equal certainty, the flours from which it is made are completed products or manufactures. It does not follow that because blended flour can be made directly from the wheat, the various processes through which it passes in being made into blended flour can constitute but steps in one manufacture, and not separate and distinct manufactures. The primitive method of making a canoe was by means of the ax, the broadax, and foot adz; to make it, literally to manufacture it, directly from the log. Now, the log is converted into lumber, and the canoe is made from the lumber, yet both the lumber and the canoe are manufactures.

I am of the opinion, therefore, that your Department acted properly in allowing the drawback upon the blended flour manufactured by the Copland-Raymond Company in the manner heretofore described.

Respectfully,

CHARLES J. BONAPARTE.

NAVAL OFFICERS-- MATES-- RETIREMENT OF MATE NIELSON; 27 Op.Att'y. Gen. 66, August 29, 1908

The opinion of June 5, 1908 (26 Op. 615), does not state, neither was it the intention of the Attorney-General to express the opinion, that Mate Neilson was entitled to retirement under section 11 of the navy personnel act of March 3, 1899 (30 Stat., 1007), at the date of his irregular retirement under section 17 of that act.

The statement in that opinion that "his retirement of March 31, 1899, should be so corrected as to make it show such retirement * * * with the rank and retired pay of a warrant officer with twelve years of service, and from said original retirement," must be understood as meaning a retirement from the period at which he would have been eligible for retirement under section 11 of the navy personnel act, namely, April 16, 1902, the date at which he would have attained the age of 62 years.

The material point of that opinion was that Mate Neilson, having accepted a construction of his status and consequent rights adopted by the Government itself, but which was subsequently held to be erroneous, ought not to be deprived of any substantial benefit resulting from the changed authoritative construction of the law.

DEPARTMENT OF JUSTICE,

August 29, 1908.

The SECRETARY OF THE NAVY.

SIR: I have the honor to acknowledge the receipt of your letter of June 23, 1908, in which you request an explanation of a certain passage in my opinion of June 5, 1908 (26 Op. 615), in the case of Mate Harold Neilson, U.S. Navy, retired. The passage to which you call my attention is as follows:

"I am of opinion that, as Mate Neilson was entitled to be retired under section 11 of the act referred to (the personnel act), his retirement of March 31, 1899, should be so corrected as to make it show such a retirement, and following the above opinion of April 18, 1908, with the rank and retired pay of a warrant officer with twelve years of service, and from said original retirement. This is giving to this officer, although at a later date, that to which, in law, he was then entitled."

It appears that this has been construed as meaning that Mate Neilson was entitled to be retired under section 11 of the personnel act at the time when he was, in fact (although irregularly), retired under section 17 of the same act, and you point out that data contained in certain memoranda accompanying your letter of May 26, 1908, show that Mate Neilson, at the time above mentioned, had neither served forty years nor attained the age of 62 years, and, therefore, he would not have been entitled to retirement had he then held the rank of a warrant officer.

The passage in question is not, perhaps, as carefully expressed as it should have been, but it does not say, nor was it my intention to express the opinion, that Mate Neilson was entitled to retirement under section 11 of the personnel act at the date of his irregular retirement above mentioned. In the two paragraphs immediately preceding the one to which you refer, I said:

"I do not think that the retirement of Mate Neilson under section 17 of the personnel act, upon his own application, is, under the circumstances, a bar to his retirement as an officer under section 11 of that act or under the act of 1906.

"The Government having held that he could not be retired as an officer under section 11, but might be under section 17, upon his own application, I do not think that, by accepting this erroneous decision and acting upon it, he waived or forfeited any legal right which he had to be retired otherwise."

In other words, the material point in my opinion was that Mate Neilson, having accepted a construction of his status and consequent rights which had been adopted by the Government itself, but which was subsequently held, upon appropriate consideration, to be erroneous, ought not to be deprived of any substantial benefit resulting from the change in the authoritative construction of the law, by reason of his action taken while the error of construction was acted upon by his superiors. He was held not to be entitled to retirement as an officer; he, therefore, accepted retirement as an enlisted man. In point of fact, he should have been regarded, and should have regarded himself, as entitled to retirement as an officer, and, under the circumstances of this case, he ought not to suffer by reason of the consequences of a mistake for which he was not responsible. From the facts stated in your letter, and which were shown by the memoranda accompanying your previous letter of May 26, it seems to be quite clear that Mate Neilson would not have been entitled to retirement under section 11 of the personnel act until April 16, 1902, when he would have attained the age of 62 years.

When that date came, however, he was assumed by the Department, and also by himself, to be already upon the retired list by reason of his irregular retirement of March 31, 1899. But for this action of the Government, Mate Neilson would have been, as your letter states, undoubtedly retired on April 16, 1902, and when I say in the passage you have quoted "his retirement of March 31, 1899, should be so corrected as to make it show such retirement * * * with the rank and retired pay of a warrant officer with twelve years of service, and from said original retirement," this must be understood as meaning a retirement from the period at which he would have been eligible for retirement under section 11 of the personnel act, namely, April 16, 1902. With this modification or, rather, explanation, the opinion of June 5, 1908, correctly expresses my views of the law as applied to the case of Mate Neilson.

I remain, sir,

Yours, very respectfully,

CHARLES J. BONAPARTE.

NATIONAL CURRENCY ASSOCIATIONS-- RIGHT TO WITHDRAW FROM; 27 Op. Att'y.Gen. 53, August 20, 1908

A member of a national currency association, duly organized under the act of May 30, 1908 (35 Stat. 546), entitled "An act to amend the national banking laws," can not, at its own pleasure, withdraw from such association.

The several banks constituting a national currency association may each delegate to the governing body of the association the right to give consent to the withdrawal of any particular bank belonging to the association, but such delegation of authority will always be revocable and can not be permanently conferred by the by-laws of the association.

DEPARTMENT OF JUSTICE,

August 20, 1908.

The SECRETARY OF THE TREASURY.

SIR: I have the honor to acknowledge the receipt of your letter of August 12, 1908, in which you say:

"The question has arisen, under the act 'To amend the national banking laws,' approved May 30, 1908, whether a member of a duly organized national currency association may, at its own pleasure, withdraw from such an association.

"In the silence of the law on this question, this Department has declined to approve by-laws of currency associations which contain provisions for the withdrawal of a bank; * * *

"In view of the pressing importance of the question, this Department, before taking final action, requests the early opinion of the Attorney-General thereon."

The question you submit is simple in statement, but by no means free from difficulty. As noted in your letter, the statute itself says nothing on the subject. There has been, of course, no judicial determination of the point involved, and the organization and purposes of the currency associations contemplated by the law are so exceptional in character that any reasoning from analogy with regard to them may well prove misleading. The first and second sections of the act approved May 30, 1908 (35 Stat. 546), entitled "An act to amend the national banking laws," are as follows:

"Be it enacted, etc., That national banking associations, each having an unimpaired capital and a surplus of not less than twenty per centum, not less than ten in number, having an aggregate capital and surplus of at least five millions of dollars, may form voluntary associations to be designated as national currency associations. The banks uniting to form such associations shall, by their presidents or vice-presidents, acting under authority from the board of directors, make and file with the Secretary of the Treasury a certificate setting forth the names of the banks composing the associations, the principal place of business of the association, and the name of the association, which name shall be subject to the approval of the Secretary of the Treasury.

Upon the filing of such certificate the associated banks therein named shall become a body corporate, and by the name so designated and approved may sue and be sued and exercise the powers of a body corporate for the purposes hereinafter mentioned: Provided, That not more than one such national currency association shall be formed in any city: Provided further, That the several members of such national currency association shall be taken, as nearly as conveniently may be, from a territory composed of a State or part of a State, or contiguous parts of one or more States: And provided further, That any national bank in the State or Territory, having the qualifications herein prescribed for membership in such national currency association, shall, upon its application to ano upon the approval of the Secretary of the Treasury, be admitted to membership in a national currency association for that city or territory, and upon such admission shall be deemed and held a part of the body corporate, and as such entitled to all the rights and privileges and subject to all the liabilities of an original member: And provided further, That each national currency association shall be composed exclusively of banks not members of any other national currency association.

"The dissolution, voluntary or otherwise, of any bank in such association shall not affect the corporate existence of the association unless there shall then remain less than the minimum number of ten banks: Provided, however, That the reduction of the number of said banks below the minimum of ten shall not affect the existence of the corporation with respect to the assertion of all rights in favor of or against such association. The affairs of the association shall be managed by a board consisting of one representative from each bank. By-laws for the government of the association shall be made by the board, subject to the approval of the Secretary of the Treasury. A president, vice-president, secretary, treasurer, and an executive committee of not less than five members, shall be elected by the board. The powers of such board, except in the election of officers and making of by-laws, may be exercised through its executive committee.

"The national currency association herein provided for shall have and exercise any and all powers necessary to carry out the purposes of this section, namely, to render available, under the direction and control of the Secretary of the Treasury, as a basis for additional circulation any securities, including commercial paper, held by a national banking association. For the purpose of obtaining such additional circulation, any bank belonging to any national currency association, having circulating notes outstanding secured by the deposit of bonds of the United States to an amount not less than forty per centum of its capital stock, and which has its capital unimpaired and a surplus of not less than twenty per centum, may deposit with and transfer to the association, in trust for the United States, for the purpose hereinafter provided, such of the securities above mentioned as may be satisfactory to the board of the association. The officers of the association may thereupon, in behalf of such bank, make application to the Comptroller of the Currency for an issue of additional circulating notes to an amount not exceeding seventy-five per centum of the cash value of the securities or commercial paper so deposited. The Comptroller of the Currency shall immediately transmit such application to the Secretary of the Treasury with such recommendation as he thinks proper, and if, in the judgment of the Secretary of the Treasury, business conditions in the locality demand additional circulation, and if he be satisfied with the character and value of the securities proposed, and that a lien in favor of the United States on the securities so deposited and on the assets of the banks composing the association will be amply sufficient for the protection of the United States, he may direct an issue of additional circulating notes to the association, on behalf of such bank, to an amount in his discretion, not, however, exceeding seventy-five per centum of the cash value of the securities so deposited: Provided, That upon the deposit of any of the State, city, town, county, or other municipal bonds, of a character described in section three of this Act, circulating notes may be issued to the extent of not exceeding ninety per centum of the market value of such bonds so deposited:

And provided further, That no national banking association shall be authorized in any event to issue circulating notes based on commercial paper in excess of thirty per centum of its unimpaired capital and surplus. The term 'commercial paper' shall be held to include only notes representing actual commercial transactions, which when accepted by the association shall bear the name of at least two responsible parties and have not exceeding four months to run.

"The banks and the assets of all banks belonging to the association shall be jointly and severally liable to the United States for the redemption of such additional circulation; and to secure such liability the lien created by section 5230 of the Revised Statutes shall extend to and cover the assets of all banks belonging to the association, and to the securities deposited by the banks with the association pursuant to the provisions of this Act; but as between the several banks composing such association each bank shall be liable only in the proportion that its capital and surplus bears to the aggregate capital and surplus of all such banks. The association may, at any time, require of any of its constituent banks a deposit of additional securities or commercial paper, or an exchange of the securities already on deposit, to secure such additional circulation; and in case of the failure of such bank to make such deposit or exchange the association may, after ten days' notice to the bank, sell the securities and paper already in its hands at public sale and deposit the proceeds with the Treasurer of the United States as a fund for the redemption of such additional circulation. If such fund be insufficient for that purpose, the association may recover from the bank the amount of the deficiency by suit in the Circuit Court of the United States, and shall have the benefit of the lien hereinbefore provided for in favor of the United States upon the assets of such bank. The association or the Secretary of the Treasury may permit or require the withdrawal of any such securities or commercial paper and the substitution of other securities or commercial paper of equal value therefor."

"SEC. 2. That whenever any bank belonging to a national currency association shall fail to preserve or make good its redemption fund in the Treasury of the United States, required by section three of the act of June twentieth, eighteen hundred and seventy-four, chapter three hundred and forty-three, and the provisions of this Act, the Treasurer of the United States shall notify such national currency association to make good such redemption fund, and upon the failure of such national currency association to make good such fund, the Treasurer of the United States may, in his discretion, apply so much of the redemption fund belonging to the other banks composing such national currency association as may be necessary for that purpose; and such national currency association may, after five days' notice to such bank, proceed to sell at public sale the securities deposited by such bank with the association pursuant to the provisions of section one of this Act, and deposit the proceedings with the Treasurer of the United States as a fund for the redemption of the additional circulation taken out by such bank under this act."

Section 3 of the act approved June 20, 1874 (18 Stat. 123), mentioned in the second section above quoted, is as follows:

"SEC. 3. That every association organized, or to be organized, under the provisions of the said act, and of the several acts amendatory thereof, shall at all times keep and have on deposit in the Treasury of the United States, in lawful money of the United States, a sum equal to five per centum of its circulation, to be held and used for the redemption of such circulation; which sum shall be counted as a part of its lawful reserve, as provided in section two of this act; and when the circulating notes of any such associations, assorted or unassorted, shall be presented for redemption, in sums of one thousand dollars or any multiple thereof, to the Treasurer of the United States, the same shall be redeemed in United States notes. All notes so redeemed shall be charged by the Treasurer of the United States to the respective associations issuing the same, and he shall notify them severally, on the first day of each month, or oftener, at his discretion, of the amount of such redemption; and whenever such redemption for any association shall amount to the sum of five hundred dollars, such association so notified shall forthwith deposit with the Treasurer of the United States a sum in United States notes equal to the amount of its circulating notes so redeemed.

And all notes of national banks worn, defaced, mutilated, or otherwise unfit for circulation shall, when received by any assistant treasurer or at any designated depository of the United States, be forwarded to the Treasurer of the United States for redemption as provided herein. And when such redemptions have been so reimbursed, the circulating notes so redeemed shall be forwarded to the respective associations by which they were issued; but if any of such notes are worn, mutilated, defaced, or rendered otherwise unfit for use, they shall be forwarded to the Comptroller of the Currency and destroyed and replaced as now provided by law: Provided, That each of said associations shall reimburse to the Treasury the charges for transportation, and the costs for assorting such notes; and the associations hereafter organized shall also severally reimburse to the Treasury the cost of engraving such plates as shall be ordered by each association respectively; and the amount assessed upon each association shall be in proportion to the circulation redeemed, and be charged to the fund on deposit with the Treasurer: And provided further, That so much of section thirty-two of said national-bank act requiring or permitting the redemption of its circulating notes elsewhere than at its own counter, except as provided for in this section, is hereby repealed."

By section 3 of the act approved May 30, 1908 (35 Stat. 548), it is provided that national banks individually may obtain additional currency with the approval of the Secretary of the Treasury, although such banks may not belong to the currency associations in question, when such banks have the same qualifications as to capital, surplus, and outstanding circulation as are required of those belonging to such associations, upon the deposit of interest-bearing obligations of any State or other public bonds having certain prescribed characteristics, but not upon the deposit of commercial paper or any other form of securities except those specifically described in the section in question.

Sections 4, 5, 6, 7, and 8 of the act do not seem to be material to the question under discussion.

By section 9 it is provided that on notes secured by United States bonds a tax shall be levied of one-quarter of 1 per cent for each one-half year, and upon notes secured otherwise than by bonds of the United States a tax for the first month at the rate of 5 per cent per annum and afterwards an additional tax of 1 per cent per annum for each month until the tax amounts to 10 per cent annually, and thereafter such tax of 10 per cent per annum upon the average amounts of such notes. Taxes received on circulating notes of the second class shall be added to the reserve fund held for the redemption of United States and other notes.

By section 10 it is provided that banking associations desiring to withdraw circulating notes issued on security other than bonds of the United States may make the withdrawal at any time by deposit of lawful money or national-bank notes in the Treasury, and, on such deposit, withdraw a proportionate share of the securities deposited, and deposits intended to retire such notes are not to be covered into the Treasury as required by section 6 of the act approved July 14, 1890 (26 Stat. 289), but retained for the purpose of redeeming the notes of the bank making such deposit.

Sections 11 and 12 of the act do not appear to be relevant. Section 13 is as follows:

"SEC. 13. That all acts and orders of the Comptroller of the Currency and the Treasurer of the United States authorized by this act shall have the approval of the Secretary of the Treasury, who shall have power, also, to make any such rules and regulations and exercise such control over the organization and management of national currency associations as may be necessary to carry out the purposes of this act."

Sections 14, 15, and 16 appear to be immaterial for the present purpose.

Sections 17, 18, and 19 create a commission to be known as the National Monetary Commission, composed of nine Members of the Senate and nine Members of the House of Representatives, whose duty it shall be "to inquire into and report to Congress at the earliest date practicable, what changes are necessary or desirable in the monetary system of the United States or in the laws relating to banking and currency;" authorize them to make all necessary inquiries, to sit during the recess of the Congress, to employ such subordinates as may be needful, to administer oaths, summon and compel the attendance of witnesses, and generally exercise the powers appropriate to the duties imposed upon them, and further provide for the payment of the expenses of such commission.

The last section of the act is as follows:

"SEC. 20. That this act shall expire by limitation on the thirtieth day of June, nineteen hundred and fourteen."

It is to be observed that, while the national currency associations for which this legislation provides are thereby constituted bodies corporate, their corporate purposes and powers are extremely narrow. They have no authority whatever over the management or business of their constituent banks and no warrant to interfere therein. They exist merely to enable banks belonging to them to obtain additional currency upon the deposit of securities other than those specifically described in section 3 of the act, more particularly upon the deposit of commercial paper. In both cases alike, the approval of the Secretary of the Treasury is necessary to such issue of notes, but if a bank applies as a member of a currency association, and desires to obtain a circulation on classes of securities not enumerated in section 3, the application must be made through the officers of the currency association and, presumptively, with their approval. The securities in this case are deposited with the association in trust for the United States, instead of being deposited with the Treasurer or Assistant Treasurer as provided in section 3, and the association has power to require additional securities or the substitution of more desirable securities from the bank making the application, and, also, to realize, for the benefit of the Treasury, upon the securities thus deposited.

This is all done, however, subject to the superior authority of the Secretary of the Treasury in the premises, and the association is essentially an agency of the Treasury intended to assure it of the sufficiency of the securities offered and to assist it in so dealing with these securities as to insure the due redemption of the additional circulation authorized. While, however, the powers of the currency associations are thus strictly limited, obligations of considerable moment are assumed, each to the other, by the several banks forming parts of one of these associations. These banks and all the assets and property of all of them become responsible to the United States for the redemption of the additional circulation issued to any one. The distribution of such liability, as among the banks themselves, is in proportion to the capital and surplus of each to the aggregate capital and surplus of all. Moreover, the redemption fund of every bank belonging to the association provided under the terms of the act of 1874 becomes responsible for the default of any one of the said banks to maintain its redemption fund, as required under the terms of the said law.

It is further to be observed that the very heavy tax imposed upon additional circulation, issued upon the security of bonds other than those of the United States, will undoubtedly have, as we know that it was intended to have, the effect of restricting applications for such additional circulation to cases of emergency, and assure its retirement as soon as the emergency ceases; and the restriction of the act's validity to a term of six years, with the provision for an investigation and report on the part of the commission created, shows that the rights and liabilities created by the act were not intended to endure indefinitely, but had a fixed term, which could not be greater than six years and might readily prove to be much less.

With this preliminary statement as to the law, I proceed to answer your question. There are two provisions in the act which might suggest to the mind an intention on the part of the Congress that any bank should be at liberty to withdraw at its own pleasure from a duly organized national currency association. These are the statement that the qualified banks "may form voluntary associations" and the provision "that the reduction of the number of said banks below the minimum of ten shall not affect the existence of the corporation with respect to the assertion of all rights in favor of or against such association."

It appears to me, however, that the word "voluntary" may be construed in this connection with entire propriety as referring only to the original act of joining the association, and does not necessarily imply that the continued membership of the bank in the association shall be voluntary during its entire duration. When we speak of a soldier as a "volunteer," we refer only to his unconstrained act in becoming a soldier; he has no more right to terminate at his own pleasure his connection with the Army than a conscript would have. The clause secondly above noted would be very significant if it stood alone. It follows, however, as a proviso to the following language:

"The dissolution, voluntary or otherwise, of any bank in such association shall not affect the corporate existence of the association unless there shall then remain less than the minimum number of ten banks."

A reasonable construction of the two passages taken together would seem to be that the Congress wished only to guard against the loss of corporate powers by the associations through the dissolution of one or more of the banks belonging to them whereby the number of such banks would be reduced below ten, and, in this view of the language used, the provision tends rather to indicate a purpose not to permit voluntary withdrawals, since no mention is made of the voluntary withdrawal of a bank when the law speaks of its withdrawal through dissolution. On the whole, I think it must be owned that the language of the law is fairly consistent with either construction, and your question must be answered by a consideration of the general nature of the legal obligations assumed by the individual banks and by the known purposes of the statute.

The banks agree, in substance, that, under certain conditions, all of them and all of their property and assets shall be responsible for the redemption of additional currency issued to any one of their number, and also that, under certain conditions, the several redemption funds of all the banks required by the act of 1874 shall be responsible for deficits in the redemption fund of any one of their number.

This responsibility is limited by the terms of the law to six years at most, ano, while currency associations may be organized at any time within that period, no very obvious or very serious reason appears on the face of the law why they should be formed until the necessity for emergency currency shall be felt. Moreover, while no bank can become a member of such association except through its own voluntary act, the association, once formed, can not refuse to receive additional members, since it is expressly provided "that any national bank in such city or territory, having the qualifications herein prescribed for membership in such national currency association, shall, upon its application to and upon the approval of the Secretary of the Treasury, be admitted to membership in a national currency association for that city or territory, and upon such admission shall be deemed and held a part of the body corporate, and as such entitled to all the rights and privileges and subject to all the liabilities of an original member."

The purpose of this last proviso could apparently be defeated if the banks already in the association could threaten to withdraw in case the newcomer were associated with them. It appears to me, on the whole, that banks joining such associations stand in the position of anyone who makes a contract involving the assumption by himself of specified responsibilities and duties for a period of time determined in advance. In such case the withdrawal of such party involves the rescission of the contract, and all parties interested in the contract must also be parties to the rescission before the date fixed for its termination; in other words, no bank which has once joined such association can withdraw from it without the consent of every other bank admitted to membership in it. With such consent, I see no reason in principle why the contract between the banks may not be rescinded and the corporation made up of them pro tanto dissolved. It follows that the consent of each individual bank forming part of one of these corporations must be obtained to the withdrawal of any one bank as a member thereof, since the result of such withdrawal is, in effect, to make the organization virtually a new corporation, although subject to the responsibilities and enjoying the rights of the one previously existing.

The several banks may each, if they shall respectively see fit, delegate to the governing body of the association the right to give such consent on its behalf, but such delegation of authority will be always revocable and can not be permanently conferred by the by-laws of the association.

This conclusion is, to my mind, strengthened by a consideration of the evils sought to be remedied by this law and the circumstances under which it was passed. The attention of the Congress, as well as of public opinion, had been strongly called to the necessity of providing an emergency currency in times of crisis arising from actual or threatened financial panic and with a view to sustaining and restoring confidence in commercial circles. Experience has shown that during periods of such excitement nothing tends more strongly to weaken confidence and promote panic than a display of alarm on the part of any more of less prominent individual or institution. If at such a time the governing body of some one bank were to withdraw from a currency association its example might readily become contagious, spreading fear and distrust throughout the business community and aggravating the very dangers and evils against which this law was designed to provide a safeguard. I have the honor, therefore, to answer your question whether a member of a national currency association, duly organized under the act "To amend the national banking laws," approved May 30, 1908, may, at its own pleasure, withdraw from such an association, in the negative.

I remain, sir,

Yours, very respectfully,

CHARLES J. BONAPARTE.

RETURN POSTAL PRIVILEGES-- ATTORNEY-GENERAL'S OPINION; 27 Op.Att'y. Gen. 49, August 4, 1908

The Postmaster-General has no power to make any contract or agreement with any corporation, partnership, or individual whereby such party shall enjoy privileges in connection with the use of the mails which are not granted to any other person who complies with the terms imposed upon the party to the contract.

It is inappropriate for the Attorney-General to review certain briefs and correspondence submitted to him by the Postmaster-General with a request for an opinion thereon, as to do so would require him to consider questions of fact and some questions of law which clearly have not arisen in the administration of the Post-Office Department.

The established practice of the Department of Justice has been to consider section 356, Revised Statutes, as containing an implied prohibition against the rendering of an opinion by the Attorney-General unless upon a question of law which has actually arisen, and not upon one which might or could under certain contingencies arise, in the administration of the Department requesting the opinion.

DEPARTMENT OF JUSTICE,

August 4, 1908.

The POSTMASTER-GENERAL.

SIR: I have the honor to acknowledge the receipt of your letter of the 14th ultimo in which you submit to me certain communications of the Third Assistant Postmaster-General and the Chief Inspector of the Post-Office Department, and a large number of other documents relating to what are designated in the letter of the Third Assistant Postmaster-General as "the Return Postage Association, the Reply Postage System, and return envelope and postal-card scheme."

The same officer says of these different proposals:

"The purpose of all these schemes-- which are, in fact, one scheme with different methods of accomplishment-- as concisely stated in one of the briefs, is 'to furnish to the business public cards and envelopes designed solely for reply purposes bearing the printed address of the party sending them, the erasure or alteration of which will render them unmailable, thus preventing them from being diverted from the purpose of the original sender, insuring their return to him if used, and making it necessary for him to pay postage only on such as shall be actually returned to him through the mails.'"

He recommends that all papers pertaining to the subject in question be submitted to me, with a request for an opinion on the following questions:

"(a) If the schemes as outlined in the papers herewith submitted may be adopted and put into use under existing law?

"(b) Whether the Post-Office Department would not be obliged to grant to any reputable business firm, which might make a satisfactory deposit to cover return postage, privileges equal to those granted to any corporation controlling a patent?

"(c) Whether the Post-Office Department, acting for itself and without the intervention of any corporation controlling a patent, has the right to permit any firm or corporation to deposit at its post-office a sum sufficient to cover return postage, the Department adopting its own device in the form of a notice to the effect that the return postage had been guaranteed?"

In your letter of transmittal you request me to "review the briefs and correspondence submitted and render an opinion covering the questions specifically raised by the Third Assistant Postmaster-General."

I am obliged to call your attention to the terms of section 356, Revised Statutes of the United States, which provides that "the head of any Executive Department may require the opinion of the Attorney-General on any questions of law arising in the administration of his Department." The well-established practice of this Department has been to consider this section as containing an implied prohibition against the giving of an opinion by the Attorney-General under its terms unless upon a question of law and a question of law which has actually arisen, and not one which might or could under certain contingencies arise in the administration of the Department requesting the opinion. I am compelled to hold that it would be inappropriate for me to review the briefs and correspondence submitted in accordance with your request. To do this at all adequately would require me to consider questions which are, in no proper sense, questions of law, and some questions of law which clearly have not arisen as yet in the administration of your Department.

I take the liberty of referring you in this connection to the memorandum from the Solicitor-General on this subject, inclosed in my letter of January 15, 1908, and to the statements therein contained as to the action of my predecessors in declining to give opinions on the questions of law involved in previous suggestions of what seem to have been substantially the same schemes. The Solicitor-General says in this memorandum:

"In 1902 and 1903 this Department declined to give an opinion as to the questions of law, on the ground that they were hypothetical and involved considerations of administrative judgment and discretion to be determined by the Postmaster-General, and that not until that officer has determined to adopt the scheme, provided it is legal, can the question of legality be said to arise so as to justify an opinion by the Attorney-General."

However, on January 31, 1905, Attorney-General Moody gave an opinion (25 Op. 354), the syllabus of which contained the following:

"The Postmaster-General is without authority to put into operation the plan of the Return Postage Clearing Company, designed to relieve advertisers and others from paying postage on return cards and envelopes until they are actually deposited in the mails and reach the office of destination, and giving to that company the exclusive control of the sale of such return envelopes and postal cards, for the reason that its adoption would violate the spirit and also the letter of many of the provisions of the postal laws * * * ."

At the request of several gentlemen interested in the Return Postage Clearing Company, I had an interview of some length with certain of its officers and counsel, discussed the matter with them, and afterwards received and considered a printed brief submitted on their behalf. The purpose of their visit was, in substance, to secure a modification of the said opinion or else a holding that certain changes in their plan, made during the past three years, had removed the objections considered by my predecessor as fatal to its legality.

I think these gentlemen fully understood me, at the time of this consultation, that I should be unwilling to take any such action, unless notified by you that a contingency had arisen in which I could be called upon for an opinion under the provisions of section 356. I am obliged to say that I do not think this contingency has arisen. I am not informed by the correspondence submitted that, as a matter of policy and administrative discretion, you are prepared or intend to adopt any one of the schemes submitted, or any modification of such schemes, provided such action would be legal on your part, and, in the view of their duties consistently taken by preceding Attorneys-General, it is only then that a question of this character can be said to have so arisen in the administration of your Department as to come within the terms of section 356.

Nevertheless, there is one feature of the subject under discussion as to which the spirit, if not the letter, of section 356 renders it appropriate that I should express an opinion at this time, namely, as to the propriety of your making a contract with any corporation, partnership, or individual whereby such party shall enjoy privileges in connection with the use of the mails which are not granted to any other persons complying with the terms imposed upon the said party in such contract. I am clear that you have no power to make any such agreement; that it would be contrary to the purpose and spirit of the postal laws and the ends sought in the establishment of the Post-Office Department and postal service. The validity of the patents under which the parties submitting these several schemes claim exclusive rights need not be passed upon for the present purpose. Whether such patents are valid or the reverse, your Department would have no right to make a contract whereby "A" would be entitled to use the mails in a manner which was forbidden to "B" under precisely similar circumstances.

This policy is reflected in many of the special provisions of law. For example, by section 3918, Revised Statutes, which reads as follows:

"Postage stamps and stamped envelopes shall be furnished by the Postmaster-General to all postmasters, and shall be kept for sale at all post-offices," and by section 3919, in which it is provided that "postage stamps and stamped envelopes may be sold at a discount to certain designated agents who will agree to sell again without discount, under rules to be prescribed by the Postmaster-General; but the quantities of each sold to any one agent at one time shall not exceed $100 in value, and the discount shall not exceed 5 per cent on the face value of the stamps nor the same per cent on the current price of the envelopes when sold in less quantities." The provisions of these sections are merely illustrative of the principles underlying the statutes which regulate our postal service; namely, that this service exists for the whole people, and that its advantages must be extended impartially to all qualified to avail themselves of such advantages. It follows that an agreement whereby some person or persons shall be allowed to transmit matter through the mails, with privileges not open to anyone else complying with the reasonable conditions attached to the granting of such privileges, would be contrary to the policy of the law and beyond your powers and duties, as fixed by section 396, Revised Statutes, and such other statutes as affect your office.

I remain, sir,

Yours, very respectfully,

CHARLES J. BONAPARTE.

PURE FOOD LAW-- MARKING OF DISTILLED SPIRITS-- RECTIFIED HIGH WINES; 27 Op.Att'y.Gen. 47, August 3, 1908

The Commissioner of Internal Revenue would not be justified in directing all collectors of internal revenue to instruct their gaugers to mark as "whisky" the product of distillers who state that they have so changed the process of their manufacture as to eliminate from wines a portion of the secondary product.

Such action could, in any event, be justified only when the absence of error in any such statement by a distiller has been established to the satisfaction of the Treasury Department by sufficient legal proof.

Distilled spirits containing a part and not all of the substances congeneric with alcohol, produced by rectifying high wines to the point where a part of the congeneric substances is retained, a larger part of such secondary product being retained than in the product formerly known as "neutral spirits," should not be marked "whisky" upon entry into warehouses.

The question in each case must be determined by the fact whether the said spirit is or is not whisky within the contemplation of the pure-food law.

DEPARTMENT OF JUSTICE,

August 3, 1908.

The SECRETARY OF THE TREASURY.

SIR: I have the honor to acknowledge the receipt of your letter of the 30th ultimo, in which you inform me that the Commissioner of Internal Revenue has a letter from Mr. Warwick M. Hough containing the statement that "the spirits distillers of the country, with only one exception, of which he is aware, have ceased to produce the quality of goods formerly known as neutral or cologne spirits; that in place thereof they are producing a rectified high wines, the rectification of these high wines being carried only to where a part of the congeneric substances is retained, a larger proportion of such secondary product being retained than in the product formerly known as neutral spirits," and that "this is done by regulating the process of distillation." Mr. Hough thereupon requests that "all collectors of internal revenue be instructed to direct their gaugers to mark this product 'whisky' whenever the distiller states that he has modified his process of manufacture so as to eliminate from the wines a portion of the secondary product."

I have the honor to inform you that it seems to me quite clear that the Commissioner of Internal Revenue would not be justified in taking any such action as is suggested by Mr. Hough, merely because the distiller states that he has modified his process of manufacturing so as to eliminate from the wines a part of the secondary products.

Such action could, in any event, be justified only when the absence of error in any such statement had been established to the satisfaction of your Department by sufficient legal proof. Moreover, it is, according to the information of this Department, an undisputed fact that some portion, although perhaps a very small one, of the congeneric products is present in neutral or cologne spirits when used as the principal ingredient in compounds or imitations of whisky, and that the absolute elimination, in a chemical sense, or such products from the neutral or cologne spirits above mentioned could not be effected without disproportionate trouble and expense.

It would seem to be, therefore, obvious that the question which it is said in your letter is presented by Mr. Hough-- "whether distilled spirits containing a part and not all of the substances congeneric with alcohol, and produced in the manner indicated by him, may be marked 'whisky' upon entry into warehouse?"-- must, as so stated, be answered in the negative. By this it is not, of course, meant that the elimination of any part, however small, of the congeneric products of distillation would necessarily disentitle the spirit from which such products have been removed to be called "whisky." The question in each case must be determined by whether the said spirit is or is not, in fact, whisky in the contemplation of the pure-food law. As a possible aid in the determination of the last-mentioned question, I take the liberty of inclosing to you printed copies of two opinions rendered by me to the President on April 10, 1907, and May 29, 1907.

I remain, sir,

Yours, very respectfully,

CHARLES J. BONAPARTE.

MARKING OR BRANDING CASKS OR PACKAGES CONTAINING DISTILLED SPIRITS-- EFFECT OF RESTRAINING ORDER; 27 Op.Att'y.Gen. 43, August 1, 1908

The effect of the restraining order issued by the Circuit Courts of the United States for the southern district of Ohio and the southern district of Illinois, prohibiting the collectors of internal revenue in those districts from marking casks of spirits as provided by Circular No. 723, issued May 5, 1908, was that the marking or branding of the casks or packages of the two distilleries affected by that order can not now be done in accordance with said regulations; but in all other cases the circular remains unaffected by the action of those courts, and will so continue until superseded or suspended by the action of the same or other courts, or until modified or rescinded by the Treasury Department.

Such restraining orders did not have the effect of restoring the regulations which were in force prior to the issuance of that circular, and consequently there are no internal-revenue regulations now in force regulating the branding of distilled spirits produced by the distillers affected by the order.

Suggested, that any action by the officers of the Internal-Revenue Service inconsistent with the circular of May 5, 1908, taken in consequence of such orders of court, should be made a matter of record, showing that such action is the result of said orders only and done under protest, or, at least, with a reservation of legal right.

Suggested, that casks and packages constituting the subject-matter of such action should be so identified that any course of procedure with respect to them, rendered appropriate by the ultimate determination of the cases, may be readily adopted.

Section 3287, Revised Statutes, makes the characteristics of the marking to be placed on the cask or package a matter of administrative discretion with the Commissioner of Internal Revenue, subject to the approval of the Secretary of the Treasury.

DEPARTMENT OF JUSTICE,

August 1, 1908.

The SECRETARY OF THE TREASURY.

SIR: I have the honor to acknowledge the receipt of your letter of the 23d ultimo, in which you ask my opinion as to whether the restraining order issued by the Circuit Court for the Southern District of Ohio, prohibiting the collector of internal revenue from marking cases of spirits as provided by the terms of Circular No. 723, dated May 5, 1908, would have the effect of restoring the regulations which were in force prior to the issuance of the said circular in the above-mentioned district, or whether, under the circumstances stated, no regulations are now there in force regulating the marking or branding of distilled spirits under section 3287 of the Revised Statutes.

Your letter states that the Commissioner of Internal Revenue has also been advised that a temporary injunction, substantially to the same effect, has been granted by the United States Circuit Court at Peoria, Ill., restraining the collector of the eighth Illinois district from the same action. Before answering this question, I deemed it appropriate and, indeed, indispensable to ascertain what were the precise terms of the order issued by the Circuit Court for the Southern District of Ohio; this has led to some unfortunate but unavoidable delay. These terms I understand to be as follows:

"That the defendants be and hereby they are enjoined, pending the final hearing of the case, or the further order of the court, from marking or branding the word 'Alcohol' on casks or packages, into which are drawn from receiving systems at the plaintiff's distillery, distilled spirits known to the trade as 'spirits,' and from refusing or neglecting to mark or brand the word 'Spirits' upon casks or packages containing such distilled spirits."

Referring now to your question, it is important to ascertain what was the effect of the circular issued on May 5 last. This circular states that "the regulations relating to the branding or marking of * * * casks or packages of distilled spirits are modified as follows." There then follow instructions as to the marking of such spirits in various contingencies under the provisions of section 3287 of the United States Revised Statutes; then the circular contains this language: "The provisions of this circular shall take effect on the 1st day of July, 1908, and all regulations inconsistent with the foregoing are hereby rescinded." In accordance with its terms, this circular took effect on July 1, and I presume that casks or packages were marked in accordance with its provisions for the next twenty days in all districts of the United States.

On July 21, a restraining order was granted in Cincinnati, which prevents the application of the terms of this circular in the case of the complainant in that particular suit; and the same may be assumed, for the purposes of this opinion, to be true in respect to the similar restraining order subsequently granted at Peoria.

The restraining orders in these cases render it impossible, with due respect to the courts' process, to mark or brand the casks or packages as these regulations provide in the case of the goods of the particular distilleries whose proprietors are the complainants in the suits. Moreover, the terms of the order prohibit the collector of internal revenue and his subordinates, when marking or branding such casks, to refuse or neglect to mark or brand the word "spirits" thereon in a case where the regulations require them to put a different mark. This appears to render it altogether impracticable in this respect to give effect to the duly authorized regulations of your Department in the cases of these particular distilleries.

While the order in question, and the like action taken by the Circuit Court for the Southern District of Illinois, is to be strictly and in good faith complied with, the effect of such action by the courts aforesaid obviously could be no greater than would have been the rescission of the circular by the Treasury Department itself, and, if a subsequent order by your Department had merely forbidden its employees from giving effect to the instructions contained in Circular No. 723, without saying anything more, it is obvious that this would not have the effect of reviving previous inconsistent instructions, which, by the terms of the circular itself, had been rescinded at least twenty days before. The effect of the courts' action is to prevent the marking of the casks or packages of the complainants, in these particular distilleries, in accordance with the terms of the circular above mentioned. It does not, in any wise, affect the application of the said circular with respect to other distilleries in the same district, and, still less, does it alter the duties and powers of the officers and employees of the Internal Revenue Bureau serving in other districts. The situation therefore is that, there being only these regulations properly in force, and the court, at the instance of these complainants, having prohibited the collector of internal revenue from marking their casks or packages in accordance with these regulations, the marking or branding of the casks or packages of these two particular distilleries can not be done in accordance with the said regulations, but, in all other cases the circular of May 5 remains unaffected by the action of the said two circuit courts, and will so continue until superseded or suspended by the action of the same or other courts, or modified or rescinded by your Department.

In your letter you do not ask for an expression of opinion as to what the collector or his deputies can or should do in order to comply with the restraining orders of the courts in the cases of the distilleries therein mentioned, and I, therefore, say nothing on this subject; but I venture to suggest that, under any circumstances, it ought to be made a matter of record that any action on the part of the officers of the Internal-Revenue Service inconsistent with the terms of the circular of May 5, taken in consequence of such orders of court, is the result of the said orders only and done under protest, or, at least, with a due reservation of legal rights; and that the casks or packages constituting the subject-matter of such action shall be so identified that any course of procedure with respect to them rendered appropriate by the ultimate determination of the cases may readily be adopted. This suggestion is made because of the expectation entertained by this Department, as at present advised, that the final decision in the cases in question will establish the propriety of the marking or branding prescribed by the circular of May 5, and the intention of this Department to press the said suits to a final decision as promptly and vigorously as may be possible.

By section 3287 the marking to be placed on the cask or package must be put there "in a manner to be prescribed by the Commissioner of Internal Revenue." This makes the characteristics of such marking a matter of administrative discretion with that officer, subject, of course, to your supervision and approval. I deem it inappropriate, therefore, to indicate in what manner practical effect can be given to the suggestion hereinbefore lastly contained, provided the same shall meet with your approval.

I remain, sir,

Yours, very respectfully,

CHARLES J. BONAPARTE.

NATIONAL BANKS IN OKLAHOMA-- STATE GUARANTY FUND; 27 Op.Att'y.Gen. 37, July 28, 1908

It is illegal for the officers of any national bank in Oklahoma to enter into an agreement to contribute to the guaranty fund provided for by the Oklahoma State banking act, and persistent action on the part of any such bank in accepting or conforming to the provisions of section 4 of that act would be just cause for the forfeiture of its charter.

The Attorney-General is not authorized to render an opinion to the head of an Executive Department upon a question which has not arisen in the administration of that department and requiring action thereon.

The Attorney-General advised the Secretary of the Treasury as to the legality of a course of action contemplated by him, in order that immediate notification might be given to the parties to be affected thereby, in the hope that such notification might result in a change of existing practices which would render the contemplated action unnecessary; but he expressed a doubt as to his authority to render such an opinion.

DEPARTMENT OF JUSTICE,

July 28, 1908.

The SECRETARY OF THE TREASURY.

SIR: I received from you on March 4, 1908, a letter in which, at the instance of the Comptroller of the Currency, you requested my opinion "as to the legal right of national banks in the State of Oklahoma to contribute toward the guaranty fund or to avail themselves of the other privileges of the State banking act," in that State. On March 9 I called your attention to the fact that this question did not appear to me, as then advised, one arising in connection with a matter requiring action on your part, and, therefore, would not be one as to which the Attorney-General was required by law, or permitted by established practice, to give an opinion.

On May 14 following, you informed me that the matter was one which, in your judgment, would require action by the Comptroller of the Currency, who could perform such duty only under the general direction of the Secretary of the Treasury, in accordance with section 324, Revised Statutes of the United States. You further informed me that if, in my opinion, the acceptance of the provisions of the Oklahoma statute was not within the powers of a national bank, you proposed to direct the Comptroller to bring suit to forfeit the charter of a certain national bank in Oklahoma, in case it should persist in accepting the provisions of the statute in question after being notified not to do so by the Comptroller, and that the immediate official action contemplated by your inquiry was a notification by the Comptroller to the said bank to the effect that its action would, or would not, be regarded as appropriate ground for such proceeding.

I have explained these circumstances, because I feel bound, as a matter of precedent, to say that I still entertain some doubt as to whether the case above stated constitutes one of a character prescribed by the statute as justifying and requiring the expression of an opinion by the Attorney-General; but, holding that, as a matter of public policy as well as of courtesy, any doubt on a question of this nature should be determined in favor of the propriety of such advice, I proceed to answer the question above set forth.

National banks are instruments of the Government of the United States. The Congress creates them by virtue of its general powers to provide for such instruments, and no State can, by any law, interfere with their management or operation, in so far as these are determined expressly or by reasonable implication in the laws of the United States. (Easton v. Iowa, 188 U.S. 220; Davis v. Elmira Savings Bank, 161 U.S. 275, 283.) It seems to me quite immaterial whether the officers or stockholders of the bank are, or are not, voluntary parties to the State action thus affecting its operations. The legality of such State action, whether it takes the form of a law to be enforced in invitum against the bank, or of a contract to be entered into by the bank with State officers authorized by law to make such contract, must depend upon whether it is in accordance with the Federal statutes regulating the organization, government and operation of the banks, or with the policies embodied and the public purposes sought to be attained by such laws.

The statute of Oklahoma to which you call my attention creates a State banking board, composed of certain designated State officers, and requires the said board to "levy against the capital stock an assessment of one per cent of the bank's daily average deposits," with certain deductions, "upon each and every bank organized and existing under the laws of this State." This assessment is to constitute what is designated as a "depositor's guaranty fund," and additional assessments are to be levied against the capital stock of the banks, proportionately to the amount of their deposits, so as to always maintain the fund at the designated amount. This fund is to be used in paying the depositors of any bank included within the terms of the statute any deficiency there may be in the amount to be received by them from the assets of such bank in the event of its failure. By section 4 it is provided that any national bank in the said State, with the approval of the bank commissioner thereto "may voluntarily avail its depositors of the protection of the depositor's guaranty fund, by application to the State banking board, in writing;" it being further provided that the application in such case "may be sustained upon terms and conditions in harmony with the purpose of this act, to be agreed upon by the State banking board and the bank commissioner."

While the language of the last-mentioned section is peculiar and somewhat involved, its meaning seems to be sufficiently clear, namely, that, if a national bank in Oklahoma sees fit to submit itself voluntarily to the terms of the State banking law, in so far as the same may be deemed necessary in its case to secure harmony with the purposes of the said act by the board and commissioner, its deposits will be guaranteed by the board out of the fund provided by assessment as above explained, it being, of course, indispensable, for the purpose indicated, that such bank should contribute its quota toward the maintenance of the fund, and, for this purpose should submit itself to assessments to be levied against its capital by the commissioner for the purposes of meeting claims of depositors in State banks against those institutions, and of depositors in other national banks which may likewise accept the terms of the act organizing them.

In the papers transmitted to me in connection with your question, and in the memoranda which I have caused to be prepared for assistance in passing upon the questions involved, there is some discussion as to whether this can be considered an insurance of the banks' deposits, and, as such, a legitimate, if somewhat novel, feature in the conduct of its business. So far as I am aware, there is no provision of law or rule of public policy forbidding a depositor in a national bank from obtaining insurance on the solvency of the bank and the consequent payment of his debt in accordance with its legal import; but the business of insuring deposits is a wholly separate business from that of banking, and a corporation organized for the latter business would have no greater right to embarrass its funds and risk its credit in the former than it would have to engage in life insurance or fire insurance, or casualty or marine insurance.

Moreover, it is to be observed that the bank, and not the depositor, pays the premium, or the equivalent of a premium, if the system of guaranty established by the Oklahoma law is to be regarded in the light of an insurance, and, upon this assumption, therefore, the question would be whether the stockholders of a national bank, constituting, as they do, the corporation, are authorized to embark in the business of insuring their depositors against loss through the methods set forth in this State statute, in consideration, presumably, of the increased amount of deposits which they would thus obtain.

I find no provision of the national banking law authorizing any such action on their part, and, in my opinion, a business of this nature would be essentially foreign to the legitimate functions of a national bank as an instrument of government.

I do not, however, consider an application under this law by a national bank as, in any proper sense, an insurance of its deposits. This may be an incidental consequence of such action, but the action involves essentially a guaranty to the depositors of all State banks in Oklahoma, and other national banks in that State which may accept the terms of the law, that their respective deposits shall be paid in full. The satisfaction of this guaranty may, at least in theory, involve the complete exhaustion of the assets of the bank entering into it, for, although, in the first instance, the assessment is to amount to only one per cent of the average deposits during the preceding year, yet a special assessment may be, and must be, made by the board in case there is any deficiency in the sum provided. These assessments might conceivably absorb the entire sum of the aggregate assets out of which they must be paid.

It is generally recognized that a national bank has no power to guarantee the obligations of a third party unless in connection with a sale or transfer of its own property, and as an incident to the banking business. If it be the owner of a promissory note, or other negotiable obligation, it may sell such instrument and indorse it as a part of the transaction of sale, but a contract guaranteeing the payment by another corporation or an individual of obligations in no wise connected with the business of the bank, is clearly ultra vires. (Bowen v. Needles National Bank, 94 Fed.Rep. 925; Flannagan v. California National Bank, 56 Fed.Rep. 959; Commercial National Bank et al. v. Pirie et al., 82 Fed.Rep. 799.)

It has been argued that the bank in this case would not guarantee the obligations of other banks, but would only agree to put the State of Oklahoma, through its banking board, in funds to make effectual such a guaranty on its part. I think this is a distinction without a difference. If two banks were to mutually agree each to guarantee the obligations of the other, it would surely make no difference in the import of such an agreement that the money necessary to give effect to the agreement should be paid to and disbursed by a third party. The result is that the property of each corporation becomes responsible for the debts of the other. In this instance the State of Oklahoma does not propose to raise any money by general taxation to meet the claims of these favored private creditors. The resources for their payment are to be derived entirely from the voluntary or compulsory contributions of the banks assessed, and the banking board constitutes a mere assessing, receiving and distributing agency, whose existence can not in any wise affect the substantial incidents of the system thus established.

I have not overlooked the fact that, by the terms of the proposed contract between the bank in question and the State or its banking board, the said bank agrees to do nothing which shall be in conflict with the Federal law; but this provision is not relevant, for the entire contract is ultra vires for a national bank, and prohibited by the necessary intendment of the statute. I hold that such is the fact with respect to the contract proposed in this case; that it is illegal for the officers of any national bank to enter into such an agreement as is contemplated by section 4 of the Oklahoma statute, and that persistent and willful action to this effect on the part of any such bank would be just cause for the forfeiture of its charter.

I remain, sir,

Yours, very respectfully,

CHARLES J. BONAPARTE.

APPROPRIATIONS-- NAVAL HOSPITAL AT NORFOLK, VA.-- NAVAL HOSPITAL FUND; 27 Op.Att'y.Gen. 30, July 28, 1908

The appropriations contained in the acts of June 29, 1906 (34 Stat. 553, 568), and May 13, 1908 (35 Stat. 127, 144), for the renovation of the present Naval Hospital buildings at Norfolk, Va., and the erection of new wards, to cost not to exceed $200,000, can not be supplemented from the naval hospital fund in order to defray a portion of the cost of installing a heating and ventilating system into such building.

The authority of the Secretary of the Navy under section 4810, Revised Statutes, to procure at suitable places proper sites for navy hospitals and to cause necessary buildings to be erected thereon, is not limited to the establishment of hospitals at places where none existed.

The general rule of law is that when Congress makes a specific appropriation for any particular purpose, this is construed as meaning that no more shall be expended for that purpose than is thus appropriated; and if a general appropriation applicable to the same purpose, together with other purposes of the like class, would otherwise be available to meet the same expenditure, the specific appropriation operates pro tanto as a repeal or suppression of the general appropriation, and renders its use for the specific purpose illegal.

There is, however, no such analogy between the several statutes authorizing the commissioners of the navy hospitals, and later, the Secretary of the Navy, to procure sites and erect necessary buildings for navy hospitals, payable from the unexpended balances of the navy hospital fund, and the specific provisions contained in the acts of 1906 (34 Stat. 568) and 1908 (35 Stat. 144) in regard to the naval hospital buildings at Norfolk, Va., as would justify the application of the rule of construction above referred to.

Ordinarily, however, appropriations for particular purposes included within the powers of the former commissioners of navy hospitals would constitute legislation in pari materia with the laws defining those powers and transferring them to the Secretary of the Navy and both would, if possible, be construed together.

In the absence of words expressing a contrary intention, an appropriation by Congress for the construction of a naval hospital or its equipment would not prohibit the expenditure of money from the naval hospital fund for the enlargement of such hospital or providing it with improved appliances; but the acts under consideration indicate a contrary intention.

DEPARTMENT OF JUSTICE,

July 28, 1908.

The SECRETARY OF THE NAVY.

SIR: I have the honor to acknowledge your letter of July 15. In this you state:

"The act making appropriations for the naval service for the fiscal year ending June 30, 1907, approved June 29, 1906, contains, under the heading 'Public works under Bureau of Medicine and Surgery,' a provision as follows (34 Stat. 553, 568): 'Naval hospital, Norfolk, Virginia: For the renovation of the present hospital buildings and the erection of new wards, to cost not to exceed two hundred thousand dollars.'

The naval appropriation act for the current fiscal year, approved May 13, 1908 (35 Stat. 127, 144), contains under the same heading the further provision: 'Naval hospital, Norfolk, Virginia: For the renovation of the present hospital buildings and for the erection of new wards, to cost not to exceed two hundred thousand dollars, as authorized by the act of Congress approved June twenty-ninth, nineteen hundred and six, one hundred thousand dollars.'

"In August, 1907, a contract was entered into with a construction company for renovating the present naval hospital buildings at Norfolk and for erecting new wards, at a cost of $186,500, and work thereunder is still progressing. It is now found necessary to install in the building the equipment for a heating and ventilating system, not called for by the original contract. This additional work is estimated to cost $42,627, and as the amount appropriated by Congress is insufficient, by about $29,000, for the purpose, it is desired to defray this expense, if it can properly be done, from the naval hospital fund."

You thereupon ask my opinion-- "as to whether, Congress having made appropriations for the work in the language above quoted, and the amount so appropriated having proved inadequate, the naval hospital fund may legally be drawn upon to defray the cost of the additional work above mentioned, either wholly or to the extent that such cost, in addition to the original contract price, exceeds the amount appropriated."

The legislation regulating the use of the naval hospital fund appears to be the following:

By the act of July 16, 1798 (1 Stat. 605), the Congress provided for the relief of sick and disabled seamen of the merchant marine.

By the act of March 2, 1799 (1 Stat. 729), the Secretary of the Navy was directed to deduct 20 cents per month from the pay of officers and enlisted men of the Navy, and the money so collected to be applied to the same purpose as the money collected under authority of the act of July 16, 1798. By this act the officers and enlisted men of the Navy and Marine Corps were enabled to receive the same benefits as disabled seamen of the merchant marine, and from the same fund.

Then followed an act establishing navy hospitals, approved February 26, 1811 (2 Stat. 650), which is as follows:

"SECTION 1. Be it enacted, etc., That the money hereafter collected by virtue of the act, entitled 'An act in addition to an act for the relief of sick and disabled seamen,' shall be paid to the Secretary of the Navy, the Secretary of the Treasury and the Secretary of War, for the time being, who are hereby appointed a board of commissioners, by the name and style of Commissioners of Navy Hospitals, which, together with the sum of fifty thousand dollars hereby appropriated out of the unexpended balance of the marine-hospital fund, to be paid to the commissioners aforesaid, shall constitute a fund for navy hospitals.

"SEC. 2. And be it further enacted, That all fines imposed on Navy officers, seamen and marines, shall be paid to the commissioners of navy hospitals.

"SEC. 3. And be it further enacted, That the commissioners of navy hospitals be and they are hereby authorized and required to procure at a suitable place or places proper sites for navy hospitals, and if the necessary buildings are not procured with the site, to cause such to be erected, having due regard to economy, and giving preference to such plans as with most convenience and least cost will admit of subsequent additions, as the funds will permit and circumstances require; and the commissioners are required at one of the establishments, to provide a permanent asylum for disabled and decrepit navy officers, seamen and marines.

"SEC. 4. And be it further enacted, That the Secretary of the Navy be authorized and required to prepare the necessary rules and regulations for the government of the institution, and report the same to the next session of Congress.

"SEC. 5. And be it further enacted, That when any navy officer, seaman or marine, shall be admitted into a navy hospital, that the institution shall be allowed one ration per day during his continuance therein, to be deducted from the account of the United States with such officer, seaman or marine; and in like manner, when any officer, seaman or marine, entitled to a pension, shall be admitted into a navy hospital, such pension during his continuance therein shall be paid to the commissioners of the navy hospitals and deducted from the account of such pensioner."

By the act of July 10, 1832 (4 Stat. 572), the powers conferred upon the "commissioners of navy hospitals" were transferred to the Secretary of the Navy, who was made the sole trustee of the naval-hospital fund.

The sources of revenue of said hospital fund, in addition to specific appropriations, are provided in the following acts: March 2, 1799, sec. 2 (1 Stat. 729); February 26, 1811 (2 Stat. 650); July 10, 1832 (4 Stat. 572); March 3, 1855 (10 Stat. 670); July 2, 1890, sec. 5 (26 Stat. 213); March 3, 1899 (30 Stat. 1027); June 7, 1900 (31 Stat. 697).

The existing law is substantially embodied in section 4810, Revised Statutes of the United States, which is as follows:

"The Secretary of the Navy shall procure at suitable places proper sites for navy hospitals, and if the necessary buildings are not procured with the site shall cause such to be erected, having due regard to economy, and giving preference to such plans as with most convenience and least cost will admit of subsequent additions, when the funds permit and circumstances require; and shall provide, at one of the establishments, a permanent asylum for disabled and decrepit navy officers, seamen, and marines."

Throughout these acts it is apparent that the fund thus provided is for the purpose of these hospitals, the procurement of sites and buildings, and the furnishing, equipping, and maintenance of the hospitals in question; and the general fund is as available and appropriate for any one of these purposes as for any other, due regard being had for the relative needs of each. The general rule of law is that, when the Congress makes a specific appropriation for any particular purpose, this is construed as meaning that no more shall be expended for that purpose than is thus appropriated, and, if a general appropriation applicable to the same purpose, together with other purposes of the like class would otherwise be available to meet the same expenditure, the specific appropriation operates pro tanto as a repeal or supersession of the general, and renders its use for the specific purpose illegal.

If, therefore, the laws providing for the naval-hospital fund can be likened to a general appropriation bill, the use of such fund to supplement specific appropriations by the Congress for particular purposes covered by the laws in question would be illegal. I do not think, however, that the analogy between these statutes and a general appropriation bill is sufficiently close to justify the application of this rule of construction. The law requires the use of this fund by the Secretary of the Navy for certain designated purposes, under conditions which are in themselves no less specific than the provisions of an appropriation bill furnishing money to effect one or the other of the same ends.

As the successor of the commissioners of naval hospitals, the Secretary of the Navy is authorized and required to purchase supplies, construct buildings, and cause the latter to be erected, so far as may be conveniently practicable according to "such plans as with most convenience and least cost will admit of subsequent additions when the funds permit and circumstances require." This passage indicates, in my opinion, an intention on the part of the Congress that the fund in question should be used to supplement appropriations and not as a substitute for such appropriations, and, in view of the scope and general spirit of the legislation, I think that, ordinarily, appropriations for particular purposes included within the powers of the former commissioners of naval hospitals would constitute legislation in pari materia with the laws defining those powers and transferring them to the Secretary of the Navy, and, according to the well-known rule that, if possible, all laws in pari materia shall be construed together, so as, if possible, to give effect to each one of them, I think, in the absence of words expressing a contrary intention, an appropriation by the Congress for the construction of a hospital or its equipment would not prohibit the expenditure of money from the naval hospital fund for the enlargement of the said hospital or providing it with improved appliances.

In the two cases, however, to which you call my attention, the Congress has used language which, in my opinion, shows the contrary intention. By the act approved June 29, 1906, there is appropriated for the naval hospital at Norfolk, Va., $100,000 "for the renovation of the present hospital buildings and the erection of new wards, to cost not to exceed $200,000;" and precisely the same words are found in the act approved May 13, 1908, the Congress having distinctly stated that the cost of these improvements shall not exceed $200,000, and having, by two bills, appropriated the full amount required to meet this expense, it seems to me clear that the National Legislature could not have intended any additional expenditure to be incurred in connection therewith, and that the use of the naval hospital fund to supplement these appropriations to the extent, as stated in your letter, of about $29,000, would be illegal, the result of such use being that the cost would amount to $229,000. In placing this construction on the acts, I have understood the limit of cost to apply to the entire work and not merely to the erection of the new wards. The strict grammatical interpretation of the language would justify, perhaps, the restriction of this limit to the last mentioned part of the work; but, as you say that the contract was entered into for the entire work authorized by the appropriation, at a cost of $186,500, I infer that the appropriation was made upon the basis of information leading to the reasonable belief that $200,000 would suffice for the renovation as well as the wards.

This opinion is in entire harmony as to its conclusion with the decision of the Comptroller of the Treasury regarding the hospital at the Naval Academy, of which you furnished me a copy, since, in that case as in this, the appropriation was made with the provision that the hospital in question was "to cost not more than $100,000." In so far, however, as the Comptroller bases this conclusion upon the application of the rule of construction respecting general and specific appropriations, I have been unable, for the reasons hereinbefore set forth, to take the same view of the subject-matter.

Moreover, I do not think the authority conferred upon the Secretary of the Navy by section 4810, above quoted, is limited, as tentatively suggested in the said decision, "to the establishment of hospitals at places where none exist." This would be, in my opinion, to place too narrow a construction on the powers thus conferred. When the work for which the Congress has made a specific appropriation, and the cost whereof has been limited to the amount of such appropriation, has been completed in accordance with the intention of the Congress, the expenditure of this fund for what is, in good faith, a clearly different purpose from that mentioned in the specific appropriation, although made in the same locality, would be, in my opinion, justified by the broad terms of the law.

I remain, sir,

Yours, very respectfully,

CHARLES J. BONAPARTE.

PANAMA RAILROAD COMPANY-- ANNUAL PAYMENT OF $250,000 FOR ITS CONCESSION; 27 Op.Att'y.Gen. 19, July 24, 1908

A claim made by the appropriate officers of the United States upon the officers of the Panama Railroad Company for the $250,000 per annum which that company agreed to pay the Republic of Colombia for its concession would, of itself, imply a recognition by the United States Government of the agreement previously entered into by the railroad company as regards its concession and would render any formal reaffirmation thereof on the part of the United States unnecessary.

When a new sovereign succeeds to the rights of one dispossessed of a territory in which concessions of a public character have been granted, it must be presumed, in the absence of express action on its part indicating unmistakably a contrary intention, to adopt and ratify the acts of its predecessor in respect thereto.

The party entering into such a contract can not rightfully repudiate the terms of such concessions and thus release itself from the obligations imposed upon it by such existing contracts, merely because the sovereign with whom it contracted has been, through the vicissitudes of war or revolution, or as the result of a treaty of cession, succeeded by a different sovereign.

Any individual or corporation dealing with a sovereign power does so with notice of all the necessary incidents of sovereignty, among which is the possibility that its sovereign power over the territory to which the contract relates may be transferred to another.

The substitution of the United States in the several powers and rights held successively by New Grenada, Colombia, and Panama by reason of contractual relations with the Panama Railroad Company, or its predecessors in title, does not of itself affect the rights of the sovereign power of the United States under such contract, or make a formal reaffirmation of such rights on the part of the latter necessary.

The action of the United States with regard to this railroad company amounts to a recognition of the previously existing contractual relations, which, of itself, would supply the place of a formal reaffirmation, if the same were necessary.

If the obligation of the railroad company to make the annual payment was made dependent upon the observance by the sovereign power of those agreements to be fulfilled by it and contained in the contract in question, then a failure on its part in this regard releases the railroad company from any obligation to pay the money.

If, however, such agreements are independent, then the failure of the sovereign power to observe such agreement, although it may, at least in theory, give a right of action to recover damages for such failure, does not affect the duty of the railroad company to perform its part of the contract.

The agreement of the Colombian Government not to establish another railroad, being in derogation of its rights of sovereignty, is to be strictly construed, and can not be reasonably extended to a prohibition against permitting the establishment of a pipe line.

When the construction of the Panama Canal shall have caused injury to the business of the Panama Railroad, it would seem clear that the latter corporation would have, under Article 2 of its agreement with the Republic of Colombia, a legal right to a reasonable indemnity.

The agreement to indemnify the railroad from loss of business through the construction of the canal amounts to an altogether independent covenant, and a breach thereof in no way affects the duty of the railroad to pay the $250,000 per annum. The same is true with respect to the provision in Article 5 granting to the railroad company the exclusive right to establish carriage roads across the Isthmus.

Assuming that the government of the Canal Zone, by authority of the President, has promulgated regulations controlling and directing the use of the ports and that this is in derogation of section 1 of Article 6 of the agreement with the Colombian Government, there is nothing to show that the assumption of this duty has involved the railroad company in pecuniary loss, and there is no relation between the rights of the railroad to regulate the ports under Colombian sovereignty and its obligation to pay $250,000 annually for the privileges granted.

If the United States made the abandonment, as agent of the railroad company, of the 78,357 hectares of vacant land granted by section 3, Article 9, of the concession, the act was either ineffective or else authorized by the company; and in either case, it evidently could not constitute a violation of the contract made by the United States with the railroad company through its assumption of the obligations of the previous sovereigns, as expressed in their concessions.

Even if it be conceded that Article 8 of the treaty might form the basis of a just claim for indemnity by the railroad, it could not release the railroad from the payment of the annual stipend.

Officers of the railroad company are not, by virtue of that fact, officers of the United States; but they are bound to protect the interests of the United States to the same extent that officers of a corporation are bound to protect the interests of its stockholders, and the Government of the United States can not overlook the fact that in dealing with the railroad it is dealing with its own property.

DEPARTMENT OF JUSTICE,

July 24, 1908.

The SECRETARY OF WAR.

SIR: I have the honor to acknowledge the receipt of your letter of April 25, in which you ask me for an expression of opinion on the following two questions:

"First, whether the $250,000 per annum which the Panama Railroad Company agreed to pay the Republic of Colombia as the price of its concession, in view of the fact that the railroad company's original concession has neither been formally reaffirmed since the United States succeeded to the sovereignty of the territory to which that concession related, nor adhered to in substance upon the part of the United States, is an enforceable claim payable to the United States; and whether the railroad company may not, in view of that fact, insist upon a modification of the terms of the original contract of concession?

"Second, whether a modification of the contract of concession between the Republic of Colombia and the Panama Railroad Company may be effected by the executive branch of the Government of the United States?"

In the letter of Mr. Richard Reid Rogers, general counsel for the Panama Railroad Company, which you inclose, some facts are stated at length to show the practical importance of these questions, notwithstanding the ownership by the United States of the entire capital stock of the Panama Railroad Company. Mr. Rogers suggests that, in passing upon these questions, the last-mentioned circumstance should be "overlooked," and the railroad company "treated as a separate and independent legal entity." For the purpose of a reply to your questions I will adopt this suggestion, although, as hereafter appears, there is at least one aspect of the problem in which the Government ownership of the railroad stock is, in my opinion, material. You state in the first question as a "fact" that "the railroad company's original concession has neither been formally reaffirmed since the United States succeeded to the sovereignty of the territory to which that concession related, nor adhered to in substance on the part of the United States." It is obvious that both of these statements may involve, in some measure, conclusions of law, and an examination of the facts set forth in Mr. Rogers's letter, and in the report of Mr. Joseph L. Bristow, special Panama Railroad Commissioner, to the Secretary of War, bearing date June 24, 1905, kindly furnished by you to me, at my request, leads me to the conclusion that such is the case with regard to both of them in the present instance. It is true that the United States has never, by any act of Congress, proclamation of the President, or other public declaration of the like nature, avowed its intention of recognizing and respecting the rights of the Panama Railroad Company, under the several concessions granted to that corporation by previous sovereigns of the territory where it is located, but the facts stated in Mr. Rogers's letter show that the United States, through officers duly authorized to take such action, has dealt with the railroad company as an existing corporation, and demanded of it compliance with some or all of the obligations it had assumed in its contract with the said previous sovereigns, and I feel justified in inferring from the said letter, and, indeed from the terms of your inquiry, that the appropriate officers have claimed from the company this very sum of $250,000 per annum, to which your question relates.

Such a claim would, of itself, imply a recognition by our Government of the contracts previously entered into by the railroad company, and would render, in my judgment, any formal reaffirmation of the company's concession unnecessary on its part.

Independently, however, of these considerations, I think it is clear that, when a new sovereign succeeds to the rights of one dispossessed of a territory in which concessions of this character have been granted, it must be presumed, in the absence of express action on its part indicating unmistakably a contrary intention to adopt and ratify such acts of its predecessor, and I can not assent to the proposition that the other party to the concession or contract has a right to repudiate its terms and thus release itself from the obligations imposed on it by its existing contracts, merely because the sovereign with whom it contracted has been, through the vicissitudes of war or revolution, or as the result of a treaty of cession, succeeded by a different sovereign in the territory to which these particular contracts relate. In my opinion any individual or corporation dealing with a sovereign power does so with notice of all the necessary incidents of its sovereignty, and among these is the possibility that its sovereign power over the territory to which the contract relates may be transferred to another.

I hold, therefore, that the substitution of the United States in the several powers and rights held successively by New Granada, Colombia, and Panama by reason of contractual relations with this corporation, or its predecessors in title, does not of itself affect the rights of the sovereign power under such contract, or make a formal reaffirmation of such rights on the part of the United States necessary; and I further hold that the action of the United States with regard to the railroad company amounts to a recognition of the previously existing contractual relations, which of itself would supply the place of such formal reaffirmation, if the same were necessary.

It is appropriate next to consider the alleged failure of the United States to "adhere in substance" to the terms of the concession made to the railroad company, as a ground justifying the repudiation by that company of its obligation under the said original concession to pay the $250,000 annually. In the letter of Mr. Rogers, he says: "If the contract has not been observed by the Government, then either the annual payments thereunder are not due or should be modified to conform to the old privileges taken away from the railroad company by the United States or to the new burdens imposed." To determine whether this is true we must decide whether the provisions of the contract between the railroad company and the United States, supposed to have been violated by the latter, and the agreement to pay the $250,000 constitute dependent or independent covenants. If the obligation of the railroad company to make the annual payment has been made dependent upon the observance by the sovereign power of those agreements to be fulfilled by it and contained in the contract in question, then a failure on its part releases the railroad company from any obligation to pay the money; but, if these agreements are independent, then the failure of the one party, although it may, at least in theory, give a right of action to the other party to recover damages for such failure, does not affect the duty of the said other party to perform so much of the contract as is to be performed on its part.

In Loud v. Pomona Land and Water Co. (153 U.S. 576, 577, 579), the Supreme Court says:

"The question whether covenants are dependent or independent must be determined in each case upon the proper construction to be placed on the language employed by the parties to express their agreement. If the language is clear and unambiguous it must be taken according to its plain meaning as expressive of the intention of the parties, and under settled principles of judicial decision should not be controlled by the supposed inconvenience or hardship that may follow such construction.

If parties think proper, they may agree that the right of one to maintain an action against another shall be conditional or dependent upon the plaintiff's performance of covenants entered into on his part. On the other hand, they may agree that the performance by one shall be a condition precedent to the performance by the other. The question in each case is, which intent is disclosed by the language employed in the contract?"

* * * *

"In many cases, both in England and in the United States, the rule of construction is adopted that an agreement to pay by installments or at different times would make the covenants independent, since such an agreement manifests a willingness to rely on the covenants of the other contracting party for title or performance as the consideration for such payments. Also, where the acts stipulated to be done are to be done at different times, the covenants are generally construed to be independent of each other."

Applying these principles to the alleged breaches of contract on the part of the United States, as set forth by Mr. Rogers, I find that he claims the United States to have violated its contract with the railroad company in the following respects:

First. By Article 2, the Republic of Colombia bound itself not to establish any other railroad on the Isthmus of Panama. The United States, it is conceded, has not established any other railroad, but it has licensed a corporation, the United Oil Company, to lay a pipe line across the Isthmus, in part over what Mr. Rogers calls "the private estate of the railroad company." I do not think this action of the Government can be considered, either in letter or in spirit, a violation of the stipulation not to establish another railroad. Whether the construction of a pipe line will, in any wise, affect the business of the railroad is matter of conjecture; but, in any event, the agreement of the Colombian Government not to establish another railroad, being in derogation of its rights of sovereignty, is to be strictly construed and can not, in my opinion, by reasonably extended to a prohibition against permitting the establishment of a pipe line.

Second. By the same article, it was stipulated that the Government of Colombia would not permit the construction of a maritime canal across the isthmus except upon proper indemnification to the railroad company for loss of business thereby caused. The United States has, unquestionably, engaged in the construction of a maritime canal across the isthmus and, when the construction of such canal shall have caused injury to the business of the railroad, it would seem clear that the last-mentioned corporation would have, under this article, a legal right to a reasonable indemnity; but there is nothing in Mr. Rogers's letter to show that, so far, the construction of the canal has diminished the business of the railroad. On the contrary, it is reasonable to infer from some incidental references that, for the time being, the work on the canal has increased the business of the railroad, and, as yet, the Government is, therefore, in no wise in default in the discharge of its obligations under this provision of the concession. In any event, however, it would seem quite clear that, under the principles laid down in the decision of the Supreme Court, above cited, the agreement of the Government to indemnify the railroad for loss of business through the construction of the canal amounts to an altogether independent covenant, and a breach of it in no wise affects the duty of the railroad to pay the $250,000 per annum.

Third. The same is true with respect to the provision in Article 5 granting the railroad company the exclusive right to establish carriage roads across the Isthmus. It is alleged that the government of the Canal Zone is at present establishing carriage roads which, as Mr. Rogers says, "when the present plans are carried out will extend completely across the Isthmus." It is possible that this may result in some loss of business to the railroad and, when such loss has actually occurred and its amount has been ascertained or can be reasonably estimated, there may be perhaps, in theory at least, a ground for a claim for compensation on the part of the railroad company against the United States; but, whether this contingent future loss will be equal to, or more, or less, than the $250,000 which the railroad has agreed to annually pay the Government is, as yet, matter of pure speculation, and the two covenants must be held, upon recognized principles of law, evidently independent of each other.

Fourth. By section 1 of Article 6 it is claimed that the Colombian Government granted the railroad company the right to "regulate and direct the use of the ports." This claim, I admit argumenti gratia to be well founded, although it may be open to question. The government of the Canal Zone, by authority of the President, has, it appears, promulgated regulations on this subject and it is argued that this action constitutes at least a literal breach of the terms of the concession. Conceding, again for the sake of argument only, that such is the case, there is yet nothing to show that the assumption of this duty by the government of the Zone has involved any pecuniary loss to the railroad company; and it seems quite clear that there can be no relation between the right of the railroad company to regulate the use of the ports under Colombian sovereignty and its obligation to pay $250,000 annually as a part of the consideration for all the privileges granted. These two provisions are, again, evidently independent.

Fifth. By section 3, Article 9, Colombia granted to the railroad company 64,000 hectares of vacant lands in the State of Panama, with the right to take 32,000 hectares more, if so much land of the character described could be found within the limits of the ancient provinces of Panama and Veraguas. The railroad company, however, was obliged by other provisions of the same agreement to select and survey these lands and prove their character as "vacant lands" under the terms of the agreement, and it was further provided that--

"The Executive power will fix a time in agreement with the company within which the latter shall be bound to designate the vacant lands to which it has the right."

It does not appear, from the documents transmitted to me, that this time was ever, in fact, fixed. It seems to be clear that, during all the time that the railroad company held its successively confirmed concessions, it designated, under the terms of these concessions, only some 17,643 hectares.

It is claimed by Mr. Rogers that, by article 8 of the treaty between the United States and the Republic of Panama, the United States agreed that public lands situated outside of the Canal Zone and not required for the construction or operation of the canal should revert to the Republic of Panama, and that this constituted an abandonment by the United States of the railroad company's claim to the remaining 78,357 hectares of vacant lands. If the United States made this abandonment as the agent of the railroad corporation, it is obvious that the act was either ineffective or else authorized by the company and, in either case, it evidently could not constitute a violation of the contract made by the United States with the railroad company through its assumption of obligations of previous sovereigns, as expressed in their concessions. If it be claimed that the alleged renunciation of these lands by the United States was binding upon the railroad company for some other reason or upon some other ground than that of agency on the part of the United States, it is, to say the least, not at all clear that it constituted any breach of the contractual obligations previously assumed by the United States. But, without discussing these questions, it seems to me that this provision again was one wholly independent of and disconnected from the covenant by the railroad company to pay $250,000 annually and, even if it be conceded that Article 8 of the treaty might, perhaps, form the basis of a just claim for indemnity by the railroad, it could not operate to release the railroad from the payment of the annual stipend.

My conclusion is, therefore, that, even if it be admitted that the United States has not, in these respects, substantially observed the terms of the Colombian concession to the railroad company-- and I must not be understood as admitting this in fact-- the alleged breaches of contract on the part of the United States are altogether independent of, and without connection with, the railroad company's agreement to pay the $250,000 annually, and could not justify a refusal on its part to comply with this provision of the concession it accepted.

In what I have heretofore said, I have adopted the suggestion of Mr. Rogers and treated as immaterial the fact that the United States has become the owner of the capital stock of the Panama Railroad. I deem it proper to add, however, that, in my opinion, this assumption is inappropriate and tends to convert the matter submitted to me into a mere moot question. For practical purposes, the identity of interest between the railroad company and the United States can not be reasonably disregarded in passing upon their reciprocal relations and their respective rights and duties. The officers of the railroad company are not, indeed, by virtue of that fact, officers of the United States; they are bound, however, to protect the interests of the United States to the same extent that the officers of any corporation are bound to protect the interests of its stockholders and, on the other hand, the Government of the United States, in dealing with the railroad, can not overlook the fact that it is dealing with what, after all, is its own property.

These facts are made evident by a brief consideration of the consequences of failure on the company's part to pay the $250,000. If the officers of the railroad company shall choose to disregard the terms of the concession and fail to pay over annually the $250,000, the remedy of the Government for this breach of contract would be either the forfeiture of the franchises and property of the company, or else a suit against the company in an appropriate forum to recover the money which the corporation has promised but failed to pay, and, but for its ownership of the stock, either remedy would presumably be effectual. As matters stand, the result of the first course would be to make the Government the owner of what it practically owns already, subject to the same obligations which, as sole stockholder of the railroad company, it has already virtually assumed; or, in other words, the remedy would leave it, disregarding mere matters of form, in precisely the same position which it now occupies, and would be, therefore, ineffectual to afford any relief. In the second case, since the Government is entitled, by way of dividend, to all the net earnings of the railroad property distributable as such, and since the result of its obtaining and collecting this judgment would be to reduce by just so much the income applicable to the payment of a dividend to itself as stockholder, the proceeding would, if we again leave out of sight its merely technical details, amount to the Government's getting under one name what would be otherwise payable to it under another name; or, in other words, would again leave it, for all practical purposes, in precisely the same situation which it previously occupied.

The Government's only really effective remedy, therefore, would seem to be, in the exercise of its rights as stockholder, to replace by others those officers of the corporation who had refused to pay the annual stipend, and it would seem to follow that, since ability to do this depends entirely on ownership of the capital stock, if in the discretion of that branch of the Government controlling the action of the United States as a stockholder it is to the public interest that this stipend should not be paid, no legal means exist by which the payment can be effectively enforced. It is needless to say that it is in the power of the Congress to direct that this $250,000 shall be paid into the Treasury of the United States as the successor to the rights of New Granada, Colombia, and Panama; it is no less clearly within the power of the Congress to provide that this shall not be done. In the absence of any action by the Congress on the subject, it would be appropriate for the Treasury to expect and request this annual payment, but, if the payment should not voluntarily be made, I can perceive no truly effective method by which it could be enforced.

Very respectfully,

CHARLES J. BONAPARTE.

ARMY OFFICERS-- RETIREMENT-- INCAPACITY-- COURT-MARTIAL; 27 Op. Att'y.Gen. 14, July 10, 1908

An officer of the Army found by a retiring board, duly organized and convened, to be "incapable of performing the duties of his office," may be, and ought to be, retired in accordance with the provisions of sections 1245 to 1252, Revised Statutes, without regard to the causes which may have led to such incapacity on his part.

To be "incapable," within the meaning of the law, the officer must be either no longer responsible for his own actions or subject to infirmities or disabilities which make the reasonable fulfillment of his military duties impossible for him, notwithstanding an honest desire and firm purpose on his part to fully discharge them.

An officer of the Army can not be retired for incapacity, under the provisions of law, if he can properly be brought to trial by court-martial for the same acts or omissions which are alleged as evidence of the incapacity justifying his retirement.

Even though such officer display impatience or irritability, imperfect control of his temper, indolence, indecision, and want of alertness in the performance of his duties to such an extent as to destroy or greatly impair his usefulness as an officer, he does not thereby necessarily become incapable of discharging his duties in such a sense as to justify his retirement.

The punishment of an officer of the Army for willful failure to discharge his duty can not be legally effected through the agency of a retiring board.

DEPARTMENT OF JUSTICE,

July 10, 1908.

The SECRETARY OF WAR.

SIR: I have the honor to acknowledge the receipt of your letter of the 3d instant, in which you request--

"An expression of opinion * * * as to whether an officer comes within the operation of the statutes governing retirement for disability, who is found, by a retiring board, to be "incapable of performing the duties of his office," such incapacity being the result of * * * infirmity of temper, of a gradual but serious loss of self-control, of impatience or irritability while exercising the functions of his office and in dealing with the officers and enlisted men in his command, of physical or mental deterioration due to indolence, excesses in eating ano drinking, to impairment of vigor, or to indecision and want of alertness in the performance of the duties with which he is habitually charged by law and regulations."

The sections of the Revised Statutes to which you call my attention, and which seem to embody the statutory law on the subject, are as follows:

"SEC. 1245. When any officer has become incapable of performing the duties of his office, he shall be either retired from active service, or wholly retired from the service, by the President, as hereinafter provided.

"SEC. 1246. The Secretary of War, under the direction of the President, shall, from time to time, assemble an army retiring board, consisting of not more than nine nor less than five officers, two-fifths of whom shall be selected from the Medical Corps. The board, excepting the officers selected from the Medical Corps, shall be composed, as far as may be, of seniors in rank to the officer whose disability is inquired of.

"SEC. 1247. The members of said board shall be sworn in every case to discharge their duties honestly and impartially.

"SEC. 1248. A retiring board may inquire into and determine the facts touching the nature and occasion of the disability of any officer who appears to be incapable of performing the duties of his office, and shall have such powers of a court-martial and of a court of inquiry as may be necessary for that purpose.

"SEC. 1249. When the board finds an officer incapacitated for active service, it shall also find and report the cause which, in its judgment, has produced his incapacity, and whether such cause is an incident of service.

"SEC. 1250. The proceedings and decision of the board shall be transmitted to the Secretary of War, and shall be laid by him before the President for his approval or disapproval and orders in the case.

"SEC. 1251. When a retiring board finds that an officer is incapacitated for active service, and that his incapacity is the result of an incident of service, and such decision is approved by the President, said officer shall be retired from active service and placed on the list of retired officers.

"SEC. 1252. When the board finds that an officer is incapacitated for active service, and that his incapacity is not the result of any incident of service, and its decision is approved by the President, the officer shall be retired from active service, or wholly retired from the service, as the President may determine.

The names of officers wholly retired from the service shall be omitted from the Army Register."

So far as I am informed, there is no authority on the subject except the decisions of the Judge-Advocate-General of the Army, mentioned in your letter. It was held by that official, in 1886, that--

"An officer may, in the discretion of the President, legally be retired by reason of an incapacity resulting from habitual drunkenness." (Sec. 2196; Dig. Op. J.A.G.)

Again it was held, in 1889:

"That the law contemplated an existing and not a purely prospective and contingent incapacity; and that an inquiry into an officer's general efficiency could be pertinent only in so far as it could be regarded as going to show that his inefficiency, if found, was the result of an impairment of health." (Sec. 2204, Ib.)

And a further opinion was given, in 1890, to the effect that--

"The 'cause' of 'incapacity' intended in section 1249, Revised Statutes, was a physical cause; that moral obliquity was not had in view; and that the matter of the financial integrity of the officer was beyond the jurisdiction of the board. So, held that the board was not authorized to recommend the retirement of an officer because he did not pay his debts. Held, also, that the inability of a disbursing officer to furnish a bond when duly required to do so was not sufficient ground for his retirement." (Sec. 2203, Ib.)

While none of these opinions of the Judge-Advocate-General touch the precise question embodied in your request, they are entirely consistent with the principles which must, in my opinion, determine the answer to that question.

The provisions of law regulating the retirement of officers are in no sense disciplinary or punitive in their purpose. The officer under inquiry may have become "incapable of performing the duties of his office" by reason of causes resulting from a most brilliant and meritorious service on his part, and yet he would, under such circumstances, be none the less liable to retirement under the provisions of section 1251.

The punishment of officers for willful failure to discharge their duty can not be legally effected through the agency of a retiring board; and in dealing with questions of this character, as in all problems connected with crime and its punishment, the law assumes the freedom of the human will in a person compos mentis and legally responsible for his actions. The distinction material to be drawn in such cases is indicated by the circumstances in the first of the three decisions of the Judge-AdvocateGeneral above cited. An officer could not be legally retired under the provisions of law hereinbefore cited merely because he frequently or even habitually became intoxicated, although such intoxication might, while it lasted, incapacitate him to discharge his duties. Inasmuch as the excessive drinking of alcoholic beverages which led to this condition of intoxication was in each instance a voluntary act on his part, he would be properly subject to the punishment prescribed by military law as administered by courts-martial for these excesses. If, however, as a result of such excesses, his bodily and mental faculties had become seriously and permanently impaired, then, even if the habits of intemperance had ceased, he would be properly subject to retirement under the provisions of section 1252. With respect to the officers of the Navy, the law (sec. 1456, Rev. Stat.) provides expressly that--

"No officer of the Navy shall be placed on the retired list because of misconduct; but he shall be brought to trial by court-martial for such misconduct."

And I think there is no doubt that the same principle must be recognized in the construction relating to the Army.

It follows from what I have just said that, in my opinion, an officer can not be retired under the provisions of law above set forth if he could have been properly brought to trial by court-martial for the same acts or omissions which are alleged as evidence of the incapacity justifying his retirement.

If he displays impatience or irritability, imperfect control of his temper, indolence, indecision, and want of alertness to such an extent as to destroy or gravely impair his usefulness, it would seem almost, indeed quite, incredible that he should not have been guilty of some breach of the Articles of War. If his excesses in eating and drinking have been sufficient to incapacitate him for the discharge of his duties, this may constitute a clearly appropriate ground for disciplinary action, but, inasmuch as these indiscretions are evidently voluntary on his part, they can not of themselves constitute an incapacity justifying retirement. Of course if a process of mental deterioration due to the causes above mentioned has culminated in a mild form of insanity, or if excessive self-indulgence and disregard of the laws of health have produced such maladies as make it impossible for the officer in question properly to discharge his duties, the incapacity justifying his retirement would exist, and the causes leading to such incapacity would be immaterial; but except in so extreme a case as I have supposed, it is my opinion that the officer might have all the infirmities and undesirable habits mentioned in your letter and yet not be incapable of discharging his duties in the sense contemplated by the law as justifying his retirement.

It is to be remembered that the incapacity to discharge his duties contemplated by the statute is not an incapacity to discharge them as well as they ought, theoretically, to be discharged, or as well as they are discharged by officers generally of the same rank and intrusted with similar duties. The law does not say that he must be incapable of performing his duties well, but that he must be incapable of performing them at all, or, in other words, he must be unable to so perform them as to reasonably fulfill the purposes of his employment. A person having the infirmities of temper and the mental and bodily characteristics described in your letter might readily be a very undesirable superior, colleague, or subordinate, and might severely tax the patience of other members of the service necessarily brought into contact with him in the discharge of their military duties, but it would not follow from these facts that he was incapable of discharging his duties.

A more reasonable inference would be, perhaps, that he was unwilling to discharge them properly, and therefore that he was a suitable subject for the appropriate military discipline.

Answering your question in its terms, I give as my opinion that an officer found by a retiring board, duly organized and convened, to be "incapable of performing the duties of his office" may be, and ought to be, retired in accordance with the provisions of sections 1245 to 1252, inclusive, of the Revised Statutes, without regard to the causes which may have led to such incapacity on his part; but that to be "incapable" in the language of the law, he must be either no longer responsible for his own actions or subject to infirmities or disabilities which make the reasonable fulfillment of his military duties impossible for him, notwithstanding an earnest desire and firm purpose on his part to fully discharge them.

I remain, sir,

Yours, very respectfully,

CHARLES J. BONAPARTE.

FILIPINOS-- NATURALIZATION-- HOMESTEAD LAWS; 27 Op.Att'y.Gen. 12, July 10, 1908

Section 30 of the act of June 29, 1906 (34 Stat. 606), provides for the naturalization of native Filipinos owing permanent allegiance to the United States, who are residents of one of the States or Territories of the United States.

Such persons must make, or must have made, since the passage of the act of June 29, 1906 (34 Stat. 596, 606), the declaration of his intention to become a citizen, required by section 30 of that act, at least two years before his application for naturalization, and must have resided five years within one of the insular possessions of the United States.

DEPARTMENT OF JUSTICE,

July 10, 1908.

The SECRETARY OF THE INTERIOR.

SIR: The questions presented in your note of June 30, 1908, to which I have the honor to respond, are, in substance, whether under the act of June 29, 1906 (34 Stat. 596, 606), a native Filipino owing permanent allegiance to the United States, who is a resident of one of the States, can become, by naturalization, a citizen of the United States, so as to entitle him to the benefits conferred upon citizens of the United States and those who have declared their intention to become such, by the acts providing for preemption and homestead entries of the public lands, and, if so, what steps are necessary thereto.

The naturalization law, as it stood at the passage of the above act of 1906, provided (section 2169, Revised Statutes) that--

"The provisions of this Title shall apply to aliens (being free white persons, and to aliens) of African nativity and to persons of African descent."

This is the present law, except as modified by section 30 of that act. This section seems to have been framed expressly for the people of our insular possessions, who are there accurately described and to whom alone the section can refer. It is as follows:

"That all the applicable provisions of the naturalization laws of the United States shall apply to and be held to authorize the admission to citizenship of all persons not citizens who owe permanent allegiance to the United States and who may become residents of any State or organized Territory of the United States, with the following modifications: The applicant shall not be required to renounce allegiance to any foreign sovereignty; he shall make his declaration of intention to become a citizen of the United States at least two years prior to his admission; and residence within the jurisdiction of the United States, owing such permanent allegiance, shall be regarded as residence within the United States within the meaning of the five years' residence clause of the existing law."

This describes exactly the status of inhabitants of the Philippine Islands. They are not aliens, for they are not subjects of, and do not owe allegiance to, any foreign sovereignty. They are not citizens, yet they "owe permanent allegiance to the United States," since they owe and can owe it to no other sovereignty. The applicant is not to be required to renounce allegiance to any foreign sovereignty, because he owes none.

It is my opinion that this section authorizes the naturalization of the persons to whom you refer, they being residents of one of the States or Territories of the United States.

Your further question is as to the steps to be taken by a Filipino thus resident in order to secure such naturalization.

The law, before the act of 1906, excluded Filipinos from the right of naturalization, and therefore all proceedings to that end must have been taken after the passage of that act and according to its provisions; and a declaration previously made of intention to become a citizen, being unauthorized by any law when made, was and is of no force or efficacy and will not serve as the preliminary declaration required by the present statute.

All persons intending to become naturalized under section 30 of the act of June 29, 1906 (34 Stat. 606), must make, or must have made, since its passage, the declaration there required of intention to become a citizen at least two years before their application for naturalization. Then five years' residence in any of our insular possessions will be, under that section, a compliance with the clause requiring five years' residence in the United States.

Respectfully,

CHARLES J. BONAPARTE.

OFFICERS OF REVENUE-CUTTER SERVICE-- CIVIL WAR SERVICE-- RETIREMENT; 27 Op.Att'y.Gen. 8, July 10, 1908

Officers of the Revenue-Cutter Service who during the civil war served upon vessels of that Service which were armed, manned, and equipped as were naval vessels and were engaged in conjunction with the Navy in hostile operations against the enemy, "served in the naval forces of the United States" within the meaning of section 5 of the act of April 16, 1908 (35 Stat. 62), and upon retirement are entitled to have the rank and to receive three-fourths of the duty pay and increase of the next higher grade to that held by them at the time of retirement.

The mere fact that an officer of the Revenue-Cutter Service was in that Service during the civil war would not be sufficient to establish that he had "served during the civil war in the land or naval forces" if the location and character of his services were such that he did and could have done nothing more during the time of the civil war than he would have done in time of peace.

If, however, the location of his vessel and the consequent range of his duties were such that he necessarily filled a place which must or would probably have been otherwise assigned to some other public armed force, then the fact that he did not take part in any engagement or actual conflict with the enemy will not deprive him of the benefits of the act of 1908.

DEPARTMENT OF JUSTICE,

July 10, 1908.

The SECRETARY OF THE TREASURY.

SIR: In your letter of May 19, 1908, you ask my opinion, in substance, whether those officers who in the civil war served upon vessels in the Revenue-Cutter Service, while engaged in conjunction with the Navy in hostile operations are entitled to the benefits of section 5 of the act of April 16, 1908 (35 Stat. 62), which provides:

"That any officer of the Revenue-Cutter Service with a creditable record who served during the civil war in the land or naval forces of the United States shall, when retired, have the rank and receive three-fourths of the duty pay and increase of the next higher grade; and the provisions of this section shall apply to officers of the said Service now on the retired list."

You state, generally, the purpose, situation, and services of those vessels in the civil war, as follows:

"The records of this Department show the following as to the character of the duty performed by the vessels of the Revenue-Cutter Service during the period in question: They were, at the opening of hostilities in 1861, armed, manned, and equipped as were naval vessels of like size, and maintained on that footing throughout the war. They were a force available for emergencies or for any necessary military duty within their respective spheres of operation. Their crews were enlisted for a term of one year, and were required to take an oath upon enlistment; desertion operated as a bar to reentering the Service or enlisting in the Navy, and worked forfeiture of all pay and allowances due at the date of desertion, the conditions being in these features similar to those governing in the Navy.

"While, however, these vessels were thus a constant factor in military and naval operations, their stations and the limits of the territory which they were expected to cover in their cruising were determined by the exigencies of the service required of them by the Treasury Department. But within this limitation they were free, and were expected to act in harmony and, as necessity arose, in conjunction with the Army and Navy, and to engage in hostile demonstrations independently, which was whenever occasion required or opportunity offered; in a few instances engaged exclusively, or even ordinarily, in the performance of duties pertaining to military or naval operations, or such as are usually performed by naval vessels in time of war, but in the absence of necessity for such operations they were attending to their regular duties as revenue cutters, the two classes of interests-- those pertaining to the protection of the customs revenue and those pertaining to military and naval operations-- being so closely interwoven as to be practically inseparable. The latter operations were, however, at all times regarded as of primary importance, and when the exigencies of the two interests or duties demanded coincident service, received the first consideration and attention, and the fact that they were ordinarily performing duty as revenue cutters did not detract from their character as armed vessels, but added to their efficiency in that respect, because they were therefore always ready for prompt response in case of emergency."

You further specify with some detail some of the services of several of the vessels thus occupied.

It is my opinion that, under these circumstances, the vessels referred to, with their officers and men, while performing duties appropriate to naval forces and constituting acts of hostility toward the public enemy, "served in the naval forces of the United States" within the meaning of the section referred to. The work of these vessels and their crews, as stated in your letter, contributed directly to the success of the arms of the United States in the war then in progress. They were equipped to capture or destroy, and in several instances contributed to the capture or destruction of hostile vessels or fortifications. If any of their personnel had fallen into the hands of the enemy they would clearly have been entitled to the status of prisoners of war, and the vessels constituted an addition to the armed forces of the Government, obviating the necessity which would otherwise probably have existed of employing vessels of the Navy to do the work which they did. It seems to me quite clear that the intention of the Congress was to place all those officers who actually took part in the civil war upon the same footing with respect to the benefits of retirement with the incidents of a higher grade, whatever may have been the designation or technical character of the public armed force to which they respectively belong. To give effect to this purpose, I think, the act approved April 16, 1908, should be construed as applicable to all officers of the Revenue-Cutter Service who were engaged in hostilities against the public enemy during the time mentioned, under the conditions of service set forth generally in your letter.

I am not to be understood, however, as holding that, if the location and character of their service were such that they did and could do nothing more during the time of the civil war than they would have done in time of peace, the mere fact that any of the officers in question were at that time in the Revenue-Cutter Service would be sufficient to establish that they had served during the civil war in the land or naval forces of the United States.

The Revenue-Cutter Service, although a part of the public armed forces of the United States, and in time of war capable of assuming a military character, was not at that time strictly and necessarily a military service, and if the duties which any of these officers were called upon to discharge during the war were evidently and necessarily only such duties as they would have had to discharge in any event, whether there had been a war or not, I do not think their forming a part of the Service amounted to taking part in the war. The keeper of a light-house on the Maine coast might have incidently rendered a service of great utility by insuring the safety of some important vessel of our Navy, but this would not constitute a direct participation on his part in the work of suppressing the rebellion. In like manner those officers of the Revenue-Cutter Service who merely aided in assuring the collection of the public revenues and in discharging the normal and customary duties of the force, although they may have indirectly contributed to the military success of the Government, can not, in my opinion, be fairly regarded as having served in the war. If, however, the location of their vessels and the consequent range of their duties were such that they necessarily filled a place which must or would probably have been otherwise assigned to some other public armed force, then the fact that they did not take part in any engagement or actual conflict with the enemy will not deprive them of the benefits of the act of April 16, 1908.

I remain, sir,

Yours, most respectfully,

CHARLES J. BONAPARTE.

TREATY WITH MEXICO-- DETENTION OF CRIMINALS FOR EXTRADITION; 27 Op. Att'y.Gen. 4, July 10, 1908

The forty days during which a prisoner may be detained under the terms of Article X of the treaty of February 22, 1899 (31 Stat. 1825), with Mexico, "to await the production of the documents upon which the claim for extradition is founded," must be considered as meaning forty days prior to the production of the documents to the State Department in the United States, or to the corresponding branch of the Mexican Government; and if such documents are thus produced within the forty days, the suspected criminal has no absolute right or release under the treaty, but may be detained for a reasonable additional period to afford time for an investigation into his probable guilt or innocence.

If one construction of a treaty assures a reasonable opportunity for each Government to furnish the other the proofs necessary to justify the continued detention of suspected criminals, while another construction facilitates the escape of fugitives from justice and tends to impede the punishment of crime, the former is to be preferred in the absence of compelling words to the contrary.

DEPARTMENT OF JUSTICE,

July 10, 1908.

The SECRETARY OF STATE.

SIR: Your note of April 17 transmits a note from the Mexican embassy of the 3d ultimo, requesting a ruling by this Government upon the meaning of that part of Article X of the extradition treaty of 1899, which specifies the period during which fugitives shall be detained pending the production of the documents necessary for the hearing and determination of a demand for extradition; and you request my opinion on this question because of its importance and because of the desirability of uniformity of interpretation on the part of both Governments.

Article X of the treaty of extradition with Mexico of February 22, 1899 (31 Stat. 1818, 1825), provides:

"On being informed by telegraph or otherwise, through the diplomatic channel, that a warrant has been issued by competent authority for the arrest of a fugitive criminal charged with any of the crimes enumerated in the foregoing articles of this treaty, and on being assured from the same source that a requisition for the surrender of such criminal is about to be made accompanied by such warrant and duly authenticated depositions or copies thereof in support of the charge, each Government shall endeavor to procure the provisional arrest of such criminal and to keep him in safe custody for such time as may be practicable, not exceeding forty days, to await the production of the documents upon which the claim for extradition is founded."

Under this article the time elapsing between provisional arrest and final surrender to the demanding Government is to be divided into three parts-- the period between arrest and production of documents, that between production of documents and committal for surrender, and that between committal and actual surrender to the officials or agents of the demanding Government. The precise question raised by the Mexican note relates to the first period and is whether the treaty requirements as to the forty days' detention are met by production of the necessary extradition documents to the respective State Departments of the two Governments within the forty days specified.

It appears that the accustomed course, in general, under our extradition treaties with foreign nations is for the foreign Government to submit its papers through its proper officer directly to the extradition magistrate, and then, if the fugitive is committed for surrender, the papers are forwarded by the magistrate to the State Department for examination and approval. Ordinarily, then, this is the first point at which the State Department bears an official relation to the documents and evidence upon which the extradition of the alleged fugitive is sought. In the case of Mexico, however, the procedure and practice actually followed has been different, and it has been the uniform practice for the Mexican diplomatic authorities to submit their papers first to the State Department, and the papers are then returned to the Mexican embassy without formal action at that stage, with the suggestion that the embassy forward them at once to the extradition magistrate; and on its part the Mexican Government has always held that the production of our papers within forty days to its foreign office satisfies the provisions of the treaty. The question is practically important because, in view of the long distances and limited facilities for communication with Mexico, it would often be difficult, or even impossible, to transmit the papers through the diplomatic channels to the respective State Departments and thence to the extradition magistrate in some outlying district, all within forty days.

It must then be considered whether the language of the treaty justifies the view that the production of papers contemplated by the treaty is production to the respective foreign offices, for if so, production to the State Department of this Government in the case of a demand for extradition by the Government of Mexico within forty days is sufficient.

It will be noted that Article X provides that the information regarding the issuance of a warrant by competent authority shall be conveyed "through the diplomatic channel," and that the Government thus addressed, "on being assured from the same source that a requisition for the surrender of such criminal is about to be made, * * * shall endeavor to procure the provisional arrest of such criminal," etc. This language seems to contemplate that the whole course of proceeding up to the production of the documents is between the two Governments, and the reference to "the diplomatic channel" points to the foreign offices of the two Governments. I understand the Mexican Government has always held that production of our papers within forty days to its foreign office satisfies the provisions of the treaty, and its present practice is in accordance with this view, and, as above stated, the existing conditions in Mexico make it difficult, if not impossible, to transmit the papers through the diplomatic channel to the Mexican extradition magistrate in an outlying district within forty days. The purpose of this treaty is the highly salutary one of securing the arrest and punishment of lawbreakers and dangerous members of the community. It should be so construed, in my opinion, as to give effect to this purpose. Moreover, it must be supposed that the two Governments acted and agreed together with the peculiar conditions existing in Mexico present to the minds of both. If one construction assures a reasonable opportunity for each Government to furnish the other the proofs necessary to justify the continued detention of suspected criminals, while another construction facilitates the escape of fugitives from justice and tends to impede the punishment of crime, the former should certainly be preferred in the absence of compelling words to the contrary.

I find no such words here. The prisoner is to be detained "not exceeding forty days" for a specified purpose, namely, "to await the production of the documents upon which the claim for extradition is founded." To whom must these "documents" be "produced?" The treaty does not say "production to the prisoner" nor "production to the committing magistrate;" and I see no sufficient reason why either set of words should be read into it. When the "documents" are submitted to the foreign office of the Government detaining the suspected criminal, there is certainly a "production" of them which satisfies the words of the treaty, and I think this also satisfies the intent and guards against the mischief which it is reasonable to suppose was apprehended by the two Governments. The Government receiving these documents can then see whether the charge against the prisoner it holds is serious and apparently sustained by evidence, and with this knowledge it can determine whether it will or will not prolong his detention. Doubtless the result of this interpretation is that the person under arrest may be detained for more than the forty days mentioned in the article, but the object of this limitation was, in my opinion, to compel reasonable diligence on the part of the Government seeking the extradition, and not to enable the person in custody to escape before the Government in question, however diligent, could furnish proofs of his probable guilt.

In view of the foregoing considerations, I have the honor to advise you that, in my opinion, the forty days during which the prisoner may be detained under the terms of this treaty "to await the production of the documents upon which the claim for extradition is founded" must be considered as meaning forty days prior to the production of the documents to the State Department in the United States or the corresponding branch of the Mexican Government, and if the said documents are thus produced within forty days, the suspected criminal has no absolute right of release under the terms of the treaty, but may be detained for a reasonable additional period to afford time for an investigation into his probable guilt or innocence.

I remain, my dear sir,

Yours, very respectfully,

CHARLES J. BONAPARTE.

FOREST SERVICE-- FURNISHING OF INFORMATION RESPECTING THE WORK OF THAT BUREAU; 27 Op.Att'y.Gen. 1, July 1, 1908

The Forester may lawfully distribute, in typewritten form, brief statements of facts collected by the Forest Service upon the general subject of forestry, the general work of the Forest Service, and the specific subjects for which investigations, tests, and other studies by the Forest Service are authorized by the agricultural appropriation act of May 23, 1908 (35 Stat. 259), not only to the chiefs of the Forest Service division stationed in Washington, D.C., and by mail under frank to inspectors and supervisors in the field, but also to State foresters and agricultural and forestry institutions, to individuals interested in such matters, to newspapers and magazines, etc., especially interested in forestry, and to writers for the newspaper and periodical press, who request or are interested in the information.

Such information requested by a newspaper or magazine writer, or publisher, may also lawfully be sent in the form of a letter.

DEPARTMENT OF JUSTICE,

July 1, 1908.

The SECRETARY OF AGRICULTURE.

SIR: I have the honor to acknowledge the receipt of your letter of June 29, in which you state certain facts and request my opinion upon certain questions of law thence arising, as follows:

It seems that the Government Forester compiles and proposes to compile from time to time Forest Service information consisting of brief statements of facts, collected by and available in that Service, upon the general subject of forestry, the general work of the Forest Service, and the specific subjects for which investigations, tests, and other studies by the Forest Service are authorized by the agricultural appropriation act of May 23, 1908 (35 Stat. 259), containing these provisions among others:

"To enable the Secretary of Agriculture to experiment and to make and continue investigations and report on forestry, * * * to collate, digest, report, illustrate, and print the results of experiments and investigations made by the Forest Service." Typical statements of such information submitted with your letter relate to the forest policies of the South American republics, their timber and fruit trees, the cultivation of the olive and the orange; to the paper beech and its use in industries; the forest areas of Porto Rico and the plans for putting the same under national administration; the commercial and profitable use of the white fir of the Pacific coast; the facts relating to the advantageous introduction of foreign species of trees, etc.

It is proposed to distribute such statements in typewritten form, not only to the chiefs of the Forest Service division stationed in Washington, and by mail under frank to inspectors and supervisors in the field, but also to State foresters and agricultural and forestry institutions, to individuals interested in such matters, and to newspapers and magazines, including trade journals, especially interested in forestry, and to writers for the newspaper and periodical press who request or are interested in the information.

Your inquiry is whether the Forester may lawfully distribute information to the individuals and bodies enumerated, in the manner set forth. You also ask whether, "if a single newspaper or magazine writer or publisher requests an article or information for use by him in the preparation of an article, may such information be lawfully sent to the inquirer in the form of a letter?"

Section 520, Revised Statutes, provides:

"There shall be at the seat of government a Department of Agriculture, the general design and duties of which shall be to acquire and diffuse among the people of the United States useful information on subjects connected with agriculture, in the most general and comprehensive sense of that word, and to procure, propagate, and distribute among the people new and valuable seeds and plants."

The appropriation act of 1908, above referred to, contains the following provision (p. 259):

"Provided further, That no part of this appropriation shall be paid or used for the purpose of paying for in whole or in part the preparation or publication of any newspaper or magazine article, but this shall not prevent the giving out to all persons without discrimination, including newspaper and magazine writers and publishers, of any facts or official information of value to the public."

You express the view that in distributing such information as is compiled and sent out by the Forest Service, especially to persons engaged in the practice or study of forestry, and generally to the public at large through the newspapers and magazines, you are fulfilling the primary and fundamental duty imposed upon the Department of Agriculture by the section of the Revised Statutes above quoted. Information thus given out will be accompanied by a notice that it is sent in accordance with the proviso to the appropriation act of 1908 just cited. There will therefore be no discrimination; and you say, further, that no money will be paid on this account to any newspaper or magazine or to any newspaper or magazine writer or publisher, or to any person not regularly employed in the Forest Service. Obviously, such information as has been collated and distributed heretofore and will continue to be sent out is of value to the public, and certainly your determination that it is so, as head of the Department of Agriculture, is conclusive. Under this state of facts I can see no reason to doubt that your conception of your official duty in this respect is legally correct, and that the Forester may lawfully distribute information as proposed; and I am also of opinion that information requested by a newspaper or magazine writer or publisher may lawfully be sent in the form of a letter.

Very respectfully,

CHARLES J. BONAPARTE.

AMERICAN FISHING VESSEL-- COST OF TRANSPORTATION TO UNITED STATES OF DESTITUTE CREW; 26 Op.Att'y.Gen. 632, June 20, 1908

The crew of an American fishing vessel are seamen within the meaning of section 4577, Revised Statutes; and the cost of transportation to the United States of the destitute crew of such a vessel, furnished by a United States consul, is a proper charge against the appropriation for the "relief and protection of American seamen in foreign countries."

Where the destitution of the crew has resulted from the vessel owner's fault or misconduct, and that fact has been established, there would seem to be a right of recovery in the United States upon general principles of law for the cost of subsistence and transportation furnished under the statute.

The question whether a suit by the Government to enforce recovery from the vessel owners of the expense thus expended would be successful, is speculative and hypothetical and beyond the power and functions of the Attorney-General under the statutes to answer. The question of the actual liability of the vessel owners is judicial in its nature and must be determined by the courts.

DEPARTMENT OF JUSTICE,

June 20, 1908.

The SECRETARY OF THE TREASURY.

SIR: Your letter of June 15 informs me that the American fishing schooner Francis Cutting has been seized by the Canadian cruiser Kestrell for illegal fishing, and is now held by the authorities at Vancouver; that, at the request of the owners of the schooner, the American consul at Vancouver sent the crew to this country as destitute American seamen; and, at the suggestion of the Comptroller of the Treasury, who holds that the cost of transportation of the seamen to this country is a proper charge against the Government, you submit for my opinion the question whether the owners of the vessel should refund to the Government the amount expended for the transportation of the seamen.

Section 4577, Revised Statutes, provides:

"It shall be the duty of the consuls, vice consuls, commercial agents, and vice commercial agents, from time to time, to provide for the seamen of the United States who may be found destitute within their districts, respectively sufficient subsistence and passages to some port in the United States in the most reasonable manner, at the expense of the United States, subject to such instructions as the Secretary of State shall give. The seamen shall, if able, be bound to do duty on board the vessels in which they may be transported, according to their several abilities."

For the purposes of this section Congress annually appropriates for the "relief and protection of American seamen in foreign countries" (e. g., act of February 22, 1907, 34 Stat., 916, 925).

Are the members of the crew of an American fishing vessel "seamen of the United States," and were they "destitute" in this case? The statute is to receive a liberal construction. (Bowler's First Comp. Dec., 314.) The word "vessel" is regarded as including a fishing vessel. (The Minna, 11 Fed.Rep., 759; The Ocean Spray, Fed. Cas., No. 10412; and see also Saylor v. Taylor, 77 Fed.Rep., 476.) Section 4612, Revised Statutes, provides that every person, excepting apprentices employed or engaged to serve in any capacity on board any vessel belonging to any citizen of the United States, shall be deemed to be a "seaman." Accordingly, fishermen have been held to be seamen, and are protected as are other seamen. (The Carrier Dove, 97 Fed.Rep., 111; Knight v. Parsons, 1 Spr., 279; 8 Comp.Dec., 545.) As an analogy, it may be stated that the Supreme Court has held that the members of the crew of a tug and of dredging barges associated with the tug in the work of channel dredging under the river and harbor acts, including those performing mechanical and manual labor not related to the navigation of a vessel, are to be considered as seamen and not laborers or mechanics. (Ellis v. United States, 206 U.S., 246, 260.)

The act of December 21, 1898 (30 Stat., 755), related to American seamen, and was enacted for the protection of such seamen,

and amended various sections of the statutes on the subject of relief and protection of seaman, excepting, however, from the operation and effect of certain of those statutes fishing or sailing vessels or yachts, but left section 4577 unamended and not subject to the restriction just stated, from which it is to be necessarily inferred that Congress did not intend to prohibit the crews of such vessels from being regarded as seamen, as theretofore considered by the courts and accounting officers, and entitled to relief.

Paragraph 202 of the Consular Regulations of 1896 of your Department provides that American seamen engaged on fishing vessels are to be regarded in the same relation as seamen on other vessels to the laws in respect to discharge, etc., relief and transportation; and paragraph 267 instructs consular officers to relieve destitute American seamen without reference to the fault or misfortune by which they became destitute, except so as to encourage desertion.

I have no hesitation in concluding that the crew of an American fishing vessel are seamen within the meaning of section 4577.

As to the question of destitution, the consul finds that status as a fact; in the absence of fraud, that finding is conclusive (3 Comp. Dec., 40). I hold, therefore, that the cost of transportation furnished by the consul is a proper charge against the appropriation for the "relief and protection of American seamen in foreign countries."

As to the liability of the vessel owners to reimburse the United States for the cost of the transportation on the ground that the destitution of the seamen was the result of the alleged illegal fishing or other wrongful act on the part of the vessel owners, the scheme and scope of the entire body of statutes which we have just been considering would seem necessarily to contemplate various cases and contingencies in which American seamen were stranded in a foreign country and had become destitute through no fault of their own and through the fault or wrong of the owners of the vessels on which they had shipped; and yet the laws and statutes do not specifically create a liability on the part of vessel owners in such cases to reimburse the United States. Nevertheless, ex oequo et bono, where the destitution has resulted from the vessel owner's fault or misconduct,

and that fact has been established, I think there would be a right of recovery in the United States upon general principles of law for the cost of subsistence and transportation furnished under the statute. A request by the vessel owners for such transportation, as in this case and under such circumstances, would tend to show good faith and a proper regard for the rights and welfare of the seamen employed by them, and the guilt of a vessel owner or responsibility for violation of the law, as charged here, is not, of course, to be assumed. I think I have indicated enough on this point to show that, in my opinion, until a vessel owner's liability for such an offense, from which the seamen's destitution flows, has been established, the cost of subsistence and transportation should not be charged against him, and that in case he is held liable on such charge of violating treaty obligations or international or foreign municipal law, then it will be proper to present to him an account of the cost of transportation, etc., of destitute seamen, especially when he has requested their return to this country as such; and if the claim is not voluntarily recognized, then it will be proper to bring suit for the recovery of the amount thereof on the ground of a common-law liability, as on an implied assumpsit or as for money paid on another's account. In the present case, of course, no such action is to be taken until and unless the charge of illegal fishing is finally established in the proper tribunals.

Whether a suit by the Government to enforce recovery from the vessel owners would probably be successful, which subordinate query is implied in your question, is of course beyond my power to answer and my functions in this respect under the statutes. That query is speculative and hypothetical, and the fundamental question of the actual liability of the vessel owners is altogether judicial in its nature and must be determined by the courts. (19 Op., 670; 29 Op., 539, 702; 22 Op., 181; 24 Op., 69; 25 Op., 97.)

Very respectfully,

CHARLES J. BONAPARTE.

SECOND DEPUTY COMPTROLLER OF THE CURRENCY-- APPOINTMENT; 26 Op. Att'y.Gen. 627, June 19, 1908

The Secretary of the Treasury has no power, under section 169, Revised Statutes, to appoint a person to fill the office of Second Deputy Comptroller of the Currency created by the act of May 22, 1908 (35 Stat., 203), no such authority being expressly granted in the act creating that office.

The general rule deducible from Article II, section 2, clause 2, of the Constitution is that in the absence of an express enactment to the contrary, the appointment of any officer of the United States belongs to the President by and with the advice and consent of the Senate.

The Second Deputy Comptroller will have power to perform all the duties of the Comptroller and First Deputy Comptroller of the Currency in the absence or disability of those officers.

The Secretary of the Treasury, upon the request of the Comptroller of the Currency and with the approval of the President, may require the Second Deputy Comptroller to execute a voluntary bond in such penalty as may to him seem adequate to protect the public interests.

DEPARTMENT OF JUSTICE,

June 19, 1908.

The SECRETARY OF THE TREASURY.

SIR: I have the honor to acknowledge the receipt of your letter of June 17, with its inclosures, in which you state that the general appropriation act approved May 22, 1908 (35 Stat., 203), appropriates "for Comptroller of the Currency, five thousand dollars;

for Deputy Comptroller, three thousand five hundred dollars; Deputy Comptroller, three thousand dollars;" and (the appropriation for the Deputy Comptroller at $3,000 being a new provision in the law) you refer to this so-called "Second Deputy Comptroller" and to the importance of the appointment of this officer, and request my opinion on the following points:

"First. Whether the Secretary of the Treasury has power to appoint this Second Deputy, under authority of section 169 of the Revised Statutes, and to require a bond.

"Second. If appointed by the Secretary of the Treasury would the Second Deputy be empowered to perform the duties of the Comptroller in the absence or inability of that officer and the First Deputy, as provided by section 327 of the Revised Statutes, in the case of the present Deputy Comptroller.

"Third. If you are of the opinion that the Secretary of the Treasury can, under authority of section 169 of the Revised Statutes, appoint the Second Deputy Comptroller, but that such appointment would not empower that officer to act as Comptroller in the absence of the latter, should the appointment be made by the President and would such appointment confer upon the Second Deputy Comptroller such powers."

Section 169, Revised Statutes, simply authorized the head of a Department to employ "such number of clerks" and other subordinate employees "as may be appropriated for by Congress from year to year." I do not think that this provision authorized you to appoint the Deputy Comptroller in this case, who is not a clerk and is manifestly an officer of the United States.

"The officer is distinguished from the employee in the greater importance, dignity, and independence of his position; in being required to take an official oath and perhaps to give an official bond." (Throop v. Langdon, 40 Mich., 683, cited in Baltimore City v. Lyman, 92 Md., 591.)

By Article II, section 2, clause 2 of the Constitution, the President "shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law;

but the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of Departments." The general rule deducible from this provision is that, in the absence of an express enactment to the contrary, the appointment of any officer of the United States belongs to the President by and with the advice and consent of the Senate. (6 Op., 1; 15 Op., 3, 449; 17 Op., 532; 18 Op., 98, 298.)

The power of Congress in the concluding portion of the provision quoted was exercised, for example, in the act of June 3, 1864, section 1 (13 Stat., 99), from which section 327, Revised Statutes, was drawn, by providing that--

"There shall be in the Bureau of the Comptroller of the Currency a Deputy Comptroller of the Currency, to be appointed by the Secretary, who shall be entitled to a salary of two thousand five hundred dollars a year, and who shall possess the power and perform the duties attached by law to the office of Comptroller during a vacancy in the office or during the absence of inability of the Comptroller. The Deputy Comptroller shall also take the oath of office prescribed by the Constitution and laws of the United States, and shall give a like bond in the penalty of fifty thousand dollars."

Thus the law expressly makes provision for the appointment of the Deputy Comptroller, who has now become, as a matter of convenient designation, the First Deputy Comptroller, and whom you so call, and defines his power and duties by reference to the Comptroller's power and duties. But there is no such provision with respect to the new so-called Second Deputy Comptroller, however anomalous the relations and consequences due to this difference may be. I am clearly of the opinion that you do not possess the power to appoint this Second Deputy, and that the power is lodged in the President.

This answer to your first question renders an answer to your second question unnecessary; and as to the third question, the only remaining point is whether, the power of appointment being lodged in the President,

such appointment would confer upon the appointee the authority to perform the duties of the Comptroller in the absence or inability of that officer and the First Deputy by analogy with the provisions of section 327 as to the present Deputy Comptroller.

A similar question was presented under the act of March 3, 1901 (31 Stat., 960), by which Congress created the office of a Deputy Assistant Treasurer of the United States merely by an appropriation as in the present case, without prescribing the duties of that officer and without directing by whom he should be appointed. It was held by the Solicitor of the Treasury, following the opinions of the Attorneys-General above cited, that the appointment must be made by the President by and with the advice and consent of the Senate; and it was further held that the words "Deputy Assistant Treasurer" necessarily imply a power to perform all the duties which might be performed by the Assistant Treasurer, and since the Assistant Treasurer was authorized to perform such duties as the Treasurer might assign to him, it necessarily followed that the Deputy Assistant was authorized to act in the Treasurer's place and discharge such duties as might thus be required of him. I am of opinion that the Solicitor of the Treasury took the right view of this matter, and that this view rules the present case. Generally speaking, a deputy has power to do every act which his principal may do, and is not restrained to some particulars of his office. (Throop on Public Officers, sec. 583; Mechem on Public Officers, sec. 570; Erwin v. United States, 37 Fed.Rep., 470.) Doubtless it was on account of this general rule and with the intention that there should be no restriction that Congress did not deem it necessary to prescribe specifically the duties of the additional Deputy Comptroller. There being no limitation or restriction upon the power of this officer, my opinion is that he would have the same authority as that conferred by statute upon the First Deputy.

As to the matter of the bond referred to in your first inquiry, I have the honor to advise you that upon the request of the Comptroller of the Currency,

with the approval of the President, you may, in your discretion, require the Second Deputy Comptroller to execute a voluntary bond in such penalty as you may deem adequate to protect the public interests.

Very respectfully,

CHARLES J. BONAPARTE.

IMMIGRATION LAWS-- REMISSION OF FINES-- SECRETARY OF COMMERCE AND Labor; 26 Op.Att'y.Gen. 624, June 19, 1908

The Secretary of Commerce and Labor has no power to remit a fine imposed by a United States court upon a steamship company for its failure to detain and return to the country whence they came, aliens whose deportation has been ordered under section 10 of the immigration act of March 3, 1891 (26 Stat., 1084).

Opinion of Attorney-General Olney (20 Op., 705) and of Attorney-General Griggs (23 Op., 271) concurred in.

DEPARTMENT OF JUSTICE,

June 19, 1908.

The SECRETARY OF COMMERCE AND LABOR.

SIR: Your letter of June 2 advises me that the Pacific Mail Steamship Company, through their agents at Honolulu, Hawaiian Islands, Messrs. H. Hackfeld & Co. (Limited), paid certain fines with costs, amounting in the aggregate to $1,004.34, in the year 1902, which were imposed by the United States District Court for Hawaii as the result of proceedings against the said company and their agents for failure to detain and return to the country whence they came three Japanese aliens whose deportation had been ordered, under section 10 of the act of March 3, 1891 (26 Stat., 1084), amending previous laws relative to immigration and the importation of alien contract labor.

That section provides:

" * * * and if any master, agent, consignee, or owner of such vessel shall refuse to receive back on board the vessel such aliens, or shall neglect to detain them thereon, or shall refuse or neglect to return them to the port from which they came, or to pay the cost of their maintenance while on land, such master * * * shall be deemed guilty of a misdemeanor, and shall be punished by a fine not less than three hundred dollars for each and every offense; * * * ."

You also state that an application has now been made to you for the remission of these fines, upon the ground that the jury were instructed that they could not consider any attempt of the defendant company to prove due care on its part to prevent the escape of these immigrants, and upon the ground that the Supreme Court in Hackfeld & Company v. United States (197 U.S., 442) dealing with the statute in question, has held that:

"This statute imports a duty, but in the absence of a requirement that it shall be performed at all hazards, we think no more ought to be required than a faithful and careful effort to carry out the duty imposed."

You state that you are led to believe, if the defendant had been permitted to introduce evidence showing the actual precautions taken to detain the immigrants and prevent their escape, the verdict would have been found for the defendant, particularly in view of the manifest good faith shown by the latter.

Under these circumstances and in accordance with the desire of the applicant's attorney, you request my opinion as to whether you have authority to remit the fines in question.

I am of opinion that you have not. Laying aside the fact that the fines were imposed in pursuance of judgment upon a verdict of conviction in a criminal or quasi-criminal prosecution, and were covered into the Treasury at least three years before the decision in the Hackfeld case changed the previous executive construction of the law in question, the question of your authority to remit similar fines incurred and imposed under the immigration laws has been examined by two of my predecessors and answered in the negative.

In 20 Op., 705, the precise point was considered by Mr. Olney with reference to the same section of the act of 1891, and it was held that the provisions of section 3469 of the Revised Statutes for the compromise of Government claims have no application to the case of a fine such as this, and those of sections 5292, 5293, 5294 relate only to certain limited classes of cases, Mr. Olney's conclusion being (p. 709): "The case of a fine or penalty incurred for violation of the provisions of the alien immigration law does not therefore, in my judgment, fall within the purview of the statutes embraced under title LXVIII."

In 23 Op., 271, Mr. Griggs re-examined the question relative to the same provision of law, and approved Mr. Olney's opinion, saying (pp. 273, 276):

"The fact that it might be equitable or desirable to include in the power of remission, under existing laws relative to this power, new cases not contemplated when those laws were adopted, can not overcome and enlarge the defined and restricted language and application of the law. The alien immigration laws have all been passed since the sections of the Revised Statutes which we are considering became law.

"It therefore seems to me that the case of a remission of a fine under the immigration laws is unprovided for; it is a casus omissus, and I concur in the views upon the subject expressed by Mr. Olney in 20 Opinions, 705."

It is true that in that opinion Mr. Griggs anticipated the legal view which the Supreme Court afterwards took of the meaning of the statute and the responsibility of the owners and masters of vessels thereunder, and because there had been no legal proceedings in that particular case and no fine had been imposed, although the necessary amount thereof had been voluntarily deposited by the agents of the vessel owners, he suggested that the return of the money deposited, there being no guilt and no lack of good faith, would be, not the remission of a fine or penalty, but the restitution of an amount to which the Government was never justly entitled.

But that is not this case, and, for the reasons above set forth, I have the honor to advise you that I concur in the reasoning and conclusion of my predecessors, and that, in my opinion, you have no authority to remit the fines in question. I may add that the later immigration laws have not changed the state of the existing law or enlarged your power in this respect.

Very respectfully,

CHARLES J. BONAPARTE.

EIGHT-HOUR LAW-- WATCHMAN, LABORER, HOSTLER, AND MESSENGER IN WAR DEPARTMENT; 26 Op.Att'y.Gen. 623, June 17, 1908

A watchman, "whose duty is to watch the entrance of one of the public buildings occupied by the War Department, executing instructions with regard to admitting persons into the building and permitting public property to be taken out of the building, reporting to his chief any violation of law, disturbance of the peace, etc., that may be brought to his attention, or to guard the building and property therein during the night," is not a laborer or mechanic within the meaning of the eight-hour law.

A laborer, "whose duty is to perform manual labor in the removal of furniture and office fixtures, cutting grass, washing floors and windows, and general office cleaning," is not a laborer within the meaning of the eight-hour law; such services being more those of a domestic servant than those of a laborer in the usual meaning of the term.

A hostler, "whose duty is to feed, drive, and care for horses, and to clean carriages, harness, and stables," is rather a domestic servant than a laborer within the meaning of the eight-hour law.

A messenger, "whose duty is to sweep floors and do general office cleaning, attend to fires, and carry messages," is not a laborer or mechanic within the meaning of the eight-hour law.

DEPARTMENT OF JUSTICE,

June 17, 1908.

The SECRETARY OF WAR.

SIR: I have the honor to acknowledge the receipt of your letter of May 21, 1908, requesting my opinion whether certain employees, whose respective duties are described and who are stationed in Washington, D. C., are subject to the eight-hour law.

1. I am of opinion that "a watchman, whose duty is to watch the entrance of one of the public buildings occupied by the War Department, executing instructions with regard to admitting persons into the building and permitting public property to be taken out of the building, reporting to his chief any violation of law, disturbance of the peace, etc., that may be brought to his attention, or to guard the building and property therein during the night," is not either a laborer or mechanic within the meaning of the eight-hour law.

2. I am of opinion that "a laborer, whose duty is to perform manual labor in the removal of furniture and office fixtures, cutting grass, washing floors and windows, and general office cleaning," is not a laborer within the meaning of the eight-hour law.

The services required seem to be more those of a domestic servant than those of a laborer in the usual meaning of the term.

3. I am of opinion that a hostler, "whose duty is to feed, drive, and care for horses, and to clean carriages, harness, and stables," is rather a domestic servant than a laborer within the meaning of the eight-hour law, and therefore not subject to the provisions of that law.

4. I am of opinion that a "messenger, whose duty is to sweep floors and do general office cleaning, attend to fires, and carry messages," is not a laborer or mechanic within the meaning of the eight-hour law.

Very respectfully,

CHARLES J. BONAPARTE.

EIGHT-HOUR LAW-- WATCHMAN AT CORREGIDOR ISLAND; 26 Op.Att'y.Gen. 622, June 17, 1908

A watchman employed at Corregidor Island, Philippine Islands, whose duties are "to supervise all arrivals and to see that no one lands on the island without authority; to investigate such matters as the absence from work of native employees; and to make report of those matters," is not a laborer or mechanic within the meaning of the eight-hour law. Such duties pertain more to those of a clerk or superintendent of laborers than to those of a laborer or mechanic.

DEPARTMENT OF JUSTICE,

June 17, 1908.

The SECRETARY OF WAR.

SIR: I have the honor to acknowledge the receipt of your letter of May 28, 1908, inquiring whether a watchman employed at Corregidor Island, Philippine Islands, falls within the designation of a laborer or mechanic within the meaning of the eight-hour law. The duties of this employee are "to supervise all arrivals and to see that no one lands on the island without authority; to investigate such matters as the absence from work of native employees, and to make reports of these matters."

I think these services pertain more to those of a clerk or superintendent of laborers and do not bring the person within the class of laborers or mechanics.

Very respectfully,

CHARLES J. BONAPARTE.

ENLISTMENT IN THE NAVY-- DESERTION-- PARDON-- REENLISTMENT; 26 Op. Att'y.Gen. 617, June 16, 1908

A person who, having enlisted in the Navy, deserts therefrom and is convicted of desertion by a general court-martial and thereafter receives from the President a full and unconditional pardon for such offense and restoration to civil rights, may be permitted to reenlist in the Navy notwithstanding the provisions of section 1420, Revised Statutes.

The effect of a pardon is to obliterate the offense and make him who had been an offender as innocent, in legal contemplation, as if he had never offended, to remove all disabilities incident to the offense charged, and to restore to him all civil rights which he would have had if he had not offended, so far, at least, as it is in the power of the Government to make it so.

DEPARTMENT OF JUSTICE,

June 16, 1908.

The PRESIDENT.

SIR: I have the honor to respond to your request expressed in the note of your Secretary of June 8, 1908, for an opinion whether Frank Calbert Arnold can be permitted to reenlist in the Navy, after his conviction and pardon for desertion therefrom.

It appears that this man enlisted in the Navy at Chicago, Ill., on October 7, 1901, for a period of four years. He deserted from the Hopkins at Philadelphia, May 29, 1905, at which time he held the rating of yeoman, first class. He surrendered himself June 21, 1906, and was convicted July 10, 1906, of desertion by a general court-martial, duly approved, and sentenced to be reduced to the rating of landsman and to be confined for one year, and to be then dishonorably discharged from the Navy.

After serving the term of confinement imposed, and on May 22, 1908, he received and accepted from the President a full and unconditional pardon for his offense and restoration to civil rights, and now desires to reenlist in the Navy, and to redeem himself from the odium of his former desertion. And the Navy Department is willing that he should reenlist, if it can be done consistently with existing law, and your question is, in substance, whether this can be done.

The answer to this question involves a consideration of section 1420, Revised Statutes, and of the effect of the President's pardon.

The section referred to is as follows:

"No minor under the age of sixteen years, no insane and intoxicated person, and no deserter from the naval or military service of the United States shall be enlisted in the naval service."

This is of course a bar to the reenlistment of the man Arnold if, in legal contemplation, he is a deserter, and this depends upon the effect of the President's pardon.

The Supreme Court has in several cases stated the purpose, office, and effect of a pardon so plainly and completely that we need not go elsewhere for authorities, or, in order to answer the question submitted, look any further. And from this it will be seen that the effect of a pardon is to obliterate the offense and make him who had been an offender as innocent, in legal contemplation, as if he had never offended, to remove all disabilities incident to the offense charged, and to restore to him all civil rights which he would have had if he had not offended.

This is so, as far as it is in the power of the Government to make it so. But this power has its limitations. It can not and does not restore that which is already lost and gone beyond the reach of the Government. But as to the future, it relieves the person from all disabilities and consequences to which he would be subject but for the pardon, so that thereafter nothing can be imputed to him based upon the allegation of his offense. Nothing short of this, nothing that partially pardons or removes only some of the disabilities and not all, can be a pardon in its full sense.

In Ex parte Garland (4 Wall., 333) an act of Congress had provided that no one should be permitted to practice in the Supreme Court or other courts of the United States except upon taking a certain expurgatory oath that he had not given aid or countenance to the rebellion, etc., and one question was as to the effect of the President's pardon in removing this disability. What the court said, page 380, so completely covers the whole ground that it is quoted here at length:

"Such being the case, the inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense.

If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.

"There is only this limitation to its operation: It does not restore offices forfeited or property or interest vested in others in consequence of the conviction and judgment.

"The pardon produced by the petitioner is a full pardon 'for all offenses by him committed, arising from the participation, direct or implied, in the Rebellion,' and is subject to certain conditions which have been complied with. The effect of this pardon is to relieve the petitioner from all penalties and disabilities attached to the offense of treason committed by his participation in the Rebellion. So far as that offense is concerned he is thus placed beyond the reach of punishment of any kind."

That is precisely the effect of a pardon. "In the eye of the law the offender is as innocent as if he had never committed the offense."

This precise point is reaffirmed in United States v. Padelford (9 Wall., 531, 537).

In Osborn v. United States (91 U.S., 474) the court says, on page 477:

"The pardon of that offense necessarily carried with it the release of the penalty attached to its commission, so far as such release was in the power of the Government, unless specially restrained by exceptions embraced in the instrument itself. It is of the very essence of a pardon that it releases the offender from the consequences of his offense. If in the proceedings to establish his culpability and enforce the penalty, and before the grant of the pardon, the rights of others than the Government have vested, those rights can not be impaired by the pardon. The Government having parted with its power over such rights, they necessarily remain as they existed previously to the grant of the pardon. The Government can only release what it holds."

In Carlisle v. United States (16 Wall., 147) the court says, page 151:

"There has been some difference of opinion among the members of the court as to cases covered by the pardon of the President, but there has been none as to the effect and operation of a pardon in cases where it applies. All have agreed that the pardon not merely releases the offender from the punishment prescribed for the offense, but that it obliterates in legal contemplation the offense itself."

And in Knote v. United States (95 U.S., 149) the court says, page 153:

"A pardon is an act of grace by which an offender is released from the consequences of his offense, so far as such release is practicable, and within control of the pardoning power or of officers under its direction. It releases the offender from all disabilities imposed by the offense and restores to him all his civil rights. In contemplation of law, it so far blots out the offense that afterwards it can not be imputed to him to prevent the assertion of his legal rights. It gives to him a new credit and capacity and rehabilitates him to that extent in his former position. But it does not make amends for the past. It affords no relief for what has been suffered by the offender in his person by imprisonment, forced labor, or otherwise; it does not give compensation for what has been done or suffered, nor does it impose upon the Government any obligation to give it. The offense being established by judicial proceedings that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required. Neither does the pardon affect any rights which have vested in others directly by the execution of the judgment for the offense or which have been acquired by others whilst that judgment was in force."

It is useless to pursue the subject further. By this pardon the offense of the man Arnold is obliterated, and he is, in legal contemplation, no longer a deserter. His disabilities are removed and, among them, that relating to re-enlistment in the naval or military service of the United States.

And he is restored to his civil rights, including that of enlistment in such service, and it is quite within the province of the Navy Department to permit his re-enlistment.

Respectfully,

CHARLES J. BONAPARTE.

NAVAL OFFICERS-- MATES-- RETIREMENT OF MATE NEILSEN; 26 Op.Att'y. Gen. 615, June 5, 1908

Mates in the Navy are officers within the meaning of section 11 of the navy personnel act of March 3, 1899 (30 Stat., 1007), and of the act of June 29, 1906 (34 Stat., 554); and Mate Neilson, who was erroneously retired in March, 1899, under section 17 of the navy personnel act, upon his own application and after thirty years' service, was entitled to retirement under section 11 of that act.

This retirement on the part of Neilson, by reason of the holding of the officers of the Government that he could not be retired as an officer under section 11 of the act of 1899, did not forfeit any legal right which he had to retirement under that section. His retirement should therefore be so corrected as to show a retirement under section 11, with the rank and retired pay of a warrant officer with twelve years' service, and from his original retirement.

In any event, Neilson is now entitled to be retired under the act of 1906 with the rank and retired pay of a warrant officer having twelve years' service, but such a retirement would be from the date of retirement and would deprive him, during the intervening years, of the increased pay to which he became entitled at the time of his retirement March 31, 1899.

DEPARTMENT OF JUSTICE,

June 5, 1908.

The SECRETARY OF THE NAVY.

SIR: I have the honor to respond to the request contained in your note of May 26, 1908, for an opinion upon the case there stated, in substance as follows:

Mate Neilson, retired, served as an enlisted man in the Navy from January 22, 1862, to February 9, 1865, and from February 20, 1866, to October 4, 1869, and as a mate from March 29, 1870, until retired. He was retired March 31, 1899, under section 17 of the personnel act of March 3, 1899, upon his own application after thirty years' service. And the question which you submit is "whether * * * Mate Neilson is now entitled to advancement to the next higher grade under the provisions of section 11 of the personnel act or the act of June 29, 1906; and if so, as to the date from which he is entitled to such advancement."

It is assumed that by the above expression, "the next higher grade," is meant the rank and pay of the next higher grade, as such officers are not advanced in grade on their retirement.

Much of what is here involved is covered by the two opinions of this Department upon a similar subject, under dates of October 15, 1907 (ante, p. 434), and April 18, 1908 (ante, p. 600).

Following the ruling in United States v. Fuller (160 U.S., 593, 595), it was held in those opinions that mates in the Navy were officers, within the meaning of section 11 of the navy personnel act and of the act of June 29, 1906 (34 Stat., 554).

As mate Neilson was retired March 31, 1899, he should have been retired under the former section with the rank and three-fourths the sea pay of the next higher grade.

The Navy Department then held that Mate Neilson could not be retired under section 11 of that act, but was entitled to be retired as an enlisted man, under section 17 of that act, he having had more than thirty years of service in the Navy. And he was thus retired upon his own application and with the rank he then held and three-fourths of the pay he was receiving at retirement.

The question to be determined is as to the effect of this retirement upon the right of Mate Neilson to be now retired, as of some date, under section 11 of the personnel act or the act of June 29, 1906.

That act provides that "any officer of the Navy not above the grade of captain who served with credit * * * during the civil war * * * and who has heretofore been, or may hereafter be, retired * * * may, in the discretion of the President * * * be placed on the retired list of the Navy with the rank and retired pay of one grade above that actually held by him at the time of retirement."

The higher grade thus referred to is that of warrant officer, and the retired pay of that grade was 75 per cent of the sea pay of the grade, varying in amounts by three-year period of service. (Act of March 3, 1873, 17 Stat., 547; and opinion of April 18, 1908, 26 Op., 600.)

Since the above act of June 29, 1906, embraces both officers who were then retired and those thereafter retired, Mate Neilson, if otherwise entitled, may be retired under that act notwithstanding his former retirement.

I do not think that the retirement of Mate Neilson under section 17 of the personnel act, upon his own application, is, under the circumstances, a bar to his retirement as an officer under section 11 of that act or under the act of 1906.

The Government having held that he could not be retired as an officer under section 11, but might be, under section 17, upon his own application, I do not think that, by accepting this erroneous decision and acting upon it, he waived or forfeited any legal right which he had to be retired otherwise.

I am of opinion that, as Mate Neilson was entitled to be retired under section 11 of the act referred to, his retirement of March 31, 1899, should be so corrected as to make it show such a retirement and, following the above opinion of April 18, 1908, with the rank and retired pay of a warrant officer with twelve years of service, and from said original retirement. This is giving to this officer, although at a later date, that to which, in law, he was then entitled.

In any event Mate Neilson would be now, under the above opinion, entitled to be retired under the act of 1906 with the rank and retired pay of a warrant officer having twelve years' service. But, since the advancement in such case would be from the date of retirement, this would deprive him, during the intervening years, of the increased pay to which he became entitled at and from his retirement March 31, 1899.

As you inform me that there are on the retired list some other mates whose cases are essentially similar to this one, what is here said will apply to others also.

Respectfully,

CHARLES J. BONAPARTE.

COMMISSIONER TO FIVE CIVILIZED TRIBES-- FREE REGISTRATION OF OFFICIAL MAIL MATTER; 26 Op.Att'y.Gen. 613, May 27, 1908

The Commissioner to the Five Civilized Tribes is not entitled to free registration of outgoing official mail matter, under section 3 of the act of July 5, 1884 (23 Stat., 158).

DEPARTMENT OF JUSTICE,

May 27, 1908.

The SECRETARY OF THE INTERIOR.

SIR: I have the honor to acknowledge receipt of your letter of April 14, in which my opinion is requested as to whether the Commissioner to the Five Civilized Tribes, whose office is at Muskogee, Okla., is entitled to free registration of outgoing mail matter under the provisions of section 3 of the act of July 5, 1884 (23 Stat., 158). In considering this question it will be well to review the legislation which has been enacted from time to time with a view to relieving the Government Departments, bureaus, and offices from payment of certain postal charges in transmitting mail matter relating to official business.

In 1877 (19 Stat., 335) Congress provided that letters and packets relating exclusively to Government business might be sent through the mails free of charge. This was qualified by a proviso which has been construed by several of my predecessors as limiting this franking privilege to the Executive Departments and bureaus thereof at the seat of Government. (15 Op., 262; 18 id., 49; 23 id., 316.) In 1879 (20 Stat., 362) this act was amplified by extending the privilege relating to transmission of mail matter to all mail passing between officers of the United States and the Executive Departments and other officers. It further applied these provisions to the Smithsonian Institution, and contained the proviso that it should not apply to pension agents and other officers who received a fixed amount as compensation for services including expenses for postage.

The act of 1884 (23 Stat., 158) still further extended the franking privilege, and contained the proviso that "official mail matter of either the Executive Departments or the various offices thereof," or of "the Agricultural Department, or of the Public Printer, may be registered without the payment of any registry fee." A second proviso excepted pension and other agents receiving a fixed amount, including expenses of postage, from the benefit of the act.

The last act to which reference need be made is that of July 2, 1886 (24 Stat., 122), which extended the provisions of the act of 1884, by providing that that act should be applicable to "all official mail matter of agents for the payment of pensions."

It is to be borne in mind that the acts of 1884 and 1886 were passed some years after the opinion of Attorney-General Devens, above referred to (15 Op., 262), had been rendered.

I think that it must be assumed that Congress adopted this later legislation with a full knowledge of the limited meaning which had been given to the words "Executive Departments or bureaus thereof." If it had been intended to extend the privilege of free registration to all officers, that intent would have been explicitly expressed, as was done in the case of those entitled to the franking privilege.

I am therefore constrained to advise you that under existing legislation the Commissioner to the Five Civilized Tribes is not entitled to free registration of outgoing official mail matter.

Respectfully,

CHARLES J. BONAPARTE.

NATURALIZATION HEARINGS PRECEDING GENERAL ELECTIONS; 26 Op.Att'y. Gen. 611, May 26, 1908

The proviso to section 6 of the naturalization act of June 29, 1906 (34 Stat., 598), forbidding the issuing of any certificate of naturalization by any court within thirty days preceding the holding of any general election within its jurisdiction, does not forbid hearings on petitions for naturalization within such time, but merely forbids the issuing of such certificates within that time.

An alien is not naturalized until the order divesting him of his former nationality and making him a citizen of the United States has been signed by a judge of a court having jurisdiction of such cases.

The evident purpose of Congress in requiring that final action in naturalization cases shall be had only on stated days to be fixed by a rule of the court and that in no case shall final action be had upon a petition until at least ninety days have elapsed after filing and posting notice of such petition, was to prevent the granting of certificates of naturalization unless due notice is given to the United States and an opportunity afforded to oppose the application.

Where the rule day is fixed by order of the court and the United States attorney has an opportunity to be present and be heard, the judge may, in his discretion, adjourn the hearing to such time as may suit his convenience and the convenience of the parties to the case.

DEPARTMENT OF JUSTICE,

May 26, 1908.

The SECRETARY OF COMMERCE AND LABOR.

SIR: I have the honor to acknowledge receipt of your letter of May 21, inclosing a copy of a letter addressed to the Division of Naturalization by the deputy clerk of the United States courts at Hammond, Ind., in which the request is made that you be advised whether hearings may be had on October 20, 1908, on petitions for naturalization filed in the United States district court at the place hereinbefore mentioned, provided that the final order of the court is in no case entered until after the general election in November.

The clerk also asks whether the October term of said court may be adjourned until after the November, 1908, election, and the petitions heard at such adjourned term.

In reply I have the honor to inform you that in my judgment the effect of the proviso to section 6 of the naturalization act of June 29, 1906, seems plain. It reads as follows:

"Provided, That no person shall be naturalized nor shall any certificate of naturalization be issued by any court within thirty days preceding the holding of any general election within its territorial jurisdiction."

The act is silent as to when hearings may be had on petitions for naturalization, and merely forbids the issuing of certificates within thirty days of a general election. Clearly, an alien is not naturalized until the order divesting him of his former nationality and making him a citizen of the United States has been signed by a judge of a court having jurisdiction. I see no reason, therefore, why hearings may not be held on October 20 if the orders granting certificates of citizenship are not entered until after the general election.

As to your second query, I beg to say that, in my opinion, the object of the provision that final action shall be had only on stated days to be fixed by rule of the court, and that in no case shall final action be had upon a petition until at least ninety days have elapsed after filing and posting the notice of such petition (section 6), when taken in connection with the other sections of the act is sufficiently clear. The evident purpose of Congress was to prevent the granting of certificates of naturalization unless due notice was given the United States and an opportunity afforded to oppose the application. Where the rule day is fixed by order of the court and the United States attorney has an opportunity to be present and be heard, I see no reason why the judge may not, in his discretion, adjourn the hearing until such time as may suit his convenience and the convenience of the parties to the case.

Respectfully,

CHARLES J. BONAPARTE.

ATTORNEY-GENERAL-- OPINIONS-- COMPTROLLER OF THE TREASURY; 26 Op. Att'y.Gen. 609, May 22, 1908

The question of law upon which the opinion of the Attorney-General is desired must not only be one actually arising in the administration of the Department preferring the request, and not hypothetical, but the facts upon which it arises must be found and definitely stated in the request, and not left for the Attorney-General to extract from the papers submitted. The question of law also must be clearly and definitely formulated.

Generally speaking, the decision of the Comptroller of the Treasury is conclusive in cases involving the application of an appropriation and the expenditure of public moneys, and governs the auditing officers and himself in passing accounts under section 8 of the act of July 31, 1894 (28 Stat., 208).

However, when the disbursement is a question of general and great importance, and especially when the Comptroller, in advance of a decision by himself, requests that the matter be referred to the Attorney-General for opinion and states that he will be guided by such opinion, the question may properly be answered by the Attorney-General.

Rules stated in former opinions adhered to.

DEPARTMENT OF JUSTICE,

May 22, 1908.

The SECRETARY OF THE INTERIOR.

SIR: I have the honor to acknowledge the receipt of your letter of the 20th instant, with which you transmit certain correspondence between the Interior Department and the Comptroller of the Treasury, with a memorandum by the Assistant Attorney-General assigned to the Interior Department relative to that correspondence, which you observe relates to the applicability of a general appropriation of the Geological Survey for gauging streams to the island territories of Porto Rico and Hawaii, and you ask me to advise you at as early a date as convenient whether the appropriation "for general expenses of the Geological Survey," etc., is applicable to the Territory of Hawaii.

I am constrained to call your attention to the established and obviously necessary rule of this Department relative to opinions by the Attorney-General, which requires that a question of law shall not only be one actually arising in the administration of a Department and not hypothetical, but that the facts upon which it arises shall be found and set forth by the head of the Department preferring the request for an opinion, and shall not be left to the Attorney-General to extract from various papers submitted, and that the question of law arising thereon shall be clearly and definitely formulated.

(20 Op., 614; id, 703; 21 Op., 201; id., 506; 22 Op., 77; 23 Op., 472; 24 Op., 59.)

I have the honor, therefore, to return the papers to you, with the request that you will resubmit them under the required conditions.

But I must also call your attention to the fact that the decision of the Comptroller of the Treasury in cases involving the application of an appropriation and the expenditure of public moneys is prima facie final and conclusive, and in the majority of cases is found to be so upon full examination. Some of the limitations to the finality of that jurisdiction are expressed in an opinion of my predecessor, Mr. Moody, dated December 22, 1904 (25 Op., 301), but, generally speaking, the authority of the Comptroller to decide a question involving a payment to be made from the Treasury so as to govern the auditing officers and himself in passing on accounts under the eighth section of the act of July 31, 1894 (28 Stat., 162, 208), is complete, and in various instances my predecessors have declined to give an opinion upon a question of this nature. (21 Op., 178; id., 530; 22 Op., 581; 23 Op., 468; 24 Op., 553.) "On the other hand, although a disbursement may be involved, when a question is of general and great importance, and especially when the Comptroller, in advance of decision by himself, requests that the matter be referred to the Attorney-General, and states that the opinion of the Attorney-General will be followed by him, then it is the view of this Department that the question may properly be answered by the Attorney-General." (25 Op., 301, 303, citing 21 Op., 181; id., 224; id., 402.) In the present matter, thus informally presented, I can perceive no reason why the rule just quoted should not be followed by me, and accordingly, in addition to the formal statement of the facts and the question of law for which I have called, I have the honor to request a presentation of your reasons for not accepting the opinion of the Comptroller of the Treasury and referring the matter to me.

Very respectfully,

CHARLES J. BONAPARTE.

EIGHT-HOUR LAW-- HOURS OF SERVICE OF LOCK TENDERS, ETC.; 26 Op. Att'y.Gen. 605, May 11, 1908

Persons employed as lock tenders, lock helpers, lockmen, and in similar employments at the locks of the various canals owned and operated by the Government may be called upon to perform service at any hour of the day, and such requirement is legal and proper under the eight-hour law (act of August 1, 1892; 27 Stat., 340), so long as the total service rendered does not exceed eight hours per day.

The eight-hour law includes skilled as well as unskilled workmen; and the employment of persons for a longer period than eight hours in any one day "when a dam is being raised or lowered" and the service is one "requiring skill and training" which "cannot safely be entrusted to inexperienced men," is not an employment in case of an "extraordinary emergency," and is a violation of that statute.

It is a familiar rule of construction that where a particular construction of a statute will occasion great inconvenience or produce inequality and injustice, that view is to be avoided, if another and more reasonable interpretation is present in the statute.

DEPARTMENT OF JUSTICE,

May 11, 1908.

The SECRETARY OF WAR.

SIR: I have the honor to acknowledge the receipt of your letter of April 29, ultimo, directing my attention to a request of December 23, 1907, for my opinion "as to whether certain classes of employees variously designated as lock masters, lock keepers, lock helpers, lockmen, watchmen, firemen, enginemen, stokers, teamsters, etc., referred to in a memorandum of the Judge-Advocate-General, inclosed with Department's letter, could be legally excepted from the requirements of the eight-hour law (act of August 1, 1892;

27 Stat., 340) on the ground that they were neither laborers nor mechanics within the meaning of the act."

It seems from the inclosed memorandum that, at certain locks and dams, persons are employed whose duties are performed at irregular hours and do not require their attention for eight hours in the calendar day. These employees are liable to be called upon at any hour in the day for a service lasting but a few minutes; but, as a fact, the whole sum of the time in which they are engaged is but a fraction of eight hours. The rest of the day is entirely their own. The question is whether the service and employment of such persons, under such circumstances, is legal and proper within the limit and restriction of the statute.

As to laborers employed in a similar manner, I refer you to what was said by my predecessor, Attorney-General Moody (26 Op., 67):

"But I think that the eight-hour day means eight hours of effective labor, and therefore so far as your questions present the case of laborers and mechanics who, from the exigencies of the situation, must wait until after the completion of the regular day to finish their work, I am of the opinion that the blasting, cleaning of trucks, repair of machinery, and all other similar work essential to prompt and continuous service in the regular day may be legally done before and after the regular hours. To be more specific, laborers and mechanics who are called upon to do two hours' work, for example, before or after the regular day begins or ends have no just cause for complaint that the law is violated if they are only called upon to work six more hours during the regular hours. The law gives no countenance to the conception that the interval between the beginning and end of the regular day is a controlling convention which excludes labor at any other time and entitles workmen to stand around idle if their services can not be fully availed of during that interval.

The law limits the working day to eight hours, but it does not prescribe in what hours of the day the work shall be done. Practically, no doubt, there should re a real necessity, as is obviously the case here, for work during other hours than the regular day; and there should be scrutiny and care lest abuses arise which, however, the right of contract, subject to the law, between laborer and employer ought to prevent."

The cases mentioned in the memorandum of the Judge-Advocate-General come fully within these principles. Under the Cincinnati office are included locks on the Muskingum, Kentucky, and Big Sandy rivers. The employees live at the locks, in Government houses, and none is required to work an aggregate time in excess of eight hours though they are subject to call.

At Milwaukee are included 21 locks at canals of Fox River; the number of lockages averaging less than 2 per day and rarely exceeding 8 for the twenty-four hours.

At Louisville office are included locks of the Louisville and Portland Canal, and of the Green, Barren, Rough, and Wabash rivers. It is only occasionally that workmen are kept busy through eight hours of service. When traffic is light, actual service amounts to little more than being on hand.

At Nashville office are included locks where the lockmen are furnished quarters and none works more than three hours a day.

At Rock Island office are included locks where men do less than eight hours' work, the lockages averaging four a day. The men live in Government quarters and are required to be subject to duty from sixteen to twenty-four hours.

At Montgomery office are included locks where men have less than one hour effective work in a day and live on Government premises.

At Mobile offices are included locks in Black Warrior River where lockages average less than 2 a day and the hours of work much less than eight.

At Little Rock office, lock where lockages average less than one a day.

In these cases to require that a sufficient number of men should be employed to prevent any of them from being liable to duty except within a determined and arbitrary period of eight continuous hours would be to put an unreasonable construction upon the statute. It would recognize a favored condition of employment not intended by by the law.

A familiar rule is, that where a particular construction of a statute will occasion great inconvenience or produce inequality and injustice, that view is to be avoided, if another and more reasonable interpretation is present in the statute.

Other instances mentioned in the memorandum are upon different footing. At places under the control of the Pittsburg office men are sometimes required to work more than eight hours "when dam is being raised or lowered;" and the service is one "requiring skill and training and could not safely be entrusted to inexperienced men." This does not make a case of extraordinary emergency. The act includes skilled as well as unskilled workmen. The need is for more men; not for the employment during more hours.

At other places, employees are classed as watchmen, dam tenders, custodians, etc. With respect to the legal status of such employees under the eight-hour law, it is impossible to speak with certainty without very full information as to the nature of their employment. I respectfully refer you on this subject to what is said in my letter of the 7th instant.

In this view I have expressed my opinion upon the construction of the act to meet what I deem to be the object of your inquiry.

Respectfully,

CHARLES J. BONAPARTE.

ATTORNEY-GENERAL-- OPINION-- EIGHT-HOUR LAW; 26 Op.Att'y.Gen. 604, May 7, 1908

The Attorney-General declines to render an official opinion upon a matter submitted which involves the determination of questions of fact.

Presumably watchmen and messengers, if they are engaged in the work ordinarily assigned to such employees, are not subject to the provisions of the eight-hour law (27 Stat., 340).

DEPARTMENT OF JUSTICE,

May 7, 1908.

The SECRETARY OF WAR.

SIR: I have the honor to acknowledge the receipt of your letter of April 29, calling attention to your request for my opinion as to whether certain watchmen, laborers, hostlers, and messengers, mentioned in the memorandum of the Acting Judge-Advocate-General, which you inclose, are within the provision of the eight-hour law.

In reply I regret to be obliged to inform you that the matters submitted to me involve the determination of questions of fact, and it is therefore impossible for me to comply with your request.

Before I can attempt to express an opinion, it will be necessary for you to submit a statement, showing in detail the duties of each employee to whom your request refers.

The eight-hour law (27 Stat., 340) applies to "all laborers and mechanics who are now or may hereafter be employed by the Government of the United States, by the District of Columbia," etc.

Presumably watchmen and messengers, if they are engaged in the word ordinarily assigned to such employees, are not subject to the provision of the eight-hour law, but even on this I express no definite opinion until I am more fully advised of the facts.

Very respectfully,

CHARLES J. BONAPARTE.

NAVAL OFFICERS-- RETIRED PAY OF MATES; 26 Op.Att'y.Gen. 599, April 18, 1908

It was intended, in the opinion of October 15, 1907 (ante, p. 433), to define any particular rate of pay which mates should receive on retirement, or to say more than that they were entitled under the act of June 29, 1906 (34 Stat., 554), to the rank and retired pay of the next higher grade.

The retired pay of a mate in the Navy, whether retired under section 11 of the navy personnel act of March 3, 1899 (30 Stat., 1007), or under the act of June 29, 1906 (34 Stat., 554), is the retired pay of a warrant officer with the same length of previous service, which is three-fourths of the sea pay of such officer.

Retirements under the act of June 29, 1906 (34 Stat., 554), and under section 11 of the navy personnel act of March 3, 1899 (30 Stat., 1007), are in effect the same as regards the amount of pay. Under the act of 1899 an officer is retired with "three-fourths of the sea pay" of the next higher grade, and under the act of 1906 he would be retired with the "retired pay" of the next higher grade, which, under the act of March 3, 1873 (17 Stat., 547), is "seventy-five per centum" of the sea pay of such higher grade or rank.

The sea pay of a warrant officer under section 1556, Revised Statutes, is a variable quantity, ranging by varying sums from $1,200 to $1,800 per annum, according to length of service, any one of which may, in a sense, be said to be the sea pay of a warrant officer.

The purpose of section 11 of the act of 1899, when applied to mates, was not to retire them with three-fourths of the lowest sea pay given to a warrant officer, but to give them three-fourths of the varying sea pay of such officers, upon the same conditions, which conditions include length of previous service.

A retired mate in the Navy may be credited with his prior service in the Navy at the date of his retirement in determining his classification for pay.

Mate William Jenney, of the Navy, retired, became entitled, under section 11 of the act of March 3, 1899, to advancement from the date of his retirement on September 26, 1899, and not from the date of the Department's letter to him of November 26, 1907.

DEPARTMENT OF JUSTICE,

April 18, 1908.

The SECRETARY OF THE NAVY.

SIR: In your letter of April 1, 1908, with its inclosures, you informed me that a portion of the opinion of this Department dated October 15, 1907 (ante, p. 433), is construed in a way which, perhaps, may do injustice to certain officers of the Navy, there referred to, and you ask my opinion upon the following questions:

"1. Whether the expression 'the lowest grade of warrant officers' should be restricted to the lowest pay grade?

"2. Whether a retired mate in the Navy belonging to the category referred to in the Attorney-General's opinion of October 15, 1907, may be credited with his prior service in the Navy at the date of his retirement in determining his classification for pay?

"3. When did Mate William Jenney, U.S. Navy, retired, become entitled to advancement, whether at the date of his retirement, September 26, 1899, or from the date of the Department's notification to him of November 26, 1907?"

Your first question is answered in the negative. It was not the intention, in that opinion, to define any particular rate of pay which mates should receive on retirement, or to say more than that they were entitled under the provision referred to, to the rank and retired pay of the next higher grade. The question of the particular rate of pay to which they were entitled was not before me and was not considered.

There was nothing to inform me then how many grades there were of warrant officers, or whether more than one; but, following the uniform rule for the promotion of the lower officers of the Navy, that is, by a single step from the lower to the next higher grade, I used the expression referred to in the opinion. And if, as appears to be the case, there is but one grade of warrant officers, the expression used refers to that, as being both the lowest and highest grade.

The questions now submitted are different, in that they inquire as to this rate of pay, and my views on this subject are expressed in the following answer to your second and third questions. Referring to these questions, section 11 of the navy personnel act of March 3, 1899 (30 Stat., 1007), provides for the retirement of certain officers, with the rank and three-fourths the sea pay of the next higher grade. As Mate Jenney comes within the description of the officers there referred to, and was retired September 26, 1899, he should have been retired under that section, as of that date, with three-fourths the sea pay of a warrant officer, the next higher grade.

But, what is the sea pay of a warrant officer? By reference to section 1556, Revised Statutes, we find that this is a variable quantity ranging by varying sums, from $1,200 to $1,800 per annum by three-year periods of service; and that, for the first three years a warrant officer gets $1,200; and after twelve years' service, $1,800 per annum with other rates for intermediate three-year periods. Either one of these may, in one sense, be said to be the sea pay of a warrant officer. But, neither one alone can, in any proper sense, be said to be the sea pay of that grade.

It is impossible to give to these mates, on retirement, three-fourths the sea pay of warrant officers, unless we give them just that amount, and upon the same terms and conditions affecting the amount as those affecting the pay of warrant officers; that is, if the amount of a warrant officer's pay depends upon certain terms or conditions, we can not give a mate three-fourths of the same pay, unless upon the same terms and conditions. If it is not increased by the same facts, or, if it is charged with greater burdens, it is not the same pay.

If a warrant officer's pay is increased by length of service, instead of being fixed and stable, it is impossible to give mates three-fourths of the same pay unless that also is affected by corresponding length of service. The purpose of this section, when applied to this class of officers, was not to retire these mates with three-fourths of the lowest sea pay given to a warrant officer, and it was not so said, but was to give to them three-fourths the varying sea pay of warrant officers upon the same conditions. The purpose of the section was to give to the retiring officer, broadly and generally, three-fourths of the compensation which, in the higher grade, is given for service at sea. If that is fixed and stable, so is that of the retiring officer. If it varies according to length of previous service, so also does the three-fourths thereof given to the latter officer, and from the same cause; so that the retiring officer receives three-fourths of the same pay that is given in the higher grade for sea service by one having the same length of previous service.

If Congress had intended either one of these particular rates of pay as the basis of this retired pay, it is certain that it would have said so. As it is not so said, it must be taken that it was not so intended. And this is made substantially certain, also, by the language of this section. It provides that the officers referred to shall be retired "with the rank and three-fourths the sea pay of the next higher grade." In this instance the sea pay of the "next higher grade" varies with three-year periods of service.

But it is this same varying rate of pay "of the next higher grade," and not any particular one of them, which is made the basis of the retired pay there referred to. The way to give these mates three-fourths of this varying sea pay of the next higher grade is, of course, plain. If one of them has had three years' service he gets three-fourths the pay of a warrant officer, who has had that length of service. If he has had twelve years' service-- and Mate Jenney has had much more than that-- he gets three-fourths the pay of a warrant officer, with the same service. In short, the mates, being entitled to the rank and three-fourths the sea pay of warrant officers, should receive three-fourths of the same pay which they would receive if they were warrant officers, instead of mates, all other circumstances connected with them remaining the same.

I know of no other way by which to give to retired mates three-fourths of the sea pay of the next higher grade.

It follows that Mate Jenney should have been retired September 26, 1899, with three-fourths the sea pay of a warrant officer with twelve years of service, and that his advancement should be at and from that date and not from the date of the Department's letter to him, November 26, 1907, referred to in your question.

But your questions refer more specifically to retirements under the act of June 29, 1906, (34 Stat., 554); and as this act refers as well to officers who had then been retired, as to subsequent retirements, it is quite possible that Mate Jenney and others, retired under section 11 of the personnel act, may be retired under the act of 1906, if, for any reason, that is thought desirable.

As far as concerns any question here, the only difference in the pertinent provisions of the two acts, is the substitution in the later act of the words "retired pay" for "three-fourths the sea pay" of the next higher grade. This would give to mates on retirement, the retired pay of warrant officers-- the next higher grade.

The act of March 3, 1873 (17 Stat., 547) provides, in substance, that the retired warrant officers, with other retired officers, shall receive "seventy-five per centum of the present sea pay of the grade or rank which they held at the time of retirement."

This sea pay of warrant officers is fixed as above shown, varying from $1,200 to $1,800 per annum. So that, if Mate Jenney, after being retired under section 11 of the personnel act, were now retired under the act of June 29, 1906, this would make no difference in the amount of his retired pay, for, under the former act, he would receive three-fourths the sea pay of a warrant officer, and, under the other, he would receive the whole of the retired pay of warrant officers, which is three-fourths the sea pay of such officer.

And, with the changes made necessary by the changed language of the later act, what is said above as to the length of previous service in determining the rate of pay of warrant officers, and therefore the retired pay of mates, under section 11, referred to, is equally applicable in the cases of mates retired under the act of 1906.

And they receive the retired pay of the next higher grade, that is, the retired pay of a warrant officer with the same length of previous service.

This, it is believed, covers the ground embraced in your second and third questions. Specifically your second question is answered in the affirmative. And, as to the third, I have to advise you that Mate Jenney, under the facts stated, was entitled to advancement from his retirement, September 26, 1899, and not from the date of the Department's letter to him of November 26, 1907.

Respectfully,

CHARLES J. BONAPARTE.

PHILIPPINE ISLANDS-- ESTABLISHMENT OF A GOVERNMENT AGRICULTURAL BANK; 26 Op.Att'y.Gen. 593, April 16, 1908

The Philippine legislature may legally and constitutionally enact suitable laws authorizing the Philippine government to open and conduct an agricultural bank, with a capital not exceeding $2,000,000, from funds now in its possession available for general appropriation.

The act of Congress of March 4, 1907 (34 Stat., 1282), authorizing the establishment of an agricultural bank by a banking company organized under Philippine laws, does not withdraw any power the Philippine government would otherwise have to establish a government agricultural bank, for the authority to charter and aid a private bank is no denial of the power to establish a government bank, which may exist independently under the Philippine scheme of governmental power.

DEPARTMENT OF JUSTICE,

April 16, 1908.

The SECRETARY OF WAR.

SIR: I have received your request for my opinion contained in a letter which quotes from a cablegram received by you from the governor-general of the Philippine Islands urging the desirability and necessity of establishing a Philippine government agricultural bank under legislation proposed to be enacted by the Philippine assembly, and then presents the question--

"whether the Philippine legislature may legally enact suitable laws authorizing the Philippine government to open and conduct an agricultural bank with a capital not exceeding two million dollars from funds now in its possession available for general appropriation."

The act of Congress approved March 4, 1907 (34 Stat., 1282), to which you refer, does not provide for a governmental bank of the kind in question, but for a governmental guarantee in support of a private bank.

That act in its first section authorizes the establishment of an agricultural bank by the Philippine government with a guarantee of 4 per cent dividends upon the cash capital invested by individuals or corporations, to a banking company organized under Philippine laws subject to certain restrictions as to loans, interest, limit of liability under the guarantee, and subject to regulations to be prescribed by the Philippine government including and covering the duty of making sworn reports.

The second section provides that payments made pursuant to the guarantee shall constitute a lien in favor of the Philippine government upon annual net profits subject to stockholders' right to receive limited dividends; and that in case of liquidation the government advances under the guarantee shall constitute a lien on assets subject to debts and of the repayment to stockholders of the authorized and paid up cash capital stock at par.

Section 3 forbids the holding of real estate beyond that required for business premises, unless acquired on account of a debt, in which case it must be sold within ten years.

The original authority of the Philippine government (arising under the war power) was defined in President McKinley's instructions of April 7, 1900,

to the Philippine Commission (1 Philippine Laws, p. LXIII), in which he laid down as inviolable rules for their guidance most of our constitutional guarantees, transferring the legislative authority from the military government to the Commission, and defining the scope of that authority in general terms. By the Philippine civil government act of July 1, 1902 (32 Stat., 691), Congress ratified the government established under the President's instructions, and generally approved the acts of legislation of that government (sections 1 and 2), imposed in the declaration of rights of section 5, for the most part, the guarantees specified in the President's instructions, provided for a census and territorial assembly (sections 6-9), and in the remaining sections recognized the judicial system established by the Philippine government and specifically authorized the Philippine government to legislate for the improvement of navigation and as to public lands; and, finally, in detailed provisions dealt with the disposal of mineral lands, the purchase of lands of religious orders, municipal bonds, franchises and coinage. Section 7 of that act transfers the legislative authority as follows:

"After said assembly shall have convened and organized, all the legislative power heretofore conferred on the Philippine Commission in all that part of said Islands not inhabited by Moros or other non-Christian tribes shall be vested in a legislature consisting of two houses-- the Philippine Commission and the Philippine assembly."

That section goes on to provide for qualification of electors, eligibility of members of assembly and powers and duties of the assembly with reference to elections, returns, qualifications of members, quorum, etc., but does not express any limitation on the power of legislation.

Section 86 provides:

"That all laws passed by the government of the Philippine Islands shall be reported to Congress, which hereby reserves the power and authority to annul the same, and the Philippine Commission is hereby directed to make annual report of all its receipts and expenditures to the Secretary of War."

It seems clear to me that this organic act intends to recognize broadly and to validate the Philippine legislative power as conferred previously and as exercised, and expresses no limitations beyond the fundamental guarantees of the bill of rights; and that the authority specifically conferred upon the Philippine government relative to certain subjects of legislation and the express and particular legislation by Congress itself upon certain other subjects are to be viewed simply an enactments on matters wherein Congress was fully informed and ready to act, and not as implying any restriction upon the local legislative authority in other matters; and that Congress is content to permit the Philippine government to enact laws unrestricted, subject to the reserved power of annulment. Accordingly, since the organic act was passed, as before, the Philippine Commission has passed numerous laws covering the field of general jurisprudence and the entire range of administrative government, and I can find no later laws of Congress between the act of 1902 and the agricultural bank act of 1907 which tend to disprove the theory of the organic act and the relation of Congress to Philippine legislation which I have just expressed.

The decision in the case of Dorr v. United States (195 U.S., 138), respecting the Philippine law of criminal libel, sustained in general the validity of Philippine legislation, and held that in the authority to legislate, founded in the war power and defined by the President and finally ratified by Congress, there was no illegal delegation of legislative authority by the ratifying act.

I do not think that the act of Congress of 1907 withdraws any power the Philippine government would otherwise have to establish a Government agricultural bank. The authority to charter and aid a private bank is no denial of the power to establish a Government bank which may exist independently under the Philippine scheme of governmental power.

As to the fundamental limitations imposed by the Philippine bill of rights affecting this matter, the particular clause is "that no law shall be enacted in said islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws."

It is to be noted that the guarantee "that private property shall not be taken for public use without just compensation," which appeared in President McKinley's instructions, does not appear in the bill of rights (sec. 5, act of July 1, 1902), just as the guarantee of the right of trial by jury appears in neither the instructions nor the bill of rights. But whatever the reason may have been for the omission of the express language relative to the taking of private property for public purposes, I entertain no doubt that this historic and established principle of Anglo-Saxon government and jurisprudence accompanies the power of the United States in the Philippine Islands and is sufficiently embraced and implied in the clause of the bill of rights which I have quoted above.

It does not seem to me that such authorities as Loan Association v. Topeka (20 Wall., 655), Parkersburg v. Brown (106 U.S., 487), or Cole v. La Grange (113 U.S., 1), apply to the present case. In those cases municipal bonds had been used either as a gift or as a loan to establish or maintain private manufacturing enterprises.

The Supreme Court held that this was taking private property (through taxation) for a private purpose; that such a debt for such a purpose to be paid in the future out of taxes to be levied could not be contracted. But those decisions intimate that if a municipal corporation has a fund or other property out of which it can pay the debts which it contracts without resort to taxation the legislature may authorize it to use this fund in aid of private or personal projects which, however collaterally, contribute to the public good; and it is to be noted that in the present case your letter says the Philippine government has sufficient funds for the proposed purpose now in its possession available for general appropriation.

Independently of these considerations, a series of decisions such as Township of Burlington v. Beasley (94 U.S., 310), and Blair v. Cuming County (111 U.S., 363), hold that municipal bonds issued to aid the construction or operation of a custom grist mill are valid, because the purpose is public.

As the Court says in the last-mentioned case (pp. 372, 373):

"Enterprises of a class within which that in the present case falls are so far of a public nature that private property may be appropriated to carry them into effect. Boston & Roxbury Mill Corp. v. Newman, 12 Pick. 467; Commonwealth v. Essex Company, 13 Gray, 239, 249; Lowell v. Boston, 111 Mass. 454, 464; Scudder v. Trenton Delaware Falls Co., 1 Saxton Ch. 694; Beekman v. Saratoga & Schenectady Railroad Co., 3 Paige, 45. And when the legislature has given to grist mills and the water-power connected with them such a public character as in the present case, the improvement of the water-power must be regarded as a public work of internal improvement, which may be aided in its construction by the issue of bonds, under the act in question."

In the present case there can be no ambiguity as to the public purpose. A bank has been always held to be a public agency, and the institution of such a bank as is here proposed, since agriculture is the prevailing and preponderant occupation of the Philippine Islands and the very basis of the whole people's existence, would be clearly created for the benefit of the Philippine Islands and the people at large.

I am therefore of opinion that the proposal is not in violation of the constitutional limitations in question, substantially for the same reasons which caused the project to establish the Bank of the United States to be held by the Supreme Court in harmony with the Constitution. It is true that in M'Culloch v. Maryland (4 Wheat., 316), the precise points decided were that Congress had power to incorporate a bank and that a State could not tax it; but Chief Justice Marshall reached these conclusions by determining first that a bank was in itself an appropriate agency of government to assist the Congress in exercising its power to lay and collect taxes and its power to borrow money (both of which powers are conferred upon the Philippine Government), and secondly that a corporation may be created to provide this agency. There can be no doubt that according to this opinion, the Congress could exercise these powers of government through a bank established and conducted by the Government as well as through the medium of an incorporated banking institution with private subscribers and capital stock.

In discussing the right of the State of Maryland to tax a branch of the bank located in that State, the Chief Justice declares the bank an instrument of government, and as such, removed from the power of State taxation, an instrument "employed by the Government in the execution of its powers," which he compares to the mails and the mint as governmental instrumentalities, means, and processes.

Upon the papers submitted, I am of opinion and advise you that the Philippine legislature may legally and constitutionally "enact suitable laws authorizing the Philippine government to open and conduct an agricultural bank, with a capital not exceeding two million dollars, from funds now in its possession available for general appropriation."

Respectfully,

CHARLES J. BONAPARTE.

PROTECTION OF SEAL ROOKERIES ON PRIBILOF ISLANDS; 26 Op.AttY.Gen. 587, April 15, 1908

The guard maintained by the United States on the Pribilof Islands for the purpose of protecting the seal rookeries thereon, were justified in using all necessary means at their command in resisting the landing on those islands of armed Japanese from armed vessels for the purpose of killing seals and of appropriating their skins, and in firing upon them after they had refused to surrender and attempted to escape with the skins of the slaughtered animals.

The United States has the undoubted property rights, as well as rights of sovereignty, in the living seals on the Pribilof Islands, and is justified, as any other property owner would be, in protecting those rights from violent invasion; and if, in attempting to violate those rights, the invader meets death or injury, there is no greater reason for complaint than there would be for a burglar, discovered in rifling the premises he had feloniously entered, to complain if he were shot by the owner.

It is not less clearly unlawful by the law of nations for a band of foreigners, more or less fully armed, to invade the territory of a sovereign power with the deliberate purpose to violate its laws and misappropriate its property, than it is a felony by the common law for one to break by night into the dwelling of another with felonious intent.

Article 1 of the Treaty of November 22, 1894 (29 Stat., 848), with Japan can not be construed as giving to the Japanese greater privileges than are conferred upon our own citizens, or as depriving either American citizens, or the Government in its corporate capacity, of the natural and universal right of self defense for person or property, and of resisting by force a lawless force of law-breakers merely because the latter happen to be Japanese.

DEPARTMENT OF JUSTICE,

April 15, 1908.

The SECRETARY OF STATE.

SIR: I have the honor to acknowledge the receipt of a letter wherein you say:

"I have the honor to inclose herewith a copy of a dispatch, dated July 20, last, and of the inclosure thereto, from the American ambassador to Japan, on the subject of the killing of Japanese subjects while they were engaged in raiding the fur-seal rookeries on the Probilof Islands.

"I also inclose a copy of a note, dated August 12, last, from the Japanese ambassador on the subject.

"This Department would be glad to have an expression of opinion from your Department as regards the matter covered by the Japanese note, in view of the facts of the case as reported by Mr. Edward W. Sims, the Solicitor for the Department of Commerce and Labor, and as developed upon the subsequent trial of the pelagic sealers, in order that an appropriate answer may be made to the Japanese embassy.

"Extracts from Mr. Sims's report are inclosed herewith, which I beg to request that you will return to this Department after they have served the purpose of this letter."

To understand the full purport of your inquiry it is necessary to state briefly the facts as shown by the documents accompanying your letter. From these it appears that some 12 to 15 Japanese vessels, having crews on the average of some 30 men each, carrying, in some instances, cannon, and, so far as known, in all cases, guns, clubs, knives, and other weapons, approached the seal islands and landed parties thereon, which parties killed, skinned, and removed a number of seals from their rookeries, or breeding grounds, beside killing and removing a number of seals within the limits of marine jurisdiction by the United States within the waters surrounding these islands.

A guard maintained by the Government for the protection of these islands interrupted some of these marauders in their depredations, and, as they refused to surrender and attempted to escape with the skins of the slaughtered seals, fired upon them, killing some and wounding others. Other boats which were discovered approaching the shore with the evident purpose to commit the like depredations were fired upon by the guard and driven away, and there is reason to believe that some casualties occurred among their crews. A certain number of the raiders surrendered to the guard, were taken prisoners, and subsequently were tried in an Alaskan court. I have stated the facts very succinctly, but what I have said suffices to show that there was a landing on the territory of the United States of armed parties of foreigners, all of whom, it is reasonable to suppose, made this landing with the purpose to destroy the seals in their rookeries, and some of whom accomplished this purpose. There is also good reason to believe that the boats which were repulsed by the guard, or driven away before they had committed any depredation on land, had been engaged in killing and appropriating seals within the territorial jurisdiction of the waters of the United States, with the knowledge that such killing was prohibited by our Government.

In animals, feroe naturoe, it has always been held that the State had, by virtue of its sovereignty, a right of property. In Pothier it is said (No. 32):

"The right belongs to the king to hunt in his dominion; his quality of sovereign gives him the authority to take possession above all others of the things which belong to no one, such as wild animals; the lords and those who have a right to hunt hold such right but from his permission, and he can affix to this permission such restrictions and modifications as may seem to him good."

Blackstone (2 Comm. 410), says:

"There still remains another species of prerogative property, founded upon a very different principle from any that have been mentioned before; the property of such animals feroe naturoe, as are known by the denomination of game, with the right of pursuing, taking, and destroying them;

which is vested in the king alone, and from him derived to such of his subjects as have received the grants of a chase, a park, a free warren, or free fishery."

These views are endorsed in Geer v. Connecticut (161 U.S., 519); which is itself reaffirmed in Hudson County Water Co. v. McCarter (209 U.S., 349). It may safely be stated that the decided weight of well considered authority holds the unlawful and violent misappropriation of game, in itself, an outrage upon not only the authority, but upon the property rights of the local sovereign.

It is true that some authorities hold that sometimes a right of killing or capturing game is vested in the owner of the land where the animal is found. Blackstone says (2 Comm., 394):

"A man may, lastly, have a qualified property in animals feroe naturoe, propter privilegium: that is, he may have the privilege of hunting, taking, and killing them, in exclusion of other persons. Here he has a transient property in these animals, usually called game, so long as they continue within his liberty; and may restrain any stranger from taking them therein: but the instant they depart into another liberty, this qualified property ceases."

Mr. Justice Field, in his dissenting opinion in Geer v. Connecticut, says on this point (161 U.S., 539):

"Although there are declarations of some courts that the State possesses a property in its wild game, and when it authorizes the game to be killed and sold as an article of food it may limit the sale only for domestic consumption, and the Supreme Court of Errors of Connecticut in deciding the present case appears to have held that doctrine, I am unable to assent to its soundness, where the State has never had the game in its possession or under its control or use."

With regard to the seals still in their rookeries, however, this distinction is immaterial. The animals were not only within the territorial limits but within the public lands of the United States, and from their peculiar conformation and habits they were, in fact, under the physical control and subject to the exclusive use of the United States, represented by its duly authorized agents on the islands.

Under these circumstances, even if it were held that the seals were the property of no one, as is apparently held of all wild animals in the Digest, still the land holder would be none the less injured in his rights by their destruction and removal against his will; since, in the language of the Digest:

"He who wishes to enter into the property of another to hunt can be readily prevented if the owner knows his purpose to do so." Digest, Book 41, Tit. 1, De Adquir. Rer. Dom.

In my opinion, however, the United States had undoubted property rights as well as rights of sovereignty in the living seals killed on the island in question. It was justified, as any other property owner would be, in protecting these rights from violent and outrageous invasion, and if the invaders and robbers met with death or injury in the attempt to consummate their wrongful purpose, there is no greater reason to complain of what befell them, than there would be for a burglar, discovered in rifling premises he had feloniously entered, to complain if he were shot by the owner. It is no less clearly unlawful by the law of nations for a band of foreigners, more or less fully armed, to invade the territory of a sovereign power with the deliberate purpose to violate its laws and misappropriate its property, than it is a felony by the common law for one to break by night into a dwelling of another with felonious intent. Moreover, I do not think we are bound to inquire too closely as to whether, in point of fact, it was necessary for the protection of the public property committed to their charge for the guards on the island to inflict all the injuries they did on the poachers, any more than a householder finding an armed burglar on his premises would be bound to speculate as to whether he could or could not eject the latter without the use of a deadly weapon. The agents had good reason to believe that the island was surrounded by a predatory force much stronger than the guard itself, and as soon as the hostile and injurious purposes of these outlaws became evident, they were, in my opinion, justified in resisting the accomplishment of these purposes with all the means at their command.

It is true that, in some instances, the Japanese seem to have been attempting to escape when they were fired upon, but the guard might reasonably think that they were carrying off seal skins, which, no less than the seals they had undoubtedly been taken from, were the property of the United States, and such carrying away would seem to have been a fact with regard to the majority, at least, of the retreating poachers.

Independently, however, of the last-mentioned consideration, I can not find in the papers submitted any sufficient reason to believe that the guard used greater force or inflicted greater injury than was reasonably necessary, under all the circumstances of the case, for the protection of the public property committed to its charge, or justified as a measure of self-defense.

In the correspondence transmitted with your letter there appears to be a misapprehension as to the grounds of justification for the acts of the guard. The Japanese who were killed or injured during their raids were not punished for a crime of which they had been convicted. They were killed or injured to prevent their committing a crime. The guards were, it is true, in the employ of the United States, and, in that sense, public servants; but they did no more than any private property owner and his servants would have been justified in doing to protect his premises and his property from violent and unlawful invasion and injury. It is quite true that our treaty with Japan of 1894, article 1, guarantees the subjects or citizens of either party full liberty to enter, travel or reside in any part of the territories of the other party, and provides that they "shall enjoy full and perfect protection for their persons and property"; they are to have free access to the courts, the right to employ lawyers, "and in all other matters connected with the administration of justice they shall enjoy all the rights and privileges enjoyed by native citizens or subjects."

If, however, a number of Americans had gone to the seal islands and attempted to kill the seals in their rookeries, the guard might lawfully, and doubtless would, have treated this band of robbers as the Japanese were treated on this occasion.

The treaty can not be construed as giving foreigners greater privileges than are conferred upon our own citizens; or as depriving either American citizens or the Government, in its corporate capacity, of the natural and universal right of self-defense for person and property, and of resisting by force the lawless force of lawbreakers merely because the latter happen to be foreigners. These depredators who surrounded the lonely islands and attempted, unfortunately with a large measure of success, to destroy the property committed to the charge of the guards, brought whatever injury they suffered upon themselves by their participation in a wholly unjustifiable enterprise. The agents who defended the Government's property in their charge committed, in my opinion, no offense under our laus, if the facts and circumstances are such as disclosed by the papers transmitted with your letter. Any attempt to prosecute them for homicide or assault would be, in my judgment, unquestionably futile, and they seem to me deserving rather of praise for their fidelity and courage than of punishment because of the injury they inflicted on the robbers who were killed or wounded.

Very respectfully,

CHARLES J. BONAPARTE.

BALTIMORE AND POTOMAC RAILROAD COMPANY-- RIGHT OF WAY ALONG ANACOSTIA RIVER, D.C.; 26 Op.Att'y.Gen. 577, April 14, 1908

The construction by the Baltimore and Potomac Railroad Company, under the acts of Congress of February 5, 1867 (14 Stat., 387), and March 18, 1869 (16 Stat., 1), of what is known as its "curved" line of road along the northern shore of the Eastern Branch of the Potomac River between south L and south M streets, in the District of Columbia, and its open and notorious operation of that line ever since its construction prior to 1870, with the tacit consent of Congress and of the Executive authorities, give to that company the same rights to maintain and operate said line which it would have had if this route had been specifically designated in the acts which authorized the construction of the road within the District.

The construction by that company of what is known as its "straight" line of road along the northern shore of the Eastern Branch of the Potomac River, in the District of Columbia, under the acts of February 5, 1867, and March 18, 1869; its payment of the sum of $20,000, fixed by the Secretary of War under the act of May 14, 1888 (25 Stat., 138), as the additional expense of construction of the bridge across the Eastern Branch of the Potomac River, by reason of the change of plans to avoid interfering with the operation of its "straight" line of road; and its use of said line ever since its construction, with the knowledge of Congress and of the officers having such matters in charge, and without objection by either, vested in that company the same right to have, maintain, and use its "straight" line of road that it would have had if such right had been expressly granted.

Since the Maryland charter of the railroad company allows a width of 66 feet for the right of way, and since the act of Congress of February 5, 1867, gives the same right and privilege in this respect, and since the location and construction of the "curved" and "straight" lines of road were upon this basis, the right of way of the railroad company on each of these two lines is 66 feet in width; that is, 33 feet on each side of a line midway between the inner rails of each track.

This right and interest of the railroad company is a perpetual easement for railroad purposes, leaving in the United States only the naked fee, with a possibility of reverter of the beneficial use.

The conveyance of square 1137 and part of square 1117, in the city of Washington, District of Columbia, to Sidney Bieber, authorized by section 21 of the act of June 30, 1906 (34 Stat., 787), should be such as to enable the purchaser to assert any right which the United States could rightfully assert and no other. It can not, however, determine what this interest is or fix the respective rights of the purchaser and the railroad company. Streets within the lands to be sold should be excepted from the conveyance.

The easement of the railroad company to have and maintain its said "curved" and "straight" lines of road does not extend to nor include the right to occupy the space between these two rights of way with sidetracks, or otherwise.

Unlike grants by private persons, grants of public property or rights are construed against the grantee, and pass nothing beyond what is granted expressly or by necessary implication.

The inquiry as to whether, in view of the fact that this water front may in future be needed by the Government in connection with any improvement of the Anacostia River, the Secretary of War should withhold the execution of the conveyance of the premises until the matter can be submitted to Congress for its further consideration, raises a question of propriety and expediency rather than of law, upon which the Attorney-General can not advise.

DEPARTMENT OF JUSTICE,

April 14, 1908.

The SECRETARY OF WAR.

SIR: In your note of October 12, 1907, with its various accompanying papers, you ask my opinion in substance upon the following questions:

(1) What are the rights of the Pennsylvania Railroad Company to the lands occupied by the line of its railway (main line) through the premises mentioned in these documents, and also to the ground used by it for side tracks, and other like purposes?

(2) Whether the findings of the board of officers as to value may properly be approved by this Department? and

(3) Whether, in view of the fact that it is thought that the water front may, in future, be needed by the Government in connection with any improvement of the Anacostia River, which may, in the future, be authorized, the Department may legally withhold the execution of the direction contained in section 21 of the act of June 30, 1906 (34 Stat., 787), to convey the premises to Sidney Bieber, until the matter can be submitted to Congress for its further consideration.

I must express my regret that in this case the request of this Department, so often made, which requires that a request for an official opinion shall so formulate a precise question that it may be answered as a question of law and be accompanied by a statement of facts should have been disregarded.

The question of the title to the lands in question as between the United States or its vendee and the railroad company, can not be conclusively determined in this extra-judicial way, and the main purpose of this inquiry is to ascertain, as far as can be done in this matter, the portions of the lands in question to which the railroad company has title or right in order to determine what portions should be paid for by the purchaser and embraced in the deed to be made.

By section 13 of the Act of March 2, 1907 (34 Stat., 1236), it is provided--

"That the Secretary of War be, and he is hereby, authorized and directed to convey to the purchaser from the United States of square eleven hundred and thirty-one, and the south part of square eleven hundred and seventeen, and the squares south of squares eleven hundred and twenty-three, eleven hundred and forty-eight, and eleven hundred and forty-nine, in the city of Washington, all the interest of the United States in the land lying south of the squares so purchased and between them and the channel of the Anacostia River, upon payment by such purchaser into the Treasury of the United States of such sum of money as the said Secretary of War, upon consideration of all the circumstances, shall determine proper to be paid for the said land; and the surveyor of the District of Columbia is hereby authorized and directed to mark out such land and determine the acres and to record a plat thereof."

The Baltimore and Potomac Railroad Company was originally chartered by act of the legislature of Maryland (May 6, 1853, ch. 194) with power to make lateral branches and connect with other railroads. The width of this right of way was fixed at 66 feet, except that, at or near stations, a greater width might be used; and the company was authorized to lay and use as many tracks therein as it chose, and to acquire this land by purchase or condemnation.

By the act of Congress of February 5, 1867 (14 Stat., 387), the Baltimore and Potomac Railroad Company was authorized to--

"extend into and within the District of Columbia a lateral railroad, such as the said company shall construct or cause to be constructed in a direction towards the said District, in connection with the railroad which they are about to locate and construct from the City of Baltimore to the Potomac river, * * * and the said Baltimore and Potomac Railroad Company are hereby authorized to exercise the same powers, rights, and privileges, and shall be subject to the same restrictions, in the extension and construction of the said lateral railroad into and within the said District, as they may exercise or are subject to under and by intent of their said charter or Act of Incorporation, in the extension and construction of any railroad within the State of Maryland;

and shall be entitled to the same rights, compensations, benefits, and immunities, in the use of the said road, and in regard thereto, as are provided in their said charter, except the right to construct any lateral road or roads within the said district, * * * ; it being expressly understood that the said Baltimore and Potomac Railroad Company shall have power only to construct from the said Baltimore and Potomac Railroad one lateral road within the said District to some point or terminus within the City and County of Washington, to be determined in the manner hereinafter mentioned."

The act of March 18, 1869 (16 Stat., 1), after reciting in the first section that the Baltimore and Potomac Railroad Company, by the act last above mentioned, was authorized to extend its road into the District of Columbia, provides that it--

"may enter the City of Washington with their said railroad and construct the same within the limits of said City on and by whichever one of the two routes herein designated the said Company may elect and determine upon, that is to say: * * * Second. Beginning at some point on the northern shore of the eastern branch of the Potomac river between south L and south M streets; thence westwardly between said streets, etc."

This second route is the one which was selected and upon which the road was constructed and still remains, and the one by which, between south L and south M streets, it enters the city; and this point is therefore the one so designated for entrance into the city.

As first located, it was intended that the road, after crossing the main channel of the river, should proceed by substantially a straight line down the river following the shallow water upon trestles to the point where it was to enter the city; but because of treacherous foundations it was located by a curved line to the northwestward and nearer the shore, but turning eastward again, it reached the same point between south L and M streets; and two main tracks were placed on that line.

This will be mentioned hereinafter as the "curved line."

This was constructed and in operation in 1870, and has so continued ever since; and until after 1889, was the only main line of the road within said district.

As there was no more particular designation or restriction of route than that contained in and elected under the act of 1869, and as the construction and operation were open, notorious, and with the tacit consent of Congress and the Executive authorities, I am of opinion that the construction upon this curved line was rightful and legal and gave to the company the same rights with reference thereto which it would have had if this route had been specifically designated in the acts which authorized the construction of the road within the District.

But those acts gave the right to only one right of way, 66 feet wide, and when the company had selected this route and constructed its road thereon, its legal power in this respect was exhausted. So that its right to construct or maintain its second, or what is hereafter called the "straight line," must arise, if at all, from other sources, and not from the statutes above referred to.

As already stated, this straight line was the one originally intended, and is laid down on some of the maps. It lies between the point where the curved line turns to the northwest and the point between south L and M streets. Since its construction, this has been and is one of the main lines of said road in the District, with two tracks, and is used mainly for passenger trains, while some of the freight trains go over the curved line. The claimed right to this straight line is based upon the following facts:

All of the lands here in question and all which are occupied by the railroad company on the northwest side of the present river above the point of entrance into the city are made ground, formed by dumping earth and other materials by the railroad company and the District authorities into the river, thus extending the land from the former shore into the present water edge near the Pennsylvania Avenue Bridge, the construction of which was begun under the act of February 23, 1887 (24 Stat., 412).

Both of these lines of railroad pass under its western end.

As it was in process of construction, it was found that one of the piers would stand directly in the line of the aforesaid straight line of the railroad company and would prevent its construction or use and leave no room for any other than the curved line. The railroad company protested, claiming the right to construct and use the straight line and claiming that this was the original and proper main line of its road.

A suit was begun to determine the rights of the parties when Congress took the matter in hand. The whole subject was thoroughly discussed and considered, the main question being whether the company should be permitted to construct and use the straight line, which would necessitate the making another span at the western end of the bridge, and locating the pier in another place.

This resulted in the act of May 14, 1888 (25 Stat., 138), which provides:

"That the Secretary of War be, and he is hereby, authorized in his discretion to make such alterations in the plan of the bridge across the Eastern Branch of the Potomac River at the foot of Pennsylvania avenue east as will best accommodate the traffic over and under said bridge, and for said purpose the sum of sixty thousand dollars, or so much thereof as may be necessary, to be immediately available, be, and the same is hereby, appropriated out of any money in the Treasury not otherwise appropriated: Provided, That the Baltimore and Potomac Railroad Company pay their fair and just proportion of the cost of said alteration at the west end of said bridge, to be determined by the Secretary of War."

Under this act, the plan of the bridge at its west end was changed by adding another span, and placing the pier at a point where it would not interfere with either of the two railroad lines, and the bridge was so constructed and the Secretary of War fixed the portion of the additional cost which the railroad company should pay at $20,000, which was paid.

As the right to the curved line had become and was a vested right in the company, and as the new arrangement for the bridge had no provisions for the abandonment or discontinuance of that line, and as the change directed was such as would best accommodate the traffic under the bridge (since there was no traffic except that of the railroad company) it must be taken that the statute and action thereunder had reference as well to the existing traffic as to that upon the contemplated straight line for which especially the change was made, and must be taken as a recognition and authorization of both lines.

Under the authority and right supposed to be thus conferred, the railroad company constructed the straight line, intersecting said curved line at the point between L and M streets with two tracks; which has ever since been used as its main line, with the knowledge of Congress and the officers having such matters in charge, and without objection by either. I do not understand that anyone on behalf of the United States disputes the right of the company to maintain and use both the straight and curved lines. It is the contemplated purchaser who is insisting upon the right of the United States, since the use of both lines diminishes the quantity of land to be sold and conveyed.

The space between the curved and straight lines is occupied by sidetracks, sidings and switches of the railroad company, and all these and the main lines of the company at the points now considered are within the tract of land in which the interest of the United States is directed to be sold. This would be the whole estate in the lands but for the rights of the railroad company.

Upon these facts, I am of opinion--

First. That by the charter of the Baltimore and Potomac Railroad Company, the acts of Congress of 1867 and 1869, above referred to, and the construction and use of the curved line, without objection, the railroad company acquired the same right that it would have had if this line had been designated in the acts referred to.

Second. That by the facts above recited relative to the bridge and the act of 1888, and the construction and use without objection of the aforesaid straight line, the railroad company acquired the same right to have, maintain, and use this as one of the main lines that it would have if such right had been expressly granted.

Third. That since the Maryland charter of the railroad company allows the width of 66 feet for the right of way and since the above act of 1867 gives the same right and privilege in this respect, and since the location and construction of these lines were upon this basis, I think the right of way of the railroad company on each of these two main lines is 66 feet in width.

Fourth. That this right and interest of the railroad company is a perpetual easement for railroad purposes, leaving in the United States only the naked fee, with a possibility of reverter of the beneficial use; but as is said in 10 American and English Encyclopaedia of Law, 1150, citing various cases:

"Where by virtue of the power of eminent domain the right is acquired to occupy and use the surface of land perpetually for a given purpose, the bare fee left in the owner is for all practical purposes valueless, and it is not error to assess the damages as if a fee were taken."

It makes no difference in this respect, whether the land was acquired by condemnation or by purchase, or donation, express or implied. But while the land thus held by the railroad company should not be included in fixing the price to be paid, still this naked legal title is an "interest of the United States" which is directed to be sold, and care should be taken to convey only the naked legal title in such portions, and subject to any and all rights, easements, and privileges of the railroad company.

While the railroad company is entitled to these two lines of main track, each 66 feet in width, it is conceded on both sides that there is nothing except the rails to indicate the precise locality or boundaries of either right of way. Although there is some evidence that on said curved line the tracks near the bridge aforesaid were near the northern side of this right of way, yet I think that in the absence of definite proof of other location, the boundaries should be taken to be 33 feet on each side of a line midway between the inner rails of each track.

As your conveyance will convey and purport to convey only whatever interest the United States has in these lands, that conveyance can not determine what this interest is or fix the respective rights of the purchaser and the railroad company. It should be such as to enable the purchaser to assert any right which the United States could rightfully assert and no other.

If there are any streets within the lands directed to be sold, I think it should be assumed that the United States did not intend to dispose of or part with its title to or control of them, and they should be excepted from the conveyance.

I do not think that the easement of the railroad company to have and maintain the said two main lines of its road, extends to or includes the right to occupy the space between these two rights of way with side tracks, or otherwise. The grant in the Maryland charter of greater width "at or near stations" refers to places in close proximity to stations and to such width for purposes connected with the stations. Unlike grants by private persons, grants of public property or rights are construed against the grantee, and pass nothing beyond what is granted expressly or by necessary implication. The right to have and maintain these two lines of railroad does not include the right to side tracks also. As title by prescription from adverse possession can not be asserted against the United States no account may be taken of the occupancy by the railroad company.

As to findings of the board of officers, they may be availed of for your information and in aid of your judgment, although it is your own judgment which is to be exercised and the determination of the amount proper to be paid is for you. The direction of the act is that the premises shall be conveyed upon payment "of such sum of money as the said Secretary of War, upon consideration of all the circumstances, shall determine proper to be paid for the said squares." This confers a wide power and discretion to determine the price not merely by the present or market value of the lands, but also according to what, "in consideration of all the circumstances," should be paid.

Your third question raises a question of propriety and expediency rather than a question of law for this Department.

Considering the situation of these lands with their long water front now within the city, and the probable need for them in necessary public improvements, I quite agree with you that their sale at this time to a private individual is of very doubtful expediency, and that, if the attention of Congress were called to this, it would probably revoke its order for the sale.

The reason for suspending action under the law, for the present, is the assumption that Congress has acted inadvertently and without full information. The propriety of proceeding on this assumption is a question for your Department only.

Respectfully,

CHARLES J. BONAPARTE.

NATIONAL MUSEUM BUILDING-- DELIVERY OF GRANITE FOR; 26 Op.Att'y. Gen. 572, April 9, 1908

The contract made with the Thompson-Starrett Company for furnishing the granite for the south pavilion and dome of the new National Museum building requires its delivery by the company on the cars at the Bethel, Vt., quarry within two years from the date originally fixed for the completion of the contract-- that is, on or before April 17, 1908, and payment therefor may be made as heretofore, in monthly installments, at the stipulated price.

The contract does not, however, authorize the superintendent of construction to withhold payments on account of the delay in supplying such granite, but in the event of an extension of time being allowed to complete the contract, may deduct "all expenses for inspection and superintendence and all actual losses and damages to the United States due to the delay beyond the time originally set for its completion," as provided in paragraph 5 of the contract.

DEPARTMENT OF JUSTICE,

April 9, 1908.

The PRESIDENT.

SIR: Your letter of March 27 transmits for my consideration and opinion, upon the questions therein presented, a letter from the Secretary of the Smithsonian Institution, with its accompanying papers, relating to a contract for certain granite to be used in the construction of the new building for the National Museum.

It appears that on October 17, 1904, the superintendent of construction for said building entered into a contract with the Thompson-Starrett Company, of New York, for furnishing and delivering at the site of the building for the National Museum, from quarries at Bethel, Vt., cut granite for the front walls of the first and second stories, for the sum of $362,448.63. The contract further provides that "within two years from the date of the completion of this contract," if required by the United States, the Thompson-Starrett Company shall "furnish for the said building, 'free on board' cars at the said quarries, all of the granite * * * required for the construction of the central pavilion and dome at the south front of the building * * * for the price of $0.82 1/2 per cubic foot." Owing to lack of diligence and delay in furnishing the granite last mentioned, which, it is stated, is greatly embarrassing the progress of the work on the National Museum building, the superintendent of construction, under the authority, as claimed, of certain provisions of the contract has recently withheld payments from the contractor, and in consequence of this action a difference of opinion has arisen between the parties as to the time within which the delivery of the granite may be completed under the contract, and as to the appropriate dates of payment for granite delivered. Based on these facts, two questions are propounded for my opinion, namely:

1. Within what time does the contract require the delivery on cars at the Bethel quarry of all of the granite stock for the south pavilion and dome of the new National Museum building?

2. When, or within what discretion, if any, should payments therefore be made?

The stipulation in the articles of agreement to furnish granite for the south pavilion and dome of the National Museum building is made in pursuance of the provisions of paragraph 27 of the specifications, which reads in part as follows:

"27. As the granite for the pavilion and dome at the south front of the building is not included in the proposal and contract herein provided for, and as it will have to be procured later to match the granite adopted for the first and second stories, the contractor for the last-mentioned granite must agree to furnish to the United States 'F.O.B.' at the quarry at any time within two years after the expiration of his contract, all the granite needed from said quarry for the construction of the said pavilion and dome." * * *

By paragraph 43 of the specifications the time for the expiration or completion of the contract covering the cut granite is fixed at one and a half years from the date of the contract (October 17, 1904), namely, April 17, 1906; so that the rough granite for the pavilion and dome was deliverable not later than April 17, 1908. It seems, however, that owing to delays on the part of the contractor the work of delivering the cut granite for the first and second stories of the building was not completed by the date fixed.

The articles of agreement (paragraph 5) provide that in case the said contractor shall fail to prosecute the work covered by his contract so as to complete the same within the time agreed upon, the superintendent of construction may waive the time limit and permit the finishing of the work within a reasonable period, to be determined by him, with the proviso that "such waiver of the time * * * shall in no other manner affect the rights or obligations of the parties." If the original time limit is waived, all actual losses and damages resulting to the United States on account of the delay beyond the time originally set for completion are to be determined by the superintendent of construction and deducted from the payments to the contractor.

Acting under this authority, the superintendent of construction granted an extension of time to the contractor, permitting delivery of the cut granite as late as June 30, 1907. As a matter of fact, however, that portion of the work was not finished until October 17, 1907, or just one year and a half after the time fixed by the contract.

It is contended by the contractor that the terms of the contract permit him to supply the rough granite for the pavilion and dome within two years from the date of the actual completed delivery of the cut granite for the first and second stories of the building on October 17, 1907; that is, that the rough granite is deliverable on or before October 17, 1909. On the other hand, the superintendent of construction contends that delivery of the rough granite is due within two years from the original date fixed for the completion of the contract for the cut granite, namely, April 17, 1906, which would restrict the time limit to April 17, 1908.

I think that the latter construction is correct, and that the contract contemplates a delivery of the rough granite for the pavilion and dome within two years from the date of the completion of that portion of the contract for the cut granite, which is fixed by paragraph 43 of the specifications at one year and a half from the date of the acceptance of the contract. The clause in paragraph 5 of the articles of agreement, quoted above, which provides that "such waiver of the time * * * shall in no other manner affect the rights or obligations of the parties," shows clearly that it was not the intention to permit any possible waiving or extension of the original time limit which might seem necessary or expedient, to interefere with the prompt fulfillment of an obligation depending upon the completion of the contract, for which an ample time margin had already been provided. For the purposes of this supplemental obligation the time expressly fixed by the specifications for the completion of the contract must remain the starting point for the running of the supplemental period, and not the date at which the contract was completed in fact under the extension of time granted.

The contractor also contends that the action of the superintendent of construction in withholding payments on account of the delay in supplying the granite stock for the pavilion and dome is not authorized under the contract.

It appears that the superintendent, who theretofore had paid for the rough granite in monthly installments, notified the contractor on February 8 last that, owing to the slow progress made in the delivery of the granite, of which hardly two thirds had as yet been quarried, he might feel warranted in withholding payments on the stock until a much better progress had been made in the quarrying. He subsequently withheld payment for the February deliveries, amounting to $2,444.76, for which representatives of the company have made demands, claiming that under the terms of the contract payments for the rough stock are due as fast as the stone is placed upon the cars at the quarry, without regard to the provisions of the contract regulating payments, which they assert are applicable only to the work in connection with the cut granite.

The articles of agreement (paragraph 11) provide that "payment shall be made * * * as prescribed in paragraph 41 of the general conditions hereto attached and forming part of this agreement." Paragraph 41 of the general conditions, which is by no means definite or satisfactory, says:

"41. Payments shall be made from time to time as the progress of the work may warrant. A percentage of ten per centum will be reserved from each payment until the whole of the cut granite called for by the annexed contract shall have been satisfactorily delivered and accepted."

Paragraph 43 of the specifications provides that "payments in general will be regulated by the promptness, system, and good progress made by the respective contractors in fulfilling the time schedule above laid down." The time schedule referred to specifies the times within which the cut granite for the walls shall be furnished and delivered.

It will be observed that these provisions refer expressly and solely to payments in connection with the work of furnishing the cut granite, and the conclusion seems unavoidable that they do not apply to payments for the stock granite and ought not to be construed as covering that portion of the contract.

I am unable to find anything further in the documents forming the contract which relate to the matter of payments, except the provisions of paragraph 5 of the articles of agreement, already referred to; and it would seem that the only way in which the superintendent of construction could exercise his authority over payments for the rough granite would be, in the event of an extension of time being allowed, to deduct "all expenses for inspection and superintendence and all other actual losses and damages to the United States due to the delay beyond the time originally set for completion," as provided in paragraph 5.

Answering, then, the specific questions formulated, I have the honor to advise you that the contract requires the delivery on cars at the Bethel quarry of all of the granite stock for the south pavilion and dome of the new National Museum building within two years from the completion of the contract, that is to say, on or before April 17, 1908; and that payments therefor may be made as heretofore in monthly installments at the stipulated price. But I am constrained to hold that under the terms of the contract, which in this respect are unfortunate, the superintendent of construction is without authority to withhold payment for any of said granite after the same has been accepted.

Very respectfully,

CHARLES J. BONAPARTE.

POSTMASTER-GENERAL-- EXCLUSION OF SEDITIOUS PUBLICATIONS FROM THE MAILS; 26 Op.Att'y.Gen. 555, March 31, 1908

While the question is not free from doubt, the Postmaster-General will be justified in excluding from the mails any issue of a periodical, otherwise entitled to the privilege of second-class mail matter, which shall contain any article constituting a seditious libel and counseling such crimes as murder, arson, riot, and treason.

The printing and circulation of such a paper was clearly an offense at common law, but it constitutes no offense against the United States in the absence of a Federal statute making it one.

The publication in question is not "indecent" in the sense in which that word is used in section 3893, Revised Statutes, as amended by the acts of July 12, 1876 (19 Stat., 90), and September 26, 1888 (25 Stat., 496), nor is it an "article or thing intended * * * for * * * immoral use," in the sense of the particular immoral purposes which Congress intended should render such matter unmailable under the provisions of that law.

The publication would come within the terms of the act of June 18, 1888 (25 Stat., 187), as amended by the act of September 26, 1888 (25 Stat., 496), as being "libelous," "scurrilous," "defamatory," and "threatening," if such matter were printed on its cover or wrapper.

There is no statute directing the exclusion from the mails of a publication counseling such crimes as murder, arson, riot, and treason, and making its deposit in the mails an offense against the United States; and in the absence of such a statute, it is not an offense to print and deposit in the mails a publication of such a character.

Congress has full power under the Constitution to exclude from the mails a publication which counsels the commission of murder, arson, riot, or treason, and to make the use, or the attempted use of the mails for the transmission of such writings a crime against the United States.

DEPARTMENT OF JUSTICE,

March 31, 1908.

The PRESIDENT.

SIR: On March 20, 1908, I received from you the following letter:

"To the DEPARTMENT OF JUSTICE:

"By my direction the Postmaster-General is to exclude La Questione Sociale, of Patterson, N.J., from the mails, and it will not be admitted to the mails unless by orde