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:
"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 order of the court, or unless you advise me that
it must be admitted.
Please see if it is not possible to prosecute criminally under any
section of the law that is available the men that are interested in
sending out this anarchistic and murderous publication. They are of
course the enemies of mankind and every effort should be strained to
hold them accountable for an offense far more infamous than that of an
ordinary murderer.
"This matter has been brought to my attention by the mayor of the
city of Paterson. I wish every effort made to get at the criminals under
the Federal law. It may be found impossible to do this. I shall also,
through the Secretary of State, call the attention of the governor of
New Jersey to the circumstances, so that he may proceed under the State
law, his attention being further drawn to the fact that the newspaper is
circulated in other States. After you have concluded your investigation
I wish a report from you to serve as a basis for a recommendation by me
for action by Congress. Under section 3893 of the Revised Statutes lewd,
obscene, and lascivious books and letters, publications for indecent and
immoral uses or of an indecent and immoral nature, and postal cards upon
which indecent and scurrilous epithets are written or printed, are all
excluded from the mail, and provision is made for the fine and
imprisonment of those guilty. The newspaper article in question
advocates murder by dynamite. It specifically advocates the murder of
enlisted men of the United States Army and officers of the police force,
and the burning of houses of private citizens. The preaching of murder
and arson is certainly as immoral as the circulation of obscene and
lascivious literature, and if the practice is not already forbidden by
the law it should be forbidden. The immigration law now prohibits the
entry into the United States of any person who entertains or advocates
the views expressed in this newspaper article. It is of course
inexcusable to permit those already here to promulgate such views. Those
who write, publish, and circulate those articles stand on a level with
those who use the mails for distributing poisons for the purpose of
murder; and convictions have been obtained when the mails have thus
been used for the distribution of poisons. No law should require the
Postmaster-General to become an accessory to murder by circulating
literature of this kind."
There was also a letter to you of March 19, 1908, from Hon. Andrew S.
McBride, mayor of the city of Paterson, in the State of New Jersey, and
certain newspaper clippings, two of which contain what purport to be
translations of an alleged article in the publication "La Questione
Sociale" mentioned in your letter, and which I understand to be printed
and circulated in Italian. The article thus attributed to La Questione
Sociale, as translated in the clippings, reads as follows:
"We want everybody to be with us. We invite everybody to get together
and arm themselves. Seventy-five per cent have only a knife in the house
which will only cut onions.
"It will be a good thing for everybody to have a gun. When we are
ready the first thing to do is to break into the armory and seize the
rifles and ammunition. Then all the people will be with us as soon as
they see this. The next thing to do is to get hold of the police
station, and when the police see that they are not strong enough the
chief of police will ask for soldiers.
"Even at that the dynamite is easy to get for us. Twenty-five cents
worth will below a big iron door down. We don't want to forget that the
dynamite will help us to win. Two or three of us can defy a regiment of
soldiers without fear. We will start when no one is thinking anything
about it. Then we can beat them man for man. At that time show no
sympathy for any soldiers, even if they be sons of the people. As soon
as we get hold of the police station it is our victory. The thing is to
kill the entire force. If not they will kill us. After we have done this
the first thing to do is to look out for ourselves first and then for
the people who helped us.
"We must get into the armory; and in case we can not, then we will
blow it down with dynamite. Then when we are ready we must set fire to
three or four houses in different locations on the outskirts which will
bring out the fire department and all the police. Then we will start a
fire in the center of the city.
This will be an easy thing to do as the police and firemen will be on
the outskirts."
I have carefully examined the law relating to the subject-matter of
your letter of March 20, and in accordance with your direction submit
the following report thereon. I must premise, however, by saying I have
not sought information as to the accuracy of the translation of the
article, nor yet as to the character of the publication itself, and the
antecedents or purposes of its publishers, except in so far as these are
indicated by the alleged passage in the same article hereinbefore set
forth. If this publication does not come within the class of periodicals
entitled to transportation in the mails as mailable matter of the second
class, for reasons other than the sentiments it expresses, or the
illegal or immoral character of its contents, the Post-Office Department
has ample authority to deny it admission to the mails, and, I am
informed, that in fact this has been done for reasons altogether
independent of the peculiar characteristics of the alleged article
called to your attention. Moreover, while it would be appropriate, of
course, to ascertain all the material facts respecting the periodical
concerned, or the individuals responsible for its publication before
instituting proceedings of any kind which might affect their rights or
interests, I understand your instructions as directing a report upon the
assumption that the alleged newspaper in question, and others of a
similar character, habitually publish articles substantially similar to
the one translated in the clipping sent me. Your letter asks in
substance:
First. Whether the publication of such articles constitutes a
criminal offense on the part of the publishers.
Second. Whether this offense is punishable by the Federal courts.
Third. Whether such publications are criminal or excluded from the
mails by any existing statute of the United States.
Fourth. Whether, if they are not, the Congress can constitutionally
enact a law or laws providing for their exclusion and their treatment as
crimes.
Fifth. Whether, in the existing condition of the law, the
Postmaster-General can be compelled to admit such publications to the
mails and transport and distribute them as mail matter.
1. The article in question, supposing it to have been accurately
translated, constitutes a seditious libel, and its publication, in my
opinion, is undoubtedly a crime at common law. (See Russell on Crimes,
6th ed., vol. 1, sec. 1, chap. 28, p. 595.)
In Reg. v. Lovett (9 C. & P., 466), Littledale, J., says:
"If this paper has a direct tendency to cause unlawful meetings and
disturbances, and to lead to a violation of the laws, * * * it is a
seditious libel."
Referring to the above-mentioned offense, Professor Greenleaf says:
"This crime is committed by the publication of writings blaspheming
the Supreme Being; or turning the doctrines of the Christian religion
into contempt and ridicule; or tending, by their immodesty, to corrupt
the mind, and to destroy the love of decency, morality, and good order;
or wantonly to defame or indecorously to calumniate the economy, order,
and constitution of things which make up the general system of law and
government of the country; to degrade the administration of government
or of justice; or to cause animosities between our own and any other
foreign government, by personal abuse of its sovereign, its ambassadors,
or other public ministers; and by malicious defamations, expressed in
printing or writing, or by signs or pictures, tending either to blacken
the memory of one who is dead or the reputation of one who is living,
and thereby to expose him to public hatred, contempt and ridicule. This
descriptive catalogue embraces all the several species of this offense
which are indictable at common law; all of which, it is believed, are
indictable in the United States, either at common law or by virtue of
particular statutes." (3 Greenl.Ev.,sec. 164.)
In Starkie on Libel, first edition, page 525, the test of the
criminality of such a publication is said to lie in the answer to the
following question: "Has the communication a plain tendency to produce
public mischief by perverting the mind of the subject and creating a
general dissatisfaction toward government?" In the publication you have
called to my attention, all persons reading it are urged to procure
arms, to seize, or if that be impossible, to destroy by dynamite,
certain public buildings;
to resist forcibly, and, if practicable, kill police officers
endeavoring to discharge their duties as such, and also the military
forces which might be sent to aid in the restoration of order. It is
immaterial whether the writer referred to the Regular Army of the United
States or to the organized militia of the State of New Jersey in this
connection, and the criminal character of his utterance is not affected
by the fact that he failed to designate any particular policeman, or any
individual officer or enlisted man of the Army or militia among his
intended victims.
"A person delivered a ticket up to the minister after sermon, wherein
he desired him to take notice that offenses passed now without control
from the civil magistrate, and to quicken the civil magistrate to do his
duty, etc.; and this was held to be a libel, though no magistrate in
particular was mentioned. Bac. Abr. tit. Libel (A) 2." (Russell on
Crimes, vol. 1, p. 623.)
In this instance the publication not only suggests, but urges, arson,
murder, riot, and treason against both the State and the National
governments. There can be hardly a clearer or stronger case of a
seditious libel at common law.
2. It is quite clear, however, that such a publication constitutes no
offense against the United States in the absence of some Federal statute
making it one. This was determined in the early case of United States v.
Hudson and Goodwin (7 Cr., 32), decided February 13, 1812. The report
says:
"This was a case certified from the Circuit Court for the District of
Connecticut, in which, upon argument of a general demurrer to an
indictment for a libel on the President and Congress of the United
States, contained in the Connecticut Currant, of the 7th of May, 1806,
charging them with having in secret voted two millions of dollars as a
present to Bonaparte for leave to make a treaty with Spain, the judges
of that court were divided in opinion upon the question whether the
Circuit Court of the United States had a common-law jurisdiction in
cases of libel."
The court determined in this case that the courts of the United
States have no common-law jurisdiction in criminal cases, pointing out
that no provision of the Constitution or statutes enacted under its
powers had conferred such jurisdiction, and decided that it could not be
implied from the mere necessity of protecting the Federal Government in
the execution of its constitutional duties. The court says in
conclusion:
"Certain implied powers must necessarily result to our courts of
justice from the nature of their institution. But jurisdiction of crimes
against the State is not among these powers. To fine for contempt--
imprison for contumacy-- enforce the observance of order, etc., are
powers which can not be dispensed with in a court, because they are
necessary to the exercise of all others; and so far our courts no doubt
possess powers not immediately derived from statute; but all exercise
of criminal jurisdiction in common-law cases we are of opinion is not
within their implied powers."
From the foregoing considerations I conclude:
1. That the printing and circulation of the paper in question,
supposing it to be correctly translated, was clearly an offense at
common law.
2. That of this offense the courts of the United States have no
jurisdiction in the absence of any act of Congress declaring it a crime
and authorizing its punishment.
3. In compliance with your instructions I have very carefully
investigated the statutes of the United States to see if they contain
any provision making such a publication an offense against the United
States or authorizing its exclusion from the mails. Section 3893,
Revised Statutes, as amended by the acts approved July 12, 1876 (19
Stat., 90), and September 26, 1888 (25 Stat., 496), contains the
following provision:
"Every obscene, lewd, or lascivious book, pamphlet, picture, paper,
letter, writing, print, or other publication of an indecent character,
and every article or thing designed or intended for the prevention of
conception or procuring of abortion,
and every article or thing intended or adapted for any indecent or
immoral use, and every written or printed card, letter, circular, book,
pamphlet, advertisement, or notice of any kind giving information,
directly or indirectly, where or how, or of whom, or by what means any
of the hereinbefore mentioned matters, articles, or things may be
obtained or made, whether sealed as first class matter or not, are
hereby declared to be non-mailable matter, and shall not be conveyed in
the mails nor delivered from any post-office nor by any letter carrier;
and any person who shall knowingly deposit, or cause to be deposited,
for mailing or delivery, anything declared by this section to be
non-mailable matter, any person who shall knowingly take the same, or
cause the same to be taken, from the mails for the purpose of
circulating or disposing of, or of aiding in the circulation of or
disposition of the same, shall, for each and every offense, be fined
upon conviction thereof not more than five thousand dollars, or
imprisoned at hard labor not more than five years, or both, at the
discretion of the court."
There can be, I think, no doubt that, in a sense, this article is a
"publication of an indecent character;" but it is not, in my opinion,
"indecent" in the sense in which the word is used in this section. It is
also clearly an "article or thing intended * * * for * * * immoral use,"
for its purpose is plainly to suggest several grave crimes, including
treason, murder, and arson, and such a purpose is undoubtedly immoral;
but the particular immoral purposes which the Congress intended to
render matter unmailable under this provision of law are not such
purposes as inspired the article in question. The language of the
section shows clearly that it was intended to exclude matter either
literally "obscene" in the sense generally attributed to the word, or of
a nature "ejusdem generis with obscenity. In this case the rule noscitur
a sociis must be applied to such words as "indecent" and "immoral" in
the construction of a highly penal statute, and I can not advise you
that the section above quoted authorizes either the prosecution of the
persons mailing the paper in question or its exclusion from the mails.
The act of June 18, 1888 (25 Stat., 187), as amended by the act of
September 26 of the same year (ibid., 496) is as follows:
"That all matter otherwise mailable by law, upon the envelope or
outside cover or wrapper of which, or any postal card upon which, any
delineations, epithets, terms, or language of an indecent, lewd,
lascivious, obscene, libelous, scurrilous, defamatory, or threatening
character, or calculated by the terms or manner or style of display and
obviously intended to reflect injuriously upon the character or conduct
of another may be written or printed, or otherwise impressed or
apparent, are hereby declared non-mailable matter, and shall not be
conveyed in the mails, nor delivered from any post-office nor by any
letter carrier, and shall be withdrawn from the mails under such
regulations as the Postmaster-General shall prescribe; and any person
who shall knowingly deposit, or cause to be deposited, for mailing or
delivery, anything declared by this section to be non-mailable matter,
and any person who shall knowingly take the same or cause the same to be
taken from the mails, for the purpose of circulating or disposing of, or
of aiding in the circulation or disposition of the same, shall, for each
and every offense, upon conviction thereof, be fined not more than five
thousand dollars, or imprisoned at hard labor not more than five years,
or both, at the discretion of the court."
I have no doubt that the publication in question would come within
the terms of this statute, if the article to which you have called my
attention were printed on its cover or wrapper or it were so folded that
this part of its contents might be exposed to public view. Its language
is undoubtedly "libelous," "scurrilous," "defamatory," and
"threatening," and if deposited in the mail in such manner that, without
removing the cover, this language might be read by other persons than
the one to whom it was addressed, it would unquestionably come within
the prohibition of the act. I infer, however, since there is no
statement as to the nature of its inclosure, that this paper was so
wrapped and folded as not to disclose the article in question, or, at
all events, that you wish my opinion as to its criminal character and
the propriety of its exclusion from the mails independently of the
question of its inclosure and in case its publishers should provide a
wrapper which would conceal its contents; and, if thus inclosed, it
would seem clearly not to come within the provisions of this statute.
There are some other provisions of law such as those relating to
letters, circulars, etc., connected with lotteries or spurious money and
those prohibiting the transportation of noxious insects in the mails
which declare certain classes of matter unmailable, but they do not
affect the case of an article of this character, and I am obliged to
report that I can find no express provision of law directing the
exclusion of such matter from the mails, or rendering its deposit in the
mails an offense against the United States.
4. There can be no doubt, however, that the Congress has full power
under the Constitution to exclude such publications from the mails. As
is said by Mr. Justice Field in Ex parte Jackson (96 U.S., 727, 732):
"The power possessed by Congress embraces the regulation of the
entire postal system of the country. The right to designate what shall
be carried necessarily involves the right to determine what shall be
excluded."
In the case of In re Rapier (143 U.S., 110), the present Chief
Justice says (p. 134):
"It is not necessary that Congress should have the power to deal with
crime or immorality within the States in order to maintain that it
possesses the power to forbid the use of the mails in aid of the
perpetration of crime or immorality."
Many other authorities might be cited to the same effect. It has
been, it is true, sometimes contended that the right to use the mails
constitutes a form of property which is protected from "confiscation"
under the fifth amendment, or that such use can not be denied to any
citizen without an infringement of the rights secured by the first
amendment; but these contentions have been repudiated by high authority
and seem to be clearly untenable in view of the decisions of the Supreme
Court cited above.
I have the honor therefore to advise you that it is clearly and fully
within the power of the Congress to exclude from the mails the
publications similar to the one set forth in the clippings inclosed with
your letter, and to make the use, or attempted use, of the mails for the
transmission of such writings a crime against the United States.
5. There remains to be considered the interesting and important
question whether, in the absence of any legislation by Congress either
directing or prohibiting the transmission of such publications through
the mails, the Postmaster-General, in the exercise of his authority as
head of the Post-Office Department and acting under your instructions,
has the right to exclude them, and this question is one of no little
difficulty. It must be premised that the Postmaster-General clearly has
no power to close the mails to any class of persons, however
reprehensible may be their practices or however detestable their
reputation; if the question were whether the mails could be closed to
all issues of a newspaper, otherwise entitled to admission, by reason of
an article of this character in any particular issue, there could be no
doubt that the question must be answered in the negative. Since,
however, under the provisions of section 3882, Revised Statutes, and
section 12 of the act approved March 3, 1879 (20 Stat., 359), newspapers
may be fully examined either at the office of mailing or at the office
of delivering, if such examination shall incidentally disclose the fact
that a newspaper contains matter similar to the clippings sent with your
letter, then, inasmuch as "all printed copies struck off from one common
impression, though they constitute merely secondary evidence of the
contents of the paper from which they are taken, are considered as
primary evidence of each other's contents" (Taylor on Evidence, section
388; Rex v. Watson, 32 How.St.Tr., 82), this fact may be reasonably
held to prove that the entire issue of the paper contains the same
matter. Under such circumstances can the Postmaster-General exclude such
issues from the mails?
At first sight it may seem that his right to do this is denied by the
decision in Teal v. Felton (12 How., 284). In that case the postmaster
at Syracuse, N.Y., refused to deliver to the plaintiff a newspaper sent
him by mail because there was a mark on the wrapper in addition to the
address, and the Postmaster-General by circular had directed that
newspapers having marks on their wrappers should not be delivered,
except upon the payment of full letter postage.
The plaintiff brought a suit in trover for the value of the newspaper,
and obtained a verdict and judgment for 6 cents. The case finally
reached the Supreme Court, and it was determined by that tribunal,
first, that the law did not justify the instructions of the
Postmaster-General, and, secondly, that the person to whom a newspaper
is addressed, being its owner, can sue the postmaster for its value, if
he refuses to deliver it when this is duly demanded at the office of
delivery.
The court says (p. 292):
"The United States undertakes, at fixed rates of postage, to convey
letters and newspapers for those to whom they are directed, and the
postage may be prepaid by the sender, or be paid when either reach their
destination, by the person to whom they are addressed. When tendered by
the latter or by his agent, he has the right to the immediate possession
of them, though he has not had before the actual possession. If then
they be wrongfully withheld for a charge of unlawful postage, it is a
conversion for which suit may be brought."
And so in the case of Commerford v. Thompson (1 Fed., 417), in the
United States Circuit Court for the District of Kentucky, the court,
Brown, J., says (p. 419):
"While there is, undoubtedly, power to prescribe what shall or what
shall not be carried by post (Ex parte Jackson, 96 U.S., 727-732), the
mails are, prima facie, intended for the service of every person
desiring to use them; and a monopoly of this species of commerce is
secured to the Post-Office Department. (Rev. Stat., sec. 3982.) It is,
then scarcely necessary to say that the officers of the Department are
the agents of the public in the performance of this service, and that no
postmaster, whether acting under the instructions of the
Postmaster-General or not, can lawfully refuse to deliver letters
addressed to his office, unless special authority for so doing is found
in some act of Congress."
These authorities and some other decisions and dicta which might be
cited to the same effect are entitled to great respect, but, after a
very careful consideration of the subject, I do not think they are
decisive of the question here involved.
That question may be thus stated: Is it the intention of the Congress,
as expressed in the Federal statutes on this subject, that the mails
should be used to convey libelous solicitations for the perpetration of
treason and felonies, with knowledge on the part of the
Postmaster-General and his subordinates that they are used for this
purpose?
In the argument of Mr. James C. Carter for the petitioner in the case
of In re Rapier, he supposes this question to be asked (143 U.S.p.
117):
"Is it true, then, that the Government of the United States is placed
in the singular attitude that it can not discharge its duty of
maintaining a mail service without extending the facilities which that
service affords to criminals of every description to aid them in the
commission of crime?"
The question is no less material to the construction of the postal
laws than to their constitutionality. The Congress undoubtedly has power
to say what shall and what shall not be mailable; but in the absence of
compelling language, surely a construction of the statutes should not be
adopted which would render officers of the Government accessories to
grave crimes and convert the post-office into an agency destructive of
the ends of the Government. In several statutes relating to the postal
service there has been an implied recognition that matter offered for
delivery might be excluded from the mail, although no statute was in
existence prohibiting its transportation. Thus, section 3890, Revised
Statutes, provides for the punishment of "any postmaster who shall
unlawfully detain in his office any letter or other mail matter the
posting of which is not prohibited by law," and in Revised Statutes,
section 5471, provision is made for the punishment of "any person
employed in any department of the postal service who shall improperly
detail, delay, * * * any * * * newspaper." It is obvious that these
words "unlawfully" and "improperly" are mere surplusage unless the
detention might under certain circumstances be lawful and proper,
notwithstanding that the posting of the mail matter might not be
"prohibited by law."
So in section 15 of the act approved March 3, 1879 (20 Stat., 359), it
is said: "Nothing in this act shall be so construed as to allow the
transmission through the mails of any publication which violates any
copyright granted by the United States." There is, in point of fact, no
statute expressly prohibiting the transportation through the mails of
publications violating the copyright law. The proviso just quoted
assumes that because such publications are unlawful, they will or may be
excluded from the mails, and guards against any construction of the
statute in which it is contained which might relieve them from this
implied prohibition.
In the consideration of this question it is important to bear in mind
the relations of the United States to persons using the post-office. As
is said in Teal v. Felton, above cited: "The United States undertakes
to convey letters and newspapers for those to whom they are directed;"
that is to say, it undertakes the business of a messenger. In so far as
it conveys sealed documents, its agents not only are not bound to know,
but are expressly forbidden to ascertain, what the purport of such
messages may be; therefore, neither the Government nor its officers can
be held either legally or morally responsible for the nature of the
letters to which they thus, in intentional ignorance, afforded
transportation. But in the case of printed matter, intended for general
circulation and which, by virtue of the statutes above mentioned, and in
consideration of the reduced rate at which it is transported, the
officers of the Post-Office Department have the legal right to
thoroughly inspect, it seems obvious that neither these officers nor the
Government which employs them can escape responsibility for the
consequences if they knowingly transport matter which becomes, and which
they must know might be reasonably expected to become, a cause of crime.
It is said by Mr. Justice Field in Ex parte Jackson (supra),
referring to the postal laws (96 U.S., 732):
"In their enforcement, a distinction is to be made between different
kinds of mail matter, between what is intended to be kept free from
inspection, such as letters, and sealed packages subject to letter
postage; and what is open to inspection, such as newspapers, magazines,
pamphlets, and other printed matter, purposely left in a condition to be
examined."
It seems clearly unreasonable to construe these laws without regard
to this distinction, and no less unreasonable to give them a
construction which would make the Postmaster-General and his
subordinates conscious, even if unvoluntary, agents in the solicitation
of treason and felonies and the circulation of seditious libels.
There is another aspect to this question. To determine whether those
responsible for such publications have a legal right to their
transportation in the mails it may be material to determine whether they
would have any adequate remedy if refused such transportation. In the
case of Commerford v. Thompson, above cited, while the court held that
there was no right to exclude from the mails the matter excluded in that
case, it also held that the remedy by injunction was not open to the
plaintiff. The language of the court is as follows (1 Fed.,p. 422):
"Conceding that the act of the defendant in detaining these letters
was unauthorized, and that the complainant might maintain an action at
law for damages, it does not necessarily follow that he is entitled to
an injunction. The writ of injunction does not issue as a matter of
course, even if the complainant has made out a technical right to
relief. An application to the Court of Chancery for the exercise of its
prohibiting powers or restricting energies must come by the dictates of
conscience, and be sanctioned by the clearest principles of justice.
The granting of an application is largely a matter of discretion, and is
addressed to the conscience of the chancellor, acting in view of all the
circumstances connected with the case. A party seeking this
extraordinary remedy must come into court with clean hands, and show not
only that his claim is valid by the strict letter of the law, but that
in justice and equity he is entitled to this particular mode of relief."
After citing many authorities to sustain this position and examining
the facts of the case, in so far as they were disclosed by the record,
the court concluded (1 Fed.,p. 425):
"In any light in which this case can be viewed, it is impossible to
avoid the conclusion that the court is required to lend its aid to a
scheme condemned alike by Congress and by public opinion. Complainant
should be left to his remedy at law."
How the Congress views the "schemes" disclosed in the article from La
Questione Sociale sufficiently appears from the following provision in
the act approved February 20, 1907 (34 Stat., 908):
"No person who disbelieves in or who is opposed to all organized
government, or who is a member of or affiliated with any organization
entertaining and teaching such disbelief in or opposition to all
organized government, or who advocates or teaches the duty, necessity,
or propriety of the unlawful assaulting or killing of any officer or
officers, either of specific individuals or of officers generally, of
the Government of the United States or of any other organized
government, because of his or their official character, shall be
permitted to enter the United States or any territory or place subject
to the jurisdiction thereof."
It is a matter of notoriety, and therefore of judicial knowledge,
that this measure was enacted in obedience to imperative demand of
public opinion. I can not doubt therefore that any court of conscience
would reach the conclusion with that announced in Commerford v.
Thompson if asked to compel the dissemination throughout the country of
the publication inclosed with your letter. Such a court would
unquestionably leave the complainant to his remedy at law. What would be
the value of that remedy?
It is well settled that at common law the owner of a libelous picture
or placard or document of any kind is entitled to no damages for its
destruction in so far at least as its value may depend on its unlawful
significance. Thus in the case of Du Bost v. Beresford (2 Camp., 511) a
suit was brought for cutting a picture of great value which the
plaintiff had publicly exhibited, and it is stated--
"It appeared that the plaintiff is an artist of considerable
eminence, but that the picture in question, entitled La Belle et la
Bete, or 'Beauty and the Beast," was a scandalous libel upon a gentleman
of fashion and his lady, who was the sister of the defendant.
It was exhibited in a house in Pall-Mall for money, and great crowds
went daily to see it, till the defendant one morning cut it in pieces.
Some of the witnesses estimated it at several hundred pounds.
"The plaintiff's counsel insisted, on the one hand, that he was
entitled to the full value of the picture, together with a compensation
for the loss of the exhibition; while it was contended on the other
that the exhibition was a public nuisance, which every one had a right
to abate by destroying the picture.
"Lord Ellenborough: 'The only plea upon the record being the general
issue of not guilty, it is unnecessary to consider whether the
destruction of this picture might or might not have been justified. The
material question is as to the value to be set upon the article
destroyed. If it was a libel upon the persons introduced into it, the
law can not consider it valuable as a picture. Upon an application to
the Lord Chancellor, he would have granted an injunction against its
exhibition, and the plaintiff was both civilly and criminally liable for
having exhibited it. The jury, therefore, in assessing the damage, must
not consider this as a work of art, but must award the plaintiff merely
the value of the canvas and paint which formed its component parts.'"
But for the error in the defendant's pleading, there would have been
no right of recovery at all in this case; for in Fores v. Johnes (4
Esp., 97), in which the plaintiff was a print seller in Piccadilly, and
the action was brought to recover the value of a quantity of caricature
prints sold by him to the defendant, Lawrence, J., said:
"For prints, whose objects are generally satire or ridicule of
prevailing fashions or manners, I think the plaintiff may recover; but
I can not permit him to do so for such whose tendency is immoral or
obscene; nor for such as are libels on individuals, and for which the
plaintiff might have been rendered criminally answerable for a libel."
It may be safely said that ex turpi causa non oritur actio is a
well-recognized principle of law; a stronger case could hardly be
presented for its application than a claim for damages by a would-be
murderer, incendiary, and promoter of rebellion against a public officer
because the latter refused to become a party to his crimes, or to use a
great public service, supported in large part by the taxes and regulated
by the laws of the nation, to aid in the subversion of orderly
government and civil society.
While, therefore, in the absence of any express provision of law or
binding adjudication on this precise point, the question is certainly
one of doubt and difficulty, I advise you that, in my opinion, the
Postmaster-general will be justified in excluding from the mails any
issue of any periodical, otherwise entitled to the privileges of
second-class mail matter, which shall contain any article constituting a
seditious libel and counseling such crimes as murder, arson, riot, and
treason.
I am, sir, yours, very respectfully,
CHARLES J. BONAPARTE.
OFFICIAL REGISTER OF UNITED STATES-- COST OF PRINTING; 26 Op.Att'y.
Gen. 552, March 28, 1908
The Official Register of the United States, being a public document
emanating from the Census Office, all expense incurred in its actual
preparation for printing, apart from the creation of the manuscript, is
chargeable under the joint resolution of March 30, 1906 (34 Stat., 825),
to the appropriation or allotment of appropriation for printing and
binding for the Census Office; and the balance of the cost thereof,
which include the cost of binding and any charge which may be incurred
in the creation of the manuscript, should be charged to the
Congressional allotment and the appropriate executive allotment in
proportion to the number of copies delivered to Congress and to each
Department.
DEPARTMENT OF JUSTICE,
March 28, 1908.
The SECRETARY OF STATE.
SIR: I have the honor to acknowledge the receipt of your letter of
March 23, stating that the Public Printer has charged against the
allotment for printing and binding for the State Department the cost of
the quota of 100 copies of the Official Register of the United States
allotted to the State Department in the distribution of that work under
section 73 of the printing act of January 12, 1895 (28 Stat., 601,
612-619). You hold that this is not a legitimate charge against the
State Department, and that if the Department is to be charged with the
expense of all documents provided by law and distributed to the
Department, the control of the allotment is practically withdrawn from
the Department, and that it will be impossible to comply with the
proviso in the resolution of March 30, 1906; and you request my opinion
upon the legality of the charge in question.
The act of June 7, 1906 (34 Stat., 218), transfers from the Secretary
of the Interior to the Director of the Census the editing and publishing
of the Official Register of the United States under the provisions of
existing law, which are (section 73, act of 1895, ut supra) that certain
public and official data shall be furnished, that the Register shall be
edited, indexed, and published, and 3,000 copies printed and bound and
distributed in a certain way, including 100 copies to the Department of
State. No charge has been made against the State Department for this
item in previous years.
The joint resolution of March 30, 1906 (34 Stat., 825), provided that
hereafter the cost of printing and binding of "documents" "emanating
from the executive departments, bureaus and independent offices of the
Government" should be charged not to the allotment for printing and
binding for Congress, or to other than executive appropriations as
theretofore, but "shall be charged to the appropriation or allotment of
appropriation for the printing and binding of the Department, bureau, or
independent office of the Government in which such document or report
originates." This change of rule affected the cost of illustrations,
composition, stereotyping, and other work involved in the actual
preparation for printing, apart from the creation of manuscript, the
balance of cost being chargeable to the Congressional allotment or the
appropriate executive allotment in proportion to the number delivered to
each: and, finally, the cost of copies delivered otherwise than through
Congress or the Departments being chargeable as theretofore.
The proviso of the resolution is that each Executive Department,
bureau, or independent office for which a printing appropriation is made
shall, before December 1 of each year, obtain from the Public Printer an
estimate of cost of the publications of such Department or office
required by law, and so much of the same as would under the terms of the
resolution be charged to the appropriation of the Department, etc., in
which such publications originate shall be set aside and be available
only for the printing and binding of such documents until all of the
allotment cost on that account shall have been paid.
In my opinion, since the Official Register is a public document
emanating from the Census Office under the direction of the statutes,
the printing cost as defined in the resolution of 1906 seems clearly
chargeable to the Census Office appropriation in accordance with the
language "shall be charged to the appropriation or allotment of
appropriation for the printing and binding of the Department, bureau, or
independent office of the Government in which such documents or reports
originate;"
and that the balance of the cost shall be charged to the Congressional
allotment and the appropriate executive allotment in proportion to the
number delivered to each. As the distribution provided for in section 73
of the act of 1895 embraces allotments to Congress and the members
thereof, to the Departments and to various offices and branches of the
Government, as well as other depositories, there appears to be no reason
why a proportional charge of such balance of cost should not be charged
in accordance with the statute, in this case to the State Department
appropriation, in proportion to the number delivered.
The scheme appears to be, in brief, that the printing cost shall be
charged to the particular Department or Bureau or office in which the
publication originates, and the balance proportionately to Congress and
the Departments and offices of the Government to which the distribution
is made.
Without attempting to determine a point that previous laws and
established practice may definitely settle, it appears to me that since
the resolution at its outset refers to printing and binding and, on the
other hand, the apportionment of cost embraces, first, what I have
called the printing cost, being for the "work involved in the actual
preparation for printing, apart from the creation of manuscript," and,
second, "the balance of cost," the latter division, which is to be
apportioned between Congress and the Departments, must necessarily
include the binding cost and any charge which may be incurred for the
creation of manuscript. Suggesting this view, however, rather than
deciding that point, I have the honor to advise you that, except as
herein indicated to be apportioned, the charge of the Public Printer
against the State Department for the copies of the Official Register is
not legal.
Very respectfully,
CHARLES J. BONAPARTE.
FOOD AND DRUGS ACT-- LABELING OF CONDEMNED MEDICINAL SUPPLIES
INTENDED FOR SALE; 26 Op.Att'y.Gen. 546, March 27, 1908
A sale under section 1241, Revised Statutes, by Government officers,
of drugs and medicines purchased for the use of the Army and afterwards
condemned as being unfit for use, is as much subject to the provisions
of the food and drugs act of June 30, 1906 (34 Stat., 768), as a sale by
a private person would be under similar circumstances, and would render
the officers making the sale liable under that act, unless the drugs and
medicines so sold are labeled in accordance with its provisions.
Where a drug so sold is not sold under a name recognized in the
United States Pharmacopoeia, a general statement on the label that its
quality has deteriorated and that it has been condemned for sale under
section 1241, Revised Statutes, would be a sufficient compliance with
the food and drugs act of 1906, and would show that it was not sold
under any professed standard, and could not be deemed either adulterated
or misbranded under sections 7 and 8 of that act.
Where a drug so sold is sold under a name recognized by the United
States Pharmacopoeia, a mere general statement of the character of the
drug, showing only the fact of its deterioration is insufficient; and
in order that it may not be deemed adulterated, its actual standard of
strength, quality, or purity should be stated on the label of each
bottle, box, or other container in which the goods are intended to reach
the consumer.
A sale of such condemned drugs and medicines could in no respect
affect the original makers or vendors from whom they were purchased
before the passage of the food and drugs act of June 30, 1906,
unaccompanied by any guarantee under that act, and at a time previous to
their deterioration.
DEPARTMENT OF JUSTICE,
March 27, 1908.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge the receipt of your letter of
the 23d instant in which you state that certain drugs and medicines of
the Medical Supply Depot, United States Army, New York City, which were
purchased before the enactment of the food and drugs act of June 30,
1906, have been inspected and condemned as "deteriorated, not fit for
issue" and as "fermented, unfit for issue," and that your Department,
upon the recommendation of the inspector, has ordered the same to be
sold under the authority of section 1241 of the Revised Statutes. You
further state that the proposed sale would cover the goods in the
original cases bearing the marks of the original makers of vendors; and
that since on account of the deterioration of these supplies the state
of purity of each article can not be known without an analysis, it would
be impracticable to mark each case according to its actual contents.
You thereupon request an expression of my opinion upon the three
following questions:
Whether the sale of these condemned drugs and medicines under section
1241, Revised Statutes, would be within the purview of the food and
drugs act, as distinguished from a sale by a private vendor, so as to
render the officers making the sale liable under the act;
Whether, if such sale comes within the terms of the act, it would be
sufficient to label each original package as follows: "Deteriorated
military supplies. Condemned and sold under section 1241, Revised
Statutes; and
Whether, in any event, the sale of the articles would involve any
liability on the part of the original makers or vendors of the condemned
drugs or medicines.
In reply, I have the honor to state:
1. I am of the opinion that if the proposed sale otherwise presents a
case of Federal commerce coming within the provisions of the food and
drugs act, and not merely a case of purchase and sale in State commerce
to which the food and drugs act would have no application, the
provisions of that act would apply even although the sale were made by
officers of the Government under the provision of the Revised Statutes.
Revised Statutes, section 1241, provides that: "The President may
cause to be sold any military stores which, upon proper inspection or
survey, appear to be damaged, or unsuitable for the public service.
Such inspection or survey shall be made by the officers designated by
the Secretary of War, and the sales shall be made under regulations
prescribed by him."
Section 2 of the food and drugs act (34 Stat., 768), provides that--
"any person who shall ship or deliver for shipment from any State or
Territory or the District of Columbia to any other State or Territory or
the District of Columbia, or to a foreign country, or who shall receive
in any State or Territory or the District of Columbia from any other
State or Territory or the District of Columbia, or foreign country, and
having so received, shall deliver, in original unbroken packages, for
pay or otherwise, or offer to deliver to any other person, any such
article so adulterated or misbranded within the meaning of this act, or
any person who shall sell or offer for sale in the District of Columbia
or the Territories of the United States any such adulterated or
misbranded food or drugs, or export or offer to export the same to any
foreign country, shall be guilty of a misdemeanor, and for such offense
be fined not exceeding two hundred dollars for the first offense, and
upon conviction for each subsequent offense not exceeding three hundred
dollars or be imprisoned not exceeding one year, or both, in the
discretion of the court."
This act is broad in its terms, without any exception in favor of the
Government or its officers, and includes generally "any person" who
shall ship, deliver, sell, or offer to sell, adulterated or misbranded
food or drugs in violation of its provisions.
While it is a well-settled principle of statutory construction that a
general prohibition contained in a statute does not ordinarily extend to
or affect the sovereign, yet, as stated in an opinion which I rendered
the Secretary of the Treasury on January 2 last (ante, 466), citing the
language of Mr. Justice Story in United States v. Hoar (2 Mason, 311,
Fed. Cas. 15373), the Government is to be regarded as included within
such prohibition when either the nature of the mischiefs to be redressed
or the language used shows that this was in the contemplation of the
legislature. This is generally the case where the statute "is made for
the public goods, as for the advancement of religion and justice, or to
prevent injury and wrong." (United States v. Knight, 14 Pet., 301, 315;
United States v. Herron, 20 Wall., 251, 255; 8 Bacon's Abridgment by
Bouvier, 92, Tit.. "Prerogative," E. 5.)
The mischiefs to be redressed by the food and drugs act are shown by
its title, which reads: "An act for preventing the manufacture, sale,
or transportation of adulterated or misbranded or poisonous or
deleterious foods, medicines, and liquors, and for regulating traffic
therein, and for other purposes." As I have heretofore said, its primary
purpose "is to protect against fraud consumers of food or drugs" (26
Op., 219). Clearly, if adulterated or misbranded food or drugs were sold
by the Government or its officers the purpose of the statute would be as
much defeated and the injury to the consumer as great as if such
articles were sold by private individuals. Furthermore, the theory that
Congress intended that the Government itself might sell adulterated or
misbranded drugs under circumstances when a sale by individuals was
forbidden would involve an inconsistency which undoubtedly was not
intended by the legislature. I, therefore, am clearly of the opinion
that a sale by Government officers under Revised Statutes, section 1241,
is as much subject to the provisions of the food and drugs act as a sale
by a private person would be under similar circumstances.
2. Whether, if these drugs and medicines are sold and delivered under
circumstances otherwise coming within the food and drugs act, it would
be a sufficient compliance with that act to label each original package
with a statement that it contains deteriorated military supplies,
condemned and sold under section 1241 of the Revised Statutes, would
depend upon the precise facts.
The following provisions of the food and drugs act are applicable to
the case of deteriorated drugs:
Section 7 provides that drugs shall be deemed to be adulterated in
the following cases:
"First. If, when a drug is sold under or by a name recognized in the
United States Pharmacopoeia or National Formulary, it differs from the
standard of strength, quality, or purity, as determined by the test laid
down in the United States Pharmacopoeia or National Formulary official
at the time of investigation: Provided, That no drug defined in the
United States Pharmacopoeia or National Formulary shall be deemed to be
adulterated under this provision if the standard of strength, quality,
or purity be plainly stated upon the bottle, box, or other container
thereof although the standard may differ from that determined by the
test laid down in the United States Pharmacopoeia or National Formulary.
"Second. If its strength or purity fall below the professed standard
or quality under which it is sold."
Section 8 provides that drugs shall be deemed to be misbranded "the
package or label of which shall bear any statement, design, or device
regarding such article, or the ingredients or substances contained
therein which shall be false or misleading in any particular."
It does not appear from your letter what portion, if any, of these
drugs are sold under names recognized in the United States
Pharmacopoeia, or whether the "original packages" to which you refer are
the bottles, boxes, or other containers of the drugs in the form in
which they are prepared for sale to the consumer, or are larger packages
containing several of such bottles or boxes.
I am of the opinion that where a drug is not sold under a name
recognized in the United States Pharmacopoeia a general statement on the
label such as that suggested, showing that its quality has deteriorated
and that it has been condemned for sale,
would be a sufficient compliance with the law, as this would on its face
correct any statement on the original label which might otherwise be
misleading as to the quality, and would show that it was not sold under
any professed standard, so that it could not then be deemed either
adulterated under the second clause of section 7 or misbranded under
section 8.
However, in case of a drug sold under a name recognized by the United
States Pharmacopoeia, I am of the opinion that a mere general statement
of this character, showing only the fact of its deterioration, is
insufficient, and that, in order that a drug sold under such name may
not be deemed adulterated, it is necessary under the proviso contained
in the first clause of section 7 that the actual standard of strength,
quality, or purity should be stated.
I am further of the opinion, without passing upon the question as to
what constitutes an original package within the meaning of section 2 of
the act, that, so far as correcting any statement on the original label
is concerned, it would not be sufficient to make such correction merely
upon the label on the outer envelope of a package holding several
bottles, boxes, or other containers of the drug, but that the correction
must be made upon the label of each bottle, box, or other container in
which the goods are intended to reach the consumer, since evidently a
statement of the true standard upon the covering of a package containing
several bottles or boxes would be entirely valueless as a protection to
the purchaser, and, being thrown away before the drug reached the
consumer, would enable each bottle or box to be sold without any notice
of its inferiority.
3. I am further of the opinion that the proposed sale could, however,
in no respect affect the original makers or vendors from whom these
supplies were purchased before the passage of the food and drugs act,
unaccompanied by any guaranty under that act, and at a time previous to
their deterioration.
Respectfully,
CHARLES J. BONAPARTE.
PURE FOOD LAW-- BRANDING OF PACKAGES OF DISTILLED SPIRITS; 26 Op.
Att'y.Gen. 541, March 25, 1908
It was not intended by the opinion of January 11, 1908 (ante, 476),
to require the term "high wines" to be applied to a product now usually
marked "whisky."
For the purposes of the revenue laws, the term "high wines" should be
applied to that which is practically the first product of distillation
in which substances congeneric with alcohol have not been transformed or
their properties otherwise partially eliminated so as to convert them
into any form of potable spirits, and should not be applied either to
any product of distillation, or to spirits which have been reduced by
dilution or otherwise partially transformed so as to convert them into a
form of potable spirits, although yet in crude form.
When "high wines" have been diluted to potable proof before being
withdrawn from receiving cisterns into casks, and then constitute a form
of potable spirits, although crude, then, so far at least as the revenue
laws are concerned, such product more nearly resembles the particular
form of potable spirits whose name it will ultimately be than it does
"high wines," and it should be branded with the name of the particular
potable spirits for which it is intended.
The term "spirits, as the case may be," applies to those products of
distillation in which, by reason of the original material used and the
methods of distillation employed, certain characteristic congeneric
products have been retained which differentiate them into certain forms
of potable spirits, such as whisky, brandy, and rum.
The term "alcohol" should be applied to the distillate heretofore
known as "pure, neutral, or cologne spirits."
The by-product in the distillation of "true alcohol," for the
purposes of the revenue laws, may be branded as "commercial," "refuse,"
or "coarse" alcohol, or any other term which will indicate definitely
that it is a product intended only for purposes entirely distinct from
those of a food or drug.
Spirits which have been rectified should be branded so as to show
distinctly that the appropriate name of the potable spirits is not
applied to spirits from which the congeneric substances have been
practically eliminated-- which would leave an alcohol-- but only to
those products of distillation which, without being blended or
compounded with other substances, have been so treated as to partially
transform or otherwise partially eliminate the original congeneric
spirits and bring them to the condition of a particular form of potable
spirits.
The duty of rebranding packages of distilled spirits to conform to
proposed regulations should not be imposed in all cases, but should be
limited to instances where the parties intending to use the spirits in
Federal commerce in such manner as to render them subject to the food
and drugs act, request a change in the branding.
The owner of a cask of spirits may brand his end of the cask with any
name he sees fit, subject only to the penalties of the food and drugs
act if it should enter into Federal commerce when mislabeled or
misbranded under that act.
DEPARTMENT OF JUSTICE,
March 25, 1908.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
the 19th ultimo in which you transmit a copy of proposed amendments to
the regulations relating to marks and brands upon spirit packages, and
request to be advised whether in the form submitted they correctly
interpret my opinion of January 11 last (ante, 476) in reference to this
subject.
I have carefully considered the proposed amendments to the
regulations and am of the opinion that they do not correctly interpret
my former opinion in all respects, and contain certain provisions which
you would be unauthorized to approve. I am of the opinion that they are
inaccurate in the following respects:
1. It was not intended by my former opinion to require the term "high
wines" to be applied to a product now usually marked "whisky." My former
opinion said that the term "high wines" should, as heretofore,
be applied to that which is practically the first product of
distillation in which the substances congeneric with alcohol have not
been transformed or their properties otherwise partially eliminated so
as to convert them into any form of potable spirits. I think this term
is not to be applied, for the purposes of the revenue laws, either to
any subsequent product of distillation or to spirits which have been
reduced by dilution or otherwise partially transformed so as to convert
them into a form of potable spirits, although yet in a crude form.
2. I am of the opinion that the term applies to those products of
distillation in which, by reason of the original material used and the
methods of distillation employed, certain characteristic congeneric
products have been retained which differentiate them into certain forms
of potable spirits, such as whisky, brandy, and rum. While it is true
that certain of these spirits are in some cases, when drawn from the
receiving cisterns into the casks, not in the potable form in which they
are ultimately to be placed upon the market, certain congeneric products
of distillation not having been changed by aging or otherwise, yet I am
of the opinion that, in the intent of the law, when the original "high
wines" have been diluted to potable proof before being drawn from the
receiving cisterns into the casks and then constitute a form of potable
spirits, although crude, then, so far at least as the revenue laws are
concerned, such product more nearly resembles the particular form of
potable spirits whose name it will ultimately bear than it does "high
wines," and I therefore hold that it should be branded with the name of
the particular potable spirits for which it is intended more
appropriately than as "high wines."
3. More difficulty arises in reference to the use of the term
"alcohol," owing to the fact that there appears to be a product of
distillation, which had not been called to my attention, which is now
commercially known as "alcohol," but is entirely different in its uses
and purposes from those of true alcohol in that it is not used or
intended for use either as a food or a drug but for a fuel and for other
purposes in the arts.
This is virtually, as I understand it, a mere by-product in the
distillation of true alcohol and is that portion of the distillate
retaining in concentrated form the various congeneric products which it
is the object of the process of distillation to remove in order to
obtain the pure alcohol or refined spirits. While this by-product of
alcohol containing these congeneric products is clearly not alcohol
within the meaning of the food and drugs act, yet its true branding is
immaterial for the purposes of that act, as it is not used as a food or
drug. Its existence is not apparently contemplated by the present law
and the question of what brand is to be given it is not therefore free
from doubt, but I am of the opinion that this product may be properly
branded for the purposes of the revenue laws as "alcohol," with some
descriptive or qualifying adjective such as "commercial," "refuse," or
"coarse," or any other appropriate term which you may select, which
shall indicate definitely that it is a product intended only for
purposes entirely distinct from those of a food or drug. To this extent
my former opinion is qualified. The single term "alcohol," as the
proposed regulations provide, should be applied to the distillate
heretofore known as "pure, neutral, or cologne spirits."
I am of the opinion that the phraseology of clause 1 of the proposed
amended regulations relating to the branding of spirits after
rectification should be amended so as to show distinctly that the
appropriate name of the particular potable spirit is not to be applied
to spirits from which the congeneric substances have been practically
eliminated-- which would leave an alcohol-- but only to those products
of distillation which, without being blended or compounded with other
substances, have been so treated as to partially transform or otherwise
partially eliminate the original congeneric spirits and bring them to
the condition of a particular form of potable spirits. The same comment
applies to clause 2, where the use of the words "otherwise eliminated"
without the qualification "partially" would, in my opinion, lead to the
same ambiguity;
and to clause 3, where there is likewise a possible ambiguity owing to
the fact that there is no comma between the words "eliminate" and
"with."
It should, in my opinion, be made plain in reference to wholesale
liquor dealers' packages that the proposed regulations only apply where
there has been no change in the original package.
In reference to the proposed regulation requiring the gaugers to
rebrand all casks heretofore branded not in conformity with the proposed
regulations, I am of the opinion that this duty should not be imposed in
all cases but should be limited, at most, to any instances where the
parties intending to use the spirits in Federal commerce in such manner
as to render them subject to the food and drugs act, and desiring to
conform thereto, request a change in the branding. This, however, is not
strictly material, for, in my judgment, the branding which has been
heretofore put upon these casks under the former practice of the
Internal Revenue Department, without any reference to the question of
the food and drugs act, is not relevant in the determination of the
question of what are proper labels under that act, and, as there is no
provision of law authorizing the gauger to rebrand a marked cask, I see
no necessity for your directing this to be done; in fact, I am not
prepared to advise you that you are authorized so to do.
I should add in this connection that, so far as I am now advised, I
do not understand that the limitation of the brands to be placed by
gaugers upon the Government end of the casks under your regulations will
have any application to the names that may be put by the owners of
spirits upon the other end of the cask to further indicate the
particular kind of spirit, as, for example, to show whether whisky is
rye or "Bourbon," or brandy is peach or apple, although such additional
naming would be subject to the various provisions of law as to shipment,
misbranding, etc.
In many cases taxable spirits will never enter into Federal commerce so
as to be subject to the food and drugs act. And even so far as that act
is concerned, the owner of a cask of spirits may, I think, brand his end
of the cask with any name that he sees fit, subject only to the
penalties of the food and drugs act if it should enter into Federal
commerce when mislabeled or misbranded under that act.
Respectfully,
CHARLES J. BONAPARTE.
RECLAMATION SERVICE-- CONTRACTS-- MEMBERS OF CONGRESS; 26 Op.Att'y.
Gen. 537, March 20, 1908
Agreements for the purchase of lands, for water rentals, for
conveyance of water rights, and similar instruments, contractual in
form, relating to the adjustment of vested water rights, executed in
behalf of the United States by some officer of the Reclamation Service
for purposes within the purview of the reclamation act (32 Stat., 388),
are "agreements" or "contracts" within the meaning of sections
3739-3742, Revised Statutes, which prohibit any Member of Congress from
being a party to, or interested in, any contract with, or on behalf of,
the United States which is in its nature executory and continuous as to
future performance, and require the insertion thereon of the condition
prescribed by section 3941.
Where the meaning of a statute is fairly plain, the fact that it
interferes with the carrying out of the terms of a subsequent statute in
a manner probably not contemplated by Congress, cannot be considered. In
such cases the legislative intent, even if it were susceptible of legal
ascertainment, is of little effect except as it is expressed in
legislative enactments, and when so expressed the legal meaning of what
is said must be taken to express the legislative intent, whenever that
intent is material.
DEPARTMENT OF JUSTICE,
March 20, 1908.
The SECRETARY OF THE INTERIOR.
SIR: I have the honor to reply to your letter of March 12, 1908, in
which, with its enclosures, you request my official opinion upon the
following question, namely:
"Are agreements for the purchase of lands, for water rentals, for
conveyance of water rights, and similar instruments, contractual in
form, relating to the adjustment of vested water rights, executed in
behalf of the United States by some officer of the Reclamation Service
for purposes within the purview of the reclamation act (32 Stat., 388)
"agreements" or "contracts" within the meaning of Revised Statutes,
sections 3739-3742, requiring the insertion of the stipulation in
section 3741."
As far as is material here, the sections of the Revised Statutes
referred to are as follows:
3739. "No Member of or Delegate to Congress shall directly or
indirectly, himself, or by any other person in trust for him or for his
use or benefit, or on his account, undertake, execute, hold, or enjoy,
in whole or in part, any contract or agreement made or entered into in
behalf of the United States, by any officer or person authorized to make
contracts on behalf of the United States. * * * "
The same section makes anyone who violates it liable to a heavy fine,
and avoids all such contracts.
3740. "Nothing contained in the preceding section shall extend, or be
construed to extend, to any contract or agreement, made or entered into,
or accepted, by any incorporated company, where such contract or
agreement is made for the general benefit of such incorporation or
company; nor to the purchase or sale of bills of exchange or other
property by any Member of (or Delegate to) Congress, where the same are
ready for delivery, and payment therefor is made, at the time of making
or entering into the contract or agreement.
3741. "In every such contract or agreement to be made or entered
into, or accepted by or on behalf of the United States, there shall be
inserted an express condition that no Member of (or Delegate to)
Congress shall be admitted to any share or part of such contract or
agreement, or to any benefit to arise thereupon.
3742. "Every officer who, on behalf of the United States, directly or
indirectly, makes or enters into any contract, bargain, or agreement in
writing or otherwise, other than such as are hereinbefore excepted, with
any Member of (or Delegate to) Congress, shall be deemed guilty of a
misdemeanor, and shall be fined three thousand dollars."
As far as is material here, those sections are identical with the
original act from which they are taken, the act of April 21, 1808 (2
Stat., 484), which was amended by the act of February 27, 1877 (19
Stat., 249), so as to make it apply also to Delegates to Congress.
The language of section 3739 is not that which it would seem natural
to use in framing a statute intended to forbid all contracts by Members
of or Delegates to Congress, made with or on behalf of the United
States, except those specially excepted. Language similar to that in the
beginning of section 3742, would seem more appropriate for such purpose.
And for this reason, and because of the language used in other portions,
this section might be thought to only forbid that any Member of or
Delegate to Congress should be interested in or in part the beneficiary
of any contract made by another person with or on behalf of the United
States.
But the same reason and policy which would dictate this would, equally,
at least, forbid that such Member or Delegate should be the only party
in interest in such contract.
Besides this, the language, when carefully considered, makes it clear
that the sections were intended to prevent any such Member or Delegate
from being in any way a party to such contracts. Thus, section 3739
provides that no such Member or Delegate shall "undertake, execute,
hold, or enjoy, in whole or in part, any contract or agreement made or
entered into on behalf of the United States by any officers or persons
authorized to make contracts on behalf of the United States."
This plainly forbids any such Member or Delegate to make or be a
party to such contract, either by himself or with others. And while
section 3741, in saying that in any such contract with the United States
there "shall be inserted an express condition that no Member of (or
Delegate to) Congress shall be admitted to any share or part of such
contract or agreement, or to any benefit to arise therefrom," would seem
to indicate something different from a contract made directly with such
Member or Delegate, yet I do not think this can overcome the plain
meaning of the other portions of the sections and especially of section
3742, which provides that--
"Every officer who, on behalf of the United States, directly or
indirectly, makes or enters into any contract, bargain, or agreement in
writing or otherwise, other than as are hereinbefore excepted, with any
Member of (or Delegate to) Congress, shall be deemed guilty of a
misdemeanor, and shall be fined three thousand dollars."
This plainly includes every such contract not thus excepted, and, as
we can not suppose that it was intended to impose this penalty for an
act which the other sections permitted, it must be taken that their
prohibition is as broad as is that of this section.
The papers to which you refer and samples of which are transmitted
with your note are certainly "contracts" or "agreements" as those words
are used in the sections referred to, and as they are executory and
continuous in their nature, and for an indefinite future performance,
they are not within the exception of section 3740, but are within the
prohibition of these sections.
This construction makes these provisions forbid that any Member of,
or Delegate to, Congress shall be a party to, or interested in, any
contract with, or on behalf of, the United States, which is in its
nature executory and continuous as to future performance, and perhaps
this is just what was intended by these sections.
With the policy or expediency of forbidding a Member of Congress to
be a party to, or interested in, a contract which Congress alone can
authorize, or how far such prohibition should, or should not, extend, we
have no concern. This is for Congress alone.
From the nature of the contract transmitted with your note it is
manifest that in case a person with whom it is desired to make such
contract is a Member of, or Delegate to, Congress, it would interefere
with the carrying out of what is contemplated by the reclamation act
referred to, if he could not enter into such contract, when willing to
do so; and that it would be to the advantage of the Government to be
permitted to make such Member the same kind of contract that it makes
with any other person in aid of such reclamation project. And it may
well be thought as it is urged here, that Congress did not intend that
these sections should operate to prohibit such contracts as these, and
that, had the attention of Congress been called to this, it would have
modified these sections as to their application to the reclamation act.
But in dealing with a statute fairly plain in its meaning, such
considerations have no place; and in such cases the legislative intent,
even if it were susceptible of legal ascertainment, cuts little figure
except as it is expressed in legislative enactments, and when so
expressed the legal meaning of what is said must be taken to express the
legislative intent, wherever that intent is material.
And it is familiar law that even in a clear casus omissus a matter
omitted by inadvertence or by being overlooked or unforeseen, can not be
supplied by construction.
After careful examination of the whole subject, I am of opinion that
the contracts to which you refer are within the prohibition of sections
3739, 3740, 3741, and 3742, Revised Statutes, and your question is
answered in the affirmative.
Respectfully,
CHARLES J. BONAPARTE.
CUSTOMS LAW-- DRAWBACK-- COAL USED ON AMERICAN VESSELS; 26 Op.
Att'y. Gen. 531, March 19, 1908
Continuous customs custody is not essential to the allowance of
drawback, under paragraph 415 of the tariff act of July 24, 1897 (30
Stat., 190), on coal imported into the United States and afterwards used
for fuel on board of vessels registered under the laws of the United
States, propelled by steam, and engaged in trade with foreign countries.
Sections 2977, 2978, and 3025, Revised Statutes, relate exclusively
to drawback or return of duties on exported merchandise, and have no
application to the allowance of drawback on fuel coal under paragraph
415 of the tariff act of 1897.
DEPARTMENT OF JUSTICE,
March 19, 1908.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter
advising me that the Geo. S. Bush & Co., Incorporated, of Seattle,
Wash., has applied to your Department for drawback of duties paid on
certain coal which was withdrawn from customs custody after the
collection of duties thereon in the district of Great Falls, Mont., and
shipped to Seattle for use as fuel on board the steamship Minnesota, and
requesting an expression of my opinion as to whether this drawback
should be allowed.
You say in your letter:
"Paragraph 415 of the tariff act of 1897 provides that on all coal
imported into the United States, which is afterwards used for fuel on
board vessels propelled by steam and engaged in trade with foreign
countries, or in trade between the Atlantic and Pacific ports of the
United States, and which are registered under the laws of the United
States, a drawback shall be allowed equal to the duty imposed by law
upon such coal, and shall be paid under such regulations as the
Secretary of the Treasury shall prescribe.
"Drawback is allowed on merchandise withdrawn for exportation under
section 2977 of the Revised Statutes, only when the custody of the
Government has been uninterrupted. Section 3025, Revised Statutes,
provides that no return of the duties shall be allowed on the export of
any merchandise after it has been removed from the custody and control
of the Government, except in certain cases not affecting the one under
consideration.
"The question is presented in this case, whether continuous customs
custody is necessary for the payment of drawback on coal used on board
vessels under said paragraph 415-- that is, whether coal like other
merchandise exported in the condition in which imported must have
remained continuously in customs custody from the time imported to the
time of shipment out of the United States."
I have given this question careful consideration in the light of the
various statutory provisions cited by you and the information contained
in your subsequent letter as to the practical construction which has
been given to this paragraph by the collectors of customs at the several
ports.
Paragraph 415 of the tariff act of 1897 (30 Stat., 151, 190)
provides:
"That on all coal imported into the United States, which is
afterwards used for fuel on board vessels propelled by steam and engaged
in trade with foreign countries, or in trade between the Atlantic and
Pacific ports of the United States, and which are registered under the
laws of the United States, a drawback shall be allowed equal to the duty
imposed by law upon such coal, and shall be paid under such regulations
as the Secretary of the Treasury shall prescribe * * * ."
A similar provision for a drawback of 75 cents per ton on bituminous
coal used for fuel on board steam vessels was contained in the tariff
act of March 3, 1883 (22 Stat., 488, 511), but was entirely omitted from
the tariff acts of October 1, 1890 (26 Stat., 567), and August 27, 1894
(28 Stat., 509).
The regulations for "drawback on coal used for fuel on board steam
vessels" which were prescribed by the Secretary of the Treasury under
the provisions of paragraph 415 of the act of 1897 are contained in
articles 1206 to 1209, inclusive, of the Customs Regulations of 1899.
They are similar to the regulations formerly prescribed under the tariff
act of 1883, which were contained in articles 951 to 957, inclusive, of
the Customs Regulations of 1884. While under both of these regulations
it is expressly provided that "imported coal may be taken for fuel on
board a departing vessel either before or after the payment of the
duties thereon, at the option of the owner," in neither of them is there
any requirement that in order to so use coal on which duty has been
previously paid it must have remained in the meantime in customs
custody.
On the other hand, each of these regulations provides that, in addition
to the entry and declaration prescribed, "the collector may also require
such additional evidence of the importation and payment of duties as he
may deem necessary." (Customs Regulations, 1899, art. 1206; 1884, art.
952.) These provisions, as you state in your recent letter, "apparently
contemplate instances in which coal has not continuously remained in
customs custody from the date of importation."
Furthermore, in this letter, answering my inquiry as to the practice
of the Treasury Department in allowing drawbacks under the provisions of
the acts of 1883 and 1897 on coal that had not been in continuous
customs custody, you state that the records of your Department do not
show any claim to have been presented to it for drawback on coal which
had been delivered from customs custody prior to being placed on board
the vessel, and that the collectors of customs at New York,
Philadelphia, Boston, New Orleans, and Baltimore report that no claim
has ever been made at those ports for drawback in such cases; but that
"the collector of customs at San Francisco reports * * * that it has
been the practice at that port to pay drawback upon coal used in the
manner referred to, although the same had been delivered from customs
custody prior to its being laden on the vessel using the same, and a
similar practice appears to have been followed in the Puget Sound custom
collection district." It thus appears that in the only collection
districts in which this question has ever been raised it has been the
custom to allow the drawback, even though the coal has not been in
continuous customs custody subsequent to its importation.
Taking all these matters into consideration, I have the honor to
advise that I am of the opinion that continuous customs custody is not
essential to the allowance of drawback on the coal in question, for the
following reasons:
Paragraph 415 of the act of 1897 provides broadly that a drawback
shall be allowed "on all coal imported into the United States which is
afterwards used for fuel on board vessels propelled by steam" engaged in
foreign or coastwise trade and duly registered, which "shall be paid
under such regulations as the Secretary of the Treasury shall
prescribe."
It contains no limitation of such drawback to coal which has remained in
customs custody between its importation and reshipment, but covers, in
apt language, all coal which after being imported is afterwards at any
time used for fuel on board certain steam vessels. There is nothing
which indicates any intention to limit this provision to coal which has
remained in customs custody. On the other hand, the specific authority
given the Secretary of the Treasury to prescribe regulations for the
payment of such drawback may well cover the case of coal which has not
remained in customs custody, and enable the interests of the Government
to be safeguarded by the requirement of satisfactory evidence that the
coal on which the drawback is claimed is in fact the coal which had been
previously imported. It was apparently in accordance with this idea
that, both under the act of 1883 and the act of 1897, the regulations
prescribed by the Secretary of the Treasury in reference to the
allowance of the drawback on coal authorized the collector of customs to
require, in addition to the entry and declaration, "such additional
evidence of the importation and payment of duties as he may deem
necessary."
On the whole, therefore, there appears to be nothing restricting the
allowance of drawback under paragraph 415 to coal which has remained in
continuous customs custody, unless the broad provisions of this
paragraph, which aptly include coal laden on steam vessels after it has
been delivered from customs custody as well as coal which has remained
continuously in such custody, are to be regarded as limited by sections
2977 or 3025 of the Revised Statutes, to which you have called my
attention, or by section 2978, which should likewise be considered in
this connection.
Section 2977 provides that merchandise which has remained in customs
custody, shall, on exportation directly from such custody within three
years, be entitled to return duties. Section 2978 provides that no
merchandise subject to duty "shall be entered for drawback or exported
for drawback" after it is withdrawn from customs custody, except as
provided in section 3025.
Section 3025 provides that "no return of duties shall be allowed on the
export of any merchandise after it has been removed from the custody and
control of the Government," except in the cases provided in certain
sections of the Revised Statutes which are not here material. While each
of these sections undoubtedly requires continuous customs custody as a
condition to the allowance of drawback or return of duties in the cases
to which they relate, I am of the opinion that none of them have any
application to the allowance of drawback on fuel coal under paragraph
415, for the reason that they relate exclusively to drawback or return
of duties on exported merchandise, and therefore do not in any way
affect paragraph 415, which relates only to the shipment of coal for use
as fuel on board vessels in such manner as not to constitute an
exportation.
Sections 2977 and 3025, by their express language, clearly apply only
to the case of exportations. While the meaning of section 2978 is not so
obvious, owing to its reference to merchandise "entered for drawback,"
still in view of the fact that both at the time of the passage of the
original act of March 3, 1849 (9 Stat., 399), from which this section
was derived, and at the time of its reenactment in the Revised Statutes,
there was no provision in the statutes for drawback upon any imported
articles except upon their subsequent exportation, it is reasonably
certain that the use in this section of the indefinite phrase "entered
for drawback," whatever may have been its meaning, was not intended to
authorize a drawback upon any except exported articles, and that this
section, like the others, applies only to exportations.
It is, on the other hand, clear that the shipment of coal for use as
fuel on vessels is not an "exportation" within the meaning of the
customs law. It is well established that an essential element to
exportation is the intent to land the article in a foreign country and
that the taking of material on board ship merely for consumption during
the voyage is not an exportation. (Andrew's Revenue Laws, sec. 207;
Treasury Decisions, 9733, 13536, 18668, 19434; 23 Op., 418.)
In Swan & Finch Co. v. United States (190 U.S., 143, 145) it was held
that the drawback provided by section 30 of the act of 1897 "on the
exportation" of articles manufactured from imported materials on which
duties had been paid would not be allowed on lubricating oil made from
imported rape seed which had been placed on board a vessel bound for a
foreign country to be used during the voyage. Mr. Justice Brewer,
delivering the opinion of the court, said, referring to the term
"exportation:" "Coal placed on a steamer in San Francisco to be consumed
in propelling that steamer to San Diego would never be so designated.
Another country or State as the intended destination of the goods is
essential to the idea of exportation."
For these reasons, therefore, without passing upon the question as to
what would have been the effect of sections 2977, 2978, and 3025 of the
Revised Statutes upon the later and special provisions contained in
paragraph 415 of the tariff act of 1897, if they had related to the same
subject, it is evident that as these sections relate solely to
exportations, they can have no application to the case of coal shipped
for use on board vessels, to which alone paragraph 415 relates.
Hence, as there appears to be no other statutory provision limiting
the broad language of paragraph 415, I am of the opinion that, in
accordance with the Treasury regulations which have been adopted
thereunder and the uniform practice of the customs officers wherever
this question has arisen, this paragraph should be so construed as to
authorize the drawback on coal otherwise coming within its provisions,
where the Treasury regulations have been duly complied with, although
such coal has not been in continuous customs custody between the dates
of its importation and reshipment.
Respectfully,
CHARLES J. BONAPARTE.
CIVIL SERVICE COMMISSION-- APPROVAL OF PROMOTIONS; 26 Op.Att'y.Gen.
522, March 17, 1908
There is nothing in the civil-service act of January 16, 1883 (22
Stat., 403), nor in section 4 of the act of August 5, 1882 (22 Stat.,
255), which prohibits the Civil Service Commission from approving a
promotion, otherwise unobjectionable, where it is informed that the
appointing officer expects or intends to assign to the appointee duties
not included within the designation given to his position in the
specific appropriation providing for his compensation.
Neither is there anything in either of those acts preventing the
certification by the Commission of eligibles for a vacancy from
registers not designating functions of the nature suggested by the title
of the position given in the specific appropriation providing for the
compensation of the employee.
The purpose of section 4 of the act of August 5, 1882, was to prevent
the expenditure of public money in the employment of subordinate persons
at the seat of Government out of appropriations made for general
purposes, so as to insure the efficient control by the Congress not only
over the amounts of money expended, but also over the number and
character of subordinate officers and employees in the service of the
United States employed at the seat of Government.
The act of August 5, 1882, in no wise limits the discretion of the
heads of the several Executive Departments as to the character of the
work which shall be required of their several employees, but is intended
to prevent the employment of subordinate officers or employees at the
seat of Government without specific appropriations for their payment.
DEPARTMENT OF JUSTICE,
March 17, 1908.
The PRESIDENT.
SIR: I have the honor to acknowledge the receipt of your letter of
February 21 last, transmitting a communication from the Civil Service
Commission, in which my opinion is asked upon the legal propriety of the
Commission's certification of certain employees under the circumstances
set forth in its communication. I understand that it is not desired that
I express any opinion as to the propriety of such certification under
the civil-service rules, but that the questions of law as to which my
opinion is asked are whether such certification is prohibited, either by
the terms of the civil-service law, or by those of the act approved
August 5, 1882 (22 Stat., 219, 255). The certifications in question were
requested under the following circumstances:
On April 11, 1906, Richard Lee was appointed messenger boy under the
War Department at $360 per annum. On September 25 following he was
promoted to watchman at $540 per annum, the minimum age limit fixed by
the rules for such positions being waived by the Commission. On
September 7, 1907, he was promoted from watchman at $540 to elevator
conductor at $600 per annum. It appears from the statement of the
Commission that there is a specific appropriation for an elevator
conductor at this compensation, but, in the opinion of the War
Department, there is no necessity for Lee's services in connection with
the running of any elevator, and that the purpose of the War Department,
as stated in an official communication to the Commission, is to have Lee
continue to discharge the same duties which have been assigned to him
from the time of his original appointment as messenger boy.
The Commission doubts its authority to approve this promotion.
In the second case, the Commission, at the request of the Treasury
Department, certified eligibles from its register of stenographers and
typewriters to fill a vacancy in the position of assistant messenger.
Upon inquiry from the Commission as to why this requisition was made,
the Treasury Department explained that an assistant messenger had much
time when he was not actively employed as a messenger, and, during this
time, he could be employed as a stenographer and typewriter when
otherwise he would simply be sitting idle. A further reason appears to
have been given for the request, which seems to me irrelevant to the
legality of the Commission's action. In this case, as in the other, I
understand that there was a special appropriation for the compensation
of an assistant messenger.
The third case mentioned by the Commission relates to a requisition
from this Department that two positions for which there are special
appropriations as skilled laborers should be filled, one from the
messenger register and the other from the messenger-boy register. It is
proper for me to state in this connection that the Commission appears to
have been under some slight misapprehension as to the facts, but, for
the purpose of answering the questions of law submitted to me, I do not
deem it material to correct this error.
It is apparent from the foregoing statements that the Commission
wishes to be informed--
First. Whether it is authorized to approve a promotion, otherwise
unobjectionable, if it is informed that the appointing officer expects
or intends to assign to the appointee duties not included within the
designation given to his position in the specific appropriation
providing for his compensation.
Second. Whether the Commission is authorized to certify eligibles for
a vacancy from registers not designating functions of the nature
suggested by the title of the position given in a specific appropriation
providing for the compensation of the employee.
It will be observed, of course, that these questions assume that, in
so far as the Commission may have a discretion in the premises, it will
approve the promotion or make the certification desired; the inquiry
being not whether it is bound to do this, but whether it is permitted to
do this under the circumstances.
I find nothing in the civil-service law which prohibits this action.
By section 6 provision is made for the classification of "clerks,
agents, or persons employed," and for subsequently including
"subordinate places, clerks, and officers in the public service" within
such classification as from time to time revised; and section 7
provides "that after the expiration of six months from the passage of
this act no officer or clerk shall be appointed, and no person shall be
employed to enter or be promoted in either of the said classes now
existing, or that may be arranged hereunder pursuant to said rules,
until he has passed an examination, or is shown to be specially exempted
from such examination in conformity herewith." It is likewise provided
by section 2 "that all the offices, places, and employments so arranged
or to be arranged in classes shall be filled by selections according to
grade from among those graded highest as the results of such competitive
examinations."
These are all the provisions of the civil-service law which have any
bearing upon the questions under consideration, and it seems quite clear
that they contain no prohibition, either express or arising from
reasonable implication, against compliance by the Commission with any
one of the several requests mentioned in the statement of facts.
The only other statute which is supposed to have any bearing upon the
question is section 4 of the act approved August 5, 1882 (22 Stat.,
255), making appropriations for the legislative, executive, and judicial
expenses of the Government for the fiscal year ended June 30, 1883, and
for other purposes. This section is as follows:
"SEC. 4. That no civil officer, clerk, draughtsman, copyist,
messenger, assistant messenger, mechanic, watchman, laborer, or other
employee shall after the first day of October next be employed in any of
the Executive Departments, or subordinate bureaus or offices thereof at
the seat of government, except only at such rates and in such numbers,
respectively, as may be specifically appropriated for by Congress for
such clerical and other personal services for each fiscal year;
and no civil officer, clerk, draughtsman, copyist, messenger, assistant
messenger, mechanic, watchman, laborer, or other employee shall
hereafter be employed at the seat of government in any Executive
Department or subordinate bureau or office thereof or be paid from any
appropriation made for contingent expenses, or for any specific or
general purpose, unless such employment is authorized and payment
therefor specifically provided in the law granting the appropriation,
and then only for services actually rendered in connection with and for
the purposes of the appropriation from which payment is made, and at the
rate of compensation usual and proper for such services, and after the
first day of October next section one hundred and seventy-two of the
Revised Statutes, and all other laws and parts of laws inconsistent with
the provisions of this act, and all laws and parts of laws authorizing
the employment of officers, clerks, draughtsmen, copyists, messengers,
assistant messengers, mechanics, watchmen, laborers, or other employees
at a different rate of pay or in excess of the numbers authorized by
appropriations made by Congress, be, and they are hereby, repealed; and
thereafter all details of civil officers, clerks, or other subordinate
employees from places outside of the District of Columbia for duty
within the District of Columbia, except temporary details for duty
connected with their respective offices, be, and are hereby, prohibited;
and thereafter all moneys accruing from lapsed salaries, or from unused
appropriations for salaries, shall be covered into the Treasury; * * *
and nothing herein shall be construed to repeal or modify section one
hundred and sixty-six of the Revised Statutes of the United States."
It seems evident that the purpose of this provision was to prevent
the expenditure of public money in the employment of subordinate persons
at the seat of government out of appropriations made for general
purposes,
so as to insure the efficient control by the Congress not only over the
amounts of money expended, but also over the number and character of
subordinate officers and employees in the service of the United States,
and employed at the seat of Government. This is the construction placed
upon the act by the Court of Claims in the case of Plummer v. United
States (24 Ct.Cls., 517, 520), in which the court says:
"The purpose of Congress in these provisions can not be mistaken. It
is to deprive officers of the Government of all authority to employ in
any of the Executive Departments at the seat of government, or in the
subordinate bureaus or offices thereof, civil officers, clerks,
draughtsmen, copyists, messengers, assistant messengers, mechanics,
watchmen, laborers, or other employees, except such as may be
specifically appropriated for by Congress."
In conformity with this decision, it is held in the opinion of the
Comptroller, cited by the Civil Service Commission in its statement (10
Comp.Dec., 3) that the Congress, having made a specific appropriation
for one confidential clerk to the Secretary of the Navy, the employment
of a second confidential clerk to be paid for out of the appropriation
"Increase of the Navy," was forbidden by this statute. It will be
observed, however, that in none of the four cases mentioned by the
Commission is there any statement or suggestion of a purpose on the part
of the head of a Department to employ any officers or employees at rates
or in numbers not specifically provided for by the Congress, or to pay
any officers or employees whose employment is not authorized and payment
for whose services is not specifically provided for in a law granting an
appropriation, or to pay any officer or employee except for services
actually rendered in connection with, and for the purposes of, the
appropriation from which payment is made, and at the rate of
compensation usual and proper for such services. What would be the
rights or duties of the Civil Service Commission if a request for a
certification of eligibles, or the approval of a promotion, were coupled
with a statement that the officer or employee would be employed and paid
in contravention of this statute, it is not necessary for me to discuss,
since it is quite clear that no such intention is avowed by any one of
the three heads of Department making the requests set forth by the
Commission.
In the first two of the requests mentioned, the statement is made that
it is intended to utilize the employees, the one during the whole, and
the other during a part, of his time in the discharge of duties
differing from those immediately suggested by the names of the places
appropriated for by the Congress; but I find no prohibition of such
employment in the act of 1882, above quoted. If an elevator were out of
repair for some days or weeks, there is surely nothing in this statute
to prohibit the head of the Department from using the elevator conductor
as a messenger, and, if he finds it unnecessary or undesirable to use
the elevator at all, but needs the services of the employee for other
legitimate purposes of the appropriation from which the payment is made,
there is nothing in the statute quoted which prevents him from doing
this. It is yet more evident that when, as in the second case, the
services of an employee described as a messenger are needed, as such
services naturally would be, only intermittently, the head of the
Department is not obliged to let him pass the remainder of the time for
which the Government pays him, in idleness, and is justified in
employing him for other legitimate purposes of the appropriation from
which he is paid. Indeed, since by several statutes (22 Stat., 563; 27
Stat., 715; 30 Stat., 316) it has been made the duty of heads of
Departments "to require of all clerks and other employees, of whatever
grade or class, in their respective Departments, not less than seven
hours of labor each day," it seems clear that the spirit, if not the
letter of the law obliges the heads of Departments to prevent, so far as
may be in their power, their subordinates from passing any of the time
for which they are paid by the Government in idleness. In the cases of
the two skilled laborers, certifications for which are said to have been
requested from the eligibles on the register of messengers and messenger
boys, respectively, in addition to what has been said in regard to the
other cases, it should be further noted that the terms "skilled
laborer," "messenger," and "messenger boy" are not sufficiently
differentiated to render the description of the same employee by one or
the other title necessarily inappropriate.
I construe the act of 1882 as in no wise limiting the discretion of
the heads of the several Executive Departments as to the character of
work which shall be required of their several employees, but only as
intended to prevent the employment of subordinate officers or employees
at the seat of Government without specific appropriations for their
payment, and I am strengthened in this construction by the concluding
words of the section above noted, which are:
" * * * and nothing herein shall be construed to repeal or modify
section one hundred and sixty-six of the Revised Statutes of the United
States."
When this act was passed section 166, Revised Statutes, read as
follows:
"Each head of a Department may from time to time alter the
distribution among the various bureaus and offices of his Department, of
the clerks allowed by law, as he may find it necessary and proper to
do."
While this provision did not then apply to employees other than
clerks, nevertheless the fact that its repeal was expressly negatived
tends strongly to show that the Congress had no purpose to prevent, by
the enactment first referred to, the heads of the several Departments
from so employing the services of their respective subordinates as to
best advance the public interests. To avoid possible misconstruction, it
is proper that I should call attention to the subsequent modification of
section 166, which, as amended by the act approved May 28, 1896 (29
Stat., 179), now reads as follows:
"Each head of a Department may from time to time alter the
distribution among the various bureaus and offices of his Department, of
the clerks and other employees allowed by law, except such clerks or
employees as may be required by law to be exclusively engaged upon some
specific work, as he may find it necessary and proper to do, but all
details hereunder shall be made by written order of the head of the
Department, and in no case be for a period of time exceeding one hundred
and twenty days:
Provided, That details so made may, on expiration, be renewed from time
to time by written order of the head of the Department, in each
particular case, for periods of not exceeding one hundred and twenty
days. All details heretofore made are hereby revoked, but may be renewed
as provided herein."
As amended, the statute extends the discretion previously vested in
the head of each Department as to the distribution of clerks among the
various offices and bureaus of his Department to all other employees,
but regulates the exercise of this discretion by requiring the special
written order of the head of the Department for each one hundred and
twenty days at most of employment of each employee outside of the bureau
or office to whose appropriation he is charged. This provision must be
read in connection with section 3662, Revised Statutes, originally
enacted by the act approved March 3, 1855 (10 Stat., 670), which is as
follows:
"All estimates for the compensation of officers authorized by law to
be employed shall be founded upon the expressed provisions of law, and
not upon the authority of Executive distribution."
These several provisions show that the Congress has considered the
proper limits of Executive discretion in determining the character of
work to be assigned to subordinates in the several Departments, and has
provided safeguards sufficient, in its judgment, against possible abuse
of this discretion. It has not, however, seen fit to require any
services, or impose any duty, in connection with such safeguards, upon
the Civil Service Commission, and I, therefore, advise you that the
Civil Service Commission is authorized to comply with all of the several
requests for the certification of eligibles, or approval of promotions,
mentioned in its letter to you.
Very respectfully,
CHARLES J. BONAPARTE.
INTERNAL REVENUE OFFICERS-- DUTY AS TO TESTIFYING IN CASES OF FRAUD
UPON THE REVENUES; 26 Op.Att'y.Gen. 517, March 10, 1908
The Commissioner of Internal Revenue has no authority to define and
limit the official duties of deputy collectors and internal-revenue
agents by providing that, while it shall be a part of their official
duties to appear before United States commissioners and Federal grand
juries in cases involving frauds against the revenue laws, up to the
time when the parties charged are bound over in or held by a grand jury,
after a prima facie case has been made out and the accused has been so
bound over or held, such attendance shall not be a part of their
official duties, and they should respond, in such cases, as a rule, only
to a regular subpoena and attend "simply as a witness."
The Secretary of the Treasury would not be authorized to approve of
such a definition and limitation of the duties of deputy collectors and
internal-revenue agents, for the reason that section 3163, Revised
Statutes, makes it the duty of all such officers to aid in the
prevention, detection, and punishment of any frauds in relation to the
collection of internal-revenue taxes, and these duties are not finished
when a "prima facie case has been made" against the offender.
There is no sound distinction between such officers testifying to
facts within their knowledge before a United States commissioner or a
Federal grand jury, for the purpose of having the accused bound over to
court or indicted, and their afterwards testifying upon the trial in the
court.
Section 321, Revised Statutes, while relating generally to "matters
pertaining to the assessment and collection of internal revenue," does
not authorize a limitation of the duties of internal-revenue officers
and agents in special matters otherwise provided by law.
DEPARTMENT OF JUSTICE,
March 10, 1908.
The SECRETARY OF THE TREASURY.
SIR: In a recent letter you state:
"The Comptroller of the Treasury has decided that a deputy collector
or other internal-revenue officer, attending before a court or grand
jury in the performance of his duty to aid in the punishment of
violations of the internal-revenue laws, whether attending there upon
the order of his superior officer, or upon the request of the United
States attorney, or in response to a subpoena of the court, is to be
paid his usual compensation and actual necessary expenses or allowance
in lieu thereof from internal-revenue appropriations and not from the
judiciary fund; but that when such officer attends before the court or
grand jury 'simply as a witness,' and not in the ordinary discharge of
his duties to secure the punishment of frauds, he is to be paid as a
witness from the judiciary fund.
"The Commissioner of Internal Revenue claims the right to decide when
the officer attends before the court or grand jury merely in the
performance of his official duty to secure the punishment of offenders
and when he appears there 'simply as a witness' and not in the
performance of his official duty; and, hence, to substantially decide
out of which appropriation the officer is to be paid."
You thereupon request an expression of my opinion "as to whether this
claim of the Commissioner of Internal Revenue is well founded, and
whether his decision in the premises is conclusive upon the
Comptroller."
You also transmit with your letter the papers in a case actually
pending in your Department, in which this question has arisen, from
which it appears that while the above-mentioned decision of the
Comptroller of the Treasury was on June 6, 1907, promulgated by the
Commissioner of Internal Revenue, with your approval, as Treasury
Circular No. 700, and while the authority of the Comptroller to render
this decision is not questioned, the Commissioner of Internal Revenue
now desires, if thereto authorized, and subject to your approval, to
define and limit the official duties of deputy collectors and
internal-revenue agents by providing that, while it shall be a part of
their official duties to appear before United States commissioners and
Federal grand juries in cases involving frauds against the revenue laws,
up to the time when the parties so charged are held or bound over by the
United States Commissioner or the grand jury, on the other hand, if
their evidence is needed or desired after a prima facie case has been
made out and the accused has been held or bound over, such attendance
will not be required in the discharge of their official duties, and they
should, in such case, respond, as a rule only to a regular subpoena, and
would attend "simply as witnesses."
If your letter is to be literally construed as merely requesting an
expression of my opinion on the question submitted, at the request of
the Commissioner of Internal Revenue, and for the guidance, not of
yourself but of the Commissioner, I would be constrained to decline to
express an opinion thereon, since, under the well-settled precedents of
this Department, I am not authorized to give an official opinion at the
request of the head of an Executive Department except for his own
guidance, in a matter calling for action on his part,
and am not authorized to give such opinion, even at the request of the
head of an Executive Department, for the guidance of an officer of such
department in a matter which can not or has not come before the head of
the Department. (11 Op. 4; 20 Op. 251, 279, 608; 21 Op. 174.)
However, as your letter, when construed in the light of its
inclosures, may, as I understand it, be regarded as a request for the
expression of my opinion upon the question whether you would be
authorized to approve the action which the Commissioner of Internal
Revenue desires to take, I have treated it in this light. So treated, I
have the honor to advise that, after careful consideration, I am of the
opinion that you would not be authorized to approve the definition and
limitation of the official duties of deputy and internal revenue agents
in the manner proposed.
It is true that section 321 of the Revised Statutes provides that--
"The Commissioner of Internal Revenue, under the direction of the
Secretary of the Treasury, shall have general superintendence of the
assessment and collection of all duties and taxes now or hereafter
imposed by any law providing internal revenue; and shall prepare and
distribute all the instructions, regulations, directions, forms, blanks,
stamps, and other matters pertaining to the assessment and collection of
internal revenue."
This provision, however, while relating generally to "matters
pertaining to the assessment and collection of internal revenue," does
not authorize, in my opinion, a limitation of the duties of
internal-revenue officers and agents in specific matters otherwise
provided by law.
Section 3163 of the Revised Statutes as amended by the act of March
1, 1879 (20 Stat., 327, 328), provides, however, that--
"Every collector within his collection district and every
internal-revenue agent shall see that all laws and regulations relating
to the collection of internal taxes are faithfully executed and complied
with, and shall aid in the prevention, detection, and punishment of any
frauds in relation thereto."
It is said by the Comptroller of the Treasury in a memorandum
contained in the papers which you have transmitted that "the duty of any
officer who is required by law to aid in the prevention, detection, and
punishment of frauds, etc., is not finished when a 'prima facie case has
been made' * * * ."
I concur in this statement.
In respect to the duty which the statute imposes upon revenue
officers and agents of aiding in the punishment of frauds upon the
revenue, I can see no sound distinction between testifying to facts
within their knowledge before a United States commissioner or Federal
grand jury, for the purpose of having the accused bound over to court or
indicted, and that of thereafter testifying upon the trial in the court.
There is nothing in the statute which limits their duty of aiding to
secure the punishment of offenders to the assistance of the prosecuting
officers in making out a prima facie case against the offenders, and in
fact such assistance would probably in most cases be ineffectively
rendered and their duties in the punishment of offenders left
incomplete, and often rendered entirely fruitless, unless followed by
the giving of testimony upon the trial of the case, where alone the
punishment of offenders can be secured.
I am therefore of the opinion that the proposed definition and
limitation of the duty of deputy collectors and internal-revenue agents
would be in violation of the provisions of section 3163 of the Revised
Statutes.
I have noted the statement made by the Commissioner as to the
hardship which would result to the Bureau of Internal Revenue by reason
of the fact that the expenses of deputy collectors and other
internal-revenue agents in attending courts as witnesses have been
heretofore customarily paid by the United States marshals out of the
judiciary fund and that no estimate was made in the appropriations for
the fiscal year 1908 for the amount necessary to pay these fees, under
the Comptroller's decision; also his suggestion that, as many
prosecutions for violation of the internal-revenue laws have been
heretofore compromised on the payment of a specific penalty and all
costs,
the expenses of the internal-revenue officers who attended upon the
courts can not under the Comptroller's decision be taxed as costs of the
court and are hence a loss to the Government, whereas they should have
been paid by the defendants.
Clearly, however, neither of these considerations can affect the
single question of law which is now involved.
However, without passing upon the question whether witness fees of
revenue agents attending as witnesses under subpoena can not still be
taxed as costs against a losing defendant, even although such costs, if
the Government were unsuccessful, would be paid out of the
internal-revenue appropriations rather than out of the judiciary fund, I
may add that this difficulty may be obviated in the future by bearing
the Comptroller's decision in mind and fixing in future compromises an
amount sufficient to reimburse all expenses of this character which may
have been incurred by the Government.
Respectfully,
CHARLES J. BONAPARTE.
STATE DEPARTMENT-- COST OF PRINTING SLIP LAWS; 26 Op.Att'y.Gen.
514, March 3, 1908
The cost of printing in slip form the 500 copies of all laws
furnished the State Department under section 56 of the act of January
12, 1895 (28 Stat., 609), should not be charged against the allotment of
appropriation for printing and binding for that Department.
The phrase "documents or reports," as used in the resolution of March
30, 1906 (34 Stat., 825), prescribing the appropriation or allotment out
of which the cost of printing and binding of documents or reports
emanating from the Executive Departments,
bureaus, and independent offices of the Government shall be paid, is
restricted to "Executive documents and reports," and does not embrace
the printed laws authorized by section 56 of the act of January 12,
1895.
Neither does the language of paragraph 7 of the act of March 1, 1907
(34 Stat., 1013), prescribing the appropriation or allotment out of
which the cost of printing any document or report thereafter printed by
order of Congress shall be paid, when read in connection with section 56
of the act of January 12, 1895, refer to statutes, resolutions, or
treaties.
DEPARTMENT OF JUSTICE,
March 3, 1908.
The SECRETARY OF STATE.
SIR: I have the honor to acknowledge the receipt of your letter of
February 19, in which you request my opinion relative to the legality of
the charge by the Public Printer against the allotment of the State
Department for paper and press work on the copies of an act of Congress
furnished the State Department.
The facts are that the State Department, being the custodian of the
original laws and treaties, and charged by the statutes with their
promulgation (sections 210, 3803, 3805, Revised Statutes), has
customarily received from the Public Printer, under section 56 of the
printing act of 1895 (28 Stat., 601, 609) covering the printing and
distribution of public and private laws, 500 copies of all laws, for
which no charge has heretofore been made against the allotment of the
State Department. But recently the Public Printer has construed the
resolution of March 30, 1906, as requiring him to charge against the
allotment for printing and binding for the State Department the cost of
the 500 copies of the laws distributed to that Department under the act
of 1895, and he has announced his intention of continuing to make this
charge in accordance with his construction of the law.
The resolution of 1906 (34 Stat., 825) provides:
"That hereafter, in the printing and binding of documents or reports
emanating from the Executive Departments, bureaus, and independent
offices of the Government, the cost of which is now charged to the
allotment for printing and binding for Congress, or to appropriations or
allotments of appropriations other than those made to the Executive
Departments,
bureaus, or independent offices of the Government, the cost of
illustrations, composition, stereotyping, and other work involved in the
actual preparation for printing, apart from the creation of manuscript,
shall be charged to the appropriation or allotment of appropriation for
the printing and binding of the Department, bureau, or independent
office of the Government in which such documents or reports originate;
the balance of cost shall be charged to the allotment for printing and
binding for Congress, and to the appropriation or allotment of
appropriation of the Executive Department, bureau, or independent office
of the Government, in proportion to the number delivered to each. * * *
"
It seems to me patent upon the face of the resolution that it does
not refer at all to the laws defined and provided for by section 56 of
the printing act of 1895, but only to executive documents or reports.
Indeed, it seems that the phrase "documents or reports" would not
embrace the printed laws. For example, section 54 of the act of 1895
provides for the printing and distribution of House and Senate
"documents and reports;" section 55 for "bills and resolutions" of the
Senate and House; section 56 for "laws and treaties." A paragraph of
section 73 (28 Stat., 612, 613) refers to "documents, bills, and
resolutions," differentiating them.
But it is not necessary for me to pass upon this point and determine
whether the word "document" in the act of 1895 is used specifically,
referring only to the so-called legislative and executive documents, or
generically like the word "publication" so as to include a bill or act;
for however that may be, the resolution of 1906 is certainly restricted
to executive documents and reports. Consequently, even if "document or
report" includes the "laws" of section 56 of the act of 1895, the cost
of the printing of the same would be chargeable under paragraph 7 of the
act of March 1, 1907 (34 Stat., 1012, 1013), which provides that--
"The cost of the printing of any document or report hereafter printed
by order of Congress which can not under the provisions of Public
Resolution Numbered Thirteen,
Fifty-ninth Congress, first session, approved March thirtieth, nineteen
hundred and six, be properly charged to any other appropriation or
allotment of appropriation already made, it shall, upon the order of the
Joint Committee on Printing, be charged to the allotment of
appropriation for printing and binding for Congress."
I may add that the language of this paragraph, "the cost of the
printing of any document or report hereafter printed by order of
Congress," implies very persuasively, read in connection with section 56
of the act of 1895, that the language does not refer to statutes,
resolutions, and treaties.
If this act of 1905 does not, however, give authority for charging
the cost of printing the laws to the Congressional allotment, because
document or report does not include laws, I am not called upon to point
out the appropriation act or other statute (if any exists) which is the
affirmative authority for charging the cost of printing the laws in
question to the Congressional allotment or any other, but I am very
clear in my conclusion that the charge is improperly and illegally made
against the State Department under the resolution of 1906. This is not
only the proper legal conclusion, in my opinion, upon scrutiny of the
law itself, but it accords with the reason and justice of the case,
since the State Department is merely the source of supply to Government
officers and others for the slip laws and treaties, and is charged with
the certification thereof when necessary, and receives the 500 copies
prescribed by the law for that purpose and not especially for its own
use.
Respectfully,
CHARLES J. BONAPARTE.
GOVERNMENT HOSPITAL FOR INSANE-- MAINTENANCE OF INSANE INMATE OF
NATIONAL SOLDIERS' HOME; 26 Op.Att'y.Gen. 512, February 20, 1908
Where an inmate of the National Soldiers' Home becomes insane and is
transferred to the Government Hospital for the Insane, the pension
received by such inmate is to be devoted to his maintenance and
treatment at the hospital; and the excess cost of such maintenance and
treatment over the amount of his pension is to be paid from funds
appropriated for such hospital.
DEPARTMENT OF JUSTICE,
February 20, 1908.
The SECRETARY OF WAR.
SIR: In your letter of the 8th instant, to which I have the honor to
reply, you request my opinion whether, in case an inmate of the National
Soldiers' Home becomes insane and is transferred to the Government
Hospital for the Insane for maintenance and treatment, and his pension
does not equal the cost of such maintenance at the established rate of
$6.66 per month, the excess of such cost over the amount of the pension
should be paid from the funds of said home, or from those of the
Government Hospital.
The act of July 7, 1884 (23 Stat., 213), expressly provides for the
admission into the Government Hospital for the Insane, and for the
maintenance and treatment there, of inmates of the National Soldiers'
Home who have become insane. And the act further provides that the cost
of such maintenance and treatment shall be borne by said home.
It is obvious that, unless the act of February 20, 1905 (33 Stat.,
731), has provided differently as to insane inmates of the National
Home, the entire cost of this maintenance and treatment in the
Government Hospital must be borne by the National Home, as provided in
the act of July 7, 1884 (supra), and the question here is as to the
extent to which this later act has changed this provision.
The first portion of this act relates only to insane inmates of
volunteer soldiers' homes and provides for their admission into the
Government Hospital, but some of its provisions seem to have a broader
application and to apply to all inmates of the hospital, including those
from the National Soldiers' Home. Thus--
"During the time that any pensioner shall be an inmate of the
Government Hospital for the Insane all money due or becoming due upon
his or her pension shall be paid by the pension agent to the
superintendent of the hospital, upon a certificate by such
superintendent that the pensioner is an inmate of the hospital and is
living, and such pension money shall be by said superintendent disbursed
and used, under regulations to be prescribed by the Secretary of the
Interior, for the benefit of the pensioner, and, in the case of a male
pensioner, his wife, minor children, and dependent parents, or, if a
female pensioner, her minor children, if any, in the order named, and to
pay his or her board and maintenance in the hospital; the remainder of
such pension money, if any, to be placed to the credit of the
pensioner."
It is manifest that the words "during the time that any pensioner
shall be an inmate of the Government Hospital for the Insane, all money
due or becoming due upon his or her pension" apply, in their ordinary
sense, as well to those inmates from the National Soldiers' Home as to
those from the homes for volunteer soldiers. That this expression is not
restricted to the latter class is also manifest from the fact that, in
the latter portion of the act, provision is expressly made for the
disposition of the pensions of such inmates from the volunteer homes.
And in the case of Logue v. Fenning, recently decided in the court of
appeals for the District of Columbia, it is held that this language
should be taken as it reads and to apply to all insane pensioners in the
Government Hospital.
Taking this as the correct interpretation, it is clear that this act
takes from the National Soldiers' Home the pension of an insane inmate
who is transferred to the hospital, and devotes, as far as necessary
under such regulations as may be prescribed, to his maintenance and
treatment at the hospital, thus making the only provision that Congress
then desired to make for such maintenance. The Congress did not
therefore then leave still in force the provision of the act of July 7,
1884, that all the expense of such maintenance should be borne by the
soldiers' home. And if this provision was not thus left in force it
follows that it is not in force as to any excess of such cost of
maintenance over the amount of a pension.
I do not see how these two provisions for the payment of this cost of
maintenance and treatment can stand together; and I am of opinion that,
in the act of 1905, Congress made all the provisions that it intended
for the cost of maintenance and treatment of insane inmates of the
National Soldiers' Home at the Government Hospital, so that they must be
there maintained and treated, as required by law, whether the several
amounts of their pensions are sufficient to pay therefor or not; and
that the cost thereof should be paid from funds appropriated for the
hospital, except so far as paid from pensions.
Respectfully,
CHARLES J. BONAPARTE.
ADDITIONAL PASSED ASSISTANT AND ASSISTANT PAYMASTERS-- DISTRIBUTION
IN GRADES; 26 Op.Att'y.Gen. 511, February 19, 1908
The number of passed assistant and assistant paymasters in the Navy
to be appointed in each of the two grades under the act of March 3, 1903
(32 Stat., 1197), not being prescribed by that act, is necessarily left
to Executive discretion, to be controlled by the general terms and
regulations providing for the advancement of officers in the naval
service.
Nor is it required that the relative proportion of officers in each
of those two grades shall remain always the same, a change in the
proportion being within the discretion of the Executive, unless
controlled by general laws or regulations.
DEPARTMENT OF JUSTICE,
February 19, 1908.
The SECRETARY OF THE NAVY.
SIRS: I have the honor to respond to the request made in your letter
of February 17, 1908, for an official opinion upon the case there
stated.
It appears that the act of March 3, 1903 (32 Stat., 1197), provides:
"There shall be * * * twenty-six additional passed assistant and
assistant paymasters, in all ninety-six," in the active list of the
Navy.
The act nowhere defines the number of those officers, which are to be
added to each of the two grades, but merely the number which, in the
aggregate, are to be added to both, and your question is, "whether, in
view of the statute cited, * * * the advancement of assistant paymasters
to the grade of passed assistant paymaster may be determined by
Executive discretion, upon nomination by the President and confirmation
by the Senate."
This question must be answered in the affirmative, with the proviso
that such discretion is controlled by the general terms and regulations
providing for the advancement of officers in the naval service, and is
not affected by the act of March 3, 1903.
As the act referred to does not prescribe the number of officers to
be added in either of the two grades, this is necessarily left to
Executive discretion in view of all the circumstances and exigencies of
the service. And it is not required that the relative proportion of
officers in these grades shall remain always the same; any change in
this proportion is within the discretion of the Executive unless
controlled by general laws or regulations.
In brief, the act of March 3, 1903, does nothing more than add a
certain number in the aggregate to the officers in these two grades, and
leaves any other question to be governed by the general laws and
regulations of the naval service and the determination of the President.
Very respectfully,
CHARLES J. BONAPARTE.
AFFIXING CORPORATE SEALS TO BONDS-- ACKNOWLEDGMENT; 26 Op.Att'y.
Gen. 507, February 15, 1908
A corporation may adopt for the purpose and use a seal other than its
corporate seal on a bond so as to make the bond a corporate deed of the
corporation.
An agent of a corporation, appointed by an instrument under the
corporate seal of the corporation, may, on its behalf, adopt a special
seal so as to make it, in executing the purpose for which he was
appointed, the corporate seal of the corporation.
An acknowledgment of a bond is not necessary.
DEPARTMENT OF JUSTICE,
February 15, 1908.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge receipt of your letter of the
27th ultimo, in which you ask my opinion as to the necessity of affixing
corporate seals to bonds executed by corporate principals or sureties in
cases where such corporations are provided with seals, and whether it is
desirable that bonds be acknowledged in any case.
As I understand your first question, it involves the following
points:
1. Supposing a corporation to have a corporate seal formally adopted
as such by the legal act of the corporation, can it use another seal on
a bond so as to make such bond a corporate deed of the said corporation
by adopting said other seal as its corporate seal for this special
occasion?
2. If the first question be answered in the affirmative, can an agent
of the corporation appointed for the purpose by an instrument itself
under the corporate seal, adopt, on behalf of the corporation, the
special seal above mentioned so as to make it, for the particular
occasion, the corporate seal of the corporation?
The term bond ex vi termini imports a sealed instrument, and, as a
general rule, independent of any statute providing otherwise, sealing is
necessary to constitute a perfect bond. (5 A. & E.Encyc.Law, 2d ed.,
736; State v. Humbird, 54 Md., 327; Chilton v. People, 66 Ill., 501;
Barnet v. Abbott, 53 Vt., 120.)
The seal is not a mere formality of execution but a matter of
substance, which gives to the paper certain legal effects which can not
be attached to an unsealed paper. (Harman v. Harman, 11 Fed.Cas., 530.
See also U.S. v. Linn, 15 Pet., 290, 311; and Moses v. U.S., 166 U.S.,
580.)
In Mill Dam Foundry Co. v. Hovey (21 Pick., 428) the Supreme Court of
Massachusetts said:
"Now seals are in fact affixed to the instrument produced, and the
legal presumption is that they were placed there as the seals of the
parties. That presumption must prevail until it is rebutted by competent
evidence.
"It has been said that the seal does not appear to be one of a
corporation. But a corporation, as well as an individual person, may use
and adopt any seal.
They need not say that it is their common seal."
If a seal is necessary to a corporate contract and authority is shown
from the corporation to attach its seal thereto, it is by no means
indispensable that use should be made of the common seal of the
corporation. Any other seal would have the same effect if adopted by the
corporation, and this is ordinarily established by showing authority to
execute a contract on behalf of the company under seal, and the fact of
attaching some seal to the name of the corporation with the intent to
seal on its behalf. (A. & E. Encyc. Law, 2d ed., vol. 5, p. 692; Eureka
Co. v. Bailey Co., 11 Wall., 491; Tenney v. Lumber Co., 43 N.H., 343,
350; Baptist Society v. Clapp, 18 Barb.(N.Y.), 49.)
In the case of the District of Columbia v. Camden Iron Works (181 U.
S., 460) the Supreme Court, concurring in the decision in Mill Dam
Foundry Co. v. Hovey (21 Pick., 428), said:
"As to private corporations, where authority is shown to execute a
contract under seal, the fact that a seal is attached with intent to
seal on behalf of the corporation is enough though some other seal than
the ordinary common seal of the company should be used. (Railroad Co.
v. Hooper, 160 U.S., 518; Stebbins v. Merritt, 10 Cush., 27, 34; Bank
v. Railroad Co., 30 Vt., 159; Tenney v. Lumber Co., 43 N.H. 343;
Porter v. Railroad Co., 37 Maine, 349.)"
The authorities cited hold that a corporation may use and adopt a
seal other than its corporate seal, so as to make such bond a corporate
deed of the corporation. I therefore, answer the first question in the
affirmative.
The expressed intention of the corporation under its seal is to
authorize the agent to execute the bond, to sign the corporate name, so
as to lawfully bind the corporation to all intents and purposes as if
done by the duly authorized officers of the corporation.
In general, a principal is bound by the acts of his agents within the
authority actually given, which includes not only the precise act
expressly authorized, but also whatever usually belongs to the doing of
it, or is necessary to its performance.
(A. & E. Encyc. Law, 2d ed., vol. 1, p. 988; Le Roy v. Beard, 8 How.,
467; Caswell v. Cross, 120 Mass., 545; Webster v. Clark, 30 N.H., 245;
Parker v. Saratoga County, 106 N.Y., 392.)
The corporation having a seal, the authority granted the agent to
sign its name and to execute the bond carries with it the authority to
affix the seal of the corporation, or a seal adopted by the corporation,
and thus complete the execution of the bond.
As we have seen, a corporation may use its common seal or may adopt
another or special seal. The fact that the agent, upon his own
initiative, adopts a seal in behalf of the corporation and uses that
seal, or uses a seal adopted and furnished by the corporation, would not
affect the validity of the bond, if authority, under seal, to execute
the bond is in evidence and some seal is attached to the bond with
intent to seal in behalf of the corporation.
The second question is also answered in the affirmative.
As to your remaining question, an acknowledgment is the act of one
who executes a deed in going before some competent officer or court and
declaring it to be his act and deed. The functions of an acknowledgment
are twofold, to authorize the deed to be given in evidence without
further proof of its execution, and to entitle it to be recorded.
(Bouvier's Law Dict. (Rawle), 66; see also Insurance Co. v. Nelson, 103
U.S., 544; Hitz v. Jenks, 123 U.S., 297.)
Bonds differ from deeds in that the former are not required to be
recorded. For that reason no acknowledgment as to them is, in my
opinion, necessary.
Very respectfully,
CHARLES J. BONAPARTE.
CIVIL SERVICE LAW-- TEMPORARY APPOINTMENTS; 26 Op.Att'y.Gen. 502,
February 12, 1908
The temporary force of employees, to be selected and employed by
Secretary of the Interior, as provided in the act of June 22, 1906 (34
Stat., 429, 430), for the reproduction of the records and files of the
offices of surveyor-general and register and receiver of the land office
at San Francisco, Cal., which were destroyed by the earthquake and fire,
and the persons to be selected by the Secretary of the Interior, under
the act of March 4, 1907 (34 Stat., 1333), to make transcripts of
records and plats in the General Land Office, must be appointed as a
result of open competitive examinations, held under the provisions of
the civil service law.
Under the existing civil service rules, all places in the executive
civil service, except those mentioned in Schedule "A" and except persons
employed merely as laborers and persons whose appointments are subject
to confirmation by the Senate, must be appointed as a result of open
competitive examinations, held under the provisions of law.
Congress may at any time it deems proper exempt any position or any
class of positions from the operation of the civil service act, but to
do this it must use language indicating clearly and affirmatively its
intention to do so.
Where Congress in an appropriation act makes use of the very term
employed in the civil service act in describing appointments to be made
in accordance with its provisions, it is manifest that there was no
intention to waive the requirements of the civil service law.
Congress may prescribe qualifications for office and require that
appointments shall be made from among those who have shown by proper
tests to have those qualifications.
DEPARTMENT OF JUSTICE,
February 12, 1908.
The PRESIDENT.
SIR: Upon the request of the Civil Service Commission you have
transmitted for my consideration and opinion certain papers in relation
to the classification, by Executive order, of 62 persons employed in the
General Land Office as a temporary force.
Of your power to classify these persons there can be no question, but
I understand that my opinion is desired as to their status, or more
particularly as to the effect of the acts providing for their
employment. These acts read as follows:
"For temporary force, to be selected and employed by the Secretary of
the Interior, for the reproduction of the official records of United
States surveys, tracings of township plats, diagrams, copying of field
notes, and correspondence, constituting the records and files of the
offices of surveyor-general and register and receiver at San Francisco,
California, which were destroyed by earthquake and fire on the
eighteenth day of April, nineteen hundred and six, namely: Twelve
clerks, qualified as draughtsmen, at one thousand two hundred dollars
per annum each; fifty copyists, at nine hundred dollars per annum each;
and one messenger at six hundred dollars per annum; in all, sixty
thousand dollars, to be immediately available." (34 Stat., 439, 430.)
"TRANSCRIPTS OF RECORD AND PLATS, GENERAL LAND OFFICE: For
furnishing transcripts of records and plats, to be expended under the
direction of the Secretary of the Interior, eighteen thousand seven
hundred and twenty dollars: Provided, That persons employed under this
appropriation shall be selected by the Secretary of the Interior at a
compensation of two dollars per day while actually employed, at such
times and for such periods as the exigencies of the work may demand."
(34 Stat., 1333.)
That Congress may prescribe qualifications for office, and require
that appointments shall be made from among those who have been shown by
proper tests to have those qualifications, is well settled (13 Op.,
516). It is equally clear that by the enactment of section 1753, Revised
Statutes, and of the civil service law (22 Stat., 403), Congress
authorized the President to make rules which should be binding on
appointing officers in the Executive Departments.
Acting under this authority you have promulgated a rule which reads
as follows:
"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 conformation by
the Senate." (Rule 2, Civil Service Rules, April 15, 1903.)
Under this rule the employees of the General Land Office referred to
in the communication of the Civil Service Commission are clearly in the
competitive classified service, unless the sections of the statute
providing for their employment specifically takes them out.
If these statutes and the civil service act can be read together so
as to give effect to both, such course must be adopted. In the case of
Frost v. Wenie (157 U.S., 58), Mr. Justice Harlan, speaking for the
court, said:
" * * * And where two statutes cover, in whole or in part, the same
matter, and are not absolutely irreconcilable, the duty of the court--
no purpose to repeal being clearly expressed or indicated-- is, if
possible, to give effect to both. In other words, it must not be
supposed that the legislature intended by a later statute to repeal a
prior one on the same subject, unless the last statute is so broad in
its terms and so clear and explicit in its words as to show that it was
intended to cover the whole subject, and, therefore, to displace the
prior statute."
Manifestly the statutes now under consideration can all be read
together, and that being so it is the duty of courts and executive
officers to adopt the construction which permits this.
In 25 Op., 343, my predecessor, Attorney-General Moody, said:
"And I deem it equally certain that when a general law prescribes
what persons may be appointed to any class or kind of office or place,
the time or manner of their appointment, the tenure of their office,
their qualifications or the test of their qualifications and fitness,
any appointment of that kind thereafter authorized, must, unless
otherwise provided, be made with reference to and in conformity with the
requirements of such general law.
I think it a mistake to suppose that, in order to bring such
appointments within the purview of the general law, it would be
necessary to state specifically in the act authorizing them that they
are to be made as thus prescribed, or as provided by law, or that such
idea be expressed in any form. On the contrary, I think that in order to
exempt such appointments from the operation of the general law, a
specific exemption therefrom would be required.
"Indeed, as a general rule, it may be said that in every statute
authorizing or requiring a certain act there is implied, as if there
written, the direction that such act shall be done with reference to and
in conformity with existing laws on the subject, if there are any. All
laws in pari materia should be construed together, and so as to give
force and effect to all and to not conflict with each other.
"Nor can I agree with the contention that the clauses above quoted of
the appropriation act either repeal by implication or in anywise modify
any portion of the civil service act. Indeed, I see nothing in the
clauses quoted at all incompatible or inconsistent with the civil
service act. Both may stand and operate together. The former gives to
the Superintendent of the Military Academy the power to appoint the
engineer and assistant engineer, and the latter prescribes a class from
which such appointees must be selected."
It is true that, in a subsequent opinion, he held (25 Op., 414) that
when the phraseology of the appropriation act for the ensuing year was
changed so that it read that the employees, in regard to whose status
the earlier opinion was rendered, should be "selected and appointed" by
the Superintendent, the words used were sufficient to take them out of
the operation of the civil service law. He said:
"The change of language in this appropriation, following, as it does,
the promulgation of the opinion of this Department that the provisions
of the act of 1904 did not authorize the appointment of the persons
appropriated for, without reference to the civil service, is significant
and controlling as to the intent of Congress."
The opinion did not hold, however, that the mere use of the word
"selected" was sufficient in itself to authorize the appointing officer
to choose the employees without regard to the civil service rules. In
that instance Congress had first made an appropriation for "an engineer
* * * to be appointed by the Superintendent of the United States
Military Academy." The Attorney-General held that the use of the word
"appointed" was not sufficient to except the position from the operation
of the civil service rules. The year after this opinion had been given
Congress again made an appropriation for the salary of an engineer,
following the language of the earlier act word for word except for the
provision that he should be "selected and appointed" 0y the
Superintendent. Manifestly it was intended in some way to change the
method of appointment, and the most reasonable supposition was that the
place was to be filled by the Superintendent without regard to the civil
service regulations.
I have also considered the opinion of Attorney-General Griggs (22
Op., 556), but find nothing there decided which is inconsistent with
what I have previously said. The section there under consideration,
which was part of the bill making appropriations for the sundry civil
expenses of the Government, reads as follows:
"Office of the Secretary: For temporary typewriters and
stenographers in the Department of State, to be selected by the
Secretary, two thousand dollars, to be immediately available."
The opinion of Mr. Griggs was that under this section appointments
could be made without regard to the civil service rules. This opinion
rested on the ground that the services were "extraordinary and unusual"
and that "the Secretary should be unimpeded in his speedy selection of
his force." The act was passed during the Spanish war, when a
considerable number of appointments had been expressly authorized by
Congress without compliance with the civil service rules. In view of the
combination of exceptional circumstances existing at the time it is
altogether probable that Congress intended to allow the Secretary of
State the same latitude that had been given others.
No such extraordinary circumstances exist here.
The civil service act itself provides, section 2, paragraph 2, clause
2, that "all the offices, places, and employments so arranged or to be
arranged in classes shall be filled by selections according to grade
from among those graded highest as the results of such competitive
examinations."
Where Congress in an appropriation act makes use of the very term
employed in the civil service act in describing appointments to be made
in accordance with its provisions it is manifest that there was no
intention to waive the requirements of the latter statute.
I am of opinion, therefore, that under the existing civil service
rules all places in the executive civil service, except those mentioned
in schedule "A," and except persons employed merely as laborers, and
persons whose appointments are subject to confirmation by the Senate,
must be appointed as a result of open competitive examinations, held
under the provisions of the law. Congress may, of course, at any time it
deems proper, exempt any position or any class of positions from the
operation of the act, but to do this it must use language indicating
clearly and affirmatively its intention that the civil service rules
should not be applied.
Respectfully,
CHARLES J. BONAPARTE.
NAVAL OFFICERS-- RANK AND GRADE AT RETIREMENT; 26 Op.Att'y.Gen.
496, February 8, 1908
The act of June 29, 1906 (34 Stat., 554), providing for the
retirement of certain officers of the Navy, authorizes their retirement
with the rank of the next higher grade, which is that next above the
rank held by them, respectively, at the time of retirement.
DEPARTMENT OF JUSTICE,
February 8, 1908.
The SECRETARY OF THE NAVY.
SIR: In an opinion rendered to your Department under date of January
13, 1908 (ante, p. 487), I held that certain engineers officers of the
Navy on the retired list were entitled, under the provisions of the act
of June 29, 1906, to be so placed with a rank above that actually held
by them at retirement, but declined to express an opinion as to the
particular rank to which such officers are entitled in case the next
higher grade to which they are advanced has more than one rank, because
this was not involved in the question submitted.
In your letter of January 27, 1908, to which, with its inclosures, I
have the honor to respond, you ask my further opinion as to the
particular rank in the next higher grade to which these officers are
respectively entitled when there is more than one rank in that grade.
The particular case is this: In the engineer corps of the Navy there
are the grades of chief engineer, passed assistant engineer, and
assistant engineer. In the first of these there are four ranks--
captain, commander, lieutenant-commander, and lieutenant-- and in the
second there are two ranks, viz, lieutenant, and lieutenant, junior
grade. Certain passed assistant engineers, with the rank of lieutenant,
were retired in the grade of chief engineer, the next higher grade, but
with no advance in rank, and certain assistant engineers, with the rank
of lieutenant, junior grade, were retired in the grade of passed
assistant engineers, the next higher grade, but also with no advance in
rank.
This Department having held that those officers were each entitled,
upon retirement, to a rank above that already held by them respectively,
your present question is as to which of the ranks in the next higher
grade those officers should be advanced, respectively, under the act of
1906 above referred to.
It is understood that all these officers here referred to were on the
retired list before and at the passage of the navy personnel act, which
transferred the engineer corps from the staff to the line of the Navy,
and are brought within the act of 1906 by the provision making that act
applicable also to officers who were already on the retired list. They
must, therefore, be here treated as officers of the staff and not of the
line.
The act of June 29, 1906 (34 Stat., 554), provides that certain
officers of the Navy who served in the civil war, on retirement, may be
"placed on the retired list with the rank and retired pay of one grade
above that actually held by him at the time of retirement."
This does not say expressly to which particular rank in the next
higher grade the officer is entitled where there is more than one rank
in that grade. But I have no doubt that, unless affected by the
statutory provision referred to later, this provision is governed by the
practice and usage of the Navy, prescribed and sanctioned by law, which
require that, in these grades of the service, except in cases otherwise
especially provided, promotions be made from the lower to the next
higher rank or grade.
And in this case it is conceded by counsel for these officers that,
unless affected by other provisions, the statute in question would
entitle these officers to be promoted only one rank, or step in rank,
from that previously held. Thus, in their supplemental brief, they say:
"If only one rank was appropriate to the advanced grade the officer
would unquestionably take that rank; if four ranks were appropriate, as
they are, and there was no law determining which of the four an officer
was entitled to have, he would doubtless take the rank next above that
previously held."
This is doubtless correct. It remains, therefore, to ascertain if any
law, in determining to which particular rank the officer is entitled,
has changed this usual order of promotion.
It is strenuously urged on behalf of these officers that sections
1485 and 1486, Revised Statutes, have this effect and give them a higher
rank, so that, when credited with the length of service as there
required, they are entitled to be placed on the retired list with a rank
more than one step above that held at retirement; in other words, it is
claimed that certain of these passed assistant engineers, with the rank
of lieutenant, should have the grade of chief engineer, with the rank of
captain, the highest rank in that grade. These sections are as follows:
"Section 1485. The officers of the staff of the Navy shall take
precedence in their several corps, and in their several grades, and with
officers of the line with whom they hold relative rank, according to
length of service in the Navy.
"Section 1486. In estimating the length of service for such purpose,
the several officers of the staff corps shall, respectively, take
precedence in their several grades and with those officers of the line
of the Navy with whom they hold relative rank who have been in the naval
service six years longer than such officers of said staff corps have
been in said service; and officers who have been advanced or lost
numbers on the Navy Register shall be considered as having gained or
lost length of service accordingly."
It seems to be certain that the portion above quoted of the act of
June, 1906, makes the rank "actually held" by the officer at retirement
the basis of whatever advancement is to be made. The rank actually held
by these officers at that time was, in one class, that of lieutenant,
and in the other that of lieutenant, junior grade, so that any
advancement must be made from those ranks respectively.
Which is the actual rank of officers of the Navy, although relative
in form, is defined by assimilating it with the rank of certain officers
of the Army; and a brief consideration of this will aid in the solution
of the question presented.
Section 1466, Revised Statutes, fixing the relative rank of officers
of the line and officers of the staff in the Navy, provides that a
captain in the Navy shall rank with a colonel in the Army; a commander
with lieutenant-colonel; lieutenant-commander with a major; lieutenant
with a captain. As these staff officers are, equally with those of the
line, "officers of the Navy," as stated in that section, the provision
applies as well to them as to officers of the line, and thus defines the
rank in both branches of the naval service. And since the navy personnel
act has eliminated the word "relative" in this connection, this is their
actual rank. This merely defines the rank of these officers, by making
the rank of a captain the same as that of a colonel, the rank of a
commander the same as that of a major, and so on.
In the line of the Army, grade and rank in that grade are the same.
That is, a colonel is in the grade of colonel, and has also the rank of
colonel; and there is but one rank in that grade, namely, that of
colonel. But as there are several colonels in that grade, their relative
rank as between themselves is fixed by dates of commission. That is, a
colonel with the earlier date will rank and take precedence of one in
the same grade but with a junior commission; but all will still have
the same rank of colonel.
This is also the case in the line of the Navy. For example, one in
the grade of captain has also the rank of captain, a commander has the
rank of commander, and so on. But there are several captains and several
commanders, and their relative rank as between officers in the same
grade and rank is prescribed; yet there is only one rank of captain,
one of commander, and so on. In the staff of the Navy this is different.
As above stated, in the grade of chief engineer there are four ranks,
captain, commander, lieutenant-commander, and lieutenant; and in the
grade of passed assistant engineer there are two ranks, lieutenant, and
lieutenant, junior grade.
Now as the actual rank of all officers of the Navy has been fixed, as
shown above, by section 1466, Revised Statutes, and as there are, in the
staff corps,
several officers of the same grade and rank, as captain, commander,
etc., it was necessary that their relative rank, as between themselves
and officers of the same rank in the line, be fixed and determined.
This is done by sections 1485 and 1486, and is determined, not by
relative dates of commission, but by length of service in the Navy. As
above set forth, these sections do not attempt or purport to fix the
actual rank which staff officers hold in the Navy, or to change that
rank as fixed by section 1466, but merely define the relative rank which
these officers have as between themselves and with the officers of the
same rank in the line. Thus--
"The officers of the staff corps of the Navy shall take precedence in
their several corps and in their several grades and with officers of the
line with whom they hold relative rank, according to length of service
in the Navy."
That is, officers of the same rank shall, as between themselves, take
precedence according to their length of service. Thus, a captain in a
staff corps will take precedence of a captain in the same, or a
different corps, or a captain in the line whose service in either case
has been for a shorter time than his. But in estimating this length of
service the staff officer is, under section 1486, credited with six
years more of service than the line officers, thus giving the staff
officer precedence of the line officer of the same rank who have not
served six years more than he; while, as between staff officers, actual
length of service determines the order of precedence.
But there is nothing in these sections which gives to length of
service, either actual or comparative, the effect of promoting an
officer to a higher actual rank. Promotions in rank are regulated by
different provisions. They merely fix the relative rank or precedence
between officers of the same rank, and who, but for this, would have
been equal in rank and precedence. And the use of the word "precedence"
instead of "rank" is also significant as showing that this was the
purpose of the section.
By section 2 of the navy personnel act (30 Stat., 1005) engineer
officers with the rank of captain, commander, or lieutenant-commander,
take rank in the line of the Navy according to the date at which they
attained such relative rank.
But, as this act transfers the engineer corps to the line, and refers
only to rank in the line, I do not think this provision of importance to
the question here considered.
The officers here referred to were on the retired list before and at
the passage of the act of 1906, and no claim is made that they were not
retired with the rank to which they were entitled. And it appears to be
certain that, by the express terms of the act, that rank which they then
actually held is the rank from which whatever advancement is
contemplated must be made.
There are two answers to the claim made that the rank and status of
these officers are affected by the promotion of their date men on the
active list.
By the act of March 2, 1867 (14 Stat., 517), it is enacted:
"That officers on the retired and reserve lists of the Navy shall be
entitled to promotions as their several dates upon the active lists are
promoted; but such promotions shall not entitle them to any pay."
But by the act of August 5, 1882 (22 Stat., 286), it is provided--
"Hereafter there shall be no promotion or increase of pay in the
retired list of the Navy, but the rank and pay of officers on the
retired list shall be the same that they are when such officers shall be
retired."
And that the officers here considered are not entitled to any
promotion, under the act of June 29, 1906, by reason of the promotion of
their date men, or because of any vacancy, is made certain by the
express terms of that act, which makes the rank actually held at
retirement the basis of any advancement. It is, therefore, my opinion
that the rank and status to which these officers are entitled are not
affected by anything which has transpired in the active list in the way
of promotion or vacancy since their retirement. And I am quite unable to
see that sections 1485 and 1486, Revised Statutes, have anything
whatever to do in determining whether their advancement should be that
of one rank or more than one, or that they interfere with or affect the
usual order of promotion of such officers in the Navy.
I have, therefore, to advise you that these officers should have been
each advanced with the rank of the next higher grade, which is next
above the rank held by him at retirement, for I have no doubt that
Congress intended an advancement of but one rank.
Respectfully,
CHARLES J. BONAPARTE.
RIGHT OF UNITED STATES TO DISPOSE OF WYANDOTTE CEMETERY, KANSAS CITY,
KANS.; 26 Op.Att'y.Gen. 491, February 4, 1908
The fee-simple title to the lands formerly used as a burying ground
by the Wyandotte Indians, now located in Kansas City, Kans., and
withheld from sale and permanently reserved and appropriated by the
treaty of January 31, 1855, as a public burying ground, has always been
in the United States, subject to the right of the Indians to use it as a
burying ground; and the Indians having abandoned that right, the United
States has authority, under the treaties of January 31, 1855 (10 Stat.,
1159), and February 23, 1867 (15 Stat., 513), to dispose of such lands
for the benefit of the Indians and to convey a good title thereto.
The treaty of 1855 did not dedicate the land in question to "the
general public," the evident intention of the Indians being to continue
the use of such grounds solely for the burial of their own dead.
DEPARTMENT OF JUSTICE,
February 4, 1908.
The SECRETARY OF THE INTERIOR.
SIR: I have received your letter, requesting my opinion whether, by
proceeding under authority of the act of Congress of June 21, 1906 (34
Stat., 325, 348), a good title to the Wyandotte Cemetery located in
Kansas City, Kans., can be conveyed.
That act provides:
"That the Secretary of the Interior is hereby authorized to sell and
convey, under such rules and regulations as he may prescribe, the tract
of land located in Kansas City, Kansas, reserved for a public burial
ground under a treaty made and concluded with the Wyandotte tribe of
Indians on the thirty-first day of January, eighteen hundred and
fifty-five. And authority is hereby conferred upon the Secretary of the
Interior to provide for the removal of the remains of persons interred
in said burial ground and their reinterment in the Wyandotte Cemetery at
Quindaro, Kansas, and to purchase and put in place appropriate monuments
over the remains reinterred in the Quindaro Cemetery.
And after the payment of the costs of such removal, as above specified,
and the costs incident to the sale of said land, and also after the
payment to any of the Wyandotte people, or their legal heirs, of claims
for losses sustained by reason of the purchase of the alleged rights of
the Wyandotte tribe in a certain ferry named in said treaty, if, in the
opinion of the Secretary of the Interior, such claims or any of them are
just and equitable, without regard to the statutes of limitation, the
residue of the money derived from said sale shall be paid per capita to
the members of the Wyandotte tribe of Indians who were parties to said
treaty, their heirs, or legal representatives."
You say:
"A committee appointed to carry said provision into effect has
appraised the land at $70,000, and has been directed by the Commissioner
of Indian Affairs to offer it to the city authorities, and, if refused
by them, to endeavor to make a sale of the property as a whole to
private parties.
"The Commissioner has been informed that the city counselor of Kansas
City, Kansas has expressed a doubt as to whether the United States can
convey a good title to the cemetery grounds, for the reason that, under
the treaty of January 31, 1855 (10 Stat., 1159), the Wyandotte tribe of
Indians acquired the legal and equitable title to the land, as well as
burial rights in the tract, and that the act of June 21, 1906, does not
and can not forfeit or set aside the title of those persons to the
property."
The conflicting theory is suggested in your letter to me that by a
treaty of 1855 this land was irrevocably dedicated to the general public
as a burying ground. The treaty of January 31, 1855 (10 Stat., 1159), to
which you refer provides (section 2), that:
"The Wyandotte Nation hereby cede and relinquish to the United
States, all their right, title, and interest in and to the tract of
country situate in the fork of the Missouri and Kansas rivers, which was
purchased by them of the Delaware Indians, by an agreement dated the
fourteenth day of December,
one thousand eight hundred and forty-three, and sanctioned by a joint
resolution of Congress approved July twenty-fifth, one thousand eight
hundred and forty-eight, the object of which decision is, that the said
lands shall be subdivided, assigned, and reconveyed, by patent, in fee
simple, in the manner hereinafter provided for, to the individuals and
members of the Wyandotte Nation, in severalty; except as follows, viz:
The portion now enclosed and used as a public burying ground, shall be
permanently reserved and appropriated for that purpose."
You do not mention, however, a subsequent treaty, of February 23,
1867 (15 Stat., 513), with the Wyandottes, providing inter alia, that:
"Whereas a portion of the Wyandottes, parties to the treaty of one
thousand eight hundred and fifty-five, although taking lands in
severalty, have sold said lands and are still poor, and have not been
compelled to become citizens, but have remained without clearly
recognized organization, while others who did become citizens are
unfitted for the responsibilities of citizenship; and whereas the
Wyandottes, treated with in eighteen hundred and fifty-five, have just
claims against the Government, which will enable the portion of their
people herein referred to to begin anew a tribal existence: Therefore,
it is agreed: * * *
"ART. 13. The United States will set apart for the Wyandottes, for
their future home, the land ceded by the Senecas in the first article,
to be owned by the said Wyandottes in common * * * . A register of the
whole people, resident in Kansas and elsewhere, shall be taken by the
agent of the Delawares, under the direction of the Secretary of the
Interior, on or before the first of July, one thousand eight hundred and
sixty-seven, which shall show the names of all who declare their desire
to be and remain Indians, and in a tribal condition, together with
incompetents and orphans, as described in the treaty of one thousand
eight hundred and fifty-five; and all such persons, and those only,
shall hereafter constitute the tribe: Provided, That no one 4ho has
heretofore consented to become a citizen, nor the wife or children of
any such person, shall be allowed to become members of the tribe,
except by the free consent of the tribe after its new organization, and
unless the agent shall certify that such party is, through poverty or
incapacity, unfit to continue in the exercise of the responsibilities of
citizenship of the United States, and likely to become a public charge."
From an examination of a letter of the Commissioner of Indian Affairs
to the Secretary of the Interior, dated January 17, 1905, the report of
the Commissioner for 1869 (pages 33 and 463), and the treaty of 1867, I
find that practically the whole of the tribe of 1855 failed to become
such resident allottees and citizens as the treaty of 1855 contemplated.
They had been and continued to be tribal Indians, and Congress,
apparently accepting the actual facts as stronger than the project of
the treaty, again recognized them as such Indians. The rights of third
parties to their quickly-sold allotments do not seem to have been
questioned; but in accordance with the fact, the Government, in and
after 1867, recognized and treated with these people as a tribe of
Indians, notwithstanding the treaty of 1855, and notwithstanding the
tribal powers of government had been for several years latent in the
individual members, necessitating a reorganization.
Now, I do not accede to the proposition that the treaty of 1855
dedicated this land to "the general public." By it the title to all of
the land of the tribe passed to the United States, to be subdivided and
reconveyed to the Indians in severalty, "except as follows, viz, the
portion now inclosed and used as public burying ground shall be
permanently reserved for that purpose."
I see no indication in this provision of an intention to dedicate the
land to "the general public," if, by that phrase, any and everyone,
white, black, and Indian be intended. This land had been sold to the
Wyandottes by the Delawares, another Indian tribe, who desired them as
neighbors (9 Stat., 337), and it was in 1855 an Indian burying ground.
No reason is apparent why the Wyandottes, who were expected to reside
upon allotments around it, should have expected or intended persons not
belonging to their tribe to be buried in this cemetery. Probably the
unlikelihood that any strangers would be interred there constituted the
only reason why it was not deemed necessary to say explicitly in the
treaty that only the Wyandottes should use the cemetery or to qualify
the phrase "public burying ground" by restricting it to their own use.
"A cemetery may be either a public or a private one. The former is used
by the general community, or neighborhood, or church, while the latter
is used only by the family or a small portion of the community." (Lay v.
United States, 12 Ind.,App., 362.)
In my opinion, the Wyandottes in this treaty intended that this
"portion" of their land "now inclosed and used as a public burying
ground" should be "reserved" for "that purpose," that is, for their own
burying purposes only. The evident intention was to continue the former
use, not to authorize an entirely different one.
If so, the Indians, having long since reorganized and removed to
Indian Territory (now Oklahome), with a few insignificant exceptions,
and their title, which, as you point out, was a right of occupancy,
having been transferred to the United States by the treaty of 1855, with
the stipulation that these lands, then used as a burying ground, should
be permanently "reserved" and appropriated for that purpose, it would
seem that the fee title to this land has always been in the United
States, subject, after 1855, to the right of the Wyandottes to use it
for the purpose indicated.
I think this right may now be regarded as abandoned, leaving the fee
unincumbered and to be disposed of as to the Government may seem just
and wise. If, however, the land belongs to the tribe, the Government can
freely dispose of it for the benefit of the tribe. (Cherokee Nation v.
Hitchcock, 187 U.S., 294.)
It would seem from recitals in the letter of the Commissioner of
Indian Affairs, dated January 17, 1905, above mentioned, that "a
majority of the members of the Wyandotte tribe in Indian Territory,
present at a regularly called meeting of the tribe, held November 29,
1904, adopted a resolution authorizing the sale of said burying ground."
I venture to suggest that no harm could be done if you were to secure
for the United States or any purchaser a conveyance in the nature of a
quitclaim deed from the Wyandottes in Oklahoma,
who can probably be induced to give one with practical unanimity, and
this measure might tend to remove any doubts as to the title, although I
can find no sufficient reason for such doubts.
Respectfully,
CHARLES J. BONAPARTE.
NAVAL OFFICERS-- ADVANCEMENT-- RETIREMENT-- RANK; 26 Op.Att'y.Gen.
487, January 13, 1908
Passed assistant engineers of the Navy entitled to advancement in the
grade of chief engineers, and assistant engineers entitled to
advancement to the grade of passed assistant engineers, under the act of
June 29, 1906 (34 Stat. 554), should be retired with a rank above that
held by them respectively at the time of retirement, and with the pay of
that rank.
DEPARTMENT OF JUSTICE,
January 13, 1908.
The SECRETARY OF THE NAVY.
SIR: I have the honor to reply to your note of December 28, 1907, in
which, with its inclosures, you ask my opinion upon the case there
stated, in substance, as follows:
Certain passed assistant engineers of the Navy, with the rank of
lieutenant, have been placed on the retired list of the Navy in the next
higher grade-- that is, that of chief engineer-- but still with the same
rank of lieutenant which they held, respectively, upon such retirement.
And certain assistant engineers of the Navy, with the rank of
lieutenant, junior grade, have been placed upon the retired list of the
Navy in the grade of passed assistant engineer, but still with the same
rank of lieutenant, junior grade, which they held, respectively, at the
time of retirement.
That is, in each class these officers were respectively advanced to the
next higher grade, but with no advancement in rank; while they claimed
that they should be advanced, not in grade only, but also in rank. And
your specific question is, "Whether passed assistant engineers, entitled
to advancement to the grade of chief engineer, and assistant engineers
entitled to advancement to the grade of passed assistant engineer, under
the act of June 29, 1906, are entitled to other than the lowest rank of
the grades to which they are respectively advanced."
The difficulty appears to have arisen from the fact that, while the
act referred to requires that these officers be placed upon the retired
list, "with the rank of one grade above that held at retirement," there
are, as to each of these classes, more than one rank in the next higher
grade, and the act does not define the one to which the officer shall be
entitled. Thus, as shown by the papers transmitted with your note, in
the grade chief engineer, the next above passed assistant engineer,
there were four ranks, namely, captain, commander, lieutenant-commander,
and lieutenant, and in the grade of passed assistant engineer there were
the ranks of lieutenant and lieutenant, junior grade.
The promotion of these officers has been made upon the theory that
the purpose of the act was an advancement in grade merely, and not in
rank. Thus, in a report of the Bureau of Navigation, from which you
quote, it is said:
"The meaning of this wording is that the officer shall be advanced
one grade, and as a result of this advancement he is to receive the rank
and pay of the grade to which he is advanced, and does not require that
the officer shall be advanced one grade and advanced also in rank. The
prime object of the legislation was an advancement in grade, the rank
and pay merely being incidental of that grade."
And taking this as the meaning and purpose of the act, these officers
have each been advanced one grade, but with no advance of rank.
The act of June 29, 1906 (34 Stat., 554), provides that an officer of
the Navy, with a creditable record and who served in the civil war,
etc., "shall, on retirement, 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."
As far as concerns this question of rank, the measure is identical
with that of section 11 of the naval personnel act, which, with
reference to the retirement of the same class of officers, provides that
such officers shall, when retired, be retired with the rank and
three-fourths the sea pay of the next higher grade.
These provisions have been uniformly held to mean and intend an
advancement or promotion of the officer to whom they refer, and this, I
think, is undoubtedly their meaning and purpose.
Since the provision is one for the advancement of these officers, as
it certainly is, it seems no less certain that it requires an
advancement in rank. The language is plain as to this; any ambiguity
comes later. That language is, "shall 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."
This language can have but one meaning. It is the rank and not the
grade which is the subject of whatever advancement or change is here
directed. This legislation contemplates an advancement of the officer to
a rank above that already held by him, and this is its sole purpose. I
think this legislation was intended to give to every officer within its
purview something which he did not already have, and I feel no doubt,
from the language used, that this something was higher rank. The
language may not be happily chosen to express the idea, but, when read
in the light of the manifest purpose of the provision, it is not
obscure. These two acts had for their purpose to do something for
officers who, in addition to the ordinary naval service which all
officers render, have the additional merit of a creditable service in
the civil war. For this reason they are to be given something which they
would not otherwise have, something not conferred upon officers who have
not had this special service; and I think what was thus conferred, from
the language used, could not be an advancement in grade alone-- it must
have been an advance in rank.
The officer is to be given "the rank . . . of one grade above that
actually held by him at the time of retirement." I do not think this is
done when the officer is placed in the next higher grade with the lowest
rank of that grade, although that rank is no higher or is even lower
than that which the officer already held. If the language used justifies
the placing the officer in the next grade, with a rank no higher than
that already held, it would equally justify this, even if the new rank
should be actually lower than the present one. I think this provision
certainly intended an advancement in rank on account of special service,
not an advancement in grade, for which no provision, so far as I can
see, is made directly, and, in this view of its purpose, it is obvious
that the act is not complied with by placing the officer in a higher
grade but with no change in rank. It may be that the expression "with
the rank of one grade above that actually held" is susceptible of the
meaning that the officer shall be retired with some one of the ranks of
one grade above, etc., and thus might be complied with literally by
giving any rank of the higher grade, although it might be no higher or
was even lower than that already held. But since I consider the
provision as manifestly intending an advancement in rank, it must be
construed to require that the officer be retired with a rank higher than
that already held.
Upon careful consideration I have no doubt that under this act these
officers should be retired with a rank higher than that held by them
respectively at the time of retirement; and, having determined the rank
in which the officer shall be retired, he is to have the pay of that
rank.
The question of the particular rank in the higher grade with which
these officers should be retired is not involved in the question
submitted by you, and, although I am asked by their counsel to express
an opinion upon that point, I think I should confine myself to an
affirmative answer to your precise question in case this lowest rank of
the higher grade is not above that already held by the retired officer.
Respectfully,
CHARLES J. BONAPARTE.
PURE-FOOD LAW-- MARKING AND BRANDING OF PACKAGES OF DISTILLED
SPIRITS; 26 Op.Att'y.Gen. 474, January 11, 1908
The obvious purpose of the pure-food law of June 30, 1906 (34 Stat.,
768), is altogether different from that of the provisions of law
relating to internal revenue.
Sections 2 and 10 of the pure-food law require that a different brand
or mark shall be placed upon an article transported in interstate or
foreign commerce from that required by section 3449, Revised Statutes.
The names intended by the pure-food law to be used on brands or
labels are names readily understood and conveying to the general public
definite and familiar ideas as to the character or quality of the
article branded, even though such names may be inaccurate in the view of
a chemist, or physicist, or an expert in some particular industrial art.
Section 3287, Revised Statutes, requires gaugers to mark on the casks
or packages "the particular name of such distilled spirits as known to
the trade-- that is to say, high wines, alcohol, or spirits, as the case
may be," and it is immaterial whether this legislative declaration was,
or was not, in accordance with the fact as to trade usages at the time
of its adoption, or is, or is not, in conformity with such usages at
present.
Congress considered the several kinds of spirits in the restricted
sense in which the word is used in section 3287, Revised Statutes, as
liquids which were neither "high wines" nor yet "alcohol."
The words "as the case may be" in section 3287, Revised Statutes, are
intended to apply to "spirits" only and not to "high wines," on the one
hand, or "alcohol" on the other.
The words "spirits, as the case may be," are used in conformity with
the definition of the word "spirits" as given by Webster, viz: "Rum,
whiskey, brandy, gin, and other distilled liquors having much alcohol,
in distinction from wines and malt liquors." These words mean such
distilled liquor included within the definition of spirits "as may be
appropriate in the particular case," that is to say, "rum" or "whiskey,"
"brandy" or "gin," or whatever other name of a distilled spirit may be
suitable.
The brand or label, however, must contain only the general name of a
spirit. No descriptive or particular designation being required,
contemplated or allowed by section 3287, Revised Statutes.
If the liquid contained in a cask or package is really so-called
"neutral spirit," or in other words, for practical purposes, "ethyl
alcohol," this statute requires it to be branded "alcohol" and does not
permit it to be labeled a particular kind of potable spirits, as, for
example, "whiskey."
There is no inconsistency between the provisions of section 3287
Revised Statutes, and section 8 of the pure-food law. The former
statutes are not superseded by the latter.
There is nothing in the pure-food law which renders the provision of
section 3289, Revised Statutes, forfeiting to the United States all
distilled spirits not contained in receptacles and marked as herein
prescribed, inappropriate; and that section was not repealed, either
expressly or by implication, by the enactment of the pure-food law.
Section 3449, Revised Statutes, in so far as it relates to the
shipment, transportation, or removal not wholly within the limits of a
state, of spiritous or fermented liquors or wines, was repealed by the
enactment of the pure-food law.
The question whether section 3449, Revised Statutes, in so far as it
relates to purely intrastate shipment, transportation, or removal of
spiritous or fermented liquors or wines, was repealed by the enactment
of the pure-food law, not decided.
Those portions of the regulations of the Commissioner of Internal
Revenue which require the gauger to mark or brand on the head of each
cask containing distilled spirits "the particular name of the spirits as
known to the trade," which brand or mark may be varied to suit whatever
kind of spirits is contained in the package, as "high wines," "rye,"
"Bourbon," or "copper distilled" whiskey as the case may be, are
inconsistent with the provisions of section 3287 Revised Statutes.
Section 3287, Revised Statutes, requires that casks or packages not
containing either "high wines" or "alcohol" shall be marked with the
name of a recognized distilled liquor included within the definition of
potable "spirits," and nothing more.
The language of a later statute will be harmonized, if possible, with
that of an earlier, and will be held to have modified the earlier only
in so far as they are plainly in conflict; but if there is an evident
conflict between the terms of the two enactments, those of the latter
must prevail.
DEPARTMENT OF JUSTICE,
January 11, 1908.
The SECRETARY OF THE TREASURY.
SIR: I am duly in receipt of your letter of the 16th ultimo, in
which you request my opinion "as to what directions should be issued and
steps taken by this Department with regard to the marking and branding
of casks and packages of distilled spirits, to the end that the
regulations so issued may be in harmonious accord, if possible, with
those of the Department of Agriculture, looking to the enforcement of
the pure-food law." If this inquiry could be construed as a request that
I offer suggestions as to the form of instructions to be given your
subordinates, or of regulations to be adopted by your Department, for
the purpose of securing an administration of the act generally known as
the "pure-food law," in harmony with the action of the Department of
Agriculture in relation to the same subject, it would seem obvious that
such suggestion on my part would not constitute an answer to a "question
of law," as the term is used in section 356, Revised Statutes.
I understand your request, however, as asking, in substance, my opinion
as to how far, if at all, section 3287, 3289, and 3449 of the Revised
Statutes, as amended by subsequent legislation, are amended or repealed
by the pure-food law (34 Stat., 768), and whether the regulations of the
Commissioner of Internal Revenue set forth in your above-mentioned
letter are now authorized by the existing law. To this inquiry, I have
the honor to reply as follows:
The above-mentioned sections of the Revised Statutes, as amended by
subsequent legislation, read as follows:
DRAWING OFF, GAUGING, ETC., AND REMOVAL OF SPIRITS TO WAREHOUSE.
"SEC. 3287. All distilled spirits shall be drawn from the receiving
cisterns into casks or packages, each of not less capacity than ten
gallons wine measure, and shall thereupon be gauged, proved, and marked
by an internal-revenue gauger, who shall cut on the cask or package
containing such spirits, in a manner to be prescribed by the
Commissioner of Internal Revenue, the quantity in wine gallons and in
proof gallons of the contents of such casks or packages, and the
particular name of such distilled spirits as known to the trade-- that
is to say, high wines, alcohol or spirits, as the case may be, shall be
marked or branded on the head of such cask or package in letters of not
less than 1 inch in length; and the spirits shall be immediately
removed into the distillery warehouse, and the gauger shall, in the
presence of the storekeeper of the warehouse, place upon the head of the
cask or package an engraved stamp, which shall be signed by the
collector of the district and the storekeeper and gauger; and shall
have written thereon the number of proof gallons contained therein, the
name of the distiller, the date of the receipt in the warehouse, and the
serial number of each cask or package, in progressive order, as the same
are received from the distillery. Such serial number for every
distillery shall be in regular sequence of the serial number thereof,
beginning with number one (No. 1) with the first cask or package
deposited therein after July twentieth, eighteen hundred and
sixty-eight, and no two or more casks or packages warehoused at the same
distillery shall be marked with the same number.
The said stamp shall be as follows:
"Distillery warehouse stamp No. . . . Issued by . . . , collector, .
. . district, State of . . . , distillery warehouse of . . . , 18 . . .
, cask No. . . . ; contents . . . gallons proof spirits.
" . . . ,
"United States Storekeeper.
"Attest: " . . .
"United States Gauger."
"Provided, however, That upon the application of the distiller, and
under such regulations as the Commissioner of Internal Revenue, with the
approval of the Secretary of the Treasury, may prescribe, distilled
spirits may be drawn into wooden packages, each containing two or more
metallic cans, which cans shall have each a capacity of not less than
five gallons, wine measure, such packages to be filled and used only for
exportation from the United States. And there shall be charged for each
of said packages or cases for the expense of providing and affixing
stamps, five cents, instead of ten cents, as now required by law."
FORFEITURE OF UNSTAMPED PACKAGES.
"SEC. 3289. All distilled spirits found in any cask or package
containing five gallons or more, without having thereon each mark and
stamp required therefor by law, shall be forfeited to the United
States."
REMOVING ANY LIQUORS OR WINES UNDER OTHER THAN TRADE NAMES;
PENALTY.
"SEC. 3449. Whenever any person ships, transports, or removes any
spirituous or fermented liquors or wines, under any other than the
proper name or brand known to the trade as designating the kind and
quality of the contents of the casks or packages containing the same, or
causes such act to be done, he shall forfeit said liquors or wines, and
casks or packages, and be subject to pay a fine of five hundred
dollars."
I am informed by your letter that the regulations of the Commissioner
of Internal Revenue contain the following provisions:
"The gauger will also mark or brand, with a die, stencil, or branding
iron, on the head of the cask, in letters not less than one inch in
length, the particular name of the spirits as known to the trade, which
mark or brand will be varied to suit whatever kind is contained in the
package, as 'high wines,' 'rye,' 'Bourbon,' or 'copper distilled'
whisky, as the case may be.
"He will also cut or burn the date of inspection so that the head of
the cask will appear as follows:"
(Drawing of head of cask here set out in illustration.)
"In addition to attaching the stamp for rectified spirits and
cancelling the same, the gauger will cut upon the bung stave the result
of the inspection in the manner directed herein under the head of
'Gauging and marking spirits in warehouse upon request of distiller,'
and mark upon the head of each cask with a stencil plate, in durable
ink, his name and office, the date of inspection, the particular name of
such spirits as known to the trade, the proof, the name and place of
business of the rectifier, and the serial number of the stamp for
rectified spirits affixed thereto."
(Drawing of head of cask here set out in illustration.)
The act approved June 30, 1906 (34 Stat., 768), generally known as
the "pure-food law," is entitled:
"An act for preventing the manufacture, sale, or transportation of
adulterated or misbranded or poisonous or deleterious foods, drugs,
medicines, and liquors, and for regulating traffic therein, and for
other purposes."
The portion of that law which seems to be relevant to the matters
under discussion is the following:
"SEC. 8. That the term 'misbranded,' as used herein, shall apply to
all drugs, or articles of food, or articles which enter into the
composition of food, the package or label of which shall bear any
statement, design or device regarding such article, or the ingredients
or substances contained therein which shall be false or misleading in
any particular. * * *
"That for the purposes of this act an article shall also be deemed to
be misbranded: * * *
"In the case of food:
"First. If it be an imitation of or offered for sale under the
distinctive name of another article. * * *
"Fourth. If the package containing it or its label shall bear any
statement, design, or device regarding the ingredients or the substances
contained therein, which statement, design, or device shall be false or
misleading in any particular: Provided, That an article of food which
does not contain any added poisonous or deleterious ingredients shall
not be deemed to be adulterated or misbranded in the following cases:
"First. In the case of mixtures or compounds which may be now or from
time to time hereafter known as articles of food, under their own
distinctive names, and not an imitation of or offered for sale under the
distinctive name of another article, if the name be accompanied on the
same label or brand with a statement of the place where said article has
been manufactured or produced.
"Second. In the case of articles labeled, branded, or tagged so as to
plainly indicate that they are compounds, imitations, or blends, and the
word 'compound,' 'imitation,' or 'blend,' as the case may be, is plainly
stated on the package in which it is offered for sale: Provided, That
the term blend as used herein shall be construed to mean a mixture of
like substances, not excluding harmless coloring or flavoring
ingredients used for the purpose of coloring and flavoring only: And
provided further, That nothing in this act shall be construed as
requiring or compelling proprietors or manufacturers of proprietary
foods which contain no unwholesome added ingredient to disclose their
trade formulas, except in so far as the provisions of this act may
require to secure freedom from adulteration or misbranding."
In an opinion rendered by me to the President on April 10, 1907
(ante, p. 219), I said of the purpose of this law:
"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.
According to the recognized canons of statutory construction, the
language of its provisions must be interpreted with reference to and in
harmony with this primary general purpose; so that, in determining the
proper nomenclature for articles of food as defined in the act, the
intention of the law will be best observed by giving to such articles
names readily understood and conveying definite and familiar ideas to
the general public, although such names may be inaccurate in the view of
a chemist or physicist or an expert in some particular industrial art,
as in the distillation and refining of spirits. Moreover, the same name
may be given by dealers or by the general public to two or more
substances, varying very materially in their scientific characteristics,
and this fact must be given due weight in passing upon questions of
branding or labeling under the law."
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. The Congress can not be presumed to have had in
mind, at the time of its enactment, the substitution of new provisions
for any of those affecting the last mentioned subject-matter of
legislation, and, under such circumstances, it is a well-established
rule of statutory construction that the language of the later statute
will be harmonized, if possible, with that of the earlier, and will be
held to have modified the earlier only in so far as they are plainly in
conflict. In the event, however, of an evident conflict between the
terms of the two enactments, those of the later must, of course,
prevail. Applying these rules of construction, I find nothing in section
3287 of the Revised Statutes which is necessarily repealed by section 8
of the pure-food law. Section 3287 regulates the removal of distilled
spirits from the receiving cisterns of a distillery,
prescribes the minimum size of the receptacles into which such distilled
spirits may be drawn, and requires the gauger, in a manner to be
prescribed by the Commissioner of Internal Revenue, to mark on the casks
or packages, inter alia, "the particular name of such distilled spirits
as known to the trade-- that is to say, high wines, alcohol, or spirits,
as the case may be." This statute constitutes a declaration by the
Congress that when distilled spirits left the receiving cisterns they
had one or the other of certain appropriate trade names, that is to say,
"high wines," "alcohol," or "spirits, as the case may be," the last five
words being, in my opinion, intended to apply to "spirits" only and not
to "high wines" on the one hand or "alcohol" on the other hand. It is,
of course, quite immaterial whether this legislative declaration was, or
was not, in accordance with the fact as to trade usages at the time of
its adoption, or is, or is not, in conformity with such usages at
present. The Congress thereby prescribed certain names, and only those
given or authorized by implication, as proper to be given to distilled
spirits when such spirits should leave the receiving cistern; and,
construing this statute, as we must, with relation to well-known facts
in connection with the art of distillation, it seems plain that the
Congress considered the several kinds of "spirits," in the restricted
sense in which the word is used in this part of section 3287, liquids
which were neither "high wines" nor yet "alcohol;" it being a notorious
fact that the substances congeneric with alcohol found in what is
practically the first product of distillation (that is to say, in "high
wines") must be partially transformed or their properties otherwise
eliminated to convert this produce into some form of potable "spirits,"
and no less certain that if they be removed, for practical purposes,
altogether, the process converts the said product into commercial
"alcohol."
The thirteenth definition of "spirit (pl.)" given by Webster is:
"Rum, whisky, brandy, gin, and other distilled liquors having much
alcohol, in distinction from wines and malt liquors." In my opinion the
words: "Spirits, as the case may be," are used in conformity to this
definition, and mean:
"That distilled liquor included within the definition of 'spirits' which
may be appropriate in the particular case," that is to say, "rum" or
"whisky," "brandy," or "gin," or whatever other name of a distilled
liquor may be suitable. The brand or label, however, must contain only a
general name of a spirit; no description or particular designation is
required, contemplated, or, in my opinion, allowed by the terms of
section 3287.
The law evidently requires these brands or labels to be truthful;
that is to say, if the liquid contained in the casks or packages is
really so-called "neutral spirit," or, in other words, for practical
purposes, "ethyl alcohol," this statute requires it to be branded or
labeled "alcohol," and does not permit it to be labeled a particular
kind of potable spirits, as, for example, "whisky;" but, supposing the
brands and labels to be truthful, I can not see how such articles could
be regarded as "misbranded" under the provisions of section 8 of the
pure-food law, above quoted. I advise you, therefore, that, in my
opinion, there is no inconsistency between the provisions of section
3287 of the Revised Statutes and section 8 of the pure-food law, and
that the former statute is not superseded or repealed by the latter.
The same is true of section 3289. I find nothing in the pure-food law
which renders the provision of that section inappropriate, and it was
not, in my opinion, repealed, either expressly or by necessary
implication, by the enactment of the said law.
With respect to section 3449, there is more difficulty. Sections 2
and 10 of the pure-food law (34 Stat., 768), so far as material for our
present purpose, are as follows:
"SEC. 2. That the introduction into any State or Territory or the
District of Columbia from any other State or Territory or the District
of Columbia, or from any foreign country, or shipment to any foreign
country of any article of food or drugs which is adulterated or
misbranded, within the meaning of this act, is hereby prohibited; and
any person who shall ship or deliver for shipment from any State or
Territory or the District of Columbia to any other State or Territory or
the District of Columbia,
or to a foreign country, or who shall receive in any State or Territory
or the District of Columbia from any other State or Territory or the
District of Columbia, or foreign country, and having so received, shall
deliver, in original unbroken packages, for pay or otherwise, or offer
to deliver to any other person, any such article so adulterated or
misbranded within the meaning of this act, or any person who shall sell
or offer for sale in the District of Columbia or the Territories of the
United States any such adulterated or misbranded foods or drugs, or
export or offer to export the same to any foreign country, shall be
guilty of a misdemeanor, and for such offense be fined not exceeding two
hundred dollars for the first offense, and upon conviction for each
subsequent offense not exceeding three hundred dollars or be imprisoned
not exceeding one year, or both, in the discretion of the court."
"SEC. 10. That any article of food, drug, or liquor that is
adulterated or misbranded within the meaning of this act, and is being
transported from one State, Territory, district, or insular possession
to another for sale, or, having been transported, remains unloaded,
unsold, or in original unbroken packages, or if it be sold or offered
for sale in the District of Columbia or the Territories, or insular
possessions of the United States, or if it be imported from a foreign
country for sale, or if it is intended for export to a foreign country,
shall be liable to be proceeded against in any district court of the
United States within the district where the same is found, and seized
for confiscation by a process of libel for condemnation."
It is my opinion that these provisions, in connection with section 8,
above quoted, prescribe for the shipment, transportation, or removal of
any spirituous or fermented liquors or wines from one State or Territory
to another or from or to or within the District of Columbia, or from or
to any foreign country, or from or to the insular possessions of the
United States, a different brand or mark on an article so transported
from that required by section 3449. The proper name or brand known to
the trade may yet be one containing a "statement," "design," or "device"
which may be false or misleading in some particular.
As pointed out in the extract heretofore given from the opinion rendered
by me to the President on April 10 last past, I think the names intended
by the pure-food law to be used in brands or labels should be "names
readily understood and conveying definite and familiar ideas to the
general public, although such names may be inaccurate in the view of a
chemist or physicist or an expert in some particular industrial art, as
in the distillation and refining of spirits." It follows that the name
"known to the trade as designating the kind and quality" of a wine or a
spirituous or fermented liquor may not be one conveying to the general
public accurate information as to such character or quality, and, in so
far as the provisions of section 3449 relate to shipment,
transportation, or removal not wholly within the limits of a State, it
seems to me clear that it was repealed by the adoption of the pure-food
law; this construction being strengthened by the fact that the latter
prescribes an altogether different punishment for the offenses described
in both.
It is yet more difficult to determine whether section 3449 is to be
considered as repealed in so far as it relates to purely intrastate
shipment, transportation, or removal. So far as I am informed, however,
either by your letter and the accompanying documents or from any other
source properly open to the consideration of this Department, this
question has not yet arisen in a practical form, and, in view of its
inherent difficulty, I think it more appropriate to defer the expression
of any opinion regarding it until circumstances render such expression
necessary.
The regulations quoted in your letter and hereinbefore set forth are
in conformity with the provisions of section 3287, except in one
particular. That section does, indeed, require the gauger to cut on the
cask or package containing the distilled spirits drawn from the
receiving cistern "the particular name of such distilled spirits, as
known to the trade;" and if this passage stood alone, or if the words
immediately succeeding could be construed as used by way of illustration
only, the regulations in question might perhaps be justified by the
terms of the law; but when the Congress adds to the language just
quoted the words "that is to say, high wines,
alcohol, or spirits, as the case may be," I am obliged to conclude that
the intention of the law was to have casks or packages not containing
either "high wines" or "alcohol" marked with the name of a recognized
distilled liquor included within the definition of potable "spirits" and
nothing more. In view of the long-continued practice of your Department,
as set forth in your letter and the accompanying documents, and the
administrative construction thereby given to the statute of 1879, now
constituting section 3287, I should be very reluctant to reach this
conclusion were it not for the fact that these regulations seem to me
clearly inconsistent with the terms of the pure-food law, and, if they
were justified by section 3287, the section would have to be considered
pro tanto amended by the law in question. In saying this I am not
unmindful of the fact that the marking to be done under the provisions
of section 3287 must be ordinarily a purely intra-State act. But not to
mention the improbable contingency of a distillery being located so near
the boundaries of two States that its warehouse might be on the other
side, it is in nowise improbable that a distillery should be located in
the District of Columbia; in which case, for the reason already given
with respect to section 3449, these regulations would be in evident
conflict with the provisions of the pure-food law.
It does not appear from your letter or any of the accompanying
documents upon which information the gauger is expected to act in
determining the particular name of the spirit "as known to the trade"
when he marks the package or cask. If the construction which I have
placed on section 3287 is correct, there would be very little, if any,
danger of misbranding the article he has to mark, since there could
hardly be, in any instance, room for serious doubt as to whether the
substance was high wines, potable spirits, or alcohol, or, in the
secondly-mentioned contingency, whether it was rum or brandy or some
other well-known liquor; but the regulations you have called to my
attention appear to impose upon the gauger the duty of determining
questions respecting the character of the spirit which might be readily
attended with considerable difficulty, and this constitutes, to my mind,
a further reason for confidence in the opinion I have expressed that
these regulations can not be sustained under the section in question,
independently of the operation of the pure-food law.
It is needless to add that the law evidently would not sanction the
marking of the casks or packages on merely hearsay information obtained
from the distiller or his representative. Such a practice would amount
to allowing a manufacturer to mark his own product and have the United
States, without inquiry, guarantee the accuracy of his marking.
I advise you, therefore, that the portions of your regulations to
which you have called my attention are, in my opinion, contrary to law
in the respects above indicated, and need to be modified in accordance
with the law as indicated in this opinion.
I remain, sir, yours, respectfully,
CHARLES J. BONAPARTE.
COMMISSIONER OF INTERNAL REVENUE-- REFUND OF STAMP TAXES PAID WITHOUT
PROTEST; 26 Op.Att'y.Gen. 472, January 9, 1908
The Commissioner of Internal Revenue has no power, under section
3220, Revised Statutes, to refund taxes voluntarily paid without
protest, under a mutual mistake of law.
The rule is firmly established and unqualified that protest is
indispensable to the right to recover taxes claimed to have been
illegally exacted.
Opinion of May 7, 1906 (25 Op., 605) followed.
DEPARTMENT OF JUSTICE,
January 9, 1908.
The SECRETARY OF THE TREASURY.
SIR: By your reference of December 18, 1907, it appears that certain
claims for the refund of stamp taxes paid under Schedule A of the war
revenue act of 1898 (30 Stat., 458) are pending in the Bureau of
Internal Revenue. These claims, having been filed under section 3220,
Revised Statutes, within the two years allowed by section 3228, were,
however, rejected on the ground that the taxes were paid without
protest, in accordance with 25 Op., 605, in which it was held that the
Commissioner of Internal Revenue has no power under section 3220 to
refund taxes voluntarily paid without protest under a mutual mistake of
law. The claims have now been reopened for further consideration on the
ground that under my opinion of March 11, 1907 (ante, p. 194), the
matter of protest may be immaterial so far as the allowance of claims by
the Commissioner of Internal Revenue is concerned; and your query, in
effect, is whether the present case is ruled by 25 Op., 605, or the
opinion of March 11, 1907.
In the latter opinion I held that under the special provisions of
section 3 of the act of Congress of June 27, 1902 (32 Stat., 406),
granting a refund of inheritance legacy taxes upon certain contingent
beneficial interests, Congress had given a right of repayment regardless
of any conditions that may have theretofore operated as a bar; that
proceedings for the recovery of such moneys are not actions for recovery
of taxes, but for money held in trust by the Government for those to
whom it rightfully belongs; and that the question whether the taxes
were originally paid under protest is eliminated and the question of
voluntary or involuntary payment is immaterial.
That ruling rested altogether upon the act of Congress in question, and
the opinion of May 7, 1906 (25 Op., 605), was reversed only so far.
The present case appears to be the usual and general one of a
voluntary payment of taxes under a mutual mistake of law; there is no
suggestion of a misapprehension of fact.
The rule is firmly established and unqualified that protest is
indispensable to the right to recover taxes claimed to have been
illegally exacted. It is stated as follows in the recent case of
Chesebrough v. United States, (192 U.S., 253, 259):
"The rule is firmly established that taxes voluntarily paid can not
be recovered back, and payments with knowledge and without compulsion
are voluntary. At the same time, when taxes are paid under protest that
they are being illegally exacted, or with notice that the payer contends
that they are illegal and intends to institute suit to compel their
repayment, a recovery in such a suit may, on occasion, be had, although
generally speaking, even a protest or notice will not avail if the
payment be made voluntarily, with full knowledge of all the
circumstances, and without any coercion, etc."
The scope and strength of the rule appear very clearly in this
quotation, and it has been applied by the Supreme Court both where the
court declined to pass upon the validity of the tax, as in the
Chesebrough case just cited, and where the tax had already been held
unconstitutional (United States v. New York and Cuba Mail Steamship Co.,
200 U.S., 488).
It is suggested, however, that a distinction exists between claims
for refund under section 3220 before the Commissioner of Internal
Revenue and suits brought in court for that purpose, and certain remarks
of the court in the Chesebrough case are relied on as to the authority
given by section 3220 to do what justice and right are found to require
in order to correct mistakes, return overcharges, etc., respecting which
"the conditions which govern contested litigation may well be regarded
as waived." But by this language the court seems to be referring to
mistakes of fact alone, and this view is borne out by the concluding
passage of that opinion, as follows:
"It is argued that the provisions of section 3220 for the repayment
of judgments against the collector render protest or notice unnecessary
for his protection, but it was clearly demanded for the protection of
the Government in conducting the extensive business of dealing in
stamps, which were sold and delivered in quantities, and without it
there would not be the slightest vestige of involuntary payment in
transactions like that under consideration. And we find no right of
recovery, expressly or by necessary implication, conferred by statute in
such circumstances."
If it should be held that in all cases arising under section 3220
claims might be allowed by the Commissioner whether or not there had
been any protest, the result would seem to follow that where a tax is
held by the courts to be unconstitutional but the particular claim is
barred for lack of protest, other claimants who likewise had failed to
protest could nevertheless apply to the Commissioner for refund of the
same taxes and have their claimed allowed. I can not think there should
be one rule in this respect for claimants in court and another for
claims before the Commissioner of Internal Revenue.
I therefore advise you that the present case is controlled by 25 Op.,
605, which is not reversed or modified further than is indicated in my
opinion of March 11, 1907 (26 Op., 194); and, consequently, that the
refund of taxes under consideration can not be allowed.
Very respectfully,
CHARLES J. BONAPARTE.
COAL IMPORTED FOR THE NAVY-- DUTIES; 26 Op.Att'y.Gen. 466, January
2, 1908
Coal imported for the use of the Navy is subject to the duties
prescribed by paragraph 415 of the act of July 24, 1897 (30 Stat., 190),
notwithstanding the coal is imported by the Navy Department and the
duties will have to be paid from the appropriations of that Department.
DEPARTMENT OF JUSTICE,
January 2, 1908.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
October 21, in which you inclosed a letter from the Secretary of the
Navy in regard to the duties on certain coal to be imported in the Puget
Sound district for the use of that Department, and request an expression
of my opinion upon the question whether this coal, which you assume to
be bituminous, is entitled to entry free of duties.
The material provisions of the tariff act of July 24, 1897 (30 Stat.,
151), are as follows:
It is provided by section 1 that, "unless otherwise specially
provided for in this act, there shall be levied, collected, and paid
upon all articles imported from foreign countries, and mentioned in the
schedules herein contained, the rates of duty which are, by the
schedules and paragraphs, respectively prescribed."
By paragraph 415 certain rates of duty are prescribed upon bituminous
coal.
This act contains no general exemption of articles imported by or for
the use of the United States or a Department thereof, but there is
specifically placed upon the free list by paragraph 500, "Books,
engravings, photographs, etchings, bound or unbound, maps and charts
imported by authority or for the use of the United States or for the use
of the Library of Congress," and, by paragraph 640, "Plants, trees,
shrubs, roots, seed cane, and seeds, imported by the Department of
Agriculture or the United States Botanic Garden." (30 Stat., 196, 200.)
After careful consideration, I am of the opinion that the coal in
question will be subject to the duties prescribed by paragraph 415 of
the tariff act, although imported for the use of the Navy Department,
and although, as I infer from your letter may be the case, it is to be
imported by that Department and the duties paid by it from its
appropriations.
In the opinion which I rendered on October 3, 1907, to the Secretary
of the Navy in reference to the statute prohibiting the transportation
of merchandise between different ports of the United States in foreign
vessels, it was said that it "is a well-settled principle of statutory
construction that a prohibition of this character does not extend to, or
affect, the sovereign, unless its language requires that such a meaning
shall be given it." (26 Opin., 415, 417.) As is said in United States v.
Hour (2 Mason, 311, Fed. Cas., 15373), by Story, circuit justice:
"Where the Government is not expressly or by necessary implication
included, it ought to be clear from the nature of the mischiefs to be
redressed, or the language used, that the Government itself was in
contemplation of the legislature, before a court of law would be
authorized to put such an interpretation upon any statute." We have,
therefore, to determine in this case whether "the nature of the
mischiefs to be redressed, or the language used," shows that the
Government itself was in the contemplation of the legislature when it
required the importers of articles from foreign countries to pay the
duties fixed by the act."
"The mischiefs to be redressed" or, in other words, the purposes of
the legislature in this case, are indicated with sufficient accuracy by
the title of the act itself. It is entitled "An act to provide revenue
for the Government and to encourage the industries of the United
States." The first of the purposes thus expressed certainly would not be
promoted by requiring the payment of duties by the Government on
articles imported from foreign countries for its own use. So far as the
Government is concerned, such payments would amount, in effect, merely
to taking money out of one pocket and putting it into another;
obviously, this process would not "provide revenue for the Government."
It is true that the law might be supposed to furnish a motive for the
Executive Departments in the expenditure of general appropriations to
purchase American rather than foreign goods, but, since we must assume
that all responsible officers of the Government will be guided in their
public acts by the policies adopted by the Congress, we must also
assume, in the construction of the statute, that this motive would exist
in full force without the need of any such enactment. If, therefore, the
avowed, and universally understood, purposes of the act were all that we
had to consider in this connection, I should find in them no sufficient
reason to outweigh the presumption that the Government was not included
in the general language requiring payment of duties by importers.
There are, however, two considerations which seem to point decisively
to a different conclusion. In the first place, the language of the
statute would seem, on its face, clearly to include the Government.
Section 1 imposes duties on all imports "unless otherwise especially
provided for." Paragraphs 500 and 640 specifically provide that certain
articles imported by the Government for its own use shall be on the free
list. These special exceptions would have been altogether unnecessary if
all importations by the Government were to be free of duty, and the
natural and nearly conclusive implication from their insertion is that
other governmental importations should be subject to the same duty as is
imposed on merchandise imported by private persons.
The maxim expressio unius est exclusio alterius applies here with full
force, as in the case of Arredondo v. United States (6 Peters, 691,
725). This construction is strengthened by the fact that in the
preceding tariff act of 1894 (28 Stat., 509) "all articles imported by
the United States" (paragraph 385) were placed upon the free list. The
omission of the like provision in the tariff act of 1897, coupled with
the special exemption of certain Government imports by the later
statute, would seem to be well-nigh conclusive of the intent of the
Congress to require articles imported by the Government, except in the
instances specifically mentioned, to pay the same duties which were
exacted upon private importations.
It is fair to say that the conclusions to be drawn from the language
of the act are somewhat weakened by the facts that in the act of 1894
and in several earlier tariff acts, as, for example, those approved
March 3, 1857 (11 Stat., 193), March 2, 1861 (12 Stat., 178), July 14,
1870 (16 Stat., 256), and March 3, 1883 (22 Stat., 488), there has been
a general exemption from duty of all articles imported by the United
States, and special exemptions of particular classes of articles
likewise, but a comparison of these laws with the acts of July 30, 1846
(9 Stat., 42), June 6, 1872 (17 Stat., 230), and October 1, 1890 (26
Stat., 567), in which the general exemption is omitted, suggests
strongly that the special exemptions may have been in each instance
copied from the earlier laws without its being noted that the general
exemption rendered them unnecessary.
It should be further mentioned that there is a decision in 2
Blatchford, United States v. Lutz, Fed.Cas. 15644, to the effect that
light-house equipment imported by the Government, while the tariff act
of 1846 was in force, was exempt from duty, although this act contained
no general exemption of Government imports and no special exemption
including in terms such articles. This decision, however, is not
satisfactorily reported, and I do not think it can be accepted as
determining the construction of the present tariff act. I have noted the
references in the letter from the Secretary of the Navy to sections 919
and 3464 of the Revised Statutes.
The latter does not seem to me to have any application to the question
now considered. Section 919 provides that suits for the recovery of
duties shall be brought in the name of the United States, and it is
suggested that this shows conclusively that the institution of such
suits could not have been contemplated when the United States itself was
the importer. I think this conclusion is justified, but it does not
follow that all Government importations should be free of duty. It is to
be presumed that the officials of the Government will observe the law,
and, if the law requires them to pay duties, that they will pay them
without any suit being brought. Moreover, as the suits would be brought,
in theory of law at least, by direction of the President, and as he
would have the power to cause at any time the duties to be paid by a
similar order, it is obvious that a suit by the Government against
itself, or by one branch of the Government against another, would be, in
any case, no less unnecessary than absurd.
Secondly, I am informed by your letter "that it has been the uniform
practice to charge duty upon dutiable merchandise imported for the use
of the United States, except where express exceptions have been made, as
in paragraphs 500 and 640 of the tariff act of 1897, and where
exceptions have been allowed in provisions including bureaus of
executive departments, as, for example, paragraph 638, which provides
for the free entry of certain articles for scientific and other
purposes," and that "a similar practice prevailed under the tariff act
of 1890, which, like that of 1897, contains no provision except
merchandise generally imported for the use of the United States." In my
recent opinion to the Postmaster-General, dated September 27, 1907, on
weighing the mails, I considered the scope and limitations of the rule
stated as follows by the Supreme Court in the case of New York, New
Haven and Hartford R.R. Co. v. Interstate Commerce Commission (200 U.
S., 361, 401): "A construction made by the body charged with the
enforcement of a statute, which construction has long obtained in
practical execution, and has been impliedly sanctioned by the
reenactment of the statute without alteration in the particulars
construed, when not plainly erroneous, must be treated as read into the
statute."
(26 Op., 408.) In this case the Congress has expressly exempted all
Government importations from payment of duties in some tariff acts and
said nothing as to such exemption in others, including the act now in
force, with full knowledge that, in the absence of such express
exemption, your Department has always collected duty from the Government
as from private individuals. I can not but construe its action as a
legislative sanction of the interpretation thus placed by Executive
practice upon statutes of this character, and as coming clearly within
the language of the Supreme Court in the case of United States v. Falk &
Bro. (204 U.S., 143), in which case the court held the practical
construction given by Executive usage to a proviso in the tariff act of
1890 ought to control the interpretation of a like provision in the
tariff act of 1897 (26 Op., 408).
This conclusion is fortified by the fact that in the very recent act
making appropriations for fortifications and other works of defense
approved March 2, 1907 (34 Stat., 1062), the Congress provided "that all
material purchased under the foregoing provisions of this act shall be
of American manufacture, except in cases when, in the judgment of the
Secretary of the War, it is to the manifest interest of the United
States to make purchases in limited quantities abroad, which material
shall be admitted free of duty." This provision, in my judgment, clearly
recognizes that, without the special exemption, importations by the
Government would be subject to duties under the tariff act now in force.
I am constrained, therefore, to advise you that in my opinion coal
imported by the United States for the use of the Navy is subject to the
same duties which the like coal would pay were it imported by private
persons.
Yours, very respectfully,
CHARLES J. BONAPARTE.
HAWAII-- STATUTORY CONSTRUCTION-- MAUI COUNTY BONDS; 26 Op.Att'y.
Gen. 462, December 17, 1907
Article 65 of the Hawaiian Laws of 1907, authorizing an issue of
bonds by the county of Maui, which act was vetoed by the governor of
Hawaii, but was afterwards passed with the approval of over two-thirds
of each house of the legislature, is valid, notwithstanding section 4 of
that act provides that the "act shall take effect upon the date of its
approval by the President of the United States."
That section means merely that the act becomes effective upon the
President's approval of those provisions of the act which, according to
the terms of the preceding sections, require his approval in order to
become effective-- that is, his approval of the issue of the bonds.
Bonds issued under this act will constitute a legal obligation
against the county of Maui whenever the President shall have signified
his approval of their issue.
DEPARTMENT OF JUSTICE,
December 17, 1907.
The SECRETARY OF THE INTERIOR.
SIR: I am duly in receipt of your letter of the 10th instant, asking
my opinion as to the validity of an act of the legislature of the
Territory of Hawaii, entitled "An act to authorize an issue of bonds by
the county of Maui in the sum of one hundred and ten thousand dollars,
under the provisions of act sixty-five of the Session Laws of Nineteen
hundred and seven," and which appears by the papers accompanying your
letter to have been passed after reconsideration of the veto of the
governor, with the approval of more than two-thirds of the members of
each house of the legislature of the said Territory on the 1st day of
May, A.D. 1907.
The documents so accompanying your said letter further show that the act
in question was vetoed by the governor, and its validity is now disputed
by reason of the provision of its fourth section, which reads as
follows: "Section 4. This act shall take effect upon the date of its
approval by the President of the United States." It appears that the
language of this section is construed as rendering the entire law
nugatory, because it is supposed to involve a delegation of legislative
power by the legislature of the Territory to the President.
Sections 49 and 50 of the act of Congress approved April 30, 1900,
and entitled "An act to provide a government for the Territory of
Hawaii" (31 Stat., 141), provides for the approval of bills which have
duly passed both houses of the Territorial legislature by the governor,
or their passage by a two-thirds majority of the members of each house,
if disapproved by the governor, and, in either case, uses the language
"it" (that is to say, the bill in question) "shall become a law" when so
approved or so passed after disapproval. The act in question was passed
over the governor's veto, in accordance with the requirements of section
50 above mentioned, and it thereupon became at once a law. It is true
that, by the language of section 4, it was to become "effective" only
upon the approval of the President of the United States, but I think the
intendment of this section was misapprehended by the governor of Hawaii
when he vetoed the bill, and is misapprehended by those who now question
its validity.
Section 55 of the above-mentioned act of Congress contains the
following language:
" * * * nor shall any debt be authorized to be contracted by or on
behalf of the Territory, or any political or municipal corporation or
subdivision thereof, except to pay the interest upon the existing
indebtedness, to suppress insurrection, or to provide for the common
defense, except that in addition to any indebtedness created for such
purposes the legislature may authorize loans by the Territory, or any
such subdivision thereof, for the erection of penal, charitable, and
educational institutions, and for public buildings, wharfs, roads, and
harbor and other public improvements, but the total of such indebtedness
incurred in any one year by the Territory or any subdivision shall not
exceed one per centum upon the assessed value of taxable property of the
Territory or subdivision thereof,
as the case may be, as shown by the last general assessment for
taxation, and the total indebtedness for the Territory shall not at any
time be extended beyond seven per centum of such assessed value, and the
total indebtedness of any subdivision shall not at any time be extended
beyond three per centum of such assessed value, but nothing in this
provision shall prevent the refunding of any existing indebtedness at
any time; nor shall any such loan be made upon the credit of the public
domain or any part thereof, nor shall any bond or other instrument of
any such indebtedness be issued unless made redeemable in not more than
five years and payable in not more than fifteen years from the date of
the issue thereof; nor shall any such bond or indebtedness be incurred
until approved by the President of the United States."
The title of the act under discussion is "An act to authorize an
issue of bonds by the county of Maui," etc. Act 65 of the Session Laws
of 1907 was itself entitled "An act to enable the counties to provide
for county loans." The material provisions of act No. 139 are contained
in sections 1, 2, and 3. Of these, section 1 authorizes the treasurer of
the county of Maui, in accordance with the terms of a certain resolution
of the board of supervisors of said county, "and subject also to the
approval of the President of the United States," to issue bonds of said
county to an amount bearing a rate of interest and for purposes
specified in the section. Section 2 requires the issue and sale of the
bonds, the application of their proceeds, and the payment of their
principal and interest, to be made in strict conformity to the terms of
act No. 65, above mentioned, "and every other term, provision, and
condition which shall be prescribed with respect thereto by the
President of the United States." Section 3 makes the bonds and interest
coupons charges upon the consolidated revenues of Maui County, but
prohibits the construction of the act as an authorization to said county
to levy or impose taxes. The fourth and only remaining section is the
one above set forth in full.
It is evident, from an examination of the language of the law as
above set forth that the approval of the President was necessary, under
the terms of section 55 of the act of Congress approved April 30, 1900,
to make any one of its provisions "effective." By section 1 the bonds
can not be issued without such approval. By section 2 they are to
contain and be subject to any "term, provision, or condition" which the
President may prescribe as a condition of such approval, and section 3
could, of course, have no legal efficacy until after the bonds were duly
issued. In view of the tenor of all the rest of the act, it seems plain
that the legislature of the Territory intended, by section 4, only to
provide that there should be no delay in giving effect to the provisions
of sections 1 and 2, when the President should have signified his
approval of the issue of bonds thereby authorized. The section does not
say that the act shall become a law when approved by the President, but
that it shall then become "effective," or, in other words, that on the
date mentioned effect shall at once be given to the provisions of the
preceding sections. It is true that the grammatical construction of the
section might, perhaps, justify a different interpretation or, at all
events, leave its meaning in doubt, but the consideration of the entire
act, and of the evident purpose of the Territorial legislature in its
enactment, removes, in my opinion, any reasonable doubt which might
otherwise exist as to the true construction of section 4. In State v.
Clark (29 N.J.Law, 96) the court says:
"The language of the act if construed literally evidently leads to an
absurd result. If a literal construction of the words of a statute be
absurd, the act must be so construed as to avoid the absurdity."
This authority, with many others, is cited in Church of the Holy
Trinity v. United States (143 U.S., 457), and in the last-mentioned case
the court says, p. 459:
"It is a familiar rule, that 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."
The legislature of Hawaii can not be supposed to have intended to
require the approval of the President to this act as a condition to its
becoming a law.
Such a construction, in the language of the court above quoted,
"evidently leads to an absurd result." On the other hand, the approval
of the President is made a condition of the legal validity of the bonds
to be issued by section 55 of the organic act for Hawaii above quoted,
and this is expressly recognized by sections 1 and 2 of the act above
mentioned. It may be assumed, therefore, that the legislature, in
speaking of the President's approval of the act, meant his approval of
those provisions in the act which require his approval to become
effective, or, in other words, the issue of the bonds. I advise you,
therefore, that in my opinion the act in question is valid, and that the
bonds will constitute a legal obligation on the county of Maui,
according to the terms of the act, when the President shall have
signified his approval to their issue.
Yours, very respectfully,
CHARLES J. BONAPARTE.
APPOINTMENT-- RETIRED OFFICER OF REVENUE-CUTTER SERVICE-- CIVIL
OFFICE; 26 Op.Att'y.Gen. 460, November 15, 1907
The President has authority to appoint, without compliance with the
civil-service rules, a retired officer of the Revenue-Cutter Service
whose pay amounts to $2,625 per annum, to superintend the construction
of self-righting and self-balancing lifeboats and other life-saving
apparatus, for such period as his services may be required, at a rate of
compensation to be fixed by the Secretary of the Treasury.
The civil-service act authorizes the making of special exceptions
from the provisions of the rules promulgated thereunder, provided the
exceptions are set forth in connection with the rules and the
regulations therefor stated in the annual reports of the Civil Service.
Such employment will not be an appointment to an office as
contemplated by the act of July 31, 1894 (28 Stat., 205).
DEPARTMENT OF JUSTICE,
November 15, 1907.
The PRESIDENT.
SIR: I have the honor to acknowledge receipt of your letter of
November 8, asking for an opinion as to your right to employ Capt.
Charles H. McLellan under the circumstances hereinafter set forth.
It appears that Captain McLellan is a retired officer of the United
States Revenue-Cutter Service, who was for some years prior to his
retirement detailed to the Life-Saving Service. Since that time he has
been employed for a number of temporary periods, with the consent of the
Civil Service Commission, in superintending the construction of
self-righting and self-bailing lifeboats and other life-saving
apparatus, in all of which he is an expert.
It now appears that the best interests of the Service require his
continuance in this position, and I understand that you wish to know
whether you may authorize his appointment, without compliance with the
civil-service rules, for such period as his services may be required, at
a rate of compensation to be fixed by the Secretary of the Treasury.
In reply, I have the honor to inform you that it seems to me clear
that you have the necessary authority to so employ him.
The civil-service act authorizes the making of special exceptions
from certain fundamental provisions of the rules promulgated thereunder,
provided the exceptions are set forth in connection with the rules and
the reasons therefor stated in the annual reports of the Civil Service
Commission.
The only remaining question, then, as to your power to authorize the
appointment of Captain McLellan arises from a consideration of the act
of July 31, 1894 (28 Stat., 205), which reads as follows:
"No person who holds an office the salary or annual compensation
attached to which amounts to the sum of two thousand five hundred
dollars shall be appointed to or hold any other office to which
compensation is attached unless specially heretofore or hereafter
specially authorized thereto by law; but this shall not apply to
retired officers of the Army or Navy whenever they may be elected to
public office or whenever the President shall appoint them to office by
and with the advice and consent of the Senate."
As a retired officer of the Revenue-Cutter Service, Captain McLellan
holds an "office." His employment in the Life-Saving Service is by
appointment and not by election, and this appointment is not made by you
with the advice and consent of the Senate. His retired pay amounts to
$2,625 per annum. He can not, therefore, hold another office. It seems
clear, however, that his selection by the Secretary of the Treasury for
employment in the Life-Saving Service will not make him an officer of
that Department.
In the case of the United States v. Hartwell (6 Wall., 385, 393), it
is said:
"An office is a public station, or employment, conferred by the
appointment of government. The term embraces the ideas of tenure,
duration, emolument, and duties.
"The employment of the defendant (a clerk in the office of an
assistant treasurer of the United States) was in the public service of
the United States. He was appointed pursuant to law, and his
compensation was fixed by law. Vacating the office of his superior would
not have affected the tenure of his place. His duties were continuing
and permanent, not occasional or temporary."
The rule here laid down has been often quoted with approval and
uniformly followed. Applying it to the case under consideration, it is
quite clear that the proposed arrangement with Captain McLellan is a
mere contract of employment which does not embrace the idea of tenure,
duration, or of an emolument fixed by law.
The contract with Captain McLellan may therefore be entered into
legally. A similar question was submitted to my predecessor,
Attorney-General McKenna, and my view of the law is fortified by his
able and well-considered opinion. (21 Op., 507.)
Respectfully,
CHARLES J. BONAPARTE.
CONGRESSMEN AND SENATORS-- ELIGIBILITY TO CIVIL OFFICE; 26 Op.
Att'y. Gen. 457, November 15, 1907
A member of either House of Congress is eligible to be appointed to
any other office not forbidden to him by law, the duties of which are
not incompatible with those of a member of Congress.
The question as to whether a Congressman can be appointed a member of
the Board of Managers of the Soldiers' Home, and become local manager of
one of the homes, is wholly a matter for the decision of Congress
itself. (Section 4826, Rev. Stat.)
There is no constitutional objection to the election of a member of
Congress as a member of the Board of Managers of the National Home for
Disabled Volunteers, although such an election would seem to be contrary
to sound public policy.
Under other circumstances than those which thus involve the entire
control of the Congress over a position established and filed by itself,
the holding of a visitorial and an administrative office by the same
person would be regarded as legally incompatible.
DEPARTMENT OF JUSTICE,
November 15, 1907.
The PRESIDENT.
SIR: In accordance with the direction contained in Secretary Loeb's
letter of the 25th ultimo, I have the honor to give you my opinion on
the questions presented in the inclosures with Representative Hale's
letter to you bearing date of October 25, 1907.
The questions presented to you by Representative Hale are as follows:
"Whether or not, under the law and under the construction of the law,
a man who is a Member of Congress or a United States Senator is eligible
to be appointed to any other Federal office at the same time? If so, to
what kind of office can he be appointed? For instance, can a man be a
member of Congress and be appointed at the same time as a member of the
Board of Managers of the Soldiers' Home, and become local manager of one
of the Homes?"
The first question may be answered in the affirmative. A member of
either house of Congress may be appointed to any other office not
forbidden to him by law, and the duties of which are not incompatible
with those of a member of Congress. It would not be advisable to state
any particular offices which a member of Congress might fill, and this
does not seem to be necessary, as Representative Hale mentions a
specific office, namely, that of a member of the Board of Managers of
the Soldiers' Homes, who should be the local manager of one of the
Homes.
The law providing the method of the selection of the Managers of the
National Home for Disabled Volunteers, which title includes the several
institutions in the various parts of the United States known as
"National Soldiers' Homes," is contained in section 4826 of the Revised
Statutes, and provides that they "shall be elected from time to time, as
vacancies occur, by joint resolution of Congress." The selection of
these officers being thus entirely vested in the Congress, the
determination whether a member of Congress may be elected is wholly a
matter for the decision of the Congress itself, unless there should
appear to be some constitutional provision bearing upon the subject. As
the members of the Board of Managers receive no compensation as such (28
Stat., 412), and as the positions were created by act of March 21, 1866,
it does not appear that the matter comes within the second clause of the
sixth section of article 1 of the Constitution, that--
"No Senator or Representative shall, during the time for which he was
elected, be appointed to any civil office under the authority of the
United States, which shall have been created, or the emoluments whereof
shall have been increased during such time; * * * ."
Nor are such managers "Federal officers" who are prohibited by the
Constitution from being members of Congress (U.S. v. Mount, 124 U.S.,
307). Moreover, the intent of the Congress is shown by the fact that the
act of March 21, 1866 (14 Stat., 10), creating this office, which
contained the provision that the nine elective managers should "not be
members of Congress," was amended by the act of March 12, 1867 (15
Stat., 1), striking out the restriction above quoted.
While, as has been said, the question is held to be one for
Congressional determination, it may be pointed out that the institution
in question is a creature of the Congress, so that a member of Congress
elected a manager of the National Home for Disabled Volunteers would
become, as a member of the governing body, an officer (in his capacity
of manager, as aforesaid) by his own appointment, subject to removal by
himself, whose powers are conferred and whose duties are prescribed by
himself, and who himself supervises his own management. He, in one
capacity, determines the amount which, in another capacity, he may
expend, and he supervises his own expenditures; so that he would be in
the incompatible position of both visitor and an officer whose acts are
the subject of inquiry; but, however incompatible, it is clearly within
the province of the Congress to make the appointment, to continue or to
discontinue it, and I, therefore, answer that there is no constitutional
obstacle to the election of a member of Congress as a member of the
Board of Managers of the National Home for Disabled Volunteers, although
such an election would seem to be contrary to the principles of sound
public policy, and, under other circumstances than those which thus
involve the entire control of the Congress over a position established
and filled by itself, the holding of a visitorial and an administrative
office by the same person would be regarded as legally incompatible.
Very respectfully,
CHARLES J. BONAPARTE.
FOOD AND DRUGS ACT-- GUARANTY OF PROTECTION; 26 Op.Att'y.Gen. 449,
November 11, 1907
A wholesale dealer in Maryland, who purchased certain food, found
afterwards to be adulterated, from a Pennsylvania manufacturer,
receiving the latter's written guaranty as to the purity of the goods,
in conformity with section 9 of the food and drugs act of June 30, 1906
(34 Stat., 768, 771), and who in turn sold the goods to a retail dealer
in the District of Columbia under a similar guaranty, is completely
protected by the guaranty of the Pennsylvania manufacturer from
prosecution under that act.
The term "dealer" as used in section 9 of the above-named act,
includes wholesale as well as retail dealers, and both are accordingly
protected from prosecution by establishing a guaranty in conformity with
the requirements of the act.
Section 9 created, in addition to the offense of manufacturing and
dealing in adulterated and misbranded foods and drugs, the distinct and
substantive offense of guaranteeing such articles, which offense,
however, is not complete until the purchaser deals with the article in a
manner otherwise punishable by the act.
The maker of a false guaranty is protected from prosecution by
establishing a former guaranty from the person from whom he purchased.
A former guaranty affords a dealer complete protection against
punishment for his own false guaranty as well as for selling or shipping
the articles in violation of the act.
The fact that such wholesale and retail dealers are protected from
prosecution does not exempt the adulterated food from confiscation under
section 10 of the act.
This is a presumption against a construction of a statute which would
cause grave public injury or even inconvenience (187 U.S., 118, 124).
DEPARTMENT OF JUSTICE,
November 11, 1907.
The SECRETARY OF AGRICULTURE.
SIR: I have the honor to acknowledge the receipt of your letter of
September 10 in which you request my opinion upon a question which has
arisen in your Department in the administration of the food and drugs
act of June 30, 1906, in a class of cases of which the following is a
type:
An examination having been made in the Bureau of Chemistry, in
accordance with section 4 of the act, of a sample of food purchased from
a retail dealer in the District of Columbia, and the food having been
found to be adulterated, the dealer was cited for a hearing, and, having
appeared, established as a defense, under which he claimed protection, a
written guaranty, conforming to the requirements of section 9 of the
act, from a Maryland wholesaler who had sold him the food and shipped it
to him in the District of Columbia in the exact condition in which he
sold it here.
The Maryland wholesaler, having been then cited, in turn appeared and
established a similar guaranty, under which he also claimed protection,
from a Pennsylvania manufacturer who had sold him the food and had
shipped it to him in Maryland in the exact condition in which he had in
turn guaranteed it and shipped it to the retailer in the District of
Columbia.
The question upon which my opinion is requested is whether, upon such
state of facts, the Maryland wholesaler is amenable to prosecution for
violation of the act or is protected by the guaranty from the
Pennsylvania manufacturer.
By section 2 of the food and drugs act (34 Stat., 768) it is made a
misdemeanor, inter alia, to ship any adulterated or misbranded food or
drugs in interstate commerce, or to receive the same in such commerce,
and, having so received, to deliver the same to any other person in
original, unbroken packages, or to sell the same in the District of
Columbia.
Section 9 of the act further provides:
"That no dealer shall be prosecuted under the provisions of this act
when he can establish a guaranty signed by the wholesaler, jobber,
manufacturer, or other party residing in the United States, from whom he
purchases such articles, to the effect that the same is not adulterated
or misbranded within the meaning of this act, designating it.
Said guaranty, to afford protection, shall contain the name and address
of the party or parties making the sale of such articles to such dealer,
and in such case said party or parties shall be amenable to the
prosecutions, fines, and other penalties which would attach, in due
course, to the dealer under the provisions of this act."
After careful consideration of this act, together with the memoranda
prepared by the members of the board of food and drugs inspection, which
you have submitted with your letter, I am of the opinion that the
guaranty from the Pennsylvania manufacturer affords complete protection
to the Maryland wholesaler and that he is hence not amenable to
prosecution under the act on account either of the interstate sale and
shipment made by him to the retailer in the District of Columbia or of
the guaranty given by him in connection therewith.
1. It is clear that the Maryland wholesaler is protected from
prosecution for the interstate sale and shipment made by him by the
explicit provision of section 9, that "no dealer shall be prosecuted
under the provisions of this Act when he can establish a guaranty signed
by the wholesaler, jobber, manufacturer, or other party residing in the
United States, from whom he purchases such articles, to the effect that
the same is not adulterated or misbranded within the meaning of the
Act."
The broad term "dealer" which is used in this section, not being
restricted in its meaning by any other provision of the act, includes
those who deal at wholesale as well as those who deal at retail. I am of
the opinion, therefore, that under the plain language of this provision
any dealer, whether a wholesaler or retailer, who would otherwise be
amenable to prosecution for dealing in an adulterated or misbranded
article in violation of the act, is protected from prosecution on such
account by establishing a guaranty in conformity with the requirements
of the act, signed by a resident of the United States from whom he
purchased such article.
2. A more difficult question, however, arises in reference to the
liability of the Maryland wholesaler to prosecution by reason of the
guaranty which he gave the District of Columbia retailer in connection
with the sale and shipment to him.
It is expressly provided by section 9 of the act that wherever a
dealer who would otherwise be subject to prosecution established a
guaranty from a resident of the United States who sold him the articles,
the dealer is thereby protected, and such guarantor "shall be amenable
to the prosecutions, fines, and other penalties which would attach, in
due course, to the dealer under the provisions of this Act." Construing
this section in its entirety, I am of the opinion that its purpose was
to create, in addition to the offense of manufacturing and dealing in
adulterated and misbranded food and drugs specifically made misdemeanors
by sections 1 and 2 of the act, the distinct and substantive offense of
guaranteeing, under the food and drugs act, any adulterated or
misbranded article, thereby enabling the purchaser to deal with such
articles in a manner otherwise forbidden without being amenable to the
punishment to which he would otherwise be subject, the offense of giving
such false guaranty, however, not to be complete until the purchaser
deals with the article thus guaranteed in a manner otherwise punishable
by the act, in which event the guarantor would become subject to the
same punishment for giving the false guaranty as that to which the
purchaser would otherwise be amenable by reason of his dealing with the
article.
Without discussing the scope and effect of this provision, I am of
the opinion that whatever this may be, the maker of a false guaranty is
just as much protected from any prosecution to which he might be liable
on this account by establishing a former guaranty from the person from
whom he purchased the article as he is thereby protected from
prosecution for dealing with the article in a manner otherwise forbidden
by the act; in other words, that the former guaranty is a complete
protection against any prosecution under this act.
It is true that section 9 does not specifically state that the first
guaranty shall protect the second guarantor, but this result follows
from the broad provision that "no dealer shall be prosecuted under the
provisions of this Act when he can establish a guaranty signed by the *
* * party * * * from whom he purchases such articles."
As a prosecution for the false guaranty would be a prosecution "under
the provisions" of the act, and as the dealer's protection under his
vendor's guaranty is not limited by the act to prosecutions for dealing
in the articles, but includes all prosecutions under its provisions, a
former guaranty would in my opinion afford a dealer protection against
the punishment to which he might otherwise be amenable for his own false
guaranty as well as for selling or shipping the articles in violation of
the act.
In short, the intention of Congress appears to have been to relieve
from liability any person who would otherwise be subject to any
prosecution under the act if he establishes a guaranty from the person
who sold him the goods, provided such person is a resident of the United
States, and therefore himself within the reach of prosecution, and to
make such original guarantor subject to prosecution in lieu of the
subsequent offender, Congress evidently intending to refer back
liability in such case, in general to the original guarantor, who, of
course, in the case of goods of domestic production, would usually be
the manufacturer, who would know their real character, and, in the case
of goods imported from a foreign country, would be the importer, who
would assume responsibility therefor, and to make the liability to
punishment fall upon such original guarantor so far as possible.
It further appears from the report of the House Committee on
Interstate and Foreign Commerce, which reported the food and drugs for
passage in substantially the form in which it was afterwards enacted,
and which, under the doctrine of Holy Trinity Church v. United States
(143 U.S., 457, 464), and Binns v. United States (194 U.S., 486, 495),
may be properly looked to for the purpose of throwing light upon the
intent of Congress, that the provision in question was inserted in the
bill by the committee and that its general purpose was to protect
persons dealing in the articles subsequent to the manufacturer or
importing agent and direct the penalty to the original guarantor as far
as possible.
The committee in its report said:
"As the principal purpose of the bill is to prevent interstate and
foreign commerce in adulterated or falsely branded articles of food,
drink, and medicine, the committee has inserted in the bill a provision
intended to protect all persons dealing in the articles subsequent to
the manufacturer or importing agent.
"Section 8 of the bill provides that no dealer shall be convicted
when he is able to prove a guaranty of conformity with the provisions of
the act signed by the manufacturer or the party from whom he purchased.
The section requires that the guarantor shall reside within the United
States and that the guaranty shall contain his full name and address.
"In other sections of the bill there are provisions for collecting
samples or specimens and the examination of such in order to determine
whether they are adulterated or misbranded, and the bill provides that
any party from whom a sample was obtained shall be given an opportunity
to be heard before the Secretary of Agriculture shall certify to the
United States district attorney the results of an examination of the
article as the basis for prosecution; so that if samples of goods shall
be taken from a retail or wholesale dealer who has received a guaranty
of conformity with the provisions of the act from the person who sold to
him, he will be relieved from prosecution, and any penalty which may
attach under the act will be directed to the original guarantor.
"These carefully prepared provisions of the bill will prevent any
dealer being put to the expense of a prosecution where he takes the
precaution to protect himself by requiring a guaranty." (H.R., 2118,
59th Cong., 1st sess., p. 3).
And again:
"The prosecutions which will be commenced by the national authorities
will be mainly directed against the manufacturers of food products; or,
if it be impossible to find the manufacturer, against the jobbers and
wholesale dealers." (H.R., 2118, supra, p. 9.)
Section 8 of the bill which was thus inserted by the committee reads
as follows:
"That no dealer shall be convicted under the provisions of this act
when he is able to prove a guaranty of conformity with the provisions of
this act in form approved by the rules and regulations herein provided
for, signed by the manufacturer or the party or parties from whom he
purchased said articles: Provided, That said guarantor resides within
the United States. Said guaranty shall contain the full name and address
of the guarantor making the sale to the dealer, and said guarantor shall
be amenable to the prosecutions, fines, and other penalties which would
otherwise attach in due course to the dealer under the provisions of
this act." (H.R. 2118, supra, p. 11.)
It will be seen that the provision thus inserted and commented upon
by the committee is substantially the same, so far as the present
question is concerned, as section 9 of the bill as afterwards enacted,
and it is made clear by this report that it was the intent of the
committee, at least, in inserting this provision to entirely relieve
from prosecution any retail or wholesale dealer who had received a
guaranty from the person from whom he purchased, and, as stated by the
committee, to "prevent any dealer from being put to the expense of a
prosecution when he takes the precaution to protect himself by requiring
a guaranty."
Any other construction of this act would work great hardship upon an
innocent intermediary who, relying upon the guaranty which he receives
from the original manufacturer of an article, sells it in interstate
trade and guarantees it in his turn. And if the original guaranty does
not fully protect him in such case, it would become exceedingly
hazardous to sell and guarantee such article, even though guaranteed by
the manufacturer, without first making, on his own account, a detailed
investigation, chemical or otherwise, to ascertain whether it is in fact
adulterated or misbranded. Manifestly, however, such a requirement would
in many cases seriously impede and obstruct interstate trade.
It is stated in Doctor Dunlap's memorandum that, from the conditions
that the board of food and drugs inspection has found to exist
throughout the whole business community, dealers engaged in interstate
trade are insisting on a guaranty from the seller and purchasing only
under such guaranty;
that in order to do an interstate business to-day a dealer must give a
guaranty with the goods he sells, whether he be the actual manufacturer
or not; and that if the dealer can not rely upon the manufacturer's
guaranty as a protection, it must have the effect of preventing
interstate sales on the part of small concerns, and even of large
concerns who probably would not care to incur the added expense and
trouble, in many cases prohibitive, of having the goods carefully
analyzed in order to be fully acquainted with their character.
There is, however, a presumption against a construction of a statute
which "would cause grave public injury or even inconvenience" (Bird v.
United States, 187 U.S., 118, 124). And it was said by Lord Coke, in
language which was quoted by Abbott, C. J., in Margate Pier Co. v.
Hannam, 3 B & Ald., 266, 270, and cited with approval in Holy Trinity
Church v. United States, 143 U.S., 457, 459, that "acts of Parliament
are to be so construed as no man that is innocent or free from injury or
wrong be, by a literal construction, punished or endamaged."
The construction which I have given the act is furthermore supported
by the view expressed in Greeley's food and drugs act, section 65, page
4, that--
"A wholesaler or jobber who purchases food or drug products from the
producer or from any one else may safely guarantee the goods so
purchased to his consumers, provided he has from the producer or other
person from whom he purchased the goods, a guaranty covering them."
For these reasons, I am of the opinion that in the case stated the
Maryland wholesaler is not amenable to prosecution under the act, but is
completely protected by his guaranty from the Pennsylvania manufacturer.
3. I should add, however, that the fact that both the District of
Columbia retailer and the Maryland wholesaler are protected from
prosecution by the guaranties which they have established from their
respective vendors, does not, in my opinion, exempt the adulterated food
from confiscation under section 10 of the act, which provides, inter
alia,
that any adulterated or misbranded food or drug which is being
transported in interstate commerce for sale, or, having been
transported, remains unloaded, unsold, or in original unbroken packages,
or is sold or offered for sale in the District of Columbia, may be
proceeded against in the district where found "and seized for
confiscation by a process of libel for condemnation." The provision of
section 9 that no dealer shall be prosecuted when he establishes a
guaranty from his vendor merely affords protection, in my opinion,
against the criminal prosecution, fines, and other penalties to which
the dealer would otherwise be personally amenable, and does not in any
way affect the liability of the merchandise to confiscation under the
provisions of section 10.
Respectfully,
CHARLES J. BONAPARTE.
FORM OF BEQUESTS FOR THE LIBRARY OF CONGRESS; 26 Op.Att'y.Gen. 447,
November 4, 1907
"The Library of Congress" is not a proper legatee to be named in a
bequest.
The question as to what is the best form of such a bequest depends
upon the law of the testator's domicile, and it is therefore impossible
to formulate any particular style of bequest that will be everywhere
valid and in proper form.
However, a bequest "to the United States of America, to be deposited
in the Library of Congress," which latter part may be varied in case of
pecuniary bequests to "to be applied to the increase or improvement of
the Library of Congress," will, it is believed, be a satisfactory form
to be used generally in the States of the Union and in other
English-speaking countries.
DEPARTMENT OF JUSTICE,
November 4, 1907.
The PRESIDENT.
SIR: I have the honor to acknowledge receipt of your request for an
opinion upon the question stated in the following letter addressed to
you by the Librarian of Congress:
"The authorities of the Library have from time to time received
inquiry as to the proper form of bequest to the Library of Congress. It
had been assumed that a bequest direct to the institution, under that
title, would be valid. Recently grave doubt has been expressed as to
this, the suggestion (inter alia) being made that the bequest should
read 'To the United States of American, to be deposited in the Library
of Congress.'
"The matter being one that may assume considerable importance we
should value an opinion from the Attorney-General that would serve as
our guide in answering such questions."
The name "The Library of Congress" is used in the laws principally to
signify (Rev. Stat., Sec. 80) something "composed of books, maps, etc.,"
and partly the place in which these are kept (Rev. Stat., Secs. 94, 97,
98).
There is no indication in the statutes concerning it that it is a
corporation or artificial person. It is largely under the control of a
joint committee of Congress, which committee is to exchange or otherwise
dispose of duplicate or injured books and documents (Rev. Stat., Secs.
86, 87).
For these reasons I do not think the Library of Congress is a proper
legatee to be named in a bequest. I express no opinion upon the question
whether a bequest so made would be held by the court to be in legal
effect a bequest to the owner of the Library, the United States, to be
applied to the increase of the collection of books, etc.
What the Librarian desires to know is the best form of bequest to
recommend to prospective testators.
This is a question the answer to which depends upon the law of each
testator's domicile, for testamentary gifts of personal property are
regulated and controlled by that law, and as the laws differ (see
Russell v. Allen, 107 U.S., 172; Jones v. Habersham, 107 U.S., 179;
Ould v. Washington Hospital, 95 U.S., 303), I can not say that a
particular style of bequest would be everywhere valid and in proper
form.
The United States are a quasi corporation, capable of contracting,
suing, receiving, and holding all manner of property and taking by
devise (Dugan v. United States, 3 Wheat, 181; Marshall, C. J., in
United States v. Maurice, 2 Brock., 109); and in a noted instance a
bequest was made to the United States in a form which stood the scrutiny
of the highest tribunals of England and this country. I refer to the one
which gave rise to the Smithsonian Institution, which was a bequest by
the Englishman, James Smithson, "to the United States of America, to
found at Washington, under the name of the Smithsonian Institution, an
establishment for the increase and diffusion of knowledge among men."
The form of bequest suggested by the Librarian, "to the United States
of American, to be deposited in the Library of Congress," which latter
part may be varied in case of pecuniary gifts to "to be applied to the
increase or improvement of the Library of Congress" does not differ
essentially from that used by Smithson.
In my opinion this will be found a satisfactory form to be used
generally in the States of the Union and other English-speaking
countries.
Very respectfully,
CHARLES J. BONAPARTE.
NAVIGABLE WATERS-- DESTRUCTION OF OYSTER BEDS BY THE UNITED STATES--
COMPENSATION; 26 Op.Att'y.Gen. 441, October 25, 1907
The interests of private individuals or companies in oyster beds held
under leases from the State of New Jersey constitute private property
which can not be taken or destroyed by the United States Government for
public purposes without making just compensation therefor.
The title of the State to such lands is in no wise inconsistent with
its power to grant, or with the power of purchasers or other grantees to
acquire, in such lands, a private property which is pecuniarily valuable
and should not be taken without compensation.
There has never been a doubt that where really private property is
actually taken for public use just compensation must be made therefor.
The destruction of the oyster beds in question will be a "taking"
within the meaning of the Fifth Amendment to the Constitution. Actual
manual caption is not necessary, nor is it essential that the Government
make use of the property taken.
DEPARTMENT OF JUSTICE,
October 25, 1907.
The SECRETARY OF WAR.
SIR: In your letter of August 2, 1907, with its inclosures, you ask
my opinion upon a case there stated, in substance, as follows:
An appropriation has been made for a channel for the improvement of
Tuckerton Creek, in New Jersey, and it is claimed that the dredging of
the proposed channel will destroy several private oyster beds planted,
held, and owned by private individuals under leases from that State, and
you ask whether, under the facts supposed, compensation must be made to
the owners for the property thus taken or destroyed, and whether the
right to thus take this property must be obtained by purchase or
condemnation proceedings.
The question is an important one and in its ultimate analysis
involves the further question whether any lands covered by navigable
waters, or anything affixed to such lands, can constitute in this
country private property that may not be taken by the United States for
public use without compensation. For, if one kind of private property
may be thus taken or destroyed, so, apparently, can any other, and the
right which would authorize the destruction of an oyster bed would seem
to warrant the destruction of a dock, pier, wharf, warehouse, or other
structure in navigable waters, even if authorized by State law, and if
originally constructed, not to the injury, but in aid of navigation. If
in such submerged soil and its appurtenances there can be private
property, such private property is clearly protected by the Fifth
Amendment to the Constitution. Therefore, as above stated, the real
question seems to be whether, in this country, there can be private
property in the soil under navigable water, and I think it is settled
law that this question must be answered in the affirmative.
It can not be doubted that, under the plenary power of the Congress
to regulate commerce, all private property in navigable waters, whether
fisheries, docks, wharves, warehouses, or other structures or rights,
are subject to the paramount dominion of the Government, so that they
may be taken, removed, or destroyed whenever, in the opinion of the
Congress, the needs of navigation, which is an incident of commerce, may
require this through the exercise of the power of eminent domain by the
Government, just as all other property may be so taken for public use.
The question here is not as to the right or power of the Government to
take or destroy this property, but solely as to the obligation to make
compensation.
I understand that the owners of these oyster beds are all lessees
from the State of New Jersey, so that their case is covered by the
decision in Hoboken v. Pa. R.R. Co. (124 U.S., 656). In this case it was
decided (p. 657) that:
By the law of New Jersey lands below high-water mark on navigable
waters are the absolute property of the State, subject only to the power
conferred upon Congress to regulate foreign commerce and commerce among
the States, and they may be granted by the State, either to the riparian
proprietor, or to a stranger, as the State sees fit.
On page 688 the court says:
"In the examination of the effect to be given to the riparian laws of
the State of New Jersey by the act of April 11, 1864, in connection with
the supplementary act of March 31, 1869, it is to be borne in mind that
the lands below high-water mark, constituting the shores and submerged
lands of the navigable waters of the State, were, according to its laws,
the property of the State as sovereign. Over these lands it had absolute
and exclusive dominion, including the right to appropriate them to such
uses as might best serve its views of the public interest, subject to
the power conferred by the Constitution upon Congress to regulate
foreign and interstate commerce."
And on page 691 the court says further:
"Under these grants the land conveyed is held by the grantees on the
same terms on which all other lands are held by private persons under
absolute titles, and every previous right of the State of New Jersey
therein, whether proprietary or sovereign, is transferred or
extinguished, except such sovereign rights as the State may lawfully
exercise over all other private property."
It has been held that while such land remains the property of the
State, it is not protected by the Fifth Amendment to the Constitution.
For this view two reasons have been given: First, that property of the
State is not private property, and the Constitution refers only to
private property. Second, that the title of the State is not a
beneficial one, or the subject of pecuniary compensation, but is held in
trust for the public, and a taking in aid of navigation is one of the
public uses for which the title was thus held.
(Stockton v. Baltimore and N.Y.R.R. Co., 32 Fed.Rep., 9, 19.)
But what is there held as to such property, while remaining in the
State, is in nowise inconsistent with the power of the State to grant
and of purchasers or other grantees to acquire in such lands a private
property, which is pecuniarily valuable and can not be taken without
compensation.
The taking of private property for public use within navigable
waters, under the power to regulate commerce, is an exercise of that of
eminent domain. Private property can be no more taken without
compensation under this power than under eminent domain for other
purposes of the Government. There may have been, in particular cases, a
doubt whether what was taken was private property or whether there was a
"taking" within the meaning of the Fifth Amendment; but there never has
been a doubt that where really private property is really taken for
public use just compensation must be made. In Monongahela Nav. Company
v. United States (148 U.S., 312) it is said, on page 336:
"But like the other powers granted to Congress by the Constitution,
the power to regulate commerce is subject to all the limitations imposed
by such instrument, and among them is that of the Fifth Amendment we
have heretofore quoted. Congress has supreme control over the regulation
of commerce, but if, in exercising that supreme control, it deems it
necessary to take private property, then it must proceed subject to the
limitations imposed by the Fifth Amendment, and can take only on payment
of just compensation. The power to regulate commerce is not given in any
broader terms than to establish post-offices and post-roads; but, if
Congress wishes to take property upon which to build a post-office, it
must either agree upon the price with the owner, or in condemnation pay
just compensation therefor."
The court adds (p. 337):
"Whatever be the true value of that which it takes from the
individual owner must be paid to him, before it can be said that just
compensation for the property has been made.
And that which is true in respect to a condemnation of property for a
post-office is equally true when condemnation is sought for the purpose
of improving a natural highway. * * *
"It should be noticed that here there is unquestionably a taking of
the property, and not a mere destruction. It is not a case in which the
Government requires the removal of an obstruction."
The last remark is equally true in this case. These oyster beds are
in nowise an impediment to navigation, but leave the bed and channel in
its normal state. They are there rightfully, planted by the authority of
the State, which had the unquestioned right to grant such authority.
They can not be considered a nuisance, which may be abated without
compensation. It is not because they interfere with navigation, but
because the Government desires to add to the facilities for navigation
that they are to be taken. It is no less clear that their destruction by
the making of this contemplated improvement will be a "taking" within
the meaning of the Fifth Amendment. An actual manual caption is not
necessary; but if it were, as I understand the facts, this channel can
not be constructed without an actual taking and removal of these oysters
and beds. Their removal will be as much a physical taking as would be
the removal of a wharf, dock, or warehouse, where the land it occupies
is needed for public use.
It has never been held that, in order to take property, the
Government must make use of the property taken. If it needs the place
occupied by this property and destroys it to occupy that place, it
"takes" it, although it neither needs nor uses the property itself.
It is immaterial to the owner whether his property is used by the
Government or only destroyed, and one form of taking is as much
forbidden as the other, provided that, as in this case, such property
can not be destroyed by the Government without what is, in fact, a
physical taking.
In Gibson v. United States (166 U.S., 269), and certain other cases,
the Supreme Court has indeed decided that compensation need not be made,
unless there is an actual invasion of the plaintiff's property, although
there may have been a consequential injury resulting from the lawful
exercise of a paramount right.
In the case last cited, the court says, on page 275:
"But acts done in the proper exercise of governmental powers, and not
directly encroaching upon private property, though their consequences
may impair its use, are universally held not to be a taking within the
meaning of the constitutional provision."
But on page 276, in distinguishing the case before it from cases
where the overflowing of land was held to entitle the owner to
compensation, the court says further:
"In those cases there was a physical invasion of the real estate of
the private owner, and a practical ouster of his possession."
This is no less true in the present case, and I am aware of no
decision holding that, where there has been such physical invasion and
consequent destruction of private property, compensation need not be
made.
In Pumpelly v. Green Bay Co. (13 Wall., 166), on page 177, it is
said:
"It would be a very curious and unsatisfactory result, if in
construing a provision of constitutional law, always understood to have
been adopted for protection and security to the rights of the individual
as against the Government, and which has received the commendation of
jurists, statesmen, and commentators as placing the just principles of
the common law on that subject beyond the power of ordinary legislation
to change or control them, it shall be held that if the Government
refrains from the absolute conversion of real property to the uses of
the public it can destroy its value entirely, can inflict irreparable
and permanent injury to any extent, can, in effect, subject it to total
destruction without making any compensation, because, in the narrowest
sense of that word, it is not taken for the public use. Such a
construction would pervert the constitutional provision into a
restriction upon the rights of the citizens, as those rights stood at
the common law, instead of the Government, and make it an authority for
invasion of private right under the pretext of the public good, which
had no warrant in the laws or practices of our ancestors."
Upon the whole case, I advise you that if, as I understand to be the
facts, these oyster beds are held by private individuals or companies
under leases of such beds from the State of New Jersey, the interests of
such owners therein constitute private property, which can not be taken
or destroyed for public purposes without making just compensation.
Respectfully,
CHARLES J. BONAPARTE.
UNITED STATES COURT IN PORTO RICO-- AUDIT OF EXPENDITURES; 26 Op.
Att'y.Gen. 438, October 17, 1907
The new Porto Rican law concerning an audit of expenditures before
disbursement is not objectionable to or inconsistent with the organic
act of April 12, 1900 (31 Stat., 77), merely because it provides for an
effective audit of court expenses.
That law does not transcend the legislative power of the insular
government, and, whether wise or not, can not be treated as void or
inapplicable to the United States court in Porto Rico.
DEPARTMENT OF JUSTICE,
October 17, 1907.
The SECRETARY OF THE TREASURY.
SIR: I have your letter requesting my opinion upon a question which
has arisen concerning the method of accounting for the expenses of the
United States court in Porto Rico, viz, whether the new Porto Rican law
concerning an audit before disbursement applies to such expenses, or
that court is exempt from the requirements of the law.
It is contended, I understand, that no audit is contemplated by the
organic act of the court expenditures, and that an order of the judge to
the marshal directing an expenditure can not be reviewed by the auditor
of Porto Rico, whose duties, in this matter, are purely formal.
The organic act provides:
"SEC. 12. That all expenses that may be incurred on account of the
government of Porto Rico for salaries of officials and the conduct of
their offices and departments, and all expenses and obligations
contracted for the internal improvement or development of the island,
not, however, including defenses, barracks, harbors, light-houses,
buoys, and other works undertaken by the United States, shall be paid by
the treasurer of Porto Rico out of the revenues in his custody.
"SEC. 22. That the treasurer shall give bond, approved as to form by
the attorney-general of Porto Rico, in such sum as the executive council
may require, not less, however, than the sum of one hundred thousand
dollars, with surety approved by the governor, and he shall collect and
be the custodian of the public funds, and shall disburse the same when
appropriated by law,
on warrants signed by the auditor and countersigned by the governor, and
shall perform such other duties as may be prescribed by law, and make,
through the governor, such reports to the Secretary of the Treasury of
the United States as he may require, which shall annually be transmitted
to Congress.
"SEC. 23. That the auditor shall keep full and accurate accounts,
showing all receipts and disbursements, and perform such other duties as
may be prescribed by law, and make, through the governor, such reports
to the Secretary of the Treasury of the United States as he may require,
which shall annually be transmitted to Congress.
"SEC. 36. That the salaries of all officials of Porto Rico not
appointed by the President, including deputies, assistants, and other
help, shall be such, and be so paid out of the revenues of Porto Rico,
as the executive council shall from time to time determine: Provided,
however, That the salary of no officer shall be either increased or
diminished during his term of office. The salaries of all officers and
all expenses of the offices of the various officials of Porto Rico,
appointed as herein provided by the President, including deputies,
assistants, and other help, shall also be paid out of the revenues of
Porto Rico on the warrant of the auditor, countersigned by the governor.
"The annual salaries of the officials appointed by the President, and
so to be paid, shall be as follows:" (Specifying the salaries of
secretary, attorney-general, treasurer, auditor, commissioner of the
interior, commissioner of education, insular judges, United States
district judges, attorney, and marshal.)
The act gives the legislature of Porto Rico full legislative power
extending "to all matters of a legislative character not locally
inapplicable * * * not inconsistent with the provisions hereof."
It is contended that since section 36 says that the salaries and
expenses of the offices mentioned are to be paid "on the warrant of the
auditor countersigned by the governor," this excludes any further action
by either officer, and that when the court orders the marshal to incur
an expense the auditor must draw and the governor must countersign the
warrant without any antecedent inquiry.
But it seems to me this provision has nothing to do with the legality
of an audit. It concerns the treasurer's business of payment, and no
more excludes the notion of an audit than does the identical provision
of section 22.
No one would contend that any of the other disbursements by the
treasurer "on the warrant of the auditor countersigned by the governor"
are necessarily to be paid without an audit.
I see nothing locally inapplicable or inconsistent with the organic
act in the legislature's providing for an audit of these court
expenditures by this auditor. Provision for this officer's appointment
implies that some expenses are to be audited. The duties of this office
are merely sketched by the organic act, to be filled in by the insular
lawmakers. This is no less true of the offices of treasurer,
attorney-general, commissioner of education, and commissioner of the
interior, as to each of whom it is separately provided that he "shall
perform such other duties as may be prescribed by law." Moreover, the
Congress by a passage in the amendatory act of March 2, 1901 (31 Stat.,
953), has indicated that the auditor of Porto Rico is to audit some
court expenses. The statute reads:
"That payments of fees and expenses, heretofore made in good faith by
the United States district marshal, either from funds advanced to him by
the United States or by Porto Rico, may be allowed by the accounting
officers of the United States or the accounting officers of Porto Rico,
as the case may be."
In my opinion, therefore, the new law is not objectionable merely
because it provides for an effective audit of the court expenses; that
is, one which will determine whether any expenditure is authorized by
and in conformity with law and within the scope of the court's
discretion.
Admitting, however, that the auditor of Porto Rico is to audit these
court expenses, it is objected that the new Porto Rican law requiring an
audit before disbursement is nevertheless void, because it must impair
the usefulness of the district court, and the Congress could not have
intended to give the insular legislature authority to destroy that
court's usefulness.
Undoubtedly such was not the intention of the organic act. But the
organic act and the new law, assuming, as we should, that the latter
will be properly executed, do not seem to me in conflict. The new law
provides that "this section shall not be interpreted to prevent at any
time the appointment of special disbursing officers for certain
appropriations where, in the opinion of the auditor and upon the
approval of the governor, it is deemed necessary."
The marshal can, and undoubtedly will, be advanced moneys, as a
special disbursing officer, to pay witnesses and jurors and all expenses
which, from their nature, must be paid without delay.
In my opinion, therefore, the law in question does not transcend the
legislative power of the insular government and, whether wise or not,
can not be treated as void or inapplicable.
Respectfully,
CHARLES J. BONAPARTE.
MATES-- OFFICERS OF THE NAVY-- RETIREMENT-- GRADE; 26 Op.Att'y.Gen.
433, October 15, 1907
Mates whose names are borne on the retired list of officers of the
Navy in accordance with the act of August 1, 1894 (28 Stat., 212), are
officers of the Navy, but they are neither commissioned nor warrant
officers, although with respect to the law regulating retirements they
are placed by the act of June 29, 1906 (34 Stat., 554), upon the same
footing as warrant officers.
A person can, under the provisions of sections 1409 and 1410, Revised
Statutes, be at the same time an officer of the Navy and an enlisted
man, the distinction being between commissioned officers and the
enlisted force.
Although commissioned officers of the Navy are appointed by the
President by and with the advice and consent of the senate, warrant
officers by the President alone, and mates by the heads of departments,
all are alike officers of the United States, and in accordance with the
acts of 1894 and 1906, all are alike entitled to the benefits of the
advancement provided for by the last-mentioned act whenever otherwise
qualified.
The mates in question are entitled, in the discretion of the
President, and by and with the advice and consent of the Senate, to the
benefit of the advancement provided in the case of retired officers,
under the circumstances enumerated in the act of June 29, 1906 (34
Stat., 554).
While the effect of such advancement may not be to place them in a
different grade, they obtain the rank and retired pay belonging to the
next higher grade in that service, being that of the lowest grade of
warrant officers.
DEPARTMENT OF JUSTICE,
October 15, 1907.
The SECRETARY OF THE NAVY.
SIR: I have the honor to acknowledge the receipt of your letter of
October 1, 1907, in which you ask my opinion as to whether certain
mates, whose names are borne on the retired list of officers of the
Navy, having been placed there in accordance with the statute approved
August 1, 1894 (28 Stat., 212), are entitled to advancement in
accordance with the provisions of the act of June 29, 1906 (34 Stat.,
554), and if so, to what grade they should be advanced. Sections 1408,
1409, and 1410 of the Revised Statutes are as follows:
SEC. 1408. "Mates may be rated, under authority of the Secretary of
the Navy, from seamen and ordinary seamen who have enlisted in the naval
service for not less than two years."
SEC. 1409. "The rating of an enlisted man as a mate, or his
appointment as a warrant officer, shall not discharge him from his
enlistment."
SEC. 1410. "All officers not holding commissions or warrants, or who
are not entitled to them, except such as are temporarily appointed to
the duties of a commissioned or warrant officer, and except secretaries
and clerks, shall be deemed petty officers, and shall be entitled to
obedience, in the execution of their offices, from persons of inferior
ratings."
In the case of the United States v. Fuller (160 U.S., 593, 595) the
court says:
"The personnel of the Navy is divided generally into commissioned
officers, non-commissioned or warrant officers, petty officers, and
seamen of various grades and denominations."
After review of the foregoing and certain other provisions of the
Revised Statutes, the court further says (p. 596):
"From this summary of the Revised Statutes it appears reasonably
clear:
"1. That boatswains, gunners, sailmakers, and carpenters are warrant
officers to be appointed by the President, and that they are the only
ones specifically mentioned as such.
"2. That mates are officers not holding commissions or warrants, and
not entitled to them, but are petty officers promoted by the Secretary
of the Navy from seamen of inferior grades, who have enlisted for not
less than two years, and that they are distinguished from other petty
officers only in the fact that their pay is fixed by statute instead of
by the President."
The act of August 1, 1894, mentioned in your letter, contains the
language which follows:
"That the law regulating the retirement of warrant officers in the
Navy shall be construed to apply to the twenty-eight officers now
serving as mates in the Navy."
It seems, therefore, to be clear (1) that the mates in question are
officers of the Navy; (2) that they are neither commissioned nor
warrant officers, but, with respect to the law regulating retirements,
they are placed, by special statute, upon the same footing as warrant
officers. I understand from your letter that they have the other
qualifications required by the act approved June 29, 1906, for
advancement in grade. That act provided--
"That any officer of the Navy not above the grade of captain who
served with credit as an officer or as an enlisted man in the regular or
volunteer forces during the civil war prior to April ninth, eighteen
hundred and sixty-five, otherwise than as a cadet, and whose name is
borne on the official register of the Navy, 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 only question appears to be whether they are officers in the
sense contemplated by that act. From your letter and the accompanying
papers, I further understand that doubts are entertained as to whether
they are such officers, because (1) as stated in the indorsement of the
Bureau of Navigation,
"mates have always been considered as enlisted men," and (2) in an
opinion, rendered July 22, 1907 (ante, p. 319), I held, in the case of
Mate Richard J. Keating, that he was an enlisted man for the purpose of
being permitted to reenlist with the benefit of continuous service under
Article 839 of the Naval Regulations.
There is no doubt, I think, in view of the provisions of sections
1409 and 1410 of the Revised Statutes, that a person can be, at the same
time, an officer of the Navy and an enlisted man. The distinction in
this respect is between commissioned officers and the enlisted force.
Not only is it expressly provided in section 1409 that when an enlisted
man becomes a mate his duties and rights as an enlisted man remain
unaffected, but the same provision is made with respect to warrant
officers; and, if the fact of enlistment should be held a bar to
securing the benefits of the act of 1906 in the case of mates, this
might be equally true with respect to warrant officers as well. By
Article 2, section 2, clause 2 of the Constitution, "Officers of the
United States" can be appointed legally (1) by the President, by and
with the advice and consent of the Senate; (2) by the President alone;
(3) by the courts of law, or (4) by the heads of Departments.
Commissioned officers of the Navy are appointed in accordance with the
first method, warrant officers in accordance with the second, and mates
in accordance with the fourth. All are alike officers of the United
States, and, in accordance with the provisions of the acts of 1894 and
1906, above quoted, all are alike entitled to the benefits of the
advancement provided for in the last-mentioned act whenever otherwise
qualified. The suggestion that there is no higher grade to which mates
can be advanced appears to arise from some misunderstanding as to the
purpose of the law. The act of 1906 does not say that the officers in
question shall be advanced to another grade, but that they shall be
placed on the retired list with the rank and retired pay of one grade
above that actually held at the time of retirement. On April 8, 1899,
Attorney-General Griggs gave an opinion (22 Op., 433) to your
predecessor with regard to the construction of section 11 of the act
approved March 3, 1899, and generally known as the "Personnel Act."
In this opinion he held that, while officers of the Medical or Pay Corps
could not be given a higher position in the service than that of medical
director or pay director, respectively, they might have conferred upon
them a higher rank and higher pay than those of the officers bearing
such titles. In his words (p. 436):
"The highest officer in the Medical Corps is a 'medical director,'
having the 'relative rank of captain.' It would not be possible to
promote a medical director to a higher place in the Medical Corps, but
it would be possible to confer upon him a higher rank than that of
captain. And in my opinion that is what section 11 is intended to do.
The two officers whose cases are now under discussion will be retired,
respectively, as medical director and pay director, but with a higher
relative rank on the retired list than that which they are entitled to
in the active service-- namely, rear-admiral. I see no difficulty in
giving to section 11 such a construction, nor do I see any inconsistency
or embarrassment that will arise in its operation."
I see no reason why this ruling should not cover the case under
consideration. The mates in question will not obtain the grade of
warrant officers, but they will have the rank and retired pay
appurtenant to the lowest grade of such officers.
I therefore advise you that, in my opinion, the mates mentioned in
your letter are entitled, in the discretion of the President, by and
with the advice and consent of the Senate, to the benefit of the
advancement provided in the case of retired officers under the
circumstances enumerated in the act approved June 29, 1906; and,
secondly, that while the effect of such advancement may not be to place
them in a different grade from that which they now hold, they will
obtain the rank and retired pay belonging to the next higher grade in
the service-- namely, that of the lowest grade of warrant officers.
I remain, very respectfully,
CHARLES J. BONAPARTE.
SURGEON-GENERAL OF THE ARMY-- CONTRACT FOR SUPPORT OF PATIENTS IN
PROVIDENCE HOSPITAL; 26 Op.Att'y.Gen. 431, October 14, 1907
The Attorney-General deems it expedient to give an opinion upon a
question involving a payment which is clearly proper for the Comptroller
to decide, to wit, whether under the annual appropriation for the care
of patients in the Providence Hospital, Washington, D.C., the
Surgeon-General of the Army may contract with that institution to pay a
stipulated sum per month for keeping in a state of preparedness for 95
patients in the hospital, but where the monthly average per year equals
or exceeds that number of patients.
Suggested, that inasmuch as "the monthly number of patients has
always, with one exception, equaled or exceeded 95, the total number for
the year must have always reached an average of more than 95 for each
day of the year, and therefore it is the contract, or the interpretation
placed upon it, and not the statute which produces the injustice
complained of.
Suggested, that a contract to pay the full amount appropriated,
$19,000 (34 Stat., 1350), for an average of 95 patients per day through
the year would satisfy the statute, both in letter and spirit.
DEPARTMENT OF JUSTICE,
October 14, 1907.
The SECRETARY OF WAR.
SIR: I have received your request of the 7th instant for my opinion
upon the question whether, under an annual appropriation for care of
patients in the Providence Hospital in this city, the Surgeon-General of
the Army may contract to pay $1,583.33 per month for keeping in a state
of preparedness for 95 patients, there not being in every month an
average of 95 patients in the hospital.
You inform me that, as in April last, "the average of patients was
only 88 (total hospital days for the month 2,649)," the Acting
Surgeon-General felt constrained to certify the account for payment of
$1,471.78 instead of one-twelfth of the annual appropriation of $19,000.
The statutory provision you desire interpreted reads as follows:
"For the support and medical treatment of ninety-five medical and
surgical patients who are destitute, in the city of Washington, under a
contract to be made with the Providence Hospital by the Surgeon-General
of the Army, nineteen thousand dollars, one half of which sum shall be
paid from the revenues of the District of Columbia and the other half
from the Treasury of the United States. (34 Stat., 1350.)"
You say that for years prior to the first passage of this provision
in 1897, including the year 1896, there were annual contracts between
the Surgeon-General and the hospital, engaging the hospital to keep 95
beds always in readiness and to receive all patients lawfully sent, and
agreeing on behalf of the United States "to pay for the said services at
the rate of $1,583.33 per month;" but you say that ever since the law in
question was passed the contract has varied to the extent only that the
United States agreed to pay "for the said services at the rate of 55.56
cents per day for each and every patient treated, the total amount to be
paid for the service not to exceed the sum of $1,583.33 1/ 3 per month."
You inform me that as "the average monthly number of patients has
always, with one exception, I (you) believe, equaled or exceeded 95,
this stipulation, so construed, has for the most part worked out
substantial justice."
The one exception was in April last, when the average, as you say,
was 88.
You express the view that, as even empty beds in a hospital ward have
to be attended and kept clean, proper temperature maintained, service
employed, etc., compensation on the basis of preparedness for 95
patients rather than upon the basis of the average number cared for
would be just.
For reasons given in numerous communications from Attorneys-General
concerning cases in which they prefer not to give opinions upon
questions clearly proper for decision by the Comptroller of the Treasury
(25 Op., 303), I think it best not to answer your question whether the
old form of contract can be used.
I may, however, suggest that, as "the monthly number of patients, has
always, with one exception, equaled or exceeded 95," the total number of
patients for the year must easily have always reached an average of more
than 95 for each day of the year, and that accordingly, it seems to me,
it is the contract or the interpretation put upon it and not the statute
which produces the injustice you speak of, for the statute merely
appropriates $19,000 for a year's service to 95 patients, and would be
satisfied, as to both letter and spirit, by a contract to pay the whole
$19,000 for an average of 95 patients per day throughout the year.
A new form of contract on that basis for the current and subsequent
years would be unobjectionable.
Respectfully,
CHARLES J. BONAPARTE.
COAL FOR NAVY-- TRANSPORTATION IN FOREIGN VESSEL-- TONNAGE TAX; 26
Op.Att'y.Gen. 426, October 9, 1907
The British steamship Ferndene, which transported coal belonging to
the United States, designed for the Navy, from Newport News to San
Francisco, and had no other cargo, was not a vessel having on board
goods, wares, and merchandise within the meaning of section 4219,
Revised Statutes, as amended by the acts of February 27, 1877 (19 Stat.,
250), and June 26, 1884 (23 Stat., 57), imposing a tax of 50 cents per
ton "upon every vessel not of the United States which shall be entered
in one district from another district having on board goods, wares, and
merchandise to be delivered in another district."
If the Ferndene carried any other goods, wares, or merchandise, not
the property of the Government, that portion of her cargo would be
liable to forfeiture under the act of February 17, 1898 (30 Stat., 248).
DEPARTMENT OF JUSTICE,
October 9, 1907.
The SECRETARY OF COMMERCE AND LABOR.
SIR: I have the honor to acknowledge the receipt of your letter of
October 8, 1907, inclosing one of the same date from the Commissioner of
Navigation, and asking my opinion with respect to certain questions
submitted regarding the British steamship Ferndene, which has
transported coal for the Navy from Newport News to San Francisco. The
questions, as stated in the letter of the Commissioner of Navigation,
are substantially as follows:
1. Is the Ferndene exempt from the tonnage tax imposed by section
4219, R.S., as amended by subsequent legislation, by virtue of article 2
of the treaty with Great Britain, originally proclaimed to be in force
December 22, 1815, and section 6 of the act approved April 27, 1816 (3
Stat., 314), enacted to give effect to the terms of that treaty?
2. Is the tonnage duty imposed by section 4219, R.S., repealed by
subsequent legislation?
3. Is a British ship transporting coastwise property of the United
States 'a vessel not of the United States * * * having on board goods,
wares, or merchandise' within the meaning of section 4219?
4. Whether a British vessel employed under the conditions proscribed
by the act approved April 28, 1904, in transporting coastwise
merchandise owned by the Government, is exempt from tonnage does not
impose on a vessel of the United States similarly employed?
5. If tonnage dues at the rate of 50 cents per ton accrue in this
case, is the vessel subject to "light money," as provided by section
4225, R.S.?
It will be convenient to consider first the third of the
above-mentioned questions. Section 4219, R.S., as finally amended by the
act approved February 27, 1877 (19 Stat., 250), is as follows:
"Upon vessels which shall be entered in the United States from any
foreign port or place there shall be paid duties as follows: On vessels
built within the United States but belonging wholly or in part to
subjects of foreign powers, at the rate of thirty cents per ton; on
other vessels not of the United States, at the rate of fifty cents per
ton. Upon every vessel not of the United States, which shall be entered
in one district from another district, having on board goods, wares, or
merchandise taken in one district to be delivered in another district,
duties shall be paid at the rate of fifty cents per ton. Nothing in this
section shall be deemed in any wise to impair any rights or privileges
which have been or may be acquired by any foreign nation under the laws
and treaties of the United States relative to the duty of tonnage on
vessels. On all foreign vessels which shall be entered in the United
States from any foreign port or place, to and with which vessels of the
United States are not ordinarily permitted to enter and trade, there
shall be paid a duty at the rate of two dollars per ton; and none of
the duties on tonnage above mentioned shall be levied on the vessels of
any foreign nation if the President of the United States shall be
satisfied that the discriminating or countervailing duties of such
foreign nations, so far as they operate to the disadvantage of the
United States, have been abolished. In addition to the tonnage duty
above imposed, there shall be paid a tax, at the rate of thirty cents
per ton, on vessels which shall be entered at any custom-house within
the United States from any foreign port or place; and any rights or
privileges acquired by any foreign nation under the laws and treaties of
the United States relative to the duty of tonnage on vessels shall not
be impaired; and any vessel any officer of which shall not be a citizen
of the United States shall pay a tax of fifty cents per ton."
By section 14 of the act approved June 26, 1884 (23 Stat. 57), and as
it is amended by the acts approved June 19, 1886 (24 Stat., 81),
and April 4, 1888 (25 Stat., 80), the last clause of the foregoing
section is repealed, and the application of section 4219, R.S., to the
case of the Ferndene depends upon whether, in the words of the
Commissioner of Navigation, "a vessel transporting coastwise property of
the United States is a vessel having on board goods, wares, or
merchandise" within the terms of the said section. I should say, by way
of explanation, that I understand, from your letter, that the Ferndene
carried no other cargo than the coal belonging to the United States and
intended for the use of the Navy. If she had on board any other goods,
wares, or merchandise, not the property of the Government, the
last-mentioned portion of her cargo would be liable to forfeiture under
the provisions of the act approved February 17, 1898 (30 Stat., 248).
If, however, as I understand to be the case, from your letter and that
of the Commissioner of Navigation, the "goods, wares, or merchandise"
which she had on board consisted only of the coal belonging to the
Government, it is my opinion that this cargo did not constitute goods,
wares, or merchandise within the meaning of section 4219. In my recent
opinion to the Secretary of the Navy (ante, p. 415) I gave my reasons
for holding that property belonging to the Government was not included
under the term "merchandise," as used in section 4347, R.S., and the act
of 1898 lastly above quoted. The language of section 4219 is
substantially identical in this respect with that of section 4347 and
the act of 1898, the only difference being that the words "goods" and "
ares" are added to the word "merchandise," which, in my opinion, does
not affect its meaning in this respect. Moreover, the general purpose of
section 4219 is clearly the same as that of section 4347, the intent of
the one enactment being to discourage, and that of the other to
prohibit, the use of foreign vessels in the coastwise trade. To this
end, merchandise transported in such vessels from one to another port of
our coast was made liable to seizure and confiscation by section 4347,
whereas, by the less drastic provisions of section 4219 a special
tonnage tax was to be levied upon vessels transporting such merchandise,
with an obvious recognition of the established economical principle that
such tax,
through the operation of the law of competition, would constitute, in
last resort, a burden to be borne by the owner of the merchandise, and
therefore a deterrent to the use by such owner of foreign vessels for
its transportation. I held that section 4347 could not apply to
merchandise belonging to the Government, since the forfeiture by the
Government of its own property would be a meaningless form. The same
line of reasoning leads, in my opinion, although not quite so obviously,
to the same conclusion with respect to section 4219. If foreign vessels
must pay this tax, they will inevitably increase their rates of freight,
so as to reimburse their owners for the outlay. In the case of a private
shipper this would constitute a reason why he should not employ them,
and the aim of the law to encourage American shipping would be pro tanto
attained; but, in the case of the Government, as it would receive back,
in the form of tax, what it paid out in the form of increased charges
for transportation, the above mentioned motive could not operate, and it
is reasonable to conclude that the case was not one contemplated by the
framers of the law. It follows that, in my opinion, a vessel having no
other cargo than coal belonging to the United States and intended for
the use of the Navy is not a vessel having on board goods, wares, or
merchandise under the terms of section 4219, as amended by the acts of
1877 and 1884; and therefore that, supposing the Ferndene to have had
no other cargo than the above-mentioned coal, she is not liable to the
tonnage tax of 50 cents per ton mentioned in your letter.
The determination of this question renders it unnecessary to express
any opinion as to the first, second, and fourth questions submitted,
through you, by the Commissioner of Navigation. With respect to the
fifth question, I understand this to be predicated upon the hypothesis
that the Ferndene shall have been held liable to the tonnage tax. As
above stated, I hold that she is not so liable, and, if I rightly
understand the letter of the Commissioner of Navigation, your Department
is satisfied that exemption from such liability involves exemption from
the "light money" under the provisions of section 4225, R.S., as well.
It is not, therefore, necessary that I should give an opinion with
respect to the lastly above-mentioned section.
I remain, very respectfully,
CHARLES J. BONAPARTE.
NATIONAL FOREST RESERVE-- CONSERVATION CHARGE FOR USE OF LANDS OR
RESOURCES; 26 Op.Att'y.Gen. 421, October 5, 1907
The Secretary of Agriculture is authorized by the act of February 15,
1901 (31 Stat., 790), to make the granting of permits for the use of
lands or resources within the national forest reserves for the purposes
contemplated by that act, which include irrigation, mining, and
quarrying, etc., dependent upon the payment of such charges as he may
deem reasonable.
Whether charges based upon the grounds specifically enumerated by the
Secretary of Agriculture, to wit, the use of the ground and rights of
way without regard to their special value for the particular purposes
contemplated by the permit, and for "conservation," being the special
value of the land for the particular purpose contemplated in excess of
its value for general purposes,-- would or would not be reasonable, is
not a question which can properly be determined by the Attorney-General.
Intimated, that the right to use water on the forest reserves can be
secured only under the provisions of the act of June 4, 1897 (30 Stat.,
35) and of other legislation specifically referring to the reserves,
unless such rights existed before the particular reserve in question was
created.
DEPARTMENT OF JUSTICE,
October 5, 1907.
The SECRETARY OF AGRICULTURE.
SIR: I have the honor to acknowledge the receipt of your letter of
August 13 last past, requesting an opinion from me in regard to your
authority to make a "conservation charge" as a condition for permits to
use lands or resources within the limits of the national forest
reserves. The specific questions propounded by you are whether you have
authority, in making such charges, to include a reasonable
compensation--
"1. For the use of the ground occupied by any reservoirs, diverting
dams, or power stations, according to their area, without regard to its
special value for the particular purpose contemplated by the permit.
"2. For the right of way for any canal, flume, pipe, or pole line,
according to its length, without regard to its special value for the
particular purpose contemplated by the permit.
"3. For 'conservation,' by which is meant all other advantages,
opportunities, resources, or services furnished by the Government to the
permittees, or damage suffered by it through the enjoyment of the
permit;
or, in other words, the special value of the land occupied by the
permittee for the particular purpose contemplated by the permit in
excess of its value for general purposes."
These permits are authorized by the act of February 15, 1901 (31
Stat., 790), of which the material portion is as follows:
"The Secretary of the Interior * * * is authorized and empowered,
under general regulations to be fixed by him, to permit the use of
rights of way through the public lands, forest and other reservations of
the United States, and the Yosemite, Sequoia, and General Grant national
parks, California, for electrical plants, poles, and lines for the
generation and distribution of electrical power, and for telephone and
telegraph purposes, and for canals, ditches, pipes and pipe lines,
flumes, tunnels, or other water conduits, and for water plants, dams,
and reservoirs used to promote irrigation or mining or quarrying, or the
manufacturing or cutting of timber and lumber, or the supplying of water
for domestic, public, or any other beneficial uses to the extent of the
ground occupied by such canals, ditches, flumes, tunnels, reservoirs, or
other water conduits or water plants, or electrical or other works
permitted hereunder, and not to exceed fifty feet on each side of the
marginal limits thereof, or not to exceed fifty feet on each side of the
center line of such pipes and pipe lines, electrical, telegraph, and
telephone lines and poles, by any citizen, association, or corporation
of the United States, where it is intended by such to exercise the use
permitted hereunder of any one or more of the purposes herein named:
Provided, That such permits shall be allowed within or through any of
said parks or any forest, military, Indian, or other reservation only
upon the approval of the chief officer of the Department under whose
supervision such park or reservation falls and upon a finding by him
that the same is not incompatible with the public interest: Provided
further, That all permits given hereunder for telegraph and telephone
purposes shall be subject to the provisions of title sixty-five of the
Revised Statutes of the United States, and amendments thereto,
regulating rights of way for telegraph companies over the public domain:
And provided further, That any permission given by the Secretary of the
Interior under the provisions of this act may be revoked by him or his
successor in his discretion, and shall not be held to confer any right,
or easement, or interest in, or over any public land, reservation, or
park."
By section 1 of the act approved February 1, 1905 (33 Stat., 628), it
is provided that--
"The Secretary of the Department of Agriculture shall, from and after
the passage of this act, execute or cause to be executed all laws
affecting public lands heretofore or hereafter reserved under the
provisions of section twenty-four of the act entitled 'An act to repeal
the timber-culture laws, and for other purposes,' approved March third,
eighteen hundred and ninety-one, and acts supplemental to and amendatory
thereof, after such lands have been so reserved, excepting such laws as
affect the surveying, prospecting, locating, appropriating, entering,
relinquishing, reconveying, certifying, or patenting of any of such
lands."
Section 5 of the same act is as follows:
"That all money received from the sale of any products or the use of
any land or resources of said forest reserves shall be covered into the
Treasury of the United States and for a period of five years from the
passage of this act shall constitute a special fund available, until
expended, as the Secretary of Agriculture may direct, for the
protection, administration, improvement, and extension of Federal forest
reserves."
It appears to me that, in so far as the questions relevant to your
inquiry are questions of law, they have been determined by the opinion
of my predecessor, furnished to you on May 31, 1905 (25 Op., 470). In
that opinion Attorney-General Moody says (p. 473.):
"Under the act of 1897 you are simply directed to so regulate the
occupancy and use of these reservations as to insure the objects thereof
and preserve the forests thereon from destruction. The act contains
nothing inconsistent with the making of a reasonable charge on account
of the use of the reserves under the permit granted by you.
By the act of 1905 you are to cover into the Treasury money received
from the 'use of any land or resources' of the reservations, which
'shall constitute a special fund * * * for the protection,
administration, improvement, and extention of the Federal forest
reserves.' Any sums of money realized in this connection would thus tend
to preserve the forests and insure the objects of the reservations, and
it might therefore be contended that Congress, in authorizing you to
regulate their use and occupation, considered the incidental question of
charging for their use a proper subject to be left to your judgment and
discretion. That such was the Congressional intent finds support in the
fact that services somewhat analogous to compensation have been required
for several years without any indication of a disapproval thereof on the
part of Congress.
"Furthermore, your power to prohibit absolutely the use or occupation
of any forest reserve, when such action is deemed by you essential to
insure its objects and preserve the forests from destruction, would
probably be unquestionable, and that the authority to prohibit carries
with it the right to attach conditions to a permission is well
established." (22 Opin., 13, 27.)
"In answer to your third question, therefore, I have to advise you
that, in my opinion, you are authorized to make a reasonable charge in
connection with the use and occupation of these forest reserves,
whenever, in your judgment, such a course seems consistent with insuring
the objects of the reservation and the protection of the forests thereon
from destruction."
The question under consideration in that case was whether you had
authority to make a reasonable charge as a condition of a permit under
the act approved June 4, 1897 (30 Stat., 35), which authorized the
Secretary of the Interior to--
"Make such rules and regulations and establish such service as will
insure the objects of such reservations, namely, to regulate their
occupancy and use and to preserve the forests thereon from destruction."
It will be observed that neither of these acts conferred upon the
Secretary of the Interior expressly any authority to make a charge of
any kind as a condition of granting the permits which they respectively
authorized. It was held, however, by Attorney-General Moody that such
authority was implied in the power conferred upon the Secretary by the
act of 1897 to grant or refuse the permits, in his discretion, and the
act of 1905 was referred to as substantially a legislative recognition
of this authority on his part. If, however, the act of 1897 conferred
upon the Secretary of the Interior, and, therefore, afterwards upon the
Secretary of Agriculture, the authority in his discretion to require
payment of a reasonable charge as a condition of issuing any such
permits as are authorized by the said act, it seems to me quite clear
that the act of 1901, above quoted, conveys the like authority. The
language of the later act appears to me more explicit than that of the
former, and the intention of the Congress to leave the privileges
granted under that act revocable in the discretion of the Secretary, as
is expressly stated in the last proviso, above quoted, of the act of
1901, seems to be more nearly consonant with a purpose to intrust to his
discretion all matters connected with the granting of such permits than
is any relevant provision to be found in the act of 1897. I conclude,
therefore, that you are authorized by the act of 1901 to make the
granting of permits for the purposes contemplated by that act dependent
upon the payment by the persons receiving such permits of such charges
as you may deem reasonable for the purposes contemplated by the law.
Whether charges based upon the three grounds specifically enumerated
in your letter requesting an opinion, would or would not be reasonable,
is not, under the circumstances of this case, a question proper to be
determined by this Department, but a matter left by the law entirely to
your discretion. In Riverside Oil Company v. Hitchcock (190 U.S., 325),
referred to in the opinion of Attorney-General Moody, above quoted, the
court says: "The responsibility as well as the power rests with the
Secretary, uncontrolled by the courts." This would seem to be no less
true as to the question presented in the present case.
It may be well for me to say, however, that I do not think it clear,
as seems to be assumed in some of the papers forwarded with your letter,
that no charge can be made for water used by persons to whom permits may
be granted under the act approved February 15, 1901. Such persons,
independently of their permits, would have no right or authority to
appropriate the waters within the forest reserves; at all events, for
such a purpose as the production of electric power. It is true that the
Congress and the courts have recognized a right to appropriate water on
the public lands under State laws or local customs, but lands within the
forest reserves are not covered by general statutes referring to the
public lands; and the right to use water on such reserves can be
secured, it would seem, only under the provisions of the act approved
June 4, 1897, and of other legislation specifically referring to the
reserves, unless, perhaps, such rights existed before the particular
reserve in question was created. I do not, however, consider it
necessary to express a positive opinion on this subject, since I
understand from your letter that you do not intend to consider the value
of the mere use of the water itself in fixing the compensation to be
paid as a condition of permits for its use.
I advise you, therefore, in conclusion, that, in my opinion, you have
the right to make what you believe to be a reasonable charge, as a
condition of issuing permits under the act of February 15, 1901, and
that your determination is decisive as to what charge is, or is not,
reasonable for such purpose.
Very respectfully,
CHARLES J. BONAPARTE.
COAL FOR NAVY-- TRANSPORTATION IN FOREIGN VESSELS; 26 Op.Att'y.Gen.
415, October 3, 1907
Section 4347, Revised Statutes, and the act of February 17, 1898 (30
Stat., 248), which prohibit the transportation of merchandise from one
domestic port to another in vessels owned by foreigners, "under penalty
or forfeiture thereof," do not apply to property owned by the
Government.
A prohibition in a statute of general application does not extend to,
or affect, the sovereign, unless its language requires that such a
meaning shall be given to it. The sovereign authority of the country is
not bound by the words of a statute, unless named therein. (20 Wall.,
251.)
Coal for the use of the Navy may, under existing law, be transported
by sea from ports on the Atlantic to ports on the Pacific coast of the
United States in vessels of foreign registry where sufficient American
vessels for that purpose can not be had, or where the charges made by
such vessels are excessive and unreasonable.
The forfeiture of such coal would merely vest the title thereto in
the United States, and the Government would thereby merely acquire title
to something which it already owned.
The act of April 28, 1904 (33 Stat., 518), which provides that the
War and Navy Departments shall in general employ vessels of the United
States for the transportation of coal and other supplies purchased for
the use of the Army or Navy, provided the rates charged are not
excessive or unreasonable, contemplates the possibility that it may be
impossible to comply with its terms without exposing the Government to
exorbitant and unreasonable expense.
This statute does not expressly cover the contingency that there
might be no American vessels obtainable at any cost, but in such a case
the rule of a reasonable construction of all legislative acts applies,
and there would be the same right to employ other means of
transportation as is expressly granted where American vessels can be
procured, but only at excessive cost to the Government.
Whenever the President shall determine, as provided by the act of
1904, that the rates of freight charged by American vessels for the
transportation of coal or other supplies purchased for the use of the
Navy are excessive or unreasonable, the Navy Department is authorized to
procure such transportation through free competition, open to both
American and foreign shipowners.
The preference granted by this act is to be construed as a privilege
to be claimed by American shipowners, which provision is inoperative if
not claimed under the conditions prescribed by the law itself.
DEPARTMENT OF JUSTICE,
October 3, 1907.
The SECRETARY OF THE NAVY.
SIR: I have the honor to acknowledge the receipt of your letter of
October 1. In this you ask my opinion upon the question whether the
prohibitions of section 4347, Revised Statutes, and the act of February
17, 1898 (30 Stat., 248), refer to property owned by the Government, and
whether, under existing laws, coal for the use of the Navy may be
transported by sea from ports on the Atlantic to ports on the Pacific
coast of the United States in vessels of foreign registry, provided it
appears, as a matter of fact, that sufficient American vessels to
transport such coal can not be had, or that the charges made by such
vessels are excessive and unreasonable. Section 4347 of the United
States Revised Statutes, so far as material to the foregoing questions,
is as follows:
"No merchandise shall be transported under penalty of forfeiture
thereof, from one port of the United States to another port of the
United States, in a vessel belonging wholly or in part to a subject of
any foreign power."
By the act approved February 17, 1898 (30 Stat., 248), this portion
of the above-mentioned section was amended so as to read as follows:
"That no merchandise shall be transported by water under penalty of
forfeiture thereof from one port of the United States to another port of
the United States, either directly or via a foreign port, or for any
part of the voyage, in any other vessel than a vessel of the United
States."
You ask whether the prohibition contained in this statutory provision
extends to merchandise which constitutes "property owned by the
Government." It is a well-settled principle of statutory construction
that a prohibition of this character does not extend to, or affect, the
sovereign, unless its language requires that such a meaning shall be
given to it. This rule is thus stated in Bacon's Abridgment, title
"Prerogative," 3-5: "Where a statute is general, and thereby any
prerogative, right, title, or interest is vested or taken from the King,
in such case he shall not be bound unless the statute is made by express
words to extend to him." This rule has been fully adopted with respect
to the United States. (U.S. v. Knight, 14 Peters, 301; U.S. v. Herron,
20 Wallace, 251, 255.) In the last-mentioned case the Supreme Court says
it is "the settled rule of construction that the sovereign authority of
the country is not bound by the words of a statute, unless named
therein." If, therefore, there had been nothing in the language of this
statute to indicate whether it was or was not intended to apply to
merchandise owned by the United States, the rule of construction to
which I have referred would require that it be held not to have such
application. There is, however, in the statute itself language which, in
my opinion, is decisive of this question. Both section 4347 and the act
of 1898 prohibit the transportation of merchandise from one domestic
port to another in vessels owned by foreigners "under penalty of
forfeiture thereof." A forfeiture in such case divests the title of the
owner of the property forfeited, and vests this title in the Government.
If the merchandise subject to forfeiture already belongs to the
Government it is obvious that the proceeding would be altogether
nugatory and futile. The Government would acquire by it title to
something which it already owned, and the offender-- that is to say, the
United States itself-- would be in precisely the same position in which
it was prior to the infliction of the penalty. Under these circumstances
it seems quite clear to me that, even without a resort to the rule of
construction to which I have referred, the provisions of this law must
be construed as inapplicable to merchandise owned by the United States.
I answer, therefore, your first question in the negative, and advise you
that, in my opinion, the provisions of section 4347, United States
Revised Statutes, and of the act approved February 17, 1898, do not
apply to property owned by the Government.
In reply to your second question, I advise you that its
subject-matter appears to be covered by the act approved April 28, 1904
(33 Stat., 518). The relevant portion of this statute is as follows:
"That vessels of the United States, or belonging to the United
States, and no others, shall be employed in the transportation by sea of
coal, provisions, fodder, or supplies of any description, purchased
pursuant to law, for the use of the Army or Navy unless the President
shall find that the rates of freight charges by said vessels are
excessive and unreasonable, in which case contracts shall be made under
the law as it now exists: Provided, That no greater charges be made by
such vessels for transportation of articles for the use of the said Army
and Navy than are made by such vessels for transportation of like goods
for private parties or companies."
It will be observed that this law makes it the duty of the War and
Navy Departments to employ, in general, vessels of the United States,
and no others, for the transportation of coal and other supplies
purchased for the use of the Army or Navy. Of course, if the Congress
had seen fit by this statute to prohibit the transportation of supplies
for the Army or Navy in foreign vessels absolutely, under all
circumstances, without exception and without regard to the consequences,
any and all such shipments would be illegal, but the law provides that
if the President shall find "that the rates of freight charged by said
vessels are excessive and unreasonable * * * contracts shall be made
under the law as it now exists." It is obvious, therefore, that the
statute contemplates the possibility that it may be impracticable to
comply with its terms without exposing the Government to exorbitant and
unreasonable expense, and it is intended, in such event, that even the
particular terms of the prohibition shall not prevent the transportation
of articles evidently necessary for the maintenance and efficiency of
the national forces.
The contingency that there might be no American vessels obtainable at
any cost, however great, to transport the articles in question is not
expressly covered by the terms of the exception; but in view of the
evident purpose of the statute, which was plainly to encourage the
development of American shipping, and the grave consequences which might
ensue from a failure to supply the Army or Navy with fuel, food, or
munitions, of war, we are entitled and, indeed, obliged, in my opinion,
to apply in this case the rule that a reasonable construction must be
applied to the interpretation of all legislative acts, and, therefore,
that when no American vessels can be procured, even by the payment of
unreasonable and exorbitant charges, there is the same right to employ
other means of transportation which is expressly granted when such
vessels can be procured but only at an excessive cost to the Government.
It remains to be seen what are the means of transportation open to
the Navy Department if the President shall determine that the rates of
freight charges by American vessels are excessive and unreasonable. The
statute says that "contracts shall be made under the law as it now
exists"-- that is to say, under the law as it existed prior to April 28,
1904. This language, so far as it affects the Navy, would seem to refer
to section 3718, United States Revised Statutes, which is as follows in
so far as relevant:
"All provisions, clothing, hemp, and other materials of every name
and nature, for the use of the Navy, and the transportation thereof,
when time will permit, shall be furnished by contract, by the lowest
bidder."
This provision is codified, with a slight change of language, from
the act approved March 3, 1843 (5 Stat., 617), and it would seem to be
the only provision of law directly applicable to the transportation of
supplies for the Navy. It is obvious that nothing in the language of
this statute restricts the competition for which it provides to vessels
of American ownership,
and I therefore reach the conclusion that when the President shall find
the facts he is required to pass upon by the terms of this statute the
Navy Department is authorized to procure transportation for coal or
other supplies which it may purchase for the use of the Navy, through a
free competition, open to both American and foreign shipowners.
It is to be observed in this connection, as showing that the
preference to be accorded American vessels was not intended to prevent
the employment of ships owned by foreigners in certain contingencies,
that this preference is subject to an affirmative condition, namely,
that the vessels claiming it must not discriminate against the
Government in their charges, as these are compared with rates of freight
established for private shippers; so that the statute would not be
operative at all if the American vessels available for transportation
charged less to private shippers for the like service than they did to
the Government. It seems obvious, therefore, that the preference granted
by this statute is to be construed as a privilege to be claimed by
American shipowners, and which is inoperative if not claimed under the
conditions prescribed by the law itself.
With the above qualifications, I answer your second question in the
affirmative. I therefore advise you that, in my opinion, the
prohibitions of section 4347, United States Revised Statutes, and of the
act of February 17, 1898, do not refer to property owned by the
Government, and that under existing laws coal for the use of the Navy
may be transported by sea from ports on the Atlantic to ports on the
Pacific coast of the United States in vessels of foreign registry under
the circumstances stated in your letter if these shall be found by the
President.
Very respectfully,
CHARLES J. BONAPARTE.
IMMIGRATION-- Geronimo GARCIA-- PROMISE OF EMPLOYMENT MADE BY STATE
OFFICER; 26 Op.Att'y.Gen. 410, September 30, 1907
An alien who arrived at New Orleans from Cuba on August 5, 1907, his
passage money having been paid by an agent of the Louisiana State board
of agriculture and immigration out of funds appropriated by that State,
the agent having assured the alien of employment upon his arrival, which
assurance operated as a material, if not the principal, inducement to
his immigration, the expectation being that the employer will loan the
alien the sum so advanced for the reimbursement of the State,-- is not
entitled to admission to the United States.
The classes of aliens excluded by section 2 of the act of February
20, 1907 (34 Stat., 898), include "aliens solicited or induced to
immigrate by reason of offers or promises, even if there is no contract
of employment." (26 Op., 199, 207.)
Section 6 of the act of 1907 contains no exceptions in favor of a
State in reference to specific promises of employment to individual
immigrants, nor any requirement that the promises of employment, in
order to work exclusion, must be the sole inducement to exclusion.
The right of Congress to regulate the admission of aliens into the
United States clearly controls the action of any State agent in this
respect. (26 Op., 180.)
While the payment of an immigrant's passage out of State funds does
not of itself require his exclusion, yet such payment operates to throw
upon the immigrant the burden of showing that he does not come within
any of the otherwise excluded classes, such as paupers, etc.,
specifically excluded by the act.
The merely hypothetical possibility of a condition arising under the
indirect method of attempting to eventually secure reimbursement to the
State fund of the amount of the alien's passage, which could perhaps be
regarded as in effect a payment of his passage by a corporation,
society, or association, would not be a ground of exclusion.
DEPARTMENT OF JUSTICE,
September 30, 1907.
The SECRETARY OF COMMERCE AND LABOR.
SIR: I have the honor to acknowledge the receipt of your letter of
the 26th instant in reference to the appeal of Geronimo Garcia, who has
been excluded from the United States by a decision of the board of
special inquiry at the port of New Orleans, in a test case brought by
the Louisiana State board of agriculture and immigration, in which you
recite the facts brought out by the testimony and request an expression
of my opinion as to whether the admission of an alien to the United
States under the circumstances thus recited would be in violation of the
immigration act of February 20, 1907.
The facts as stated by you are as follows:
"Geronimo Garcia arrived at the port of New Orleans from Cuba on
August 5, 1907. His passage was paid by Mr. Reginald Dykers, who at the
time was the regularly authorized agent of the Louisiana State board of
agriculture and immigration, out of funds appropriated in regular manner
by the State legislature. Mr. Dykers and a Mr. L. H. Allen, the latter
also being a representative of the said board, approached the alien in
Habana and solicited him to immigrate to the State of Louisiana,
assuring him that employment as a farm laborer would be secured for him
on his arrival in said State.
In exchange for the passage money the alien gave to the said officials a
receipt, in which he promised to return to the Louisiana State board of
agriculture and immigration within a year the sum so advanced. It is the
expectation of the State agent that in such cases, upon the alien's
securing employment, his employer will loan him the amount necessary to
reimburse the State and deduct the same from his wages; but no method
has been provided whereby an employer can be compelled to make such
loan, it being the intention of the State board to rely upon the moral
obligation of the alien's promise to reimburse the State, and not upon
any legal measures against him or his employer. The alien is left free
to select such employer as he pleases, although the expectation of the
agent is that aliens selected by him under this plan will be of such a
reliable class that they will usually seek employment from parties who
can be depended upon to advance to the alien the amount of the passage
and enable him to therewith reimburse the State fund. It also appears
that, while the alien Garcia had seen advertisements published abroad by
the Louisiana State board of agriculture and immigration, reciting the
inducements the State of Louisiana offers for immigration thereto, he
was not induced to come to the United States solely by reason of such
inducements; nor was the sole inducement the fact that his passage was
paid by another, nor the fact, 0rought out in the testimony, that his
father had previously come to this country. These facts operated to some
extent, however, to lead him to endeavor to avail himself of the
assurances given by the above-named agents that employment as a farm
laborer would be secured for him on his landing in Louisiana.
"Although the desire of the State agent is that Garcia, if landed,
shall enter the employ of an individual planter who would be willing to
loan him the cost of his passage and gradually deduct it from his wages,
thus enabling said alien to immediately reimburse the State fund, he is,
as above stated, left free to accept other employment if he so desires;
and there is no evidence that shows positively that the said Garcia (or
any other alien imported in accordance with the plan) might not, after
landing, be employed by a corporation, association, or society as freely
and in the same manner as by an individual; suggesting a possibility
that, under the indirect method of attempting to eventually secure
reimbursement to the State fund of the amount of the alien's passage, a
condition could arise which might, perhaps, be regarded as being,
remotely but yet in effect, a payment of such passage by a corporation,
society, or association."
Upon these facts I am of the opinion that Garcia is not entitled to
admission into the United States.
1. It appears from this statement that representatives of the
Louisiana State board approached Garcia in Havana and solicited him to
immigrate to Louisiana, assuring him that employment as a farm laborer
would be secured for him on his arrival, and that such assurances
operated as a material, if not the principal, inducement to his
immigration, since neither the advertisements published by the State,
nor the payment of his passage, nor his father's previous coming, was
the sole inducement to his coming, but these matters operated to some
extent to lead him to endeavor to avail himself of the assurances of
employment given him by the representatives of the State board.
Among the classes of aliens excluded by section 2 of the act of 1907
(34 Stat., 898) are: "Persons hereinafter called contract laborers, who
have been induced or solicited to migrate to this country by offers or
promises of employment or in consequence of agreements, oral, written or
printed, express or implied, to perform labor in this country of any
kind, skilled or unskilled." This provision, as stated in my opinion
rendered the President on March 20, 1907, excludes "aliens solicited or
induced to immigrate by reason of offers or promises, even when there is
no contract of employment." (26 Op., 199, 207.)
The assurances given to Garcia by the State agents constitute, in my
opinion, promises of employment within the inhibition of the statute.
While it is provided that aliens coming to this country in consequence
of advertisements by a State of its inducements to immigration shall not
be treated as coming under a promise of employment (sec. 6), there is no
exception in favor of a State in reference to specific promises of
employment to individual immigrants such as were held out to Garcia by
the representatives of the State board. Neither is there any requirement
in the act that the promises of employment in order to work exclusion
must be the sole inducement to the immigration.
Therefore, since as stated in my opinion rendered the President on
March 6, 1907, the unquestionable right of Congress to regulate the
admission of aliens into the United States clearly controls the action
of any State agent in this respect (26 Op., 180, 193), it follows that
on account of the assurances of employment that were given to Garcia as
an inducement to his immigration, he should be excluded from admission.
2. Furthermore, as his passage was paid out of State funds, unless it
was also clearly shown that he did not belong to any of the classes,
such as paupers, etc., specifically excluded by the act, he comes within
the provision of section 2 of the act (34 Stat., 898) excluding "any
person whose ticket or passage is paid for with the money of another, or
who is assisted by others to come, unless it is affirmatively and
satisfactorily shown that such person does not belong to one of the
foregoing excluded classes, and that said ticket or passage was not paid
for by any corporation, association, society, municipality, or foreign
government, either directly or indirectly." Under this provision, while
the payment of an immigrant's passage out of State funds does not of
itself require his exclusion, yet such payment by a State, just as by an
individual, operates to throw upon the immigrant the burden of clearly
showing that he does not come within any of the otherwise excluded
classes, and in case of his failure to so show he is not entitled to
admission.
3. In reference to your suggestion that, under the indirect method of
attempting to eventually secure reimbursement to the State fund of the
amount of the alien's passage,
a condition might arise which could perhaps be regarded as in effect a
payment of his passage by a corporation, society, or association, as the
statement of facts does not show that any such condition actually
exists, or that his passage money is in fact to be so repaid, I am of
the opinion, without passing upon the question as to what would be the
effect of such a condition if it did arise, that the mere hypothetical
possibility of such a condition would not be a ground of exclusion.
Respectfully,
CHARLES J. BONAPARTE.
WEIGHING OF THE MAILS; 26 Op.Att'y.Gen. 390, September 27, 1907
Order 165 of the Post-Office Department, with regard to weighing the
mails on railroad routes, which provides that "the whole number of days
the mails are weighed shall be used as a divisor for obtaining the
average weight per day," may lead to arbitrary and inequitable results.
Order 412, which provides that "the whole number of days included in
the weighing period shall be used as a divisor," will give as the
average weight per day during a year, the average weight during somewhat
more than one-fourth of a year, without resulting in greater inaccuracy
or injustice than is authorized and contemplated by the act of March 3,
1905.
The mails are to be weighed, under the act of March 3, 1905 (33
Stat., 1088), on "working days" only, and "working days" mean days in
which the carrier does work for the post-office-- not "week days."
The act does not prohibit the Postmaster-General from weighing the
mails throughout the year, nor does it require that the number of
working days on which the mails are weighed shall be the same in the
case of every carrier, although in none may they be less than ninety, or
other than "successive" days.
The form and method in which the information obtained from weighting
the mails shall be utilized is a matter within the discretion of the
Postmaster-General, provided his action shall be directed to the
ascertainment of what in his judgment, would be an average weight per
day of mails carried during a year, as nearly true as may be
practicable, to be used as a basis for the yearly compensation of the
carriers.
Where the meaning of a statute is doubtful or ambiguous, the
practical construction placed upon it by the Department of the
Government charged with its administration, if contemporaneous, uniform,
and long continued, although not deemed controlling on the courts, will
ordinarily be followed.
Departmental construction is, however, without weight where the
statute is clear and explicit and free from ambiguity or doubt.
The practice of weighing the mails on Sundays, and yet of excluding
Sundays from the divisor when the average is to be ascertained, is
clearly erroneous. If Sundays are not "working days," the law does not
permit the mails to be weighed on that day; if they are "working days,"
their exclusion from the division renders the result of the computation
false.
DEPARTMENT OF JUSTICE,
September 27, 1907.
The POSTMASTER-GENERAL.
SIR: I have the honor to acknowledge your request for an opinion as
to the legality of order 412 of your Department, issued June 7, 1907,
and of order No. 165, for which it was a substitute. I learn from you
that these orders are as follows:
Order No. 165, dated March 2, 1907:
"That when the weight of mail is taken on railroad routes, the whole
number of days the mails are weighed shall be used as a divisor for
obtaining the average weight per day."
Order No. 412, dated June 7, 1907:
"When the weight of mail is taken on railroad routes, the whole
number of days included in the weighing period shall be used as a
divisor for obtaining the average weight per day."
The statutes which appear to bear directly on the subject are the
following:
"Section 4002 of the Revised Statutes (from the act of March 3, 1873,
17 Stat., 558):
"SEC. 4002. The Postmaster-General is authorized and directed to
readjust the compensation hereafter to be paid for the transportation of
mails on railroad routes upon the conditions and at the rates
hereinafter mentioned:
"First. That the mails shall be conveyed with due frequency and
speed; and that sufficient and suitable room, fixtures, and furniture,
in a car or apartment properly lighted and warmed, shall be provided for
route agents to accompany and distribute the mails.
"Second. That the pay per mile per annum shall not exceed the
following rates namely: On routes carrying their whole length an
average weight of mails per day of two hundred pounds, fifty dollars;
five hundred pounds, seventy-five dollars;
one thousand pounds, one hundred dollars; one thousand five hundred
pounds, one hundred and twenty-five dollars; two thousand pounds, one
hundred and fifty dollars; three thousand five hundred pounds, one
hundred and seventy-five dollars; five thousand pounds, two hundred
dollars, and twenty-five dollars additional for every additional two
thousand pounds, the average weight to be ascertained, in every case, by
the actual weighing of the mails for such a number of successive working
days, not less than thirty, at such times, after June thirtieth,
eighteen hundred and seventy-three, and not less frequently than once in
every four years, and the result to be stated and verified in such form
and manner as the Postmaster-General may direct."
Post-office appropriation act of March 3, 1875 (18 Stat., 341),
following an appropriation for inland mail transportation by railroad:
" * * * And out of the appropriation for inland mail transportation
the Postmaster-General is authorized hereafter to pay the expenses of
taking the weights of mails on railroad routes, as provided by the act
entitled 'An act making appropriations for the service of the
Post-Office Department for the year ending June thirtieth, eighteen
hundred and seventy-four,' approved March third, eighteen hundred and
seventy-three; and he is hereby directed to have the mails weighed as
often as now provided by law by the employees of the Post-Office
Department, and have the weights stated and verified to him by said
employees under such instructions as he may consider just to the
Post-Office Department and the railroad companies."
Post-office appropriation act of March 3, 1905 (33 Stat., 1088),
following an appropriation for inland mail transportation by railroad:
"Provided, That hereafter before making the readjustment of pay for
transportation of mails on railroad routes, the average weight shall be
ascertained by the actual weighing of the mails for such a number of
successive working days, not less than ninety, at such times after June
thirtieth, nineteen hundred and five, and not less frequently than once
in every four years, and the result to be stated and verified in such
form and manner as the Postmaster-General may direct."
The acts of July 12, 1876 (19 Stat., 79), June 17, 1878 (20 Stat.,
142), and March 2, 1907 (34 Stat., 1205-1212), make certain changes in
the rates of compensation, but none in the method of ascertaining the
average daily weight of mail transported.
Were this question res integra I should not consider it one of much
difficulty. Section 4002, Revised Statutes, fixes a rate of yearly pay
per mile of track used to transport the mails, determined by the
"average weight of mails per day" carried the entire length of the
route. I see no escape from the conclusion that this means the average
weight per day during a year; so that if, on a particular route, there
were thus carried on one day 365,000 pounds and on the remaining three
hundred and sixty-four days nothing at all, the "average weight of mails
per day," on which the annual compensation should be calculated, would
be 1,000 pounds. If, therefore, it had been deemed practicable or
advisable to weigh all the mails transported by rail every day of the
year there could have been, to my mind, no doubt as to how the "average
weight per day" would be determined; whether the mails were so carried
on three hundred and sixty-five days or on three hundred and thirteen or
on one hundred and fifty-six or on twelve, or, as above suggested, on
one day, their aggregate weight would have been added up and divided, in
all cases alike, by 365.
It is, however, often impracticable without unreasonable labor to
ascertain a strictly accurate average, and, in such cases, a
conventional average is frequently established by law, agreement, or
custom, which is nearly enough right for all practical purposes and can
be ascertained with vastly less trouble. A familiar example of this
practice is the calculation of interest on a current bank balance. For
this to be absolutely correct the balances due on every day of the year
would have to be determined, added up, and divided by the whole number
of days, i.e., 365, which, in the case of, say, a savings bank with many
thousands of small accounts might involve an expense altogether
disproportionate to the amount of the interest.
It is, therefore, customary to ascertain the balances on a comparatively
small number of days, often twelve, throughout the year, average these,
and assume the result to be the average annual balance for the purpose
of calculating interest.
It seems to have been, or to have been thought, unreasonably
burdensome to require the mails to be weighed every day of the year;
and the Congress, by the acts of March 3, 1873, and March 3, 1905, above
noted, prescribed conventional methods of ascertaining the average
weight. The methods are thus stated:
Act of March 3, 1873:
" * * * the average weight to be ascertained, in every case, by the
actual weighing of the mails for such a number of successive working
days, not less than thirty, at such times, after June thirtieth,
eighteen hundred and seventy-three, and not less frequently than once in
every four years, and the result to be stated and verified in such form
and manner as the Postmaster-General may direct."
Act of March 3, 1905:
" * * * the average weight shall be ascertained by the actual
weighing of the mails for such a number of successive working days, not
less than ninety, at such times after June thirtieth, nineteen hundred
and five, and not less frequently than once in every four years, and the
result to be stated and verified in such form and manner as the
Postmaster-General may direct."
It will be noted that these two acts say nothing about "divisors"
and, indeed, do not profess to deal with the method of computation at
all; how from the statement of weights he should obtain the result
sought, that is to say, the daily average for a year on which the
compensation was to be based, was a matter left to the discretion of the
Postmaster-General; the Congress said to him only: "You need not cause
the mails to be weighed every day of the year to ascertain the average
weight per day during the year; you may, if you so choose" (for, it is
to be observed, the law is permissive merely; the Postmaster-General,
if he has money enough, may order the mails to be weighed for three
hundred and sixty-five days) "you may, if you choose, weigh the mails
only thirty (now ninety) days of each year and only once in four years;
but if you do this, the days selected must be working days and must be
successive."
It is important to determine the meaning of the words lastly above
italicized. It is said that "working days" has been consistently
interpreted by the practice of your Department to mean "week days." I do
not think this statement can be sustained, for I am informed by you that
prior to the act of 1905 the practice had been to weigh the mails on
thirty-five consecutive days, thus including five Sundays. Now, I think,
the law is on one point, at all events, perfectly clear-- the mails are
to be weighed on "working days" and on "working days" only; the use of
the word "successive," instead of "consecutive" or some term of similar
import, harmonizes exactly with this literal and, to my mind,
unavoidable, interpretation of the remaining words used. If, therefore,
"working days" are to be read "week days," the practice of your
Department, in thus weighing the mails on five Sundays, has been
altogether illegal; if, however, the meaning of "working days" be "days
on which mails are carried," the practice, to this extent, has been
legal and in accord with what I believe to be the true intent of the
law. As the practice of any of the great Executive Departments must
always be assumed, so far as such assumption be possible, to rest upon a
consistent and tenable view of the law, it is, I think, fair to say that
the practice of the Post-Office Department, as contradistinguished from
the language sometimes used by prominent officials in the course of the
prolonged discussion of questions connected with this subject-matter,
sustains the view that the words "working days" mean "days on which the
carrier does work for the Post-Office," and not "week days;" and this I
regard as clearly the true interpretation of the law.
It would seem, however, that an error has crept into the practice of
your Department, as hereinafter stated, in the method of dealing with
the information furnished through weighing the mails for at least
thirty, now ninety, working days.
As above noted, the obvious purpose of this provision is to relieve the
Postmaster-General from the necessity of weighing the mails for every
working day of the year. It does not prohibit him from weighing the
mails throughout the year; nor does it require that the number of
working days on which the mails are weighed shall be the same in the
case of every carrier, although in none may they be less than thirty,
now ninety, or other than "successive." Moreover, it in nowise changes
the purpose of the inquiry, which, as above explained, has always been
to ascertain a fair average per day during a year; not, of course, a
fair average per day during seven or thirty or thirty-five or ninety or
one hundred and five days, or any other fraction of a year. Having
obtained from the results of the weighing such information as it can
furnish as to the fair average weight for a "working day," it is left to
the Postmaster-General to so deal with this information as to determine
from it by appropriate calculations what would be a fair daily average
for the ends of the law, i.e., as a basis for an annual compensation. It
is obvious that from the mere weighing (which is all the law
prescribes), standing alone, nothing would be determined as to the
average; the Postmaster-General must therefore do something not
mentioned in the statute to ascertain this, and although this matter is
left to your discretion, and you are, of course, in nowise bound by any
views expressed in this opinion regarding it, I think it may conduct to
clearness if I here indicate what form of calculation appears to me best
adapted to attain the ends of the law. We may suppose three railroads,
of which one serves the mails seven; one, six, and one, three days in
each week, and that the aggregate results of the weighing, divided by
the number of days on which, in each case, the mails have been weighed,
shows in each a daily average per working day of 1,000 pounds. In
determining for each the fair average per day during a year, no change
is needed in the figures for the first; those for the second should be
reduced by one-seventh, and those for the third by four-sevenths; so
that the first would be 1,000 pounds, the second, 857.14 pounds, the
third, 428.57 pounds.
I have said that I should consider the question involved in your
request one of no great difficulty were it a new one; such, however, is
not the case.
Prior to the issuance of order No. 165 on March 2, 1907, the uniform
practice of the Post-Office Department, except for a short period in
1884, as hereinafter stated, in determining the average daily weight of
mail transported on railroad routes appears to have been to have such
mail weighed for a period covering not less than thirty successive
working days (which term had been alleged to mean thirty successive week
days, and therefore made such weighing period cover at least five weeks,
or thirty-five days), and in every case, whether the mail was carried
and weighed three, six, or seven days of the week, to divide the total
weight thus ascertained by the number of working or week days in such
period-- that is to say, thirty. Thus, in the case of a route on which
the mail was carried three days of the week, the weight was taken on
such days for five weeks and the aggregate of the fifteen weighings
divided by thirty to obtain the daily average. The same process was
followed for thirty or thirty-five weighings, respectively, in the cases
of routes on which the mail was carried six and seven days of the week.
The average obtained was described as a "working" or "week" day average,
and not considered a daily average; but with regard to Sunday-carrying
roads it was evidently neither.
This practice, it appears, grew out of an effort to compensate the
Sunday-carrying roads for facilitating the transmission of the mails.
It was thought that, if the weight of mails carried on Sundays had been
omitted in the case of such roads, they would not only have received no
compensation for carrying the same, but would have suffered an actual
loss by reason of their diligence, because, by delaying the same until
Monday, it was said that they could have had such mail weighed in on
that day.
In a letter from the Second Assistant Postmaster-General to C. Jay
French, Superintendent Railway Mail Service, fifth division, dated March
24, 1876, there are the following instructions:
"The mails are to be weighed for the given number of successive
working days (thirty in the weighing, to which these instructions
particularly relate), and in case mails are carried on any route also on
Sundays, returns of the weights of such Sunday mails are to be furnished
in the same manner as the others, to be included in consolidating the
returns for the period, the object being, as you are aware, to obtain a
fair average of the service for the working year. On the other hand, if
mails are conveyed less frequently than every working day the period of
the weighing is not to embrace more than the given number of working
days, counting both those on which mails are conveyed and those on which
they are not, the object being the same as in the other case."
On September 18, 1884. Postmaster-General W. Q. Gresham issued order
No. 44, as follows:
"That hereafter when the weight of mails is taken on railroad routes
performing service seven days per week the whole number of days the
mails are weighed, whether thirty or thirty-five, shall be used as a
divisor for obtaining the average weight per day."
Postmaster-General Gresham retired in October, 1884.
Postmaster-General Frank Hatton, who succeeded him, submitted the
question to the Attorney-General, his letter and the reply thereto being
as follows:
"OCTOBER 22, 1884.
"SIR: The act of March 3, 1873 (17 Stat., p. 558), regulating the
pay for carrying the mails on railroad routes provides * * * 'that the
pay per mile per annum shall not exceed the following rates, namely: On
routes carrying their whole length an average weight of mails per day of
200 pounds, $50; 500 pounds, $75; 1,000 pounds, $100; 1,500 pounds,
$125; 2,000 pounds, $150; 3,500 pounds, $175, etc., * * * ; the
average weight to be ascertained in every case, by the actual weighing
of the mails for such a number of successive working days, not less than
thirty, * * * .'
"Upon a large number of the railroad routes mails are carried on six
days each week-- that is, no mails are carried on Sunday. On others they
are carried on every day in the year.
"It has been the practice since 1875 in arriving at the average
weight of mails per day on these two classes of service to treat the
'successive working days' as being composed of the six working or
secular days in the week, which is explained by the following
illustrations:
"Two routes, No. 1 and No. 2, over each of which 313 tons of mail are
carried annually.
"On route No. 1 mails are carried twice daily except Sunday, six days
per week, and are weighed for thirty successive working days, covering
usually a period of thirty-five days. The result is divided by 30 and an
average weight of mails per day of 2,000 pounds is obtained.
"Transportation per mile of road per annum, 1,252 miles.
"Weight per mile of road per annum, 313 tons.
"Pay per ton per mile of road per annum, 37.92 cents.
"Pay per mile run, 11.9 cents.
"Rate of pay allowed per mile per annum, $150.
"On route No. 2 mails are carried twice daily, seven days per week,
and are weighed for thirty successive working days and for the
intervening Sundays, the weight on the Sundays being treated as if
carried on Mondays, the weighing, as before, covering usually a period
of thirty-five days. The result is divided by 30 and an average weight
of mails per day of 2,000 pounds is obtained.
"Transportation per mile of road per annum, 1,460 miles.
"Weight per mile of road per annum, 313 tons.
"Pay per ton per mile of road per annum, 47.92 cents.
"Pay per mile run, 10.2 cents.
"Rate of pay allowed per mile per annum, $150.
"I have thought it necessary to give the foregoing illustrations in
order that the practice of this Department under the law cited may
readily appear, and I will think you to advise me whether that practice
is in compliance with or in violation of the statute. If not in
conformity with the law, will you please indicate the correct method by
which the average weight per day should be obtained and the compensation
adjusted thereon?
"Very respectfully,
"FRANK HATTON,
"Postmaster-General.
"Hon. B. H. BREWSTER,
"Attorney-General, Department of Justice."
"DEPARTMENT OF JUSTICE,
"October 31, 1884.
"SIR: I have considered your communication of the 22d instant,
requesting to know whether the construction placed by the Post-Office
Department on section 4002, subordinate section 2, prescribing the mode
in which the average of the weight of mails transported on railroad
routes shall be ascertained, is correct, and am of opinion that that
construction is correct, and that a departure from it would defeat the
intention of the law and cause no little embarrassment.
"I have the honor to be, your obedient servant,
"S. F. PHILLIPS,
"Acting Attorney-General.
The POSTMASTER-GENERAL."
The above letter from the Acting Attorney-General is taken from
Opinions of Attorney-General, Vol. XVIII, page 71. While it is there
stated that it was signed by S. F. Phillips, the original, received at
the Post-Office Department, is signed by William A. Maury.
Postmaster-General Gresham's order was revoked January 16, 1885.
This order had evidently in view the same purpose as order No. 165.
We have here, then, a case where the practical interpretation placed
upon the act of Congress of March 3, 1873, in regard to obtaining the
daily average weight of mail upon railroad routes by the Post-Office
Department has been, except for a few months, unbroken for thirty-five
years, although its correctness was authoritatively challenged. It also
appears that while Congress in 1876 and 1878 and again in 1907 provided
for a reduction in the maximum rates established by the act of March 3,
1873, it made no change in the provision as to obtaining the average
weight.
It further appears that in 1905 Congress reenacted that provision in
exactly the same language, except that "ninety" was substituted for
"thirty."
Moreover, it should be noted that the post-office appropriation bill
(H.R. 25483) reported to the House on February 6, 1907, provided:
"The Postmaster-General is hereby authorized and directed to readjust
the compensation to be paid from and after the 1st day of July, 1907,
for the transportation of mails on railroad routes carrying their whole
length an average weight of mails per day of upward of 5,000 pounds by
making the following reductions from the present rates per mile per
annum for the transportation of mails on such routes: On routes
carrying their whole length an average weight of mails per day of more
than 5,000 pounds and less than 48,000 pounds, 5 per cent; 48,000
pounds and less than 80,000 pounds, 10 per cent; and $19 additional for
every additional 2,000 pounds: Provided, That hereafter the average
weight per day be ascertained, in every case, by the actual weighing of
the mails for such a number of successive days, not less than one
hundred and five, at such times and not less frequently than once in
every four years, and the result to be stated and verified in such form
and manner as the Postmaster-General may direct: Provided, further,
That hereafter, at the time of the weighing of the mails at the periods
required by law, empty mail bags shall not be weighed nor taken as any
part of the total weight of the mails in estimating the pay for
transportation of said mails."
The accompanying report from the Committee on the Post-Office and
Post-Roads and two minority reports discussed the question very fully
and showed clearly the intention on the part of the committee, that, in
the words of its report:
"In computing the average weight of mail carried per day, the whole
number of days such mail may be weighed shall be used as the divisor."
On February 20, 1907, while the House in committee of the whole was
considering the Post-Office bill, the following amendment was offered by
Mr. Murdock to follow the provision "For inland transportation by
railroad routes, $44,660,000:"
"Provided, That no part of this sum shall be expended in payment for
transportation of the mails by railroad routes where the average weight
of mails per day has been computed by the use of a divisor less than the
whole number of days such mails have been weighed."
A point of order was made against this amendment on the ground that
it changed existing law. The Chair sustained the point, observing (41
Cong.Rec., 3471):
"The CHAIRMAN. The existing law has received a construction by the
officers charged with the duty of administering it, and that
construction the Chair feels bound to follow. The proposed amendment
changes existing law as construed by the proper officer, by changing the
divisor. This is in the guise of a limitation, but it has been held over
and over again here that a limitation is negative in its nature and may
not include positive enactment establishing rules for executive
officers. It has been held further that while limitation may provide
that a part of an appropriation shall not be used except in a certain
way, yet the restriction of executive discretion may not go to the
extent of an imposition of new duties. And the limitation on the
discretion exercised under the law by a bureau of the Government is a
change of existing law. The decisions on the question of limitation, the
attempt to draw a well-defined distinction between changes of existing
law and a proper limitation, are among the most difficult questions that
the Chair is ever called upon to decide."
Upon appeal from the decision of the Chair, its ruling was sustained.
(Id., 3472.)
Later on the same day the provision of the bill above quoted
directing the Postmaster-General to readjust the compensation to be paid
from and after July 1, 1907, for the transportation of the mails on
railroad routes, which included the proviso "that hereafter the average
weight per day be ascertained, in every case, by the actual weighing of
the mails for such a number of successive days," etc. (the word
"working" being omitted), also went out upon a point of order.
(41 Cong.Rec., 3473.) Subsequently, on the same day, the rules were
suspended and this provision, without the proviso as to obtaining the
average, was inserted and became the law. (Id., 3494.)
The principles of law bearing upon the solution of the matter under
consideration in this aspect are settled by decisions of the Supreme
Court of the United States.
It has been held that where the meaning of a statute is doubtful or
ambiguous, the practical construction placed upon it by the Department
of the Government charged with its administration, if contemporaneous,
uniform, and long continued, although not deemed controlling on the
courts, is to be treated with respect and will ordinarily be followed.
(Brown v. United States, 113 U.S., 568; United States v. Philbrick, 120
U.S., 52; Robertson v. Downing, 127 U.S., 607; United States v.
Alabama R.R. Co., 142 U.S., 615.)
In the last-mentioned case, which involved the question of
compensation to railroads for carrying the mails, the court said (p.
621):
" * * * It is a settled doctrine of this court that, in case of
ambiguity, the judicial department will lean in favor of a construction
given to a statute by the department charged with the execution of such
statute, and, if such construction be acted upon for a number of years,
will look with disfavor upon any sudden change, whereby parties who have
contracted with the Government upon the faith of such construction may
be prejudiced."
But the true scope of this principle is illustrated by a considerable
number of cases in which the court has refused to adopt the departmental
construction of a statute. In these cases the court has said that such
departmental construction is without weight where the statute is clear
and explicit and free from ambiguity or doubt. (Swift Co. v. United
States, 105 U.S., 691, 695; United States v. Graham, 110 U.S., 219,
221; United States v. Tanner, 147 U.S., 661, 663; United States v.
Alger, 152 U.S., 384, 397; Studebaker v. Perry, 184 U.S., 258,
268-269.)
In Swift Co. v. United States, the court says (p. 694):
"There is no serious question raised as to the proper construction of
the internal-revenue acts upon the point, it being virtually admitted
that the contention on the part of the appellant upon the provisions of
the statutes is correct.
"It is met, however, in the opinion of the Court of Claims, and in
argument on behalf of the Government here, that the contrary
construction, to pay these commissions in stamps at their face value,
has been acted upon by the Commissioner of Internal Revenue from the
beginning; has been acquiesced in by purchasers and dealers; and has
never been changed by Congress; and as an official practice has thus
acquired the force of law; or if not, then, at least, it was a course
of dealing well known to the appellant, and acquiesced in, by which it
accepted stamps at their face value in payment of its commissions, which
it is not at liberty now to open, question, and reverse.
"The right construction of the internal-revenue acts, upon the point
of the allowance of commissions to dealers in proprietary articles,
purchasing stamps made from their own dies, and for their own use, is
too clear to bring the case within the first alternative. The rule which
gives determining weight to contemporaneous construction, put upon a
statute, by those charged with its execution, applies only in cases of
ambiguity and doubt. (Edward's Lessee v. Darby, 12 Wheat., 206; Smythe
v. Fiske, 23 Wall., 374; United States v. Moore, 95 U.S., 760; United
States v. Pugh, 99 id., 265.")
In United States v. Alger, the court says:
"If the meaning of that act were doubtful, its practical construction
by the Navy Department would be entitled to great weight. But as the
meaning of the statute, as applied to these cases, appears, to this
court to be perfectly clear, no practice inconsistent with that meaning
can have any effect. (Swift Co. v. United States, 105 U.S., 691, 695;
United States v. Graham, 110 U.S., 619; United States v. Tanner, 147
U.S., 661.)"
In so far as this question is affected by the practice of the
Post-Office Department standing alone, I think it comes fully within the
principle laid down in the two cases lastly above cited. The law says
the average weight shall be ascertained "by the actual weighing of the
mails for * * * successive working days."
The practice has been to weigh on Sundays, and yet, when the average is
to be ascertained, Sundays are excluded from the divisor. This practice
is not only clearly erroneous, but logically indefensible. If Sundays
are not "working days," the law does not permit the mails to be weighed
on Sundays. If they are "working days," their exclusion from the divisor
renders the result of the computation false on its face. It may be
conceded that the question whether "working day" is to be interpreted
"leek day" in this provision of the statute is not free from doubt, and,
if the practice of the Post-Office Department were consistent with one
construction and inconsistent with the other, there might be room to
apply the doctrine of Brown's and Philbrick's cases; but as it is
consistent with neither, and can be defended, if at all, only by reading
the words in one sense for one purpose and in another sense for another
purpose, there is no room for the application of any such doctrine.
The practice seems to have constituted, in fact, a sort of
administrative legislation intended to encourage the carrying of the
mails on Sundays, and the most serious difficulty connected with the
subject is to determine whether there has not been a legislative
sanction of the practice by the Congress in its failure to change the
method of computation when it reenacted the statute in 1905, for there
can be no question that the practice of the Department in this respect
was, or might have been, well known to the Congress, by reason of very
full statements concerning it in public documents.
In Dollar Savings Bank v. United States (19 Wall., 227), the court
refused to hold that the Congress, by the reenactment of a statute, had
adopted the construction placed upon it by the department of the
Government charged with its administration. The statute under
consideration in that case (act of Congress of July 13, 1866, 14 Stat.,
138) provided:
"That there shall be levied and collected a tax of five per centum on
all dividends in scrip or money thereafter declared due, wherever and
whenever the same shall be payable, to stockholders, policy holders, or
depositors, or parties whatsoever,
including nonresidents, whether citizens or aliens, as part of the
earnings, income, or gains of any bank, trust company, savings
institution, and of any fire, marine, life, inland insurance company,
either stock or mutual, under whatever name or style known or called, in
the United States or Territories, whether specially incorporated or
existing under general laws, and on all undistributed sums, or sums made
or added during the year to their surplus or contingent funds; and said
banks, trust companies, savings institutions, and insurance companies
shall pay the said tax, and are hereby authorized to deduct and withhold
from all payments made on account of any dividends or sums of money that
may be due and payable as aforesaid the said tax of five per centum. * *
* Provided, That the tax upon the dividends of life insurance companies
shall not be deemed due until such dividends are payable; nor shall the
portion of premiums returned by mutual life insurance companies to their
policy holders, nor the annual or semi-annual interest allowed or paid
to the depositors in savings banks or savings institutions, be
considered as dividends."
It was contended that savings institutions were relieved from
taxation by the proviso to this section, but the court held otherwise,
and in reply to the argument based upon the practical construction
placed upon the act, said (pp. 236-237):
"Our attention has been called to the fact that in 1867, and again in
1870, the Commissioners of Internal Revenue construed the proviso as
exempting savings institutions from the tax upon all sums added to their
surplus or contingent funds, and that the act of Congress of July 14,
1870, which reduced internal taxation, employed substantially the same
language respecting savings banks as that contained in the act of 1866.
In view of this, the plaintiffs in error argue that Congress required
the Commissioner to prescribe what returns savings banks should make;
that this made it his duty to put a construction on the law; that he
did so, and held that such institutions were not required to return
undistributed earnings carried to a surplus fund, and that after this
practical construction had been made and acted upon more than three
years, Congress reenacted the tax, reduced in amount, in the same words.
Hence it is inferred, the construction given by the Commissioner was
adopted. It is, doubtless, a rule that when a judicial construction has
been given to a statute, the reenactment of the statute is generally
held to be in effect a legislative adoption of that construction. This,
however, can only be when the statute is capable of the construction
given to it, and when that construction has become a settled rule of
conduct. The rule, we think, is inapplicable to this case. In the first
place, the decisions of the Internal-Revenue Commissioner can hardly be
denominated judicial constructions. That officer was not required by the
law to prescribe what returns savings banks were required to make. That
was prescribed by the act of Congress itself, and he had no power to
dispense with the requisition. There is, therefore, no presumption that
his decisions were brought to the knowledge of Congress when the act of
1870 was passed. And again, the construction he gave is an impossible
one, for, as we have seen, it makes the proviso plainly repugnant to the
body of the section.
"We are constrained, then, to hold that the act of Congress does
impose upon the plaintiffs in error the tax to recover which the present
suit was brought."
This opinion would probably be decisive of the present question were
it not for some more recent decisions of the court. In New York, New
Haven and Hartford R.R. Co. v. Interstate Commerce Commission (200 U.
S., 361, 399), it was contended that the prohibition of the act to
regulate commerce and its amendments against undue preferences and
discriminations, ought not to be interpreted as applying against a
carrier who was a dealer in commodities "because of an administrative
construction long since given to the act by the Interstate Commerce
Commission, the body primarily charged with its enforcement, and which
has become a rule of property affecting vast interests which should not
be judicially departed from, especially as such construction, it is
asserted, has been impliedly sanctioned by Congress by frequently
amending the act without changing it in this particular."
The court said on this point (p. 401):
" * * * A construction made by the body charged with the enforcement
of a statute, which construction has long obtained in practical
execution, and has been impliedly sanctioned by the reenactment of the
statute without alteration in the particulars construed, when not
plainly erroneous, must be treated as read into the statute. Especially
do we think this rule applicable to the case in hand, because of the
nature and extent of the authority conferred on the Commission from the
beginning concerning the prohibitions of the act as to rebates,
favoritism and discrimination of all kinds, and particularly in view of
the repeated declarations of the court that an exertion of power by the
Commission concerning such matters was entitled to great weight and was
not lightly to be interfered with."
These remarks were, strictly speaking, obiter dicta, for the Court
said immediately afterwards:
"The concessions thus made, however, are wholly irrelevant to the
case before us."
In the case of United States v. Falk & Bro. (204 U.S., 143), however,
the court seems to have come very near to qualifying the decision in
Dollar Savings Bank v. United States, above cited. In that case the
Government contended that the practical construction given by the
Executive Department to a proviso in the tariff act of 1890 should
control the interpretation of a similar proviso in the tariff act of
1897, and the court sustained that view, saying (p. 152):
"This, then, is our view: The Attorney-General having construed the
proviso of section 50 of the act of 1890 as not restricted to the matter
which immediately preceded it, but as of general application, and this
construction having been followed by the executive officers charged with
the administration of the law, Congress adopted the construction by the
enactment of section 33 of the act of 1897 and intended to make no other
change than to require as the basis of duty the weight of the
merchandise at the time of entry instead of its weight at the time of
its withdrawal from warehouse."
This aspect of the question has caused me some measure of doubt, but,
upon careful consideration, I do not think it falls within the principle
of the case last cited. The construction supposed to have been placed
upon the statute in the practice of the Post-Office Department is not
only "plainly erroneous," like the case suggested as an exception by the
court in 200 U.S., 361, but is "an impossible one" as was that rejected
by the court in 19 Wall., 227. There is nothing to show that the
construction by the Attorney-General sustained in the Falk case seemed
to the court either "plainly erroneous" or impossible." It must be
furthermore remembered that in reenacting the statute in 1905, as in
enacting it in 1873, the Congress only fixed a minimum to the number of
days on which the Postmaster-General must have the mails weighed; he
remained, as he had been previously, entirely at liberty to increase
their number in his discretion, and he might therefore, as above noted,
have made the weighing period extend through the entire year, or have
supplemented the weighing by computations which would render practically
nugatory the construction supposed to be involved in the practice. In
other words, in 1905 the Congress may have felt justified in awaiting an
administrative remedy for a faulty administrative practice, and have
only thought seriously of a legislative remedy two years later. The
opinion purporting to have been given by Solicitor-General Phillips on
October 31, 1884, is not only, as above stated, irregular in form, but
so meager and inadequate in its statement and discussion of the
questions involved, that I can not recognize it as binding upon me in
the premises. As to the decision of the chairman of the committee of the
whole, sustained upon appeal, to the effect that the proposed amendment
requiring a divisor "not less than the whole number of days such mails
have been weighed," made a change in existing law, I am not aware of any
precedent holding such a decision to be binding upon this Department.
The decision may be held, moreover, to have been correct, without regard
to the "construction" alleged by the chairman to have been placed upon
the law by "the proper officer."
It follows from what I have said that I consider the form or method
in which the information obtained from weighing the mails in accordance
with the act of March 3, 1905, shall be utilized, a matter in your
discretion, provided your action shall be directed to the ascertainment
of what, according to your best judgment, would be an average weight as
nearly true as may be practicable per day during a year of the mails
carried as the statute lastly aforesaid directs, to be used as a basis
for a yearly compensation to the carrier. Of course the adequacy of such
compensation is for the Congress, not for the Postmaster-General. Each
of the two orders first-above mentioned constituted therefore, in
strictness, a legal exercise of a discretion vested by law in the
Postmaster-General. If, however, no further calculation is to be made
beyond the addition of ascertained weights and division by the divisor
selected, it seems obvious that order No. 165 may lead to arbitrary and
inequitable results. Order No. 412, upon the same assumption, will give,
as the average weight per day during a year, the said average weight per
day during somewhat more than one-fourth of a year; and there is no
reason to suppose its results will be unjust or have any greater
inaccuracy than is authorized and contemplated by the act of 1905.
Yours, respectfully,
CHARLES J. BONAPARTE.
IMMIGRATION-- DEPORTATION-- ATTENDANTS-- TRANSPORTATION-- EXPENSE;
26 Op.Att'y.Gen. 381, September 23, 1907
The Secretary of Commerce and Labor is empowered by section 20 and 21
of the act of February 20, 1907 (34 Stat., 898, 904), to select
attendants to accompany aliens ordered to be deported, where they are
mentally or physically diseased in such a manner as to require
attendance and care during the voyage.
The steamship or transportation companies by which such aliens came
to this country are required to receive the attendants so selected, at
the same time that they receive the aliens to be deported, and convey
them, with the aliens, to the foreign place of destination.
The steamship companies are required to furnish such attendants
transportation to and from the alien's destination and to defray all
expenses incident to such employment.
The "expense incident to such service" is all the expense directly
and incidentally caused by the fact that such service has been required.
This includes the return trip of the attendant and also his
compensation. The expression "all the expenses incident to the
employment and detail of attendants," comes under the same head.
If the attendant in going has traveled in a class in which he would
not naturally travel, by reason of the necessity for his constant
attendance upon the disordered alien, his ticket may be changed on the
return trip.
If there are, as suggested, a variety of cases properly admitting of
the separate classification of the two persons, the Department of
Commerce and Labor can not determine arbitrarily to what class the
attendant is to be consigned.
The steamship company, on the other hand, can not nullify the law by
insisting that attendants travel in the steerage when they are not
needed there and are persons who could not be reasonably expected to
accept employment upon such conditions.
The interests of the steamship company are, so far as may be
consistent with the reasonably successful working of the scheme of
sending these attendants, to be allowed to prevail over the mere
pleasure or convenience of the persons sent.
When the law imposes a burdensome requirement upon an individual to
do some act which can be reasonably well done in several ways, and does
not expressly or impliedly require it to be done in any particular way,
it can be satisfied by doing the act in the way least expensive or
troublesome to the individual.
A regulation of the Department which provides that "attendants will
accompany aliens to official destination and will, when proceeding
abroad, be required to travel under the same conditions as the alien,"
is appropriate, if in nearly all cases the usefulness of the attendants
would be seriously impaired unless they went in the same class as the
alien; but the second part of the regulation, providing that all
attendants "when returning shall travel second class," is not binding
upon the vessel owners.
DEPARTMENT OF JUSTICE,
September 23, 1907.
The SECRETARY OF COMMERCE AND LABOR.
SIR: I have received your request for an opinion as follows:
"Since the 1st of July, 1907, this Department has, when ordering the
deportation of aliens under the provisions of sections 20 and 21 of the
act approved February 20, 1907, entitled 'An act to regulate the
immigration of aliens into the United States,' inquired into the
condition of health of such aliens, and when it has been found that they
are mentally or physically diseased in such a manner as to require
attendance and care during the voyage to the port of foreign embarkation
and thence to the place of the alien's final destination, the Department
has called upon the steamship company responsible for such alien's
presence in the United States to furnish transportation for the alien
from the American port of deportation to the place of final destination,
and also transportation for the attendant from such port of deportation
to the place of the alien's final destination, and for such attendant's
return to the United States. This action has been taken under the
impression that it was authorized by the proviso to section 21 of the
act above mentioned, reading:
'Provided, That when in the opinion of the Secretary of Commerce and
Labor the mental or physical condition of such alien is such as to
require personal care and attendance, he may employ a suitable person
for that purpose, who shall accompany such alien to his or her final
destination, and the expense incident to such service shall be defrayed
in like manner.' It is also the intention of the Department, as shown by
Rule 37 of its Regulations of July 1 last (copy inclosed), to require
the transportation companies to reimburse it for the expenses incident
to the employment and maintenance of the attendant; although, as it has
not yet been necessary to demand the payment of a bill covering such
items, that point has not yet become a matter of controversy. Several of
the steamship lines, however, have refused to furnish transportation for
attendants when required by the Department to do so, and others, while
furnishing the transportation, have protested and stated that, in their
opinion, the Government, even if legally authorized to require them to
take on board attendants furnished for deported aliens, has no authority
of law to place upon them the burden of transporting the attendants to
and from the foreign place of destination free of charge.
"In view of the above-recited circumstances, I have the honor to
request an expression of opinion on the following questions:
"1. Is this Department empowered by sections 20 and 21 of the act
approved February 20, 1907, to select attendants to accompany aliens
ordered deported under said sections and to require the transportation
companies responsible to take such attendants on board at the time they
receive the aliens for deportation and convey them, with the aliens, to
the foreign place of destination, returning the attendants to the United
States?
"2. Do the sections mentioned authorize the Department to require
that the steamship companies shall furnish transportation to these
attendants, free of charge to the Government, both to and from the
foreign place of the accompanied aliens' destination, and also to demand
of the transportation companies payment of all expenses incident to the
employment and detail of attendants in the manner described?
"3. If the two preceding questions are answered in the affirmative,
should the attendant selected by the Department travel under the same
conditions as the deported alien, i.e., steerage, third, second, or
first class, as the case may be, and should his travel, both en route to
and returning from the place of final destination, be under such
conditions, or may the class of his ticket be changed on the return
trip? If the facts presented do not make possible a direct answer to
this question, is the subject one for the determination of which, on the
circumstances presented in each instance, this Department is invested
with due authority?"
In order to show more completely what questions your letter presents,
I quote sections 20 and 21 of the act of February 20, 1907, which must
be construed in order to answer them, namely:
"SEC. 20. That any alien who shall enter the United States in
violation of law, and such as become public charges from causes existing
prior to landing, shall, upon the warrant of the Secretary of Commerce
and Labor, be taken into custody and deported to the country whence he
came at any time within three years after the date of his entry into the
United States. Such deportation, including one-half of the entire cost
of removal to the port of deportation, shall be at the expense of the
contractor, procurer, or other person by whom the alien was unlawfully
induced to enter the United States, or, if that can not be done, then
the cost of removal to the port of deportation shall be at the expense
of the 'immigrant fund' provided for in section one of this act, and the
deportation from such port shall be at the expense of the owner or
owners of such vessel or transportation line by which such aliens
respectively came: Provided, That pending the final disposal of the
case of any alien so taken into custody he may be released under a bond
in the penalty of not less than five hundred dollars, with security
approved by the Secretary of Commerce and Labor, conditioned that such
alien shall be produced when required for a hearing or hearings in
regard to the charge upon which he has been taken into custody, and for
deportation if he shall be found to be unlawfully within the United
States.
"SEC. 21. That in case the Secretary of Commerce and Labor shall be
satisfied that an alien has been found in the United States in violation
of this act, or that an alien is subject to deportation under the
provisions of this act or of any law of the United States, he shall
cause such alien, within the period of three years after landing or
entry therein, to be taken into custody and returned to the country
whence he came, as provided by section twenty of this act, and a failure
or refusal on the part of the masters, agents, owners, or consignees of
vessels to comply with the order of the Secretary of Commerce and Labor
to take on board, guard safely, and return to the country whence he came
any alien ordered to be deported under the provisions of this act shall
be punished by the imposition of the penalties prescribed in section
nineteen of this act: Provided, That when in the opinion of the
Secretary of Commerce and Labor the mental or physical condition of such
alien is such as to require personal care and attendance, he may employ
a suitable person for that purpose, who shall accompany such alien to
his or her final destination, and the expense incident to such service
shall be defrayed in like manner."
You desire to know, first, whether, in my opinion, your Department is
empowered "to select attendants to accompany aliens ordered to be
deported, and to require the transportation companies to take such
attendants on board."
I understand this question to ask as to the power of the Department
to determine, without consulting the vessel's owners, what manner of
persons and who shall be the attendant in a particular case, and to
require the person selected to be accepted by the vessel owners.
I think the law intends to give you that power of selection. It is
you who are to determine what is the mental and physical condition of
the alien, what kind of personal care and attendance his peculiar
condition requires, and "employ" a person suitable, in view of what you
consider his condition, to give him the care you find to be necessary.
The attendant is your own employee and agent in giving such care. I do
not think there can be any doubt that the choice of the person is
intended to be wholly within your discretion and that the person you
choose must be accepted.
Your next inquiry, as I understand it, is whether the steamship
companies must convey the attendants with the aliens to the foreign
place of destination. The law says the attendant "shall accompany the
alien to his or her final destination," immediately after penalizing the
refusal of the vessel owners and their representatives to "take on
board, guard safely, and return to the country whence he came any alien
ordered to be deported." I do not see how this provision of law can be
carried out unless the vessel owners "receive the attendants on board at
the time they receive the aliens for deportation and convey them, with
the aliens, to the foreign place of destination."
Your next question is whether the vessel owners must return the
attendants to the United States. This may be conveniently considered
with the question which follows, whether the sections quoted require the
steamship companies to furnish the attendants transportation to and
returning from the foreign place of the alien's destination, and with
the next question, whether you have a right to demand payment of all
expenses incident to the employment and detail of attendants.
The provision of section 21, after saying that the Secretary of
Commerce and Labor may employ the attendant and that he shall accompany
the alien to the final destinations, adds, "and the expense incident to
such service shall be defrayed in the like manner." This can refer to
nothing but all or some of the language of section 20 concerning the
cost of removal of the alien himself, viz:
"Such deportation, including one-half of the entire cost of removal
to the port of deportation, shall be at the expense of the contractor,
procurer, or other person by whom the alien was unlawfully induced to
enter the United States, or, if that can not be done, then the cost of
removal to the port of deportation shall be at the expense of the
'immigrant fund' provided for in section one of this act, and the
deportation from such port shall be at the expense of the owner or
owners of such vessel or transportation line by which such aliens
respectively came."
To have the expense arising from the fact that an attendant goes with
the deported alien, defrayed in like manner to this, is to have it paid
by those deemed responsible for the presence of the obnoxious alien,
except where "that can not be done," in which case the immigrant fund is
to be used and is to charge this expense, so far as concerns the voyage
from the port of deportation to the "vessel or transportation line by
which such aliens respectively came."
The one person goes as the companion of the other; the "like manner"
is a natural phrase to apply to the expense in the case of alien and
attendant, both going together in order that a single obnoxious alien
may be returned to the country whence he was unlawfully brought.
Naturally, whoever should pay for deporting the alien should be charged,
as part of the expense, with the cost occasioned by his having to be
accompanied by an attendant; and that is clearly the intent of this
proviso.
But what is included in "the expense incident to such service?"
Incident to the service how-- to its being rendered or to its being
furnished or having existence?
It seems to me that, even if "such service" means the service of
"personal care and attendance" rendered by the attendant to the alien,
it does not follow that "incident" means incidental to caring for or
attending upon the alien. The purchase of a few medical supplies
consumed or the like would be all we should bring within the phrase, if
so interpreted. The purpose of the law to make the steamship company
pay, for various reasons, the expense of deporting the alien himself,
and the purpose of the law for the same reasons to liken the attendant
to the alien, so far as the defraying of expense is concerned, being
both clear, it seems to me that "the expense incident to such service"
is all the expense directly and naturally caused by the fact that such
service has been required.
The return trip of the attendant comes under this head, as also his
compensation. "All the expenses incident to the employment and detail of
attendants" come under the same head.
I accordingly answer your questions above quoted in the affirmative.
Your next question is whether, if the preceding questions are
answered in the affirmative, the attendant selected should travel under
the same conditions as the deported alien, i.e., steerage, third,
second, or first class return otherwise.
If the facts you present do not enable me to answer directly, you
wish to know whether "the subject is one for the determination of which,
on the circumstances presented in each instance, this (your) Department
is invested with authority."
I do not suppose you are asking whether, in a special case, for good
reasons concerning the mental or physical condition of the alien, you
could direct your agent to remain so constantly with the alien that he
would need travel in the same class, but whether you can lay down for
the vessel owners a general rule, such as that stated in an official
pamphlet containing the immigration law, viz, "attendants will accompany
aliens to final destination and will, when proceeding abroad, be
required to travel under the same conditions as the alien; and when
returning will travel second class."
Of course, if it were practically always the case that the attendant
could not accomplish the purpose for which he is employed without being
in the same class of passengers with the alien, it could well be said
that Congress knew this and intended that they should be of the same
class on the outward voyage. But the matter may not be so simple. It may
be that a great variety of mental and physical conditions lead to the
need of such care and attendance as would not be inconsistent with the
separate classification of the two passengers; also that an attendant
might be a menial and the immigrant a person able to travel in the first
class, or that the alien might be, as I suppose he usually is, one of
the kind who travel in the steerage, and the attendant required by his
condition might be one accustomed to travel in the first class-- a
person of professional or scientific training.
To such circumstances the principle is to be applied that when the
law imposes a burdensome requirement upon an individual to do some act
which can be reasonably well done in several ways and does not expressly
or impliedly require it to be done in any particular way, the law can be
satisfied by doing the act in the way least expensive or troublesome to
the individual. He is merely commanded to do the act and it suffices
that he has done it in a reasonably good way, in view of the object of
the Legislature. Of course, he can not satisfy the law by merely
complying with its letter while defeating its object.
The facts presented do not enable me to answer very explicitly. I may
say that if the attendant in going has traveled in a class in which he
would not naturally travel, by reason of the necessity for his constant
attendance upon the disordered alien, there is no reason why his ticket
may not be changed on the return trip.
If there are, as suggested, a variety of cases properly admitting of
the separate classification of the two persons, I do not think your
Department can determine arbitrarily to what class the attendant is to
be assigned. I find no language in the law conferring such authority.
On the other hand, the steamship company can not nullify the law by
insisting that attendants travel in the steerage when they are not
needed there and are persons who could not reasonably be expected to
accept the employment upon such conditions. Such conduct would be a
refusal to transport.
This law undertakes to regulate a business, and should be applied in
a businesslike way. Persons of the kind that travel in the steerage are
not to be needlessly promoted to first class, and persons accustomed to
travel as first-class passengers are not to be needlessly put down in
the steerage; but the interests of the steamship company are, so far as
may be consistent with the reasonably successful working of the scheme
of sending these attendants, to be allowed to prevail over the mere
pleasure or convenience of the persons sent.
The first part of the regulation above quoted is an appropriate rule
under the law, if in nearly all cases the usefulness of the attendants
would be seriously impaired unless they went in the same class with the
alien.
The second part of the regulation, providing that all attendants "when
returning shall travel second class," is, in my opinion, not binding
upon the vessel owners.
Respectfully,
CHARLES J. BONAPARTE.
TITLE TO BUILDINGS AND GROUNDS, LEGATION OF THE UNITED STATES IN
CONSTANTINOPLE; 26 Op.Att'y.Gen. 380, September 19, 1907
Section 355, Revised Statutes, which requires the opinion of the
Attorney-General upon the validity of the title to any land purchased by
the United States for the erection of any public building thereon, does
not apply to the buildings and grounds now occupied by the legation of
the United States at Constantinople, Turkey, the purchase of which was
provided for by the act of June 16, 1906 (34 Stat., 286, 293), since no
erection of a building is contemplated by that act.
DEPARTMENT OF JUSTICE,
September 19, 1907.
The SECRETARY OF STATE.
SIR: I have the honor to acknowledge the receipt of your
communication of yesterday, in which, after calling attention to that
portion of the diplomatic and consular appropriation act approved June
16, 1906 (34 Stat., 286, 293), which provides "For the purchase of the
buildings and grounds now occupied by the legation of the United States
in Constantinople, Turkey," you state that, as appears from a dispatch
accompanying your letter, our ambassador has succeeded in contracting
for the purchase of the buildings and grounds in question, and therefore
you request my opinion as to "whether or not section 355 of the Revised
Statutes applies to such a purchase, and whether or not the question of
the validity of the title to the property contracted for should be
submitted to the Attorney-General in accordance with the provisions of
that section."
The statutory provision referred to is as follows:
"No public money shall be expended upon any site or land purchased by
the United States for the purposes of erecting thereon any armory,
arsenal, fort, fortification, navy-yard, custom-house, light-house, or
other public building, of any kind whatever, until the written opinion
of the Attorney-General shall be had in favor of the validity of the
title, nor until the consent of the legislature of the State in which
the land or site may be, to such purchase, has been given."
The appropriation act here in question does not provide for the
expenditure of money upon any site or land purchased for the purpose of
erecting thereon a public building, and it seems that no such action is
contemplated.
In compliance with the terms of the act, a purchase of "the buildings
and grounds now occupied by the legation" has been negotiated.
For this reason I am clearly of the opinion that the provision of
section 355, above quoted, does not apply to the transaction in
question.
Respectfully,
CHARLES J. BONAPARTE.
ATTORNEY-GENERAL-- OPINION-- GERONIMO GARCIA-- IMMIGRATION; 26 Op.
Att'y.Gen. 378, September 19, 1907
The Attorney-General can not properly review a record and memorandum
submitted, and render his opinion, based upon facts deduced therefrom,
as to the correctness of a proposed action of the Secretary of Commerce
and Labor in the matter of the appeal of Geronimo Garcia, an alien who
was excluded from the United States by the decision of the board of
special inquiry at the port of New Orleans.
It has been the invariable rule of the Department to decline to give
an opinion upon any question of law unless it is "specifically
formulated" and "accompanied by a statement or finding of the facts
involved." (23 Op., 330; 23 Op., 473; 24 Op., 59; 24 Op., 102.)
DEPARTMENT OF JUSTICE,
September 19, 1907.
The SECRETARY OF COMMERCE AND LABOR.
SIR: I have the honor to acknowledge the receipt of your letter of
the 28th ultimo in which you inclose the record of the proceedings in
the matter of the appeal of the alien Geronimo Garcia, who has been
excluded from the United States by the decision of the board of special
inquiry at the port of New Orleans, together with a memorandum in
reference thereto prepared by the solicitor of your Department, and
request me to review this memorandum in order that, if it meets my views
entirely, you may take the action therein indicated.
Your letter does not request my opinion on any specific question of
law, but only, as I understand it, upon the general question whether,
upon the facts presented in the record, Garcia's appeal should be
dismissed in accordance with the memorandum of the solicitor.
I regret to say that a compliance with this request would involve a
departure from the settled policy of this Department, as it would
necessitate an examination of the entire record and a determination of
the facts as established by the testimony taken before the board.
It has, however, been the invariable rule of this Department to
decline to give an opinion upon any question of law unless it is
"specifically formulated" and "accompanied by a statement or finding of
the facts involved." (23 Op., 330; 23 Op., 473; 24 Op., 59; 24 Op.,
102, and previous opinions therein cited.)
I am therefore reluctantly constrained to decline to express the
opinion requested.
I should add, however, that if you should desire my opinion on any
specific question of lau arising in connection with this case, upon any
definite state of facts, I should be glad, upon your request, to express
an opinion thereon.
Respectfully,
CHARLES J. BONAPARTE.
PASSPORTS-- NATIVES RESIDING IN THE CANAL ZONE; 26 Op.Att'y.Gen.
376, September 7, 1907
Citizens of Panama who were residents of the Canal Zone at the time
of the treaty between the United States and Panama, and who have not
taken any affirmative action to retain citizenship in that Republic, owe
allegiance to the United States and are entitled to passports.
Section 4076, Revised Statutes, which provides that no passport shall
be granted or issued to any other persons than those owing allegiance to
the United States, means permanent allegiance, and not the temporary
allegiance owing from a resident.
The sovereignty of the Canal Zone is not an open or doubtful
question.
The words "sovereign rights," "within the Zone," in Article III of
the treaty of November 18, 1903, with Panama (33 Stat., 2234), mean,
among other things, the right to the allegiance of the Zone's people.
It is well settled that in cases of acquisition of inhabited
territory, the acquiring sovereign becomes entitled to the allegiance of
the inhabitants unless there is something in the treaty or act of
cession providing otherwise.
DEPARTMENT OF JUSTICE,
September 7, 1907.
The SECRETARY OF STATE.
SIR: I have your request for an opinion, as follows:
"I have the honor to inclose herewith a copy of a dispatch from the
American legation to Guatemala and Honduras, submitting the passport
application of one Henrique S. Ruata, a native of the district now
included in the Panama Canal Zone. I also inclose a memorandum in the
matter, prepared in the office of the Solicitor for this Department.
"I beg to request your consideration of the case and an expression of
your opinion as to whether or not the Secretary of State is authorized
to issue a passport to the applicant."
In the absence of anything in your letter or accompanying papers
indicating the contrary, I assume, as does the Solicitor for your
Department, that the Mr. Ruata in question was a citizen of Panama and a
resident of the Canal Zone at the time of the making of the canal treaty
between the United States and Panama; and I shall further assume he has
not taken any affirmative action to retain citizenship in the Republic
of Panama, since he is applying for a passport from our Government.
The recent legislation of the United States provides that:
"No passport shall be granted or issued to or verified for any other
persons than those owing allegiance, whether citizens or not, to the
United States." (32 Stat., 386.)
I agree with the Solicitor that permanent allegiance, and not
temporary allegiance owing from a resident, is meant by the statute.
In my opinion the sovereignty over the Canal Zone is not an open or
doubtful question.
Article 3 of the treaty transfers to the United States, not the
sovereignty by that term, but "all the rights, power and authority"
within the Zone that it would have if sovereign, "to the entire
exclusion of the exercise by the Republic of Panama of any such
sovereign rights, power or authority."
The omission to use words expressly passing sovereignty was dictated
by reasons of public policy, I assume; but whatever the reason the
treaty gives the substance of sovereignty, and instead of containing a
mere declaration transferring the sovereignty, descends to the
particulars "all the rights, power, and authority" that belong to
sovereignty, and negatives any such "sovereign rights, power, or
authority" in the former sovereign.
The "rights" so transferred are to be enjoyed (article 2) "in
perpetuity," and no exception is made of any persons or things in the
Zone.
I am unable to perceive that this language is obscure or ambiguous or
that we are warranted in resorting to any construction of it except by
the first rule of construction-- that plain and sensible words should be
taken to mean what they say. The words "sovereign rights" "within the
Zone" mean, among other things, the right to the allegiance of the
Zone's people.
According to international law, with which American practice in
framing treaties and dealing with inhabitants of such territory has been
consistent, it is well settled that in cases of acquisition of inhabited
territory the acquiring sovereign becomes entitled to the allegiance of
the inhabitants, unless there is something in the treaty or act of
cession providing otherwise; as, for example, that the inhabitants may
elect to retain their old citizenship. (Hall's International Law, 4th
ed., p. 594.)
In my opinion, therefore, the United States has acquired the right to
the allegiance of Mr. Ruata, and he has acquired the corresponding right
to be protected by them and to the means of obtaining their protection,
including passports.
Respectfully,
CHARLES J. BONAPARTE.
DEPUTY COLLECTORS OF INTERNAL REVENUE-- CLASSIFIED SERVICE--
APPOINTMENT; 26 Op.Att'y.Gen. 363, September 3, 1907
Deputy collectors of internal revenue would seem to be officers of
the United States, at least in the sense that they are subject to
classification under the civil-service law; but if not officers, they
are employees of the United States; and, considered as either, the
President has the right to include them in the competitive classified
service.
Deputy collectors of internal revenue can not be considered employees
of the collector.
Congress may place any restrictions it pleases upon the employment,
by officers of the United States, of any kind of servants to assist them
in the discharge of their duties.
Congress undoubtedly intended that the provisions of the
civil-service law, so far as these provided for the organization of a
classified service, should be extended to all persons engaged in the
legitimate civil work of the executive branch of the Government, whether
such persons were or were not technically in the employ of the United
States.
A newly appointed collector of internal revenue has a legal right,
upon taking office, to drop from the service any deputy collector in
commission and to appoint deputies of his own selection, in accordance
with the rules of the Civil Service Commission.
The civil-service law limits the power of removal in no respect
except for the single act of failure to contribute money or services to
a political party.
An employee's fitness, capacity, and attention to his duties are
questions of discretion and judgment, to be determined by his superior
officers, and such questions are beyond the jurisdiction of any court.
The rules regulating the power of removal may be repealed, altered,
or amended at the pleasure of the President. They have merely the force
of an Executive order and do not give the employees within the
classified service any such tenure of office as to confer upon them a
property right in the office or place.
A vacancy occurring in the office of collector of internal revenue
and the appointment of a successor, would seem to have the effect, under
section 3149, Revised Statutes, of vacating the offices of the deputy
collectors.
It is the duty of the newly appointed collector to fill the offices
thus vacated, either by recommissioning the deputies in service by an
instrument in writing given under his hand, or by selections either from
the eligible register or by transfer from other positions in the
classified service, the precise method to be adopted being within the
administrative discretion of the collector.
Section 3149, Revised Statutes, seems to require that a deputy
collector of internal revenue should be appointed by the collector in
commission, by an instrument in writing under his hand.
There is nothing in the civil-service law which in any way interferes
with the right of the collector, under section 12 of the act of February
8, 1875 (18 Stat., 307), to require bonds of his deputies, payable to
himself, for his protection against their neglect, default, or
wrongdoing.
The recognition in a Federal statute of a person in the public employ
as an officer of the United States constitutes such person an officer.
DEPARTMENT OF JUSTICE,
September 3, 1907.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge receipt of your letter of March
14, 1907, transmitting a letter from the Commissioner of Internal
Revenue and asking for my opinion in regard to the matters discussed in
that letter.
The Commissioner of Internal Revenue first questions the authority of
the President, under existing law, to place deputy collectors of
internal revenue in the competitive classified service. He further
submits three questions, which he asks to have answered. Those questions
are as follows:
"First. Has a newly appointed collector of internal revenue the
right, upon taking office, to drop from the service any deputy collector
in commission and appoint deputy collectors of his own selection from
the eligible list or from those in the classified service?
If not, is it his duty, under the law, to recommission the deputy
collectors in the service by an instrument in writing given under his
hand? Can there be a legal deputy collector unless appointed by the
collector in commission by an instrument in writing under his hand?
"Second. If compelled to retain in office deputy collectors holding
under his predecessor, has the collector the right to require of these
officials bonds payable to himself, to protect himself against their
neglect, default, or wrongdoing?
"Third. If deputy collectors hold under a new collector by virtue of
their being in office when he assumes the duties of his position, will
the sureties on the bond of the collector be liable to the Government
for the default of the deputy?"
It is my purpose to discuss, first, at some length the question as to
whether the President may legally classify deputy collectors of internal
revenue, and I believe that in the discussion of that question the other
points in regard to which the Commissioner is in doubt may be cleared
up.
Section 6 of the civil-service act provides for the classification of
a limited number of persons in the departmental service at Washington
and in certain post-offices and customs districts, and further states
"that from time to time said Secretary (of the Treasury), the
Postmaster-General, and each of the heads of Departments mentioned in
the one hundred and fifty-eighth section of the Revised Statutes, and
each head of an office, shall, upon the direction of the President, and
for facilitating the execution of this act, respectively revise any then
existing classification or arrangement of those in their respective
Departments and offices, and shall, for the purposes of the examination
herein provided for, include in one or more of such classes, so far as
practicable, subordinate places, clerks, and officers in the public
service pertaining to their respective Departments not before classified
for examination."
Section 7 provides that the following three classes of persons shall
not be required to be classified, namely: (1) Officers other than those
in the executive branch of the service; (2) persons employed merely as
laborers or workmen, and (3) persons who have been nominated for
confirmation by the Senate.
It needs no argument to show that deputy collectors of internal
revenue are not included in any one of the three classes mentioned in
this section. These express exceptions exclude all others in accordance
with the recognized rule of statutory construction. We are not, however,
obliged to rely solely on the language of the statute in determining the
intent of Congress in enacting the law. The report of the committee
submitting the civil-service bill to the House and explaining its scope
contains the following:
"But the subordinates in the Executive Departments, whose duty is the
same under every administration, should be selected with sole reference
to their character and their capacity for doing the public work. This
latter clause includes nearly all the vast number of appointed officials
who carry into effect the orders of the Executive or heads of
Departments, whether in Washington or elsewhere." (Senate Report 576,
1st sess. 47th Cong.)
Senator Hawley, of Connecticut, chairman of the committee having the
bill in charge, in presenting the measure to the Senate, said:
"I propose to show that we have a reasonable, simple, and practical
bill, open to no constitutional objection, not in any sense
experimental, based upon absolutely conclusive experience, capable of
being easily and economically executed, that will vastly improve the
whole civil service of the country."
In United States v. Alger (152 U.S., 384, 397), the court uses the
following language:
"If the meaning of that act were doubtful, its practical construction
by the Navy Department would be entitled to great weight."
See also Swift v. United States (105 U.S., 691, 695); United States
v. Graham (110 U.S., 219), and United States v. Tanner (147 U.S., 661).
In applying this rule to the question immediately under consideration
it becomes proper to consider the practical construction given to the
civil-service act by the President and the Secretary of the Treasury.
Under the civil-service rules promulgated May 6, 1896, all officers
and employees of the internal-revenue service were classified, and
deputy collectors were put in the competitive class. On July 27, 1897,
certain deputy collectors (182 in number) were withdrawn from the
competitive class and made subject only to a pass examination to be
prescribed by the Secretary of the Treasury. In September, 1897, it was
urged by Collector Brady, of Richmond, Va., that deputy collectors could
not be placed in the classified service, but his contention was not
sustained by the Treasury Department. On May 29, 1899, the President
removed all deputy collectors from the competitive class, retaining
them, however, in the classified service and making them subject to a
pass examination. On November 7, 1906, they were again, by Executive
order, placed in the competitive class.
The President and the Treasury Department have, then, uniformly
proceeded upon the assumption that deputy collectors of internal revenue
were classified, and under the rule laid down in United States v. Alger,
supra, this practical construction is entitled to consideration if the
case be doubtful.
In an opinion rendered to the Secretary of War, my predecessor,
Attorney-General Moody, said:
"I think it a mistake to suppose that, in order to bring such
appointments within the purview of the general law, (civil-service law)
it would be necessary to state specifically in the act authorizing them,
that they are to be made as thus prescribed, or as provided by law, or
that such idea be expressed in any form. On the contrary, I think that
in order to exempt such appointments from the operation of the general
law, a specific exemption therefrom would be required." (25 Op., 341,
343.)
It seems clear, then, (1) that the language of the third clause of
section 6 of the civil-service act is apparently broad enough to include
deputy collectors; (2) that they are not among the classes specifically
excluded from classification under section 7 of the act; (3) that the
intent of Congress, as evidenced by the reports of the committee having
charge of the civil-service bill, seems to be to include all subordinate
places in the executive civil service of the country;
(4) that administrative officers have uniformly regarded deputy
collectors of internal revenue as classifiable; and (5) that in order
to except any appointees from the purview of the civil-service act such
exclusion should specifically and clearly be so stated.
Any doubt that may exist as to the propriety of the classification of
deputy collectors of internal revenue must arise from uncertainty as to
their legal status. It is obvious that a deputy collector must be either
(a) an officer of the United States, (b) an employee of the United
States, or (c) an employee of the collector appointing him. It is, in my
judgment, immaterial to which one of the three classes deputy collectors
are held to belong, so far as the right of the President to classify
them is concerned.
(1) Are deputy collectors officers of the United States?
Deputy collectors of internal revenue were authorized by the act of
July 1, 1862 (12 Stat., 434), to provide internal revenue to support the
Government, etc. This provision was reenacted in the acts of June 30,
1864 (13 Stat., 225), and February 8, 1875 (18 Stat., 309), and was
carried into the Revised Statutes as section 3148. Up to that time the
law provided that deputy collectors should be compensated for their
services by the collector himself. In 1879, however, an important
amendment was enacted (20 Stat., 329), and instead of being paid by the
collector, as was formerly the case, they were "to be compensated for
their services by such allowances as should be made by the Secretary of
the Treasury upon the recommendation of the Commissioner of Internal
Revenue."
The existing law is as follows:
"SEC. 12. That each collector of internal revenue shall be authorized
to appoint, by an instrument in writing under his hand, as many deputies
as he may think proper, to be compensated for their services by such
allowances as shall be made by the Secretary of the Treasury, upon the
recommendation of the Commissioner of Internal Revenue. * * * And the
collector shall have power to revoke the appointment of any such deputy,
giving such notice thereof as the Commissioner of Internal Revenue may
prescribe, and to require and accept bonds or other securities from any
deputy;
* * * but each collector shall, in every respect, be responsible, both
to the United States and to individuals, as the case may be, for all
moneys collected, and for every act done or neglected to be done, by any
of his deputies while acting as such." (Act of February 8, 1875, as
amended March 1, 1879, 20 Stat., 329.)
A deputy collector of internal revenue, whose official duties are
prescribed by law and whose compensation is paid by the United States,
would seem to be "an officer of the United States." (United States v.
Hartwell, 6 Wall., 385.)
This contention seems strengthened by reference to the following
statutes:
The act of March 3, 1885 (23 Stat., 404), provides:
" * * * And no collector in any district shall recommend, nor shall
there be appointed or commissioned, more deputy collectors,
storekeepers, storekeepers and gaugers, gaugers, inspectors, or other
officers, or allowed to remain in commission more of any of said
officers, at any one time, than fifteen per centum in excess of the
number actually engaged in performing duty at the time and indispensably
necessary to the performance of said duty."
By the act of July 11, 1888 (25 Stat., 272), it is provided that--
" * * * the number of deputy collectors, gaugers, storekeepers, and
clerks employed in the collection of internal revenue shall not be
increased, nor shall the salary of said officers and employees be
increased beyond the salaries paid during the last fiscal year,
exclusive of the number employed under the said act defining butter, and
so forth."
It is well settled that the recognition of an association as an
existing corporation in a statute constitutes such association a
corporation de jure as well as de facto. (Koch v. The N.A. Railway Co.,
75 Md., 222; Society for the Propagation of the Gospel in Foreign Parts
v. The Town of ,pawlet, 4 Pet., 480, 501; Morawetz on Corporations, 2d
ed., sec. 20, and authorities there cited.)
A fortiori it would seem to be clear that the recognition in a
Federal statute of a person in the public employ as an officer of the
United States constitutes the person such officer.
It is, however, urged that deputy collectors of internal revenue can
not be officers of the United States, because, if they are officers,
then, under Article II, section 2, clause 2, of the Constitution, their
appointment under the present method would be unconstitutional under the
decision in United States v. Germaine (99 U.S., 508).
If it be assumed, argumenti gratia, that the method of their
appointment would be unconstitutional if they are officers, it does not
seem that this fact constitutes any bar to their classification, so long
as they continue to be recognized as officers de facto.
In the case of In re Ah Lee (5 Fed., 899, 907) the court uses this
language:
"A person actually in office by color of right or title-- not a mere
usurper or intruder-- although not legally appointed or elected thereto,
or qualified to hold the same, is still an officer de facto, or in fact,
and, as a matter of public convenience and utility, his acts, while so
in office, are held valid and binding as to third persons."
See also Cocke v. Halsey (16 Pet., 71); Hussey v. Smith (99 U.S.,
20); McDowell v. United States (159 U.S., 596); and Ex parte Ward (173
U.S., 452).
It is not necessary at this time to consider whether the President
could properly permit officers unconstitutionally appointed to discharge
public duties and receive pay from public funds. If he does this in
fact, whether properly or improperly, he certainly can with propriety
treat such officers de facto as subject to classification. It would
indeed place him in a wholly untenable position to maintain that the
constitutionality of the appointment of these officers was insufficient
to authorize their classification, but sufficient to permit their
receiving pay, collecting taxes, seizing property, enforcing the laws of
the United States, and suffering criminal consequences for delinquencies
in such enforcement.
My attention has been further invited to the fact that the Court of
Claims has said, obiter, that "Herndon (deputy collector of internal
revenue) was not an officer." (Landram v. United States, 16 Ct.Cls.,
85.)
But it is to be noted that Herndon was employed prior to the act of
March 1, 1879, supra.
It is further urged that a deputy collector differs in two respects
from the clerk to the Assistant Treasurer mentioned in United States v.
Hartwell, supra, since the latter's "compensation was fixed by law," and
"vacating the office of his superior would not have affected the tenure
of his place."
With respect to this it is to be observed that it applies yet more
clearly to deputy marshals than to deputy collectors. Yet every deputy
marshal is required by law to take an oath to "in all things well and
truly, and without malice or partiality, perform the duties of the
office of deputy United States marshal of the district of . . . during
my continuance in said office." And it has been decided that a deputy
marshal in protecting from violence one of the justices of the Supreme
Court while traveling from his residence to the circuit court which he
was to attend "acted in discharge of his duty as an officer of the
United States." (In re Neagle, 135 U.S., 1.)
It seems, therefore, clear upon the decided weight of reason and
authority that deputy collectors of internal revenue are officers of the
United States, at least in the sense that they are subject to
classification as such under the provisions of the civil-service law. I
do not, however, consider it necessary to determine positively this
question, for I think that it is clear if not officers they are
employees of the United States, and if they are either there can be no
question of the President's right to include them in the classified
service.
(2) Are deputy collectors, if not officers, employees of the United
States?
In Landram v. United States (16 Ct.Cls., 74, 85) the court said:
"At the last term of court we held that Herndon, while acting as
deputy collector, was not an employee in a sense of making a privity of
contract between him and the Government. But it does not necessarily
follow that he was not a person in a branch of the public service. He
was empowered with "the like authority in every respect to collect the
taxes levied or assessed within the portion of the district assigned to
him which is by law vested in the collector himself." (R.S., 3148.)
The court then enumerates the extensive powers of deputy collectors
under Revised Statutes, 3173, 3174, 3175, 3176, 3183, 3188, 3190, and
3196, and proceeds:
"It can not be maintained that a person charged with such extensive
powers was not in public employment, although not employed directly by
the United States, and was not in a branch of the public service."
In the Twenty Per Cent cases (first decision), 13 Wall., 568, 576,
the court said:
"Many persons not employed as clerks or messengers of a Department,
are in the public service by virtue of an employment by the head of the
Department or by the head of some bureau of the Department authorized by
law to make such contracts, and such persons are as much in the civil
service within the meaning of the joint resolution as the clerks and
messengers employed in the rooms of the Department building."
In the second decision, Twenty Per Cent cases (20 Wall., 179, 185),
it is said that--
" * * * persons so employed here are properly to be regarded as
employees in the civil service of the United States within the true
intent and meaning of that phrase as there used, if they were employed
by the head of the Department, or of the bureau or any division of the
Department, charged with that duty and authorized to make such contracts
and fix the compensation of the person or persons employed, even though
the particular employment may not be designated in an appropriation
act."
In the case of John E. Foley (3 Comp.Dec., 648, 653), it is said:
"Under the act to regulate and improve the civil service of the
United States of January 16, 1883 (22 Stat., 403), the power of the
President to designate those who are to be included in the classified
service is not limited to officers of the United States in the
constitutional sense of the word 'officer.'
He may also include those holding places or employments in the public
service."
See also 5 Comp.Dec., 650, and section 6 of the civil-service act.
Applying the quotations from these opinions and decisions to the
question under consideration, I conclude that if it be held that deputy
collectors of internal revenue are not officers of the United States,
they are certainly employees of the United States in every sense that is
needed to justify their classification under the civil-service law.
(3) Can deputy collectors of internal revenue be considered employees
of the collector; and if so, does this fact prevent their
classification?
From what I have already said it is obvious that the first of these
questions should be answered in the negative. Prior to the act of 1879
deputy collectors were undoubtedly employees of the collector in the
sense that he alone was responsible for the payment of their
compensation, the amount of which depended upon the terms of the
contract of employment made by him with each one of them. Even before
this change in the law, however, the court held that they were in the
public service. (Landram v. United States, supra.)
Assuming, however, argumenti gratia, that they can be considered as
employed by the collectors and not by the United States, does this
assumed fact present any obstacle to their classification under the
civil-service law? It seems clear that it does not. It can not be
seriously denied that Congress may put any restrictions it pleases upon
the employment by officers of the United States of any kind of servants
to assist them in the discharge of their public duties. For example, by
the act of 1825, relating to the post-office, contractors employed to
carry the mails were forbidden to employ other than free white persons
for this purpose. This was clearly a valid provision. (United States v.
Belew, 24 Fed.Cas., 1080.) This discretionary power may be delegated to
the President, or even to some inferior officer, if Congress sees fit.
Indeed, it may be questioned whether, in the absence of any statutory
provision, the President motu proprio as a part of his constitutional
duty to "take care that the laws be faithfully executed," would not have
the right to prescribe any reasonable regulations of this character
looking to that end.
It is not, however, necessary to determine this question here. The
civil-service law, which was approved January 16, 1883, supra, repealed
or nullified by implication any inconsistent provision in the acts of
1878 or 1879 relating to the Internal Revenue Bureau, so that if there
be any repugnancy between these acts (which I do not think there is)
this fact has no weight in the question under discussion. By section 6,
as above quoted, the several "clerks and persons employed by the
collector, naval officer," etc., in each customs district, and also
"persons being in the public service at their respective offices" were
made subject to classification. So "clerks and persons employed" (by
whom is not stated) "or in the public service, at each post-office, or
under any postmaster" are likewise subject to classification. Finally
the Cabinet officers and "each head of an office" (not, be it noted, of
a Department, bureau, or even division) is required under the direction
of the President to revise any existing arrangement "of those in their
respective Departments and offices" so as to effect the classification
of "subordinate places, clerks, and officers in the public service" not
previously classified.
It can hardly admit of doubt that a collector of internal revenue is
a "head of an office" under the provisions of the section last quoted,
and that his deputies, even if they be not officers or employees of the
United States, nevertheless hold "subordinate places" in his office, and
may be classified, if employed by him, just as persons employed by
collectors of customs or naval officers, or by anybody at post-offices,
or under postmasters, must be classified in cases mentioned in the first
and second clauses of section 6. In other words, I think that Congress
undoubtedly intended that the provisions of the civil-service law, so
far as these provided for the organization of a classified service,
should be extended to all persons engaged in the legitimate civil work
of the executive branch of the Government, whether such persons were or
were not technically in the employ of the United States.
It seems, therefore, that there can be no question as to the right of
the President to include deputy collectors of internal revenue in the
competitive classified service.
Answering his interrogatories categorically, I beg to advice you that
a newly appointed collector of internal revenue has a legal right upon
taking office to drop from the service any deputy collector in
commission, and to appoint deputies of his own selection, in accordance
with the rules of the Civil Service Commission. The civil-service law
limits the power of removal in no respect except for the single act of
failure to contribute money or services to a political party.
(Civil-service act, section 13.) An employee's fitness, capacity, and
attention to his duties are questions of discretion and judgment to be
determined by his superior officers. Such questions are beyond the power
of any court. (Taylor v. Taft, 203 U.S., 461.)
The rules regulating the power of removal were made by the President,
and may be repealed, altered, or amended at his pleasure. They have
merely the force of an Executive order, and do not give to the employees
within the classified service any such tenure of office as to confer
upon them a property right in the office or place. (Morgan v. Nunn, 84
Fed., 551.)
Under section 3149, Revised Statutes, it would appear that a vacancy
occurring in the office of a collector, and the appointment of a
successor, has the effect of vacating the offices of the deputy
collectors. That being so, it is the duty of the newly appointed
collector, under the law, to fill these offices in accordance with the
civil-service rules, either by recommissioning the deputies in service
by an instrument in writing given under his hand, or by selections
either from the eligible register or by transfer from other positions in
the classified service. The precise method to be adopted is one for
administrative determination. Section 3149, Revised Statutes, seems to
require that a deputy collector should be appointed by the collector in
commission by an instrument in writing under his hand.
Answering the second question propounded by the Commissioner of
Internal Revenue, I beg to inform you that there is nothing in the
civil-service law which in any way interferes with the right of the
collector to require of his deputies bonds payable to himself, to
protect him against their neglect, default, or wrongdoing.
The collector may, therefore, continue to require bonds in accordance
with the provisions of section 12 of the act of February 8, 1875.
My answer to the first question propounded makes it unnecessary to
answer the third.
Respectfully,
CHARLES J. BONAPARTE.
DRAWBACK-- SIRUP MADE FROM SUGAR BROUGHT FROM THE PHILIPPINE ISLANDS;
26 Op.Att'y.Gen. 355, August 23, 1907
Materials brought into the United States from the Philippine Islands
on which duty has been paid under the Philippine revenue act of March 8,
1902 (32 Stat., 54), are to be regarded as "imported materials" within
the meaning of the drawback provision (sec. 30) of the tariff act of
July 24, 1897 (30 Stat., 211), although not brought in from a foreign
country.
Drawback should be allowed under section 30 of the tariff act of July
24, 1897 (30 Stat., 211), upon the exportation to Europe of sirup
manufactured from raw sugar which was brought into the United States
from the Philippine Islands and upon which duties were paid under the
Philippine revenue act of March 8, 1902 (32 Stat., 54).
Although most of the definitions of the words "import" and "export"
refer to the taking of goods from one country to another, they being
ordinarily the only cases in which import or export duties are imposed,
these words may be also used in reference to the taking of goods from
one part of a country to another or from one State to another.
The word "imported," as used in section 30 of the tariff act of July
24, 1897, does not necessarily imply that the materials in which
drawback is to be allowed must have come from a foreign country in a
technical sense.
The general purpose of section 30 was to provide that whenever
materials are brought into the United States under such circumstances
that they are subject to the payment of duty and used here in the
manufacture of finished articles, upon the subsequent exportation of
such manufactured articles to a foreign country a drawback shall be
allowed upon the material on which duty has been paid.
The spirit and letter of section 30 are broad enough to include
materials brought into this country from the Philippine Islands and
subjected to duty as coming from a territory which, though not a foreign
country, has not been temporarily treated by Congress as not within the
United States for tariff purposes.
Under the special legislation relating to the temporary organization
of the Philippine Islands, they are treated as territory remaining, as
yet, outside of the United States, in a tariff sense, for the purpose of
imposing duties on articles shipped from them "into" this country
analogous to those imposed on imports from a foreign country, and having
such status that the term "imports" can be properly applied to
merchandise brought from them into the United States.
DEPARTMENT OF JUSTICE,
August 23, 1907.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
April 2, in which, in order to determine an application that has been
made to your Department for the allowance of drawback on the exportation
to Europe of sirup manufactured from raw sugar brought from the
Philippine Islands, you request an expression of my opinion as to
whether "drawback may be allowed on the exportation to countries other
than the Philippines of articles manufactured in this country from
materials brought from the Philippine Islands."
The following statutory provisions are material to the consideration
of this question:
By the tariff act of July 24, 1897 (30 Stat., 151), which prescribes
in section 1 rates of duty upon various "articles imported from foreign
countries,"
it is provided in section 30 "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."
By the act of March 8, 1902, temporarily to provide revenue for the
Philippine Islands (32 Stat., 54), it is provided that the tariff law
enacted in 1901 by the United States Philippine Commission shall remain
in full force and effect, and that there shall be levied "upon all
articles coming into the Philippine Archipelago from the United States"
the rates of duty required thereunder upon like articles imported from
foreign countries into the archipelago (sec. 1); that "there shall be
levied, collected, and paid upon all articles coming into the United
States from the Philippine Archipelago seventy-five per centum of the
rates of duty which are required to be levied, collected, and paid upon
like articles imported from foreign countries," less any duties levied
and paid upon their shipment from the archipelago (sec. 2); that said
duties "shall be held as a separate fund and paid into the treasury of
the Philippine Islands" (sec. 4); that all articles which may under
existing laws and regulations be exported to a foreign country with
benefit of drawback "may also be shipped to the Philippine Islands with
like privilege," and "where materials on which duties have been paid
have been used in the manufacture of articles manufactured or produced
in the United States there shall be allowed on the shipment of said
articles to the Philippine Archipelago a drawback equal in amount to the
duties paid on the materials used, less one per centum of such duties"
(sec. 6); and that the provisions of the customs administrative act of
June 10, 1890, and its amendment, "shall apply to all articles coming
into the United States from the Philippine Archipelago" (sec. 8).
By the act of July 1, 1902, temporarily to provide for the
administration of civil government in the Philippine Islands, it is
provided, in section 84, that "all laws relating to the collection and
protection of customs duties" not inconsistent with the temporary
revenue act of March 8, 1902, "shall apply in the case of * * * goods
arriving from said Philippine Islands in the United States."
(32 Stat., 691, 711.)
By the Philippine tariff revision law of March 3, 1905 (33 Stat.,
928), prescribing rates of duty upon articles "imported into the
Philippine Islands" and products of the islands "exported therefrom," it
is provided that the rates levied upon products of the Philippine
Islands coming into the United States shall be less "any export duty"
levied upon their shipment from the Philippine Islands. (Secs. 2, 13.)
Upon consideration of these various statutes, I am of opinion that,
while the Philippine revenue act of 1902 prescribing tariff duties on
trade with the Philippine Islands does not in itself authorize the
drawback now in question, since its provision in reference to the
allowance of drawback on articles manufactured in this country from
materials brought in from the Philippine Islands applies only where such
articles are shipped back to the islands, nevertheless, as this act does
not exclude such manufactured articles from any drawback privilege to
which they may be otherwise entitled, the materials brought in from the
Philippine Islands on which duty has been paid under the Philippine
revenue act are to be regarded as "imported materials" within the
meaning of section 30 of the tariff act of 1897, although not brought in
from a foreign country, and therefore that, upon the subsequent
exportation to a foreign country of the articles manufactured from such
materials, drawback should be allowed in accordance with the provisions
of said section.
While, under section 1 of the act of 1897, duties are imposed only on
"articles imported from foreign countries," in section 30 of this act
relating to drawbacks on "imported materials" the qualifying phrase in
reference to foreign countries is omitted, and there is instead a broad
and unqualified provision that drawbacks should be allowed on the
exportation of all articles manufactured from "imported materials on
which duties have been paid," the language of this section containing no
limitation of such drawbacks to materials brought in from foreign
countries,
which, under the doctrine of De Lima v. Bidwell (182 U.S., 1) and
Fourteen Diamond Rings v. United States (183 U.S., 176), would
technically exclude materials brought in from the Philippine Islands,
unless such limitation is to be implied from the use of the word
"imported" in connection with such materials or otherwise.
Although it is true that most of the definitions of the words
"import" and "export" to be found in adjudged cases and elsewhere refer
to the taking of goods from one country to another-- this being
ordinarily the only case in which import or export duties are imposed--
it is also true that these words may be used in reference to the taking
of goods from one part of a country to another (Barrett v. Railway
Company, 2 Manning & Granger, 538, 543) or from one State to another
(Dooley v. U.S., 183 U.S., 151, 153). After careful consideration, I am
of opinion that the word "imported," as used in section 30 of the act of
1897, does not necessarily imply that the materials on which the
drawback is to be allowed must have come from a foreign country in a
technical sense, but that the general purpose of this section was to
provide that whenever materials are brought into this country under such
circumstances that they are subject to the payment of duty and used here
in the manufacture of finished articles, upon the subsequent exportation
of such manufactured articles to a foreign country a drawback shall be
allowed upon the material upon which duty has been so paid, the evident
purpose of Congress being to encourage domestic manufactures for the
purpose of export trade by returning on the exportation of the
manufactured articles the duties originally collected on the raw
material; and that, in the light of this purpose, both the spirit and
the letter of section 30 are broad enough to include materials brought
into this country from the Philippine Islands and subjected to duty as
coming from a territory which, although not a foreign country, has not
been permanently incorporated into the United States (Downs v. Bidwell,
182 U.S., 244; Dorr v. United States, 195 U. S., 138, 143), and has
been temporarily treated in Congressional legislation as not within the
United States for tariff purposes;
while in the Philippine revenue act and other special legislation
relating to the tariff on trade with the Philippines the usual
phraseology of the tariff laws imposing a duty on articles "imported"
into the United States is not used, although products of the Philippines
shipped into the United States are referred to in the act of March 3,
1905, as subject to an "export duty" upon their shipment; and while
there is no provision in any of this legislation specifically applying
to the Philippine Islands, "all laws affecting imports of articles * * *
from foreign countries," as was done in the case of the Canal Zone by
the act of March 2, 1905 (33 Stat., 843), unless the provisions of the
act of July 1, 1902, applying to goods arriving from the Philippine
Islands-- "all laws relating to the collection and protection of custom
duties"-- is to be so regarded, it is nevertheless clear that under the
special legislation relating to the temporary organization of the
Philippine Islands, they are treated as territory remaining as yet
outside of the United States in a tariff sense for the purpose of
imposing duties on articles shipped from them "into" the United States
analogous to those imposed on imports from a foreign country, and having
such status that the term "imports" can be naturally and properly
applied to merchandise brought from them into the United States, a view
which is supported by the language used in the opinion of the court in
Downes v. Bidwell (182 U.S., 244, 287) in reference to the Foraker Act,
which imposed duties on trade between Porto Rico and the United States
under similar conditions to those now existing between the Philippine
Islands and the United States, in which it was said that "the Foraker
Act is constitutional so far as it imposes duties upon imports from such
island."
The plain inference would seem to be that as Congress subjected
merchandise shipped from the Philippine Islands to the United States to
a customs duty differing only in amount from that imposed on merchandise
from foreign countries, it was likewise intended, in the absence of any
provision indicating a contrary intention, that such merchandise should
in consequence receive all the corresponding benefits afforded by the
general tariff act to which the Philippine tariff was assimilated,
as it certainly can not be inferred, in the absence of any language
expressly requiring such a conclusion, that Congress intended to impose
on the products of the Philippine Islands the general burden of the
tariff laws and at the same time deprive such products of the
corresponding benefits thereunder.
I am constrained to the conclusion that no construction of this
legislation should be adopted which would, in effect, penalize the
Philippine Islands and put its materials, when shipped to the United
States, in a worse position in the matter of drawbacks than materials
brought from any foreign country, as, for example, Spain, unless such
construction is required by the plain and imperative provision of the
statutes, such construction, however, being, in my judgment, on the
contrary, one which is not in accordance with the plain and natural
meaning of the words used in the various statutes when read together and
which can only be arrived at by giving to the words "imported materials"
a narrow and restricted meaning in conflict with the evident purpose of
the act.
While it is true that when the act of 1897 was passed there was no
territory having the exact present status of the Philippine Islands or
other unincorporated territory of the United States, nevertheless, as it
is well settled that a tariff law is "made for the future" and will be
held to apply to a class of goods fairly included within its terms,
although such goods have not been manufactured at the date the act was
passed (Newman v. Arthur, 109 U.S., 132, 138; Pickhardt v. Merritt, 132
U.S., 252, 257), by analogy, it would follow that its benefits should
equally apply to a class of trade fairly coming within its terms,
although not in existence when the act was passed.
Any other conclusion would, in my opinion, sacrifice the spirit and
intent of the Congressional legislation to a strained construction of
the letter, although it is well settled that if the letter of the
statute conflicts with its plain intent the latter must prevail.
(United States v. Kirby, 7 Wall., 482; Smythe v. Fiske, 23 Wall., 374,
380; Carlisle v. United States, 16 Wall., 147, 153;
Heydenfeldt v. Daney Gold Company, 93 U.S., 634, 638; Church of the
Holy Trinity v. United States, 143 U.S., 457; Lau Ow Bew v. United
States, 144 U.S., 47, 59; Hawaii v. Mankichi, 190 U.S., 197, 212.) In
Hawaii v. Mankichi the court said:
"Without going back to the famous case of the drawing of blood in the
streets of Bologna, the books are full of authorities to the effect that
the intention of the lawmaking power will prevail, even against the
letter of the statute, or, as tersely expressed by Mr. Justice Swayne in
Smythe v. Fiske (23 Wall., 374, 380); 'A thing may be within the letter
of a statute and not within its meaning, and within its meaning, though
not within its letter. The intention of the lawmaker is the law.' A
parallel expression is found in the opinion of Mr. Chief Justice
Thompson of the supreme court of the State of New York (subsequently Mr.
Justice Thompson of this court), in People v. Utica Ins. Co. (15 Johns.,
358, 387); 'A thing which is within the intention of the makers of a
statute is as much within the statute as if it were within the letter;
and a thing which is within the letter of the statute, is not within the
statute unless it be within the intention of the makers.' * * * So in
Heydenfeldt v. Daney Gold, etc., Co. (93 U.S., 634, 638), it was said by
Mr. Justice Davis: 'If a literal interpretation of any part of it (a
statute) would operate unjustly, or lead to absurd results, or be
contrary to the evident meaning of the act taken as a whole, it should
be rejected.'"
An instance in which the rule has been laid down that in applying the
tariff laws to territory acquired by the treaty with Spain they should
be construed in harmony with their spirit, even if not with their
letter, will be found in 24 Op., 55, in which the opinion was expressed
by Attorney-General Knox that after the issuance of the President's
proclamation, doing away with the duty imposed by the Foraker Act on
trade between Porto Rico and the United States, while Porto Rico did not
become technically a part of the United States, articles of Porto Rican
origin were still to be regarded as products of the United States within
the meaning of the provision of the tariff act of 1897, allowing
articles produced in the United States to be admitted free of duty when
returned without having advanced in value or improved in condition.
For these reasons, as the raw sugar out of which the sirup in
question was manufactured, had been brought from the Philippine Islands,
and, as I have herein assumed, the duties were paid thereon under the
Philippine revenue act, I am of the opinion that upon the subsequent
exportation to Europe of the sirup manufactured therefrom a drawback
should be allowed on such materials under the provisions of section 30
of the tariff act of 1897.
Respectfully,
CHARLES J. BONAPARTE.
CHEROKEE INDIAN LANDS-- PERIODS OF ALIENATION; 26 Op.Att'y.Gen.
351, August 20, 1907
All lands allotted to citizens of the Cherokee Nation, except
homesteads, will be alienable under the act of July 1, 1902 (32 Stat.,
716), in five years after issuance of patent.
The provision of the act of April 21, 1904 (33 Stat., 189, 204),
authorizing the removal of restrictions upon the alienation of lands of
all allottees of the Five Civilized Tribes, within limitations stated,
and the original five-year restriction as to surplus lands and the
twenty-one year restriction in the act of July 1, 1902 (32 Stat., 716),
were superseded as to full bloods by section 19 of the act of April 26,
1906 (34 Stat., 137, 144), which forbids full bloods to alienate, sell,
dispose of, or encumber in any manner any of the lands allotted to them
for the period of twenty-five years after the passage and approval of
that act, unless the restrictions be removed by Congress prior to the
period indicated.
DEPARTMENT OF JUSTICE,
August 20, 1907.
The SECRETARY OF THE INTERIOR.
SIR: By your letter of August 6, 1907, you request my opinion upon
the following questions arising in the administration of your Department
of the laws relating to the alienation of Cherokee lands in the Indian
Territory:
"1. Will citizens of the Cherokee Nation be lawfully entitled, under
the act of July 1, 1902 (32 Stat., 716), to alienate lands allotted to
them, except homesteads, after the expiration of five years from August
7, 1902; i.e., after the expiration of five years from the date of the
ratification of said act, or will such lands be alienable in the case of
each allottee in five years after the issuance of patent to him?
"2. To what extent, if any, is the right of alienation under said act
of July 1, 1902, affected by the provisions of the act of April 21, 1904
(33 Stat., 189), relative to the removal of restrictions upon alienation
from all citizens, and the act of April 26, 1906 (34 Stat., 137),
relative to the alienation of lands allotted to full-blood Indians?"
The act of July 1, 1902 (32 Stat., 716), providing for the allotment
of the lands of the Cherokee Nation, contains the following provisions:
"SEC. 13. Each member of said tribe shall, at the time of the
selection of his allotment, designate as a homestead out of said
allotment land equal in value to forty acres of the average allotable
lands of the Cherokee Nation, as nearly as may be, which shall be
inalienable during the lifetime of the allottee, not exceeding
twenty-one years from the date of the certificate of allotment.
Separate certificate shall issue for said homestead. During the time
said homestead is held by the allottee the same shall be non-taxable and
shall not be liable for any debt contracted by the owner thereof while
so held by him.
"SEC. 14. Lands allotted to citizens shall not in any manner whatever
or at any time be encumbered, taken, or sold to secure or satisfy any
debt or obligation, or be alienated by the allottee or his heirs, before
the expiration of five years from the date of the ratification of this
act.
"SEC. 15. All lands allotted to the members of said tribe, except
such land as is set aside to each for a homestead as herein provided,
shall be alienable in five years after issuance of patent."
The Indian appropriation act of July 21, 1904 (33 Stat., 189, 204),
provided:
" * * * And all the restrictions upon the alienation of lands of all
allottees of either of the Five Civilized Tribes of Indians who are not
of Indian blood, except minors, are, except as to homesteads, hereby
removed, and all restrictions upon the alienation of all other allottees
of said tribes, except minors and except as to homesteads, may, with the
approval of the Secretary of the Interior, be removed under such rules
and regulations as the Secretary of the Interior may prescribe, upon
application to the United States Indian agent at the Union Agency in
charge of the Five Civilized Tribes, if said agent is satisfied upon a
full investigation of each individual case that such removal or
restriction is for the best interest of said allottee."
The act of April 26, 1906 (34 Stat., 137, 144), providing for the
final disposition of the affairs of the Five Civilized Tribes, provides:
"SEC. 19. That no full-blood Indian of the Choctaw, Chickasaw,
Cherokee, Creek or Seminole tribes shall have power to alienate, sell,
dispose of, or encumber in any manner any of the lands allotted to him
for a period of twenty-five years from and after the passage and
approval of this act, unless such restrictions shall, prior to the
expiration of said period, be removed by act of Congress; and for all
purposes the quantum of Indian blood possessed by any member of said
tribes shall be determined by the rolls of citizens of said tribes
approved by the Secretary of the Interior: Provided, however, That such
full-blood Indians of any of said tribes may lease any lands other than
homesteads for more than one year under such rules and regulations as
may be prescribed by the Secretary of the Interior; and in case of the
inability of any full-blood owner of a homestead, on account of
infirmity or age, to work or farm his homestead, the Secretary of the
Interior, upon proof of such inability, may authorize the leasing of
such homestead under such rules and regulations. * * * "
1. In regard to your first inquiry, I think the clear and specific
statements in section 15 of the act of July 1, 1902, that "all lands
allotted to the members of said tribe, except such land as is set aside
to each for a homestead as herein provided, shall be alienable in five
years after issuance of patent," should be taken as making definite and
certain the interpretation to be given the negative expression in the
previous section that such lands should not, among other things "be
alienated by the allottee or his heirs before the expiration of five
years from the date of the ratification of this act." As the purpose of
the five-year restriction upon alienation presumably was to keep the
allottee in possession of his allotment for that length of time, so that
he might acquire a knowledge of its value and uses and be better fitted
to dispose of it, such purpose might be impaired and perhaps altogether
defeated if the date from which the restrictive period was to commence
were held to be that of the ratification of the act, as many members
might not have received their allotments until long after the
ratification of the act and in some cases not until after the expiration
of five years from that time. It will be observed that by section 13 the
time when homesteads were to become alienable was fixed at "not
exceeding twenty-one years from the date of the certificate of
allotment," upon the receipt of which certificate by section 21 of the
act the allottee became entitled to be put in possession of his
allotment.
This view, it will be observed, satisfies the well-settled rule "that
every part of a statute must be construed in connection with the whole,
so as to make all the parts harmonize, if possible, and give meaning to
each." (Market Co. v. Hoffman, 101 U.S., 116; Sedgwick on State and
Const. Law, 238; Wilberforce's Statute Law, 111.)
2. Your second question is as to the effect of the provision of the
act of April 21, 1904, in regard to the removal of restrictions upon
alienation from all citizens and that of the act of April 26, 1906,
relative to alienation by full bloods upon the right of alienation under
the act of July 1, 1902.
The construction of the statutes referred to seems perfectly clear.
By the act of April 21, 1904, all the restrictions upon the alienation
of lands of all allottees of either of the Five Civilized Tribes who are
not of Indian blood, except minors, are, except as to homesteads,
removed, and all restrictions upon the alienation of all other allottees
of said tribes, except minors and except as to homesteads, are
authorized to be removed upon certain conditions.
The provision of this act authorizing the removal of restrictions, as
well as the original five-year restriction as to surplus lands and the
twenty-one year restriction as to homesteads, in the act of July 1,
1902, were, however, superseded as to full bloods by the provisions of
section 19 of the act of April 26, 1906, which forbids full bloods to
alienate, sell, dispose of, or encumber in any manner any of the lands
allotted to them for a period of twenty-five years from and after the
passage and approval of that act, unless such restrictions shall, prior
to the expiration of said period, be removed by act of Congress, with
the proviso as to leasing.
Respectfully,
CHARLES J. BONAPARTE.
SEMINOLE INDIANS-- MODIFICATION OF AGREEMENT WITH; 26 Op.Att'y.Gen.
340, August 19, 1907
Congress has plenary authority to control the affairs and administer
the property of the Five Civilized Tribes in the Indian Territory and
other Indian tribes.
The agreements between the United States and the Seminole Nation
ratified by the acts of July 1, 1898 (30 Stat., 568), and of April 26,
1906 (34 Stat., 137), are not really treaties, and are of legal force
and effect only because ratified by Congress.
Congress having power to abrogate a formal treaty with a sovereign
nation, may alter or repeal an agreement with an Indian tribe.
Congress has power to enact legislation authorizing the delivery of
Seminole land patents prior to the expiration of the Seminole
government, and also by legislation to modify the terms of the Seminole
agreement of July 1, 1898, with reference to the school fund of that
nation, and authorize the Department of the Interior to assume control
of the schools and the school fund.
The land of the Seminole Nation having been granted to it merely in
its corporate capacity as a nation, the United States Government may, as
a condition of their allotment in severalty and the extinguishment of
its own ultimate interest therein, impose the restrictions upon their
alienation provided by section 19 of the act of April 26, 1906 (34
Stat., 137, 144).
The provisions of section 10 of the act of 1906 (34 Stat., 140) in
regard to the control of the tribal schools and the lands and property
pertaining thereto by the Secretary of the Interior, and the use of the
tribal funds for the purpose of defraying the necessary expenses of such
schools, is purely a governmental and administrative matter involving no
taking of the property of the nation.
The purpose of Congress in sections 10 and 11 of the act of April 26,
1906 (34 Stat., 140), was to give the Secretary of the Interior
exclusive control, within limitations stated, of the revenues of the
Five Civilized Tribes, including the Seminole Nation.
The Secretary of the Treasury may safeguard all disbursements on
behalf of the Seminole Nation now authorized and require that all
Seminole warrants issued after January 1, 1907, shall be approved by the
United States inspector for the Indian Territory and paid by the United
States Indian agent, Union Agency, instead of being paid by the
treasurer of the nation.
DEPARTMENT OF JUSTICE,
August 19, 1907.
The DEPARTMENT OF THE INTERIOR.
SIR: In your letter of March 22 you submit certain questions raised
by the Hon. John F. Brown, principal chief of the Seminole Nation, in
regard to the constitutionality of the act of Congress of April 26, 1906
(34 Stat., 137), providing for the final disposition of the affairs of
the Five Civilized Tribes in the Indian Territory, in so far as it
modifies or changes the provisions of the agreements in regard to the
allotment, distribution, and administration of the property and funds of
the Seminole Nation, which were negotiated with that nation by the
Commission to the Five Civilized Tribes and ratified by the acts of
Congress of July 1, 1898 (30 Stat., 567), and June 2, 1900 (31 Stat.,
250). Certain other questions raised by Chief Brown as to the extent of
your authority under said act are also presented. The several questions
referred to are specifically stated by you as follows:
"1. Whether Congress has power to enact legislation authorizing the
delivery of Seminole patents prior to the expiration of the Seminole
tribal government.
"2. Whether Congress has authority to pass legislation modifying the
terms of the Seminole agreement of July 1, 1898, with reference to the
school fund of that nation and authorize the Department to assume
control of the schools and the school fund.
"3. As to the constitutionality of the provisions of section 19 of
the act of April 26, 1906 (34 Stat., 144), declaring that full-blood
Indians can not alienate their lands for twenty-five years from the date
of the approval of the act 'unless such restriction shall, prior to the
expiration of said period, be removed by act of Congress.'
"4. Whether the Seminole trust or invested funds can be distributed
in a manner not provided by the agreement of 1898 or be used for any
purpose not mentioned therein.
"5. As to the power of the Department to direct that all Seminole
warrants issued after January 1, 1907, shall be approved by the United
States Indian inspector for the Indian Territory and paid by the United
States Indian agent, Union Agency, instead of being paid by the
treasurer of the Seminole Nation.
"6. Whether patents conveying allotments to Seminole citizens should
be delivered before the tribal government is actually extinguished."
The agreement with the Seminole Nation ratified by the act of July 1,
1898, contained these provisions (30 Stat., 568):
"Five hundred thousand dollars ($500,000) of the funds belonging to
the Seminoles, now held by the United States, shall be set apart as a
permanent school fund for the education of the children of the members
of said tribe, and shall be held by the United States at five per cent
interest, or invested so as to produce such amount of interest, which
shall be, after extinguishment of tribal government, applied by the
Secretary of the Interior to the support of Mekasuky and Emahaka
academies and the district schools of the Seminole people; and there
shall be selected and excepted from allotment three hundred and twenty
acres of land for each of said academies and eighty acres each for eight
district schools in the Seminole country.
"When the tribal government shall cease to exist the principal chief
last elected by said tribe shall execute, under his hand and the seal of
the nation, and deliver to each allottee a deed conveying to him all the
right, title, and interest of the said nation and the members thereof in
and to the lands so allotted to him,
and the Secretary of the Interior shall approve such deed, and the same
shall thereupon operate as relinquishment of the right, title, and
interest of the United States in and to the land embraced in said
conveyance, and as a guarantee by the United States of the title of said
lands to the allottee; and the acceptance of such deed by the allottee
shall be a relinquishment of his title to and interest in all other
lands belonging to the tribe, except such as may have been excepted from
allotment and held in common for other purposes. Each allottee shall
designate one tract of forty acres, which shall, by the terms of the
deed, be made inalienable and non-taxable as a homestead in perpetuity.
"All moneys belonging to the Seminoles remaining after equalizing the
value of allotments as herein provided and reserving said sum of five
hundred thousand dollars for school fund shall be paid per capita to the
members of said tribe in three equal installments, the first to be made
as soon as convenient after allotment and extinguishment of tribal
government, and the others at one and two years, respectively. Such
payments shall be made by a person appointed by the Secretary of the
Interior, who shall prescribe the amount of and approve the bond to be
given by such person; and strict account shall be given to the
Secretary of the Interior for such disbursements."
The agreement ratified by the act of June 2, 1900, contained certain
provisions as to the rolls of members of the Seminole Nation and the
descent of property which need not be considered.
The act of April 26, 1906, provided (34 Stat., 138-141):
"SEC. 6. That if the principal chief of the Choctaw, Cherokee, Creek,
or Seminole tribe, or the governor of the Chickasaw tribe shall refuse
or neglect to perform the duties devolving upon him, he may be removed
from office by the President of the United States, or if any such
executive become permanently disabled, the office may be declared vacant
by the President of the United States, who may fill any vacancy arising
from removal, disability, or death of the incumbent, by appointment of a
citizen by blood of the tribe.
"If any such executive shall fail, refuse, or neglect, for thirty
days after notice that any instrument is ready for his signature, to
appear at a place to be designated by the Secretary of the Interior and
execute the same, such instrument may be approved by the Secretary of
the Interior without such execution, and when so approved and recorded
shall convey legal title, and such approval shall be conclusive evidence
that such executive or chief refused or neglected after notice to
execute such instrument.
"Provided, That the principal chief of the Seminole Nation is hereby
authorized to execute the deeds to allottees in the Seminole Nation
prior to the time when the Seminole government shall cease to exist.
"SEC. 10. That the Secretary of the Interior is hereby authorized and
directed to assume control and direction of the schools in the Choctaw,
Chickasaw, Cherokee, Creek, and Seminole tribes, with the lands and all
school property pertaining thereto, March fifth, nineteen hundred and
six, and to conduct such schools under rules and regulations to be
prescribed by him, retaining tribal educational officers, subject to
dismissal by the Secretary of the Interior, and the present system so
far as practicable, until such time as a public school system shall have
been established under Territorial or State government, and proper
provision made thereunder for the education of the Indian children of
said tribes, and he is hereby authorized and directed to set aside a
sufficient amount of any funds, invested or otherwise, in the Treasury
of the United States, belonging to said tribes, including the royalties
on coal and asphalt in the Choctaw and Chickasaw nations, to defray all
the necessary expenses of said schools, using, however, only such
portion of said funds of each tribe as may be requisite for the schools
of that tribe, not exceeding in any one year for the respective tribes
the amount expended for the scholastic year ending June thirtieth,
nineteen hundred and five; and he is further authorized and directed to
use the remainder, if any, of the funds appropriated by the act of
Congress approved March third, nineteen hundred and five, 'for the
maintenance, strengthening, and enlarging of the tribal schools of the
Cherokee,
Creek, Choctaw, Chickasaw, and Seminole nations,' unexpended March
fourth, nineteen hundred and six, including such fees as have accrued or
may hereafter accrue under the act of Congress approved February
nineteenth, nineteen hundred and three, Statutes at Large, volume
thirty-two, page eight hundred and forty-one, which fees are hereby
appropriated, in continuing such schools as may have been established,
and in establishing such new schools as he may direct, and any of the
tribal funds so set aside remaining unexpended when a public school
system under a future State or Territorial government has been
established, shall be distributed per capita among the citizens of the
nations in the same manner as other funds.
"SEC. 11. That all revenues of whatever character accruing to the
Choctaw, Chickasaw, Cherokee, Creek, and Seminole tribes, whether before
or after dissolution of the tribal governments, shall, after the
approval hereof, be collected by an officer appointed by the Secretary
of the Interior under rules and regulations to be prescribed by him;
and he shall cause to be paid all lawful claims against said tribes
which may have been contracted after July first, nineteen hundred and
two, or for which warrants have been regularly issued, such payments to
be made from any funds in the United States Treasury belonging to said
tribes. * * *
"SEC. 19. That no full-blood Indian of the Choctaw, Chickasaw,
Cherokee, Creek, or Seminole tribes shall have power to alienate, sell,
dispose of, or encumber in any manner any of the lands allotted to him
for a period of twenty-five years from and after the passage and
approval of this act, unless such restriction shall, prior to the
expiration of said period, be removed by act of Congress; and for all
purposes the quantum of Indian blood possessed by any member of said
tribes shall be determined by the rolls of citizens of said tribes
approved by the Secretary of the Interior.
"SEC. 28. That the tribal existence and present tribal governments of
the Choctaw, Chickasaw, Cherokee, Creek, and Seminole tribes or nations
are hereby continued in full force and effect for all purposes
authorized by law, until otherwise provided by law, but the tribal
council or legislature in any of said tribes or nations shall not be in
session for a longer period than thirty days in any one year: Provided,
That no act, ordinance, or resolution (except resolutions of
adjournment) of the tribal council or legislature of any of said tribes
or nations shall be of any validity until approved by the President of
the United States: Provided further, That no contract involving the
payment or expenditure of any money or affecting any property belonging
to any of said tribes or nations made by them or any of them or by any
officer thereof, shall be of any validity until approved by the
President of the United States.
"SEC. 29. That all acts and parts of acts inconsistent with the
provisions of this act be, and the same are hereby, repealed."
It is unnecessary to go into any detailed discussion of the power of
Congress to alter, modify, or repeal the provisions of the agreement
with the Seminole Nation ratified by the act of July 1, 1898, and
otherwise provide for the administration of their property and funds, as
provided by the act of April 26, 1906, because the question has been
conclusively settled by the decisions of the Supreme Court. (Stephens v.
Cherokee Nation, 174 U.S., 445; Cherokee Nation v. Hitchcock, 187 U.
S., 294; Lone Wolf v. Hitchcock, 187 U.S., 553; Morris v. Hitchcock,
194 U.S., 384, 388; Wallace v. Adams, 204 U.S., 415.)
These decisions maintain the plenary authority of Congress to control
the affairs and administer the property of the Five Civilized Tribes in
the Indian Territory and other Indian tribes.
In Lone Wolf v. Hitchcock the question involved was as to the
authority of Congress to dispose of the tribal property of the Kiowa,
Comanche, and Apache Indians in Oklahoma in a manner inconsistent with a
treaty previously entered into with such Indians. In upholding the
legislation there in question the court said (187 U.S., 566):
"The power exists to abrogate the provisions of an Indian treaty,
though presumably such power will be exercised only when circumstances
arise which will not only justify the Government in disregarding the
stipulations of the treaty, but may demand, in the interest of the
country and the Indians themselves, that it should do so. When,
therefore, treaties were entered into between the United States and a
tribe of Indians it was never doubted that the power to abrogate existed
in Congress, and that in a contingency such power might be availed of
from considerations of governmental policy, particularly if consistent
with perfect good faith toward the Indians."
It is to be observed that the agreements with the Seminole Nation
herein referred to are not really treaties and are of legal force and
effect only because ratified by act of Congress. Certainly if, as has
been often adjudged, Congress may abrogate a formal treaty with a
sovereign nation (Chinese Exclusion case, 130 U.S., 581; Horner v.
United States, 143 U.S., 578; Fong Yue Ting v. United States, 149 U.
S., 706; La Abra Silver Mining Co. v. United States, 175 U.S., 460), it
may alter or repeal an agreement of this kind with an Indian tribe.
In Lone Wolf v. Hitchcock the court further said (187 U.S., 568):
"Indeed, the controversy which this case presents is concluded by the
decision in Cherokee Nation v. Hitchcock (187 U.S., 294), decided at
this term, where it was held that full administrative power was
possessed by Congress over Indian tribal property."
In Cherokee Nation v. Hitchcock the court held that the act of
Congress of June 28, 1898 (30 Stat., 495), which, among other things,
gave the Secretary of the Interior exclusive power over oil, coal,
asphalt, and other minerals in the Indian Territory and authorized him
to make leases thereof under certain prescribed conditions, the
royalties and rents to be paid into the Treasury of the United States to
the credit of the tribe to which they belonged, was a valid exercise of
power notwithstanding the provisions of the treaties with the Cherokee
Nation which, it was claimed, gave the Cherokees a fee simple title to
their lands.
In that case the court, after referring to its decision in Stephens v.
Cherokee Nation, said (187 U.S., 307-308):
"The holding that Congress had power to provide a method for
determining membership in the Five Civilized Tribes, and for
ascertaining the citizenship thereof preliminary to a division of the
property of the tribe among its members, necessarily involved the
further holding that Congress was vested with authority to adopt
measures to make the tribal property productive, and secure therefrom an
income for the benefit of the tribe.
"Whatever title the Indians have is in the tribe, and not in the
individuals, although held by the tribe for the common use and equal
benefit of all the members. (The Cherokee Trust Funds, 117 U.S., 288,
308.) The manner in which this land is held is described in Cherokee
Nation v. Journeycake (155 U.S., 196, 207), where this court, referring
to the treaties and the patent mentioned in the bill of complaint
herein, said: 'Under these treaties, and in December, 1838, a patent
was issued to the Cherokees for these lands. By that patent, whatever of
title was conveyed was conveyed to the Cherokees as a nation, and no
title was vested in severalty in the Cherokees or any of them.'
"There is no question involved in this case as to the taking of
property; the authority which it is proposed to exercise, by virtue of
the act of 1898, has relation merely to the control and development of
the tribal property, which still remains subject to the administrative
control of the Government, even though the members of the tribe have
been invested with the status of citizenship under recent legislation."
There is nothing to differentiate the case of the Seminoles from that
of the Cherokees. As said with respect to the latter, whatever title the
Seminoles have to their lands is in the tribe and not in the
individuals. The treaty of March 21, 1866, article 3 (14 Stat., 755),
under which they hold them, provided:
"The United States having obtained by grant of the Creek Nation the
westerly half of their lands, hereby grant to the Seminole Nation the
portion thereof hereafter described, which shall constitute the national
domain of the Seminole Indians."
There is likewise no question here as to the taking of property. The
act of April 26, 1906, merely makes somewhat different provisions in
regard to the allotment of the lands and the collection and distribution
of the revenues of the Seminole Nation than was provided for in the
agreements with that nation, but the measures provided are all for the
benefit and protection of the Seminole Nation and its members. It is
merely a matter of administration whether patents shall be delivered
before or after the dissolution of the tribal government. So, too, the
restriction upon alienation in respect to full bloods is simply for the
protection of those Indians. The lands of the Seminole Nation having
been granted to it merely in its corporate capacity as a nation,
necessarily the Government may, as a condition of their allotment in
severalty and the extinguishment of its own ultimate interest therein,
impose such restrictions upon their alienation as the condition of the
members of said nation, or some of them, may in its judgment require.
The power of the United States in this regard was recognized by the
Supreme Court in the Matter of Heff (197 U.S., 488), where a restriction
upon alienation was held not to be inconsistent with the citizenship of
the allottee. The court there said (pp. 508-509):
"But it is said that the Government has provided that the Indians'
title shall not be alienated or encumbered for twenty-five years, and
has also stipulated that the grant of citizenship shall not deprive the
Indian of his interest in tribal or other property, but these are mere
property rights and do not affect the civil or political status of the
allottees. In United States v. Rickert (188 U.S., 432) we sustained the
right of the Government to protect the lands thus allotted and patented
from any encumbrance of State taxation. Undoubtedly an allottee can
enforce his right to an interest in the tribal or other property (for
that right is expressly granted), and equally clear is it that Congress
may enforce and protect any condition which it attaches to any of its
grants. This it may do by appropriate proceedings in either a national
or a State court. But the fact that property is held subject to a
condition against alienation does not affect the civil or political
status of the holder of the title.
Many a tract of land is conveyed with conditions subsequent. * * * "
The provision of section 10 in regard to the control of the tribal
schools and the lands and property pertaining thereto by the Secretary
of the Interior, and the use of the tribal funds for the purpose of
defraying the necessary expenses of such schools, is likewise a purely
governmental and administrative matter and involves no taking of the
property of the nation. In this connection it will be observed that the
Secretary is authorized to use "only such portion of said funds of each
tribe as may be requisite for the schools of that tribe, not exceeding
in any one year for the respective tribes the amount expended for the
scholastic year ending June thirtieth, nineteen hundred and five."
The provision of section 11 as to the collection of the tribal
revenues and the payment of claims against the tribes is also of the
same character.
There remains to be considered only the question as to your authority
"to direct that all Seminole warrants issued after January 1, 1970,
shall be approved by the United States Indian inspector for the Indian
Territory and paid by the United States Indian agent, Union Agency,
instead of being paid by the treasurer of the nation."
The answer to this question depends upon the extent of your authority
over the financial affairs of the Seminole Nation, under the act of
April 26, 1906. By section 11 of that act all the revenues of whatever
character accruing to the Seminole tribe, among others, whether before
or after the dissolution of the tribal government, is directed to be
collected by an officer appointed by you, and you are also directed to
pay all lawful claims against the tribes mentioned which may have been
contracted after July 1, 1902, or for which warrants have been regularly
issued, such payments to be made from any funds in the United States
Treasury belonging to said tribes. In addition, as above noted, you are
authorized to defray the expenses of the tribal schools out of the funds
of said tribes in the Treasury of the United States.
In my judgment the purpose of Congress in these sections was to give
you exclusive control, within the limitations stated, of the revenues of
the Five Civilized Tribes, including the Seminole Nation. It certainly
could not have been its purpose, after authorizing you to defray the
expenses of the tribal schools and to pay all lawful claims contracted
after July 1, 1902, or for which warrants had been regularly issued, to
continue in the tribal government authority to make like or other
disbursements, especially in view of the fact that it had turned the
collection of all tribal revenues of whatever character over to an
officer appointed by you. Being therefore empowered and directed to make
all disbursements on behalf of the Seminole Nation that are now
authorized, I have no doubt whatever that you may safeguard those
disbursements by requiring that all Seminole warrants issued after
January 1, 1907, shall be approved by the United States Indian inspector
for the Indian Territory and paid by the United States Indian agent,
Union Agency, instead of being paid by the treasurer of the nation.
Respectfully,
CHARLES J. BONAPARTE.
DIAMOND SHOAL LIGHT-HOUSE-- COMMENCEMENT OF CONSTRUCTION; 26 Op.
Att'y.Gen. 337, August 16, 1907
Under the facts stated, there has been no such "commencement of
construction," in good faith or otherwise, by Albert F. Eells, who was
authorized under the act of March 3, 1905 (33 Stat., 1266), to
construct, on conditions specified, a light-house and signal station
upon the outer Diamond Shoal at Cape Hatteras, North Carolina, as was
contemplated by that act, but only some preparation therefor.
The term "construction," as used in that act, means an actual putting
together of the parts of the light-house in their proper place and
order, with regard to each other, if not necessarily upon the site to be
occupied.
By the expression "commencement in good faith," the beginning of a
continuous operation of construction was intended, rather than the
making of a first move followed by an immediate cessation of work and
with no apparent readiness to proceed further.
DEPARTMENT OF JUSTICE,
August 16, 1907.
The SECRETARY OF COMMERCE AND LABOR.
SIR: I have received your communication calling attention to the act
of March 3, 1905 (33 Stat., 1266), authorizing Albert F. Eells, of
Boston, Mass., and such others as might be associated with him, "to
construct, in the manner and on the conditions specified,"
a light-house and fog signal upon the outer Diamond Shoal at Cape
Hatteras, on the coast of North Carolina, which provides that--
"The said Eells and his associates shall, within six months from the
date of the approval of this act, file with the Secretary of Commerce
and Labor (a) an agreement in writing accepting all the provisions of
this act; and (b) detailed drawings and specifications of the structure
in all its parts for the approval of said Secretary."
And that--
"Unless said plans are approved by said Secretary prior to January
first, nineteen hundred and six, and the construction of the proposed
structure be in good faith commenced within six months after such
approval, the authority granted by this act shall cease."
You state that the period of six months mentioned expired June 29,
1906, and that--
"Prior to the expiration of this period the sole work of actual
physical construction consisted in the construction at Boston of one
steel girder, at a cost of $400, by the Boston Bridge Works, under a
contract dated May 25, 2906, with the Maine Coast Granite Company, a
corporation formed by Eells and his associates. This girder is one of
twenty-four similar ones to go in the caisson, designed to serve as the
base of the structure. The order for the girder was placed with the
works May 28, 1906, and it was completed June 19, 1906. No other work of
actual physical construction has been done before or since. No work has
been done at the site of the light-house, nor has the site been
designated, nor was a request made to designate the site prior to June
29, 1906; not, in fact, until January 17, 1907. The Maine Coast Granite
Company has, however, acquired some real estate at South Brooksville,
Me., on which a granite quarry is situated, lith some of the granite
quarried and ready for shipment, to be used ultimately for the concrete
to go in the interior of the caisson and for the riprap apron to be
deposited after the placing of the caisson to protect the shoal. This
property was conveyed to the company by Albert F. Eells, December 3,
1901, several years before the passage of the act, and it does not
appear that any quarrying was done thereon since its acquisition.
Moreover, since the rejection of the original drawings and
specifications and their subsequent conditional approval, and prior to
June 29, 1906, E. S. Shaw, engineer, on behalf of Eells and his
associates, states that he has made 'studies' of a design for the
superstructure, with a view to meeting the requirements of the
Light-House Board in connection with the matter of eliminating the
central stairway shaft, storing lifeboats in the interior, and providing
the stairway shaft with fireproof doors, and that he has also prepared
detailed drawings for the twenty-four girders and three different
drawings of the contours of Diamond Shoal. These are the only steps at
any time taken by Eells and his associates even remotely bearing on the
work of actual construction, apart from the organization of the Maine
Coast Granite Company, the assignment to the company of the Eells patent
and franchise under the act, the projected organization of the Cape
Hatteras Construction and Navigation Company, various efforts to finance
the enterprise, sundry conferences, discussions, and consultations, and
some preliminary negotiations with contractors from whom estimates or
bids were obtained for the construction of the caisson."
By the act of Congress above mentioned you are authorized, "within
sixty days after written request therefor from the said Eells and his
associates," to designate a suitable place for the site of the
light-house, and, "at any time after January 1, 1907," to determine
within what period thereafter the structure must be ready for the
installation of the light and other equipment.
You say that Eells and his associates now request action by you under
this authority, and, therefore, you request my opinion upon the question
whether, under the circumstances, there has been a "commencement in good
faith of the construction of the proposed structure within six months
after the approval of the plans within the meaning of the act."
By the term "construction," as used in this statute, it seems to me
that Congress intended an actual putting together of the parts of the
light-house in their proper place and order with regard to each other,
if not necessarily upon the site to be occupied,
and by "commencement in good faith" it seems to me that the beginning of
a continuous operation of constructing was intended rather than the mere
making of a first move followed by an immediate cessation of work and
with no apparent readiness to proceed further.
Here, I think, there was "no commencement of construction" in good
faith or otherwise, but only some preparation therefor. (Kansas Mortgage
Company v. Wyerhaeuser, 29 Pac., 153; Damon v. Granby, 2 Pick., 345,
356; Morse v. City Westport, 19 S.W., 831; Eishleay & Wilson, 42
Wky.Notes Cas.(Pa.), 525, 527; City Sewerage Utilization Co. v. Board
of Health, 1 Leg.Gaz.Rep., 402.)
I accordingly answer your question in the negative.
Respectfully,
CHARLES J. BONAPARTE.
LEAVE OF ABSENCE-- MEMBERS OF THE GRAND ARMY OF THE REPUBLIC; 26 Op.
Att'y.Gen. 336, August 15, 1907
The President is without authority to grant an extension of leave of
absence with pay to members of the Grand Army of the Republic employed
in the Government service who attend the annual encampment of that
order.
DEPARTMENT OF JUSTICE,
August 15, 1907.
The PRESIDENT.
SIR: I have the honor to acknowledge the receipt of your letter of
July 20, asking for my opinion as to whether you may legally comply with
the request of the secretary of the Grand Army of the Republic for an
Executive order directing that members of that organization in the
Government employ be given leave of absence with pay to attend the
annual encampment of the order.
In reply, I am constrained to say that I am unable to find that any
such authority has been given you. Provision has from time to time been
made by Congress for leaves of absence to various classes of Government
officers and employees. (U.S. Comp. Stat., 1901, vol. 1, p. 82.)
It does not, however, appear that you have anywhere been authorized
to extend these vacation periods, nor does it appear that in this
particular veterans of the civil war are entitled to any preference.
Very respectfully,
CHARLES J. BONAPARTE.
EASTERN CHEROKEE FUND-- DEPOSIT OF IN BANKING INSTITUTIONS; 26 Op.
Att'y.Gen. 330, August 7, 1907
The Secretary of the Treasury is not authorized by virtue of the
order of the Court of Claims in cause No. 23214, The Eastern Cherokees
v. The United States, to deposit in Government depositories or other
banking institutions the sum of $4,000,000 appropriated by the act of
June 30, 1906 (34 Stat., 664), in favor of said Eastern Cherokees, in
order that interest may be obtained thereon.
The order referred to was not an order for transfer within the
meaning of section 3639 Revised Statutes, but merely a request or
authorization, and does not abrogate the prohibitions and penalties
imposed by law upon such transfer.
DEPARTMENT OF JUSTICE,
August 7, 1907.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
the 11th ultimo, in which you inclose a certified copy of an order made
by the Court of Claims in cause No. 23214 of The Eastern Cherokees v.
The United States, and request an expression of my opinion as to what
action, if any, the Treasury Department may be justified in taking in
pursuance thereof.
The order is as follows:
"This cause coming on to be further considered, upon the report of
Special Commissioner Guion Miller of May 9, 1907, it is this 13th day of
May, 1907, ordered that the Secretary of the Treasury be, and he is
hereby, authorized and requested to deposit, out of the fund arising
from the decrees of this court of May 18, 1905, and May 28, 1906, in
favor of the Eastern Cherokees, for which appropriation was made in the
general deficiency act of June 30, 1906, the sum of four million
($4,000,000) dollars with such duly recognized Government depositories
or other banking institutions as shall be approved by him, which shall
furnish good and sufficient securities (such as are required in the case
of Government deposits) for the return of such deposit or deposits;
provided such depositories shall undertake and agree to pay interest at
the rate of not less than two per centum per annum for the use of said
money so deposited.
"It is further ordered that the Secretary of the Treasury be, and he
is hereby, authorized to make such deposits for the period of one year
certain, or until the further order of the court, subject, however, to
be demanded at any time after the expiration of one year aforesaid;
provided, however, that the interest shall be paid annually to the
Secretary of the Treasury, and shall be placed by him to the credit of
the Eastern Cherokees entitled to participate in the fund appropriated
by said act of June 30, 1906, above-referred to under the decrees and
orders of this court heretofore entered in this cause."
The proceedings upon which this order is based are as follows:
On March 20, 1905, the Court of Claims rendered an opinion in three
consolidated causes which had been instituted under the acts of July 1,
1902, and March 3, 1903 (32 Stat., 726, 996), conferring jurisdiction
upon it to adjudicate treaty claims of the Cherokee tribe or of the
Eastern Cherokees or other band thereof,
in which it was held that the Cherokee Nation was entitled to recover of
the United States four items, aggregating $1,134,248.23, with interest,
the principal item, $1,111,284.70, being for moneys which were applied
to the expense of moving the Eastern Cherokees to the Indian Territory
under the treaty of 1835, instead of being divided among them, but that
as the Cherokee Nation as a government would soon cease to exist the
Secretary of the Interior should be authorized to form rolls of the
Cherokees, and this last-mentioned sum, with interest, until he should
be ready to make payment, should be paid, less counsel fees and
expenses, directly to the individuals entitled to share in the recovery.
(The Cherokee Nation v. The United States, 40 Ct.Cls., 252, 328, 331.)
On May 18, 1905, a decree was entered adjudging that the Cherokee
Nation have and recover of the United States said four items, with
interest, the proceeds thereof "to be paid and distributed as follows"
namely: Of the three small items one was to be paid direct to the
Cherokee Nation and the other two to the Secretary of the Interior to be
credited on certain Cherokee funds; and out of the principal item,
namely, "$1,111,284.70, with interest thereon from June 12, 1838, to
date of payment," the counsel fees and expenses chargeable by contract
or allowed by the court should be paid by the Secretary of the Treasury
to the persons entitled, and the balance should be paid to the Secretary
of the Interior, who, after first paying the costs and expenses incident
to the distribution, should distribute the remainder directly to the
Eastern and Western Cherokees entitled, as individuals, or to their
legal representatives. (40 Ct.Cls., 363.)
On appeal this decree was modified by the Supreme Court on April 30,
1906, so as to specifically limit the distribution to the Eastern
Cherokees entitled, as individuals, and otherwise in all things
affirmed. (United States v. Cherokee Nation, 202 U.S., 101, 130.)
On May 28, 1906, a decree was entered in the Court of Claims
modifying the original decree of May 18, 1905, in accordance with the
mandate of the Supreme Court, and ordering that the Secretary of the
Interior cause to be prepared a roll of those entitled to share in the
distribution.
On June 30, 1906, in the general deficiency act, Congress made the
appropriation which is referred to in the order of the Court of Claims,
and which is, literally, an appropriation to pay the original judgment
of May 18, 1905, without reference to either of the subsequent decrees.
This act appropriates, "out of any money in the Treasury not otherwise
appropriated," a sum as follows:
"To pay the judgment rendered by the Court of Claims on May
eighteenth, nineteen hundred and five, in consolidated causes numbered
twenty-three thousand one hundred and ninety-nine, The Cherokee Nation
versus The United States; numbered twenty-three thousand two hundred
and fourteen, The Eastern Cherokees versus The United States, and
numbered twenty-three thousand two hundred and twelve, The Eastern and
Emigrant Cherokees versus The United States, aggregating a principal sum
of one million one hundred and thirty-four thousand two hundred and
forty-eight dollars and twenty-three cents, as therein set forth, with
interest upon the several items of judgment at five per centum, one
million one hundred and thirty-four thousand two hundred and forty-eight
dollars and twenty-three cents, together with such additional sum as may
be necessary to pay interest, as authorized by law." (34 Stat., 634,
664.)
Meanwhile, the Secretary of the Interior having appointed a special
agent to make up the roll provided for in the decree of the court, but
great difficulties having arisen, owing chiefly to a number of
undetermined legal questions, on February 20, 1907, transmitted certain
questions to the Court of Claims for its opinion, under the provision of
section 2 of the Bowman Act (22 Stat., 485), and thereafter, on April
10, 1907, addressed a letter to the court requesting that the enrollment
of the Eastern Cherokees and the distribution of the fund should be made
under the direct supervision and authority of the court. A petition to
this effect was also filed by certain claimants.
Accordingly, on April 29, 1907, the Court of Claims vacated so much
of the decree of May 18, 1906, as provided that the Secretary of the
Interior should cause the roll to be prepared and distribute the fund,
and appointed the former special agent as special commissioner of the
court to prepare the roll.
On May 9, 1907, the special commissioner filed a report stating that
the Comptroller of the Treasury had decided that under the appropriation
of June 30, 1906, the original sum of $1,111,284.70 bore interest to May
14, 1906, the date of the mandate of affirmance by the Supreme Court,
making a total, principal and interest, of $4,937,036.16, but that
interest ceased from that date (26 Stat., 537); that after deducting
attorneys' fees and expenses of enrollment already disbursed there was
left about $4,040,000 standing to the credit of the fund in the Treasury
Department; that it would probably take about two years to make up and
approve the rolls (it being estimated that there will be about 65,000
individual claimants), and it was of vital importance to the Indians
that interest should, in the meantime, be obtained on the fund, and
therefore recommending, in view of the court's original intention that
the recovery should bear interest until distributed, that the Secretary
of the Treasury be requested and authorized to deposit at interest,
under certain conditions, $4,000,000 of the amount standing to the
credit of the Eastern Cherokees.
Thereupon, on consideration of this report, the Court of Claims, on
May 13, 1907, entered the order, a copy of which is inclosed in your
letter.
Under the foregoing state of facts, after careful consideration of
the question submitted, I concur in the opinion expressed by the Acting
Solicitor of the Treasury that you would not be authorized to make the
deposit of $4,000,000 in Government depositories or other banking
institutions in accordance with the request contained in the order of
the Court of Claims.
1. It is clear that, independently of this order, the making of such
deposit is forbidden by the Revised Statutes.
Section 3639 provides that "the Treasurer of the United States, * * *
and all public officers of whatsoever character, are required to keep
safely, without loaning, using, depositing in banks, or exchanging for
other funds than as specially allowed by law, all the public money
collected by them, or otherwise at any time placed in their possession
and custody,
til the same is ordered, by the proper Department or officer of the
Government, to be transferred or paid out; and when such orders for
transfer or payment are received, faithfully and promptly to make the
same as directed * * * ."
Section 5490 provides that "every officer or other person charged by
any act of Congress with the safekeeping of the public moneys, who fails
to safely keep the same, without loaning, using, converting to his own
use, depositing in banks, or exchanging for other funds than as
specially allowed by law, shall be guilty of embezzlement" of such
moneys and punished by imprisonment and fine.
Section 3651 provides that "no exchange of funds shall be made by any
disbursing officer or agent of the Government * * * other than an
exchange for gold, silver, United States notes, and national-bank notes;
and every such disbursing officer, when the means for his disbursements
are furnished to him in gold, silver, United States notes, or
national-bank notes, shall make his payments in the moneys so
furnished," and that the head of the proper Department shall immediately
suspend any disbursing officer or agent violating these provisions and
report such violations to the President, who may thereupon promptly
remove him from office.
It was said by Attorney-General Devens that the second clause of this
section treats every disbursing officer or agent of the Government "not
as a debtor to the United States, but as a bailor of the funds of the
United States, who is required to pay them out, and necessarily to keep
them in the precise form in which he receives them," and that the
Treasurer and assistant treasurers of the United States are prohibited
from even exchanging gold and silver coin for United States notes. (16
Op., 381.)
Furthermore, while the Secretary of the Treasury is authorized by
section 3640 of the Revised Statutes to transfer the moneys in the hands
of any public depository to the Treasury of the United States, and to
transfer them from one depository to another, as their safety and the
convenience of the public shall require, there is no provision whatever
authorizing him to transfer moneys from the Treasury to a public
depository for any purpose whatsoever.
It is manifest that under these several provisions of the Revised
Statutes the deposit by the Treasurer of $4,000,000 of the public moneys
in a public depository or other banking institution, in order that
interest may be obtained thereon, would be forbidden by law, unless the
order of the Court of Claims is such an order for the transfer of public
moneys "by the proper Department or officer of the Government," within
the meaning of section 3639, as would authorize such transfer to be
made.
2. Without discussing the question as to whether, if the court had
directed you to make the transfer by a specific order to that effect,
this would have been, under all the circumstances and in view of the
appropriation of June 30, 1906, an order from the proper Department or
officer of the Government, within the meaning of section 3639, it is
sufficient to say that the court has not in fact given you such
direction or order, but that the "order" in question merely requests and
authorizes you to make the transfer without in any manner directing that
it be done.
It is clear to my mind that such a request is not an order for the
transfer within the meaning of the statute, and does not abrogate the
prohibitions and penalties imposed by law upon such transfer.
Respectfully,
CHARLES J. BONAPARTE.
SUBMARINE AND SUBSURFACE BOATS-- CONSTRUCTION, PURCHASE, 26 Op.
Att'y.Gen. 321, July 30, 1907
The Secretary of the Navy is authorized to expend a part of the
moneys appropriated by the acts of June 29, 1906 (34 Stat., 583), and
March 2, 1907 (34 Stat., 1204), for the construction or purchase of one
or more submarine boats of the Lake type, provided he shall be satisfied
that the boat or boats in question when completed will be at least equal
in value for purposes of naval warfare to the Octopus, or whatever other
boat may have been in his judgment, on March 2, 1907, the best boat of
the submarine class owned by or under contract for the Government.
The words "any boat that does not in such test prove to be" equal to
the best boat now owned by the United States, in the act of March 2,
1907 (34 Stat., 1204), must be understood as meaning "any boat that is
not shown by the result of such tests likely to be."
The word "equal," in the same provision, must be understood as
meaning "at least equal" or "not inferior;" and the words "in value for
naval purposes," or equivalent language, must be read into the passage
after the word "equal."
The comparison involved in the provision is not one between the boats
competing in the tests, nor between the types of boats thereby
described, but between a boat to be constructed and the best boat of the
same class now owned or contracted for by the Government.
Upon the hypothesis, as the papers submitted tend to show, that the
United States did not own on March 2, 1907, and had not contracted for,
any boat of the subsurface type, Held, that the provisions of the act of
1907, above referred to, have no application to boats of the subsurface
type, and the Secretary of the Navy is authorized, in his discretion, to
expend a portion of the appropriation therein made for the purchase of
subsurface boats of the type submitted to trial.
DEPARTMENT OF JUSTICE,
July 30, 1907.
The SECRETARY OF THE NAVY.
SIR: I have the honor to acknowledge the receipt of your letter of
July 8, 1907, in which you ask the following questions:
"1. Whether, upon the condition of facts thus presented, the
Department is authorized to expend any portion of the moneys
appropriated by the acts of June 29, 1906 (34 Stat., 583), and March 2,
1907 (34 Stat., 1204), for the construction or purchase of a submarine
boat or boats of the Lake type?
"2. Whether, under the facts as stated, the Secretary of the Navy is
authorized to expend any portion of the appropriations referred to for
the purchase of subsurface boats of the type subjected to trial as above
set forth?"
"The conditions of facts thus presented" and the "facts, as stated,"
appear from your letter to be as follows:
The act making appropriations for the naval service for the fiscal
year ending June 30, 1907 (34 Stat., 583), contains the following
provisions:
"The Secretary of the Navy is hereby authorized, in his discretion,
to contract for or purchase subsurface or submarine torpedo boats, to an
amount not exceeding one million dollars, after such tests as he shall
see fit to prescribe, to determine the comparative efficiency of the
different boats for which bids may be submitted: Provided, That such
tests shall take place within nine months from the date of the passage
of this act; and for such purpose the sum of five hundred thousand
dollars is hereby appropriated."
The act above quoted was supplemented by the following legislation,
contained in the act making appropriations for the naval service for the
fiscal year ending June 30, 1908, approved March 2, 1907 (34 Stat.,
1204):
"That the provision in the Naval Appropriation Act, approved June
twenty-ninth, nineteen hundred and six, authorizing the Secretary of the
Navy to contract for subsurface or submarine boats after certain tests
to be completed by March twenty-ninth, nineteen hundred and seven, is
hereby amended, in accordance with the recommendation of the Secretary
of the Navy, so as to extend the test period until May twenty-ninth,
nineteen hundred and seven; and the limit of cost provided for in the
authorization aforesaid is hereby increased to three million dollars,
and the sum of one million dollars, which includes the half million
dollars heretofore appropriated, is hereby appropriated, and to remain
available until expended, no part of this appropriation to be expended
for any boat that does not in such test prove to be equal in the
judgment of the Secretary of the Navy to the best boat now owned by the
United States or under contract therefor,
and no penalties under this limitation shall be imposed by reason of any
delay in the delivery of said boat due to the submission or
participation in the comparative trials aforesaid."
In pursuance of the provisions of these enactments the Navy
Department appointed a Board for the purpose of testing and reporting
upon submarine and subsurface boats, and this Board, after conducting
trials of the Octopus, a submarine boat built by the Electric Boat
Company under contract with the United States; of the Lake, a boat
offered by the Lake Torpedo Boat Company, and a boat submitted by the
Subsurface Torpedo Boat Company; submitted, April 30, 1907, a report
from which the following quotations are taken:
"It is the unanimous opinion of this Board that the Octopus is the
superior boat presented for tests; and furthermore that she is equal to
the best boat now owned by the United States and under contract.
"The Board is also of the opinion that a boat generally similar to
the Octopus, 0ut larger, would be a superior naval weapon.
"The subsurface boat can not be compared with submarine boats, being
of an entirely different type, but could be considered in the class of
torpedo boats or destroyers if built of sufficient size-- yet, in the
absence of a regular subsurface boat, there being but a quarter-size
model, it was impossible to make a satisfactory comparison with any
class of vessels. From what the Board observed of the speed and
maneuvering abilities of the model, there is no reason to doubt that
guarantees made in these respects can be carried out.
"It may also be conceded that a subsurface boat, as compared to a
torpedo boat, has less vulnerability, requires less men, and has a
larger steaming radius, but she has less speed and greater draft."
Subsequently you addressed to the Board instructions to reply to the
following two questions:
"1. Do the trials conducted by the Board show that the type of
submarine boats represented by the Lake is superior, inferior, or equal
to the type represented by the Octopus? Specify in what respects.
"2. With respect to the subsurface boat, and in view of the finding
of the Board that such boats 'can not be compared with submarine boats,
being of an entirely different type,' an expression of the Board's
opinion, as deduced from the tests conducted during the trials, is also
desired as to whether or not it was developed by such tests that boats
of the subsurface type would, as a means of offensive or defensive
warfare, be superior, equal, or inferior to the best torpedo boats now
owned or contracted for by the Government, provided such boats were
built of a size suitable to render their qualities available?"
The Board answered these questions as follows:
"1. That the type of submarine boat as represented by the Lake is, in
the opinion of the Board, inferior to the type as represented by the
Octopus.
"2. The closed superstructure of the Lake, with the large, flat deck,
which is fitted to carry water ballast and to contain fuel tanks and air
flasks, which is an essential feature of the Lake boat presented to us
for trial, is inferior to the arrangements on board the Octopus for the
same purposes, and also is, in the opinion of the Board, detrimental to
the proper control of the boat.
"3. The hydroplanes, also an essential feature of the Lake boat
presented to us for trial, were incapable of submerging the boat on an
even keel. They are therefore regarded as an objectionable incumbrance.
"4. The Board is of the opinion that the tests of the subsurface boat
model did not develop that boats of this type, built of a size suitable
to render their qualities available, are equal to the best torpedo boat
now owned by the Government."
It appears that Capt. Adolph Marix, U.S. Navy, president of the
Board, did not concur in the fourth of the above findings and submitted
a separate report on the subject; but this fact does not seem to be
material.
I am informed by your letter of July 8, above mentioned, that you
have approved the reports of the Board (meaning, as I assume, the report
of the Board with respect to the matter as to which the said reports
were not unanimous) and have adopted their conclusions.
Answers to both of your questions depend upon the construction of the
following passage in the act approved March 2, 1907:
" * * * No part of this appropriation to be expended for any boat
that does not in such test prove to be equal in the judgment of the
Secretary of the Navy to the best boat now owned by the United States or
under contract therefor."
It is obvious that this provision is somewhat carelessly worded and
can not be taken in its literal sense, for two reasons. In the first
place, the appropriation in question is not to be expended for the
purchase of any boat taking part in the test to which this passage
refers, but for the construction of boats more or less similar to those
tested, so that the words "any boat that does not in such test prove to
be" must evidently be understood as meaning "any boat that is not shown
by the result of such tests likely to be."
Secondly, since it is plain that the Congress could not have meant to
prohibit the construction of a boat superior to any now owned by the
United States, the word "equal" must be understood as meaning "at least
equal" or "not inferior" and, moreover, since it would be unreasonable
to interpret this "equality" as referring to size, cost, or other
particulars inconsistent with the evident general meaning of the
provision, the words "in value for naval purposes" or equivalent
language must be read into the passage after the word "equal" in order
to give the provision a rational and consistent construction.
I have been favored with written or printed arguments by counsel for
all the construction companies affected to aid in the determination of
the questions submitted in your letter and it is proper to say that the
counsel for one of these companies has argued, in substance, that the
provision in question is insensible or repugnant in its terms and that
for this reason the passage should be wholly disregarded.
I am unable to assent to this argument. I think the passage can be
given a rational and effective construction in accordance with the
canons of statutory interpretation by reading it, as above suggested, as
equivalent in meaning to "no part of this appropriation to be expended
for any boat that is not shown by the results of such tests likely to be
at least equal in value for naval purposes, in the judgment of the
Secretary of the Navy, to the best boat now owned by the United States
or under contract therefor."
A further qualification of the language used is necessary to give
effect to what I consider the evident meaning of the Congress, by the
insertion before the word "boat" of the words "submarine or subsurface."
This appears to have been virtually assumed by the Board in its report,
but, as is hereinafter pointed out, there is room for doubt whether the
Board gave full effect, in its reply to your second question, to this,
in my judgment, necessary assumption.
For the sake of clearness, it may be well to point out that the
comparison involved in the provision under discussion is not one between
the boats competing in the prescribed tests, nor yet between the types
of boats thereby represented, but between a boat to be constructed by
one or the other of the competing construction companies and the best
boat of the same class now owned or contracted for by the Government. To
give a clear illustration of my meaning: If we suppose the Octopus to
be the best boat of the submarine class owned by the Government or under
contract on March 2, 1907, then the comparison for the purpose of this
provision is to be made between the Octopus and such an improved boat
of, say, the Lake type, as the Secretary of the Navy may believe the
Lake Torpedo Boat Company can construct in accordance with the
specifications of its bid. It is not at all decisive of this question
that the type of the Octopus may be, in the judgment of the Secretary of
the Navy, superior to that of the Lake, for it is possible that,
notwithstanding this inferiority of type, an individual boat of the Lake
type might be constructed equal or even superior to the Octopus.
The inferiority of the Lake type is, of course, a relevant circumstance
to be considered by the Secretary in determining whether the Lake
Torpedo Boat Company can make a vessel of their type which shall be
worth as much as or more than the Octopus for naval purposes, but if he
shall find that an enlarged and otherwise improved boat of the Lake type
might be built which would equal or exceed in value for naval purposes
the best existing boat of the Octopus type, his discretion is freed from
the operation of this provision.
If the Congress had meant that all the boats to be paid for out of
the appropriation in question should be of the type shown to be the best
by the results of the tests prescribed, there would have been no
difficulty in using appropriate language to express this meaning. What
the Congress has said is that the best boat now owned or contracted for
by the Government shall constitute a minimum of naval efficiency which
must be found in any future vessel to be paid for out of this
appropriation.
That such was the meaning of the Congress would be strongly suggested
by a consideration of notorious facts in the contemporary history of
naval construction. It is well known that certain nations have
constructed large numbers of submarine vessels, and that a certain class
of critics have strongly urged the hasty construction of many vessels of
the same class by the United States. It is also notorious that some
authorities in naval matters question seriously the practical value of
vessels of this class, and advise that they be built at present in
comparatively small numbers, and that existing types of submarine boats
be regarded as, for the present, largely experimental. The provision in
question evidently imposes a restriction on the discretion of the
Secretary of the Navy, and, as it must be assumed that the Congress
expects that official always to act in accordance with his own best
judgment of the public needs, it seems reasonable to believe that the
Congress meant by this provision to indorse the second, rather than the
first, of the two above-mentioned theories,
by fixing a minimum of efficiency for naval purposes to be possessed by
any vessel of the class which should be built out of the appropriation
provided, so that the Secretary might not be led, by considerations of
economy or rapidity of construction, to add to the Navy vessels of less
value for purpose of naval warfare than should be possessed by the
submarine boat selected as the minimum standard of merit. In other
words, the Congress, by this provision, has said to the Secretary of the
Navy: "You must not build, out of this appropriation, any boat for
which, in your judgment, it would not be to the interest of the
Government to pay as much as for the best boat of the same class which
you now have, or are soon to have, in the Navy."
While it must be owned that the language of this provision is in some
measure obscure, and that its construction is not wholly free from
difficulty, I think the foregoing considerations establish its meaning
with sufficient certainty to justify Executive action in conformity to
the sense indicated.
It follows from what has been above said that, while the first three
findings of the Board which have met your approval embody facts suitable
for your consideration in determining, as a matter of discretion,
whether you will or will not expend any part of the moneys appropriated
by the acts mentioned in your first question to me for the construction
or purchase of a submarine boat or boats of the Lake type, they are,
nevertheless, not decisive of this question, and you are authorized, in
my opinion, to expend some part of the said moneys for the construction
or purchase of one or more boats of the type mentioned, provided you
shall be satisfied that the boat or each of the boats in question, when
completed in accordance with the terms of contracts to be made by you
with the builders of the same, shall be, at least, equal in value, for
purposes of naval warfare, to the Octopus, or whatever other boat may
have been, in your judgment, on March 2, 1907, the best boat of the
submarine class owned by or under contract for the Government.
With respect to your second question, I do not find, in the papers
accompanying your letter, anything to show that the United States owned,
or had under contract for delivery, on March 2, 1907, any subsurface
boat or boat of the same class with the subsurface boat of the type
subjected to trial as set forth in the same accompanying papers.
It is true that the Board has found, and you have approved its finding,
that the subsurface boat "could be considered in the class of torpedo
boats or destroyers, if built of sufficient size," but this finding does
not seem to me to establish that a subsurface boat can be fairly
considered either a "torpedo boat" or a "destroyer" within the meaning
of the act of Congress providing for comparison with "the best boat now
owned by the United States or under contract therefor." One very obvious
reason sustaining this view of the matter is that the Board refers to
two distinct classes of vessels in this comparison. If this section of
the appropriation act had provided for the construction of "torpedo
boats," and had contained a proviso in the same language as that which
we have been considering, it seems evident that "the best boat now owned
by the United States" would be understood as meaning the best torpedo
boat and not the best destroyer, and, since the Board, in its finding,
has grouped subsurface boats with both torpedo boats and destroyers, it
would seem that it has had in view rather the end to be attained by the
military engine in question, and the general method of attaining that
end, than the specific means adopted in the case of each type so to
effectually utilize such method as to attain the desired end.
In my opinion, the papers submitted with your letter tend to show
that the United States, on March 2, 1907, did not own and had not
contracted for any boat of the subsurface class, although the facts in
this respect are not stated with sufficient definiteness to enable me to
assume them as a basis for an opinion. Upon the hypothesis, however,
that no vessel of this class was either owned by the Government or under
contract at the date of the approval of the bill in question, it is my
opinion that the provision contained in the section of the appropriation
act to which you have called my attention has no application to boats of
this class,
and therefore that upon the said hypothesis you would be authorized, in
your discretion, to expend some portion of the appropriation referred to
for the purchase of subsurface boats of the type submitted to trial as
above set forth.
I think it appropriate to say, in conclusion, that the discretion
conferred upon the Secretary of the Navy by the act making
appropriations for the naval service for the fiscal year ending June 30,
1907 (34 Stat., 583), which was, in this respect, reenacted by the act
approved March 2, 1907 34 Stat., 1204), with regard to the purchase or
construction of vessels of these two classes, is a very wide discretion;
and it would, in my judgment, defeat the general purpose of the
Congress to place upon the provision above discussed such a construction
as would relieve him of the responsibility which the Congress, in my
opinion, plainly intended to impose upon him as to the expenditure of
this portion of the appropriation.
Very respectfully,
CHARLES J. BONAPARTE.
NAVY-- DISCHARGE-- REENLISTMENT-- CONTINUOUS SERVICE; 26 Op.Att'y.
Gen. 319, July 22, 1907
An enlisted man in the Navy who was appointed as mate and continued
to serve as such after the expiration of his term of enlistment, without
receiving a discharge, is still in the service and entitled to his
discharge, and may be permitted to reenlist with the benefit of
continuous service under article 839 of the Navy Regulations of 1905.
DEPARTMENT OF JUSTICE,
July 22, 1907.
The SECRETARY OF THE NAVY.
SIR: In your note of July 16, 1907, you ask my opinion, in
substance, whether one who enlisted for service in the Navy for a period
of four years, and was appointed as mate and continued to serve as such
after the expiration of his term of enlistment without receiving any
discharge, may now have his appointment as mate revoked and be permitted
to reenlist, with the benefit of continuous service under article 839,
Navy Regulations. Specifically, your questions refers to Richard J.
Keating, who is one of several who are in that situation in the Navy.
Article 861(1) of the Navy Regulations provides that:
"An enlisted man rated as mate or appointed a warrant officer is not
thereby discharged from his enlistment."
The contract of an enlisted man is a contract to serve the Government
in that capacity for the period specified. As far as concerns any
question here, it differs in no respect from a contract by one
individual to serve another during a specified period. In either case,
if the man continues to perform the service until the end of the period
specified, and if the other party has also performed, the contract is at
an end.
In this case, at the expiration of Keating's term of enlistment his
contract was performed and was no longer a bar to his discharge by the
Government. He could not require the Government to retain him in the
service nor would the Government ordinarily compel him to remain. I need
not refer in this opinion to those special circumstances, such as
absence from the United States, etc., which might exceptionally affect
this general statement. But in this case, as in a case of a contract
between individuals, if neither party desires to terminate the service,
but it continues without any express contract, it will be held to be a
continuance of the service upon the same terms as before, but not for
any definite period. If this were not so then these men, serving beyond
their terms of enlistment, would not be legally in the service, nor
would there be any warrant for paying them for the service rendered.
Strictly, this man Keating and the others should have been given
their discharges at the expiration of their enlistments. That this was
not done was due to the Government, which is estopped to say that these
men are not in the service as before. Being in the service and their
terms of enlistment having expired, they are, of course, entitled to be
discharged, and as Mate Keating has rendered the continuous service
mentioned in article 839, section 16 of the Navy Regulations, your
question is answered in the affirmative.
Respectfully,
CHARLES J. BONAPARTE.
CREEK ALLOTMENTS-- PERIOD OF ALIENATION; 26 Op.Att'y.Gen. 317, July
17, 1907
The period of five years within which lands allotted to Creek
citizens may not be alienated, except with the approval of the Secretary
of the Interior, began to run from August 8, 1902, the date of the
President's proclamation announcing the ratification by the Creek Nation
of the agreement contained in the act of June 30, 1902 (32 Stat., 500).
DEPARTMENT OF JUSTICE,
July 17, 1907.
The SECRETARY OF THE INTERIOR.
SIR: By your letter of the 19th ultimo my opinion was requested upon
certain questions arising in the administration of the laws relating to
the allotment of lands in the Creek Nation. On July 13, because of your
being advised as to the pendency of certain cases in the courts
involving some of these questions, you withdrew your request for an
opinion as to those sub judice, leaving for my determination only the
following question:
"Did the period of five years within which lands allotted to Creek
citizens may not be alienated, except with the approval of the Secretary
of the Interior, begin to run June 30, 1902, date of approval of the act
ratifying the agreement with the Creeks, July 26, 1902, date of
ratification of said agreement by the Creek council, or August 8, 1902,
date of the President's proclamation?"
The supplemental agreement with the Creek Nation, ratified by the act
of Congress approved June 30, 1902 (32 Stat., 500, 503-505), provided:
"16. Lands allotted to citizens shall not in any manner whatever or
at any time be encumbered, taken, or sold to secure or satisfy any debt
or obligation nor be alienated by the allottee or his heirs before the
expiration of five years from the date of the approval of this
supplemental agreement, except with the approval of the Secretary of the
Interior.
"21. This agreement shall be binding upon the United States and the
Creek Nation and upon all persons affected thereby when it shall have
been ratified by Congress and the Creek national council, and the fact
of such ratification shall have been proclaimed as hereinafter provided.
"22. The principal chief, as soon as practicable after the
ratification of this agreement by Congress, shall call an extra session
of the Creek Nation council and submit this agreement, as ratified by
Congress, to such council for its consideration, and if the agreement be
ratified the principal chief shall transmit to the President of the
United States a certified copy of the act of the council ratifying the
agreement, and thereupon the President shall issue his proclamation
making public announcement of such ratification; thenceforward all the
provisions of this agreement shall have the force and effect of law."
It appears from the correspondence accompanying your first letter
that it has been contended by many parties in the Indian Territory
dealing in Indian lands that the restrictive period provided for in
paragraph 16 of this agreement expires on June 30, 1907, that being five
years from the date of the approval of the act of Congress ratifying
that agreement.
This contention seems to me wholly without merit. It is manifest that
the parties to the agreement, when they spoke of the approval of the
agreement, meant the approval of the agreement and not the approval of
the act of Congress ratifying the agreement. On that date the agreement
was approved by one party only.
The only doubt, I think, is as to whether July 26, 1902, the date of
the ratification of the agreement by the Creek Council, or August 8,
1902, the date of the proclamation by the President of the fact of
ratification, should be held to be the date from which the restrictive
period began to run.
On the former date the agreement had undoubtedly been approved by both
parties, but it was not until the latter date that, according to its
express terms, the agreement became binding and effective. As it seems
to me unreasonable and illogical to suppose that the parties to the
agreement intended that the restrictive period should begin to run
before the agreement became binding and effective, I am constrained to
hold that such period began to run from August 8, 1902, and will expire
August 8, 1907.
Respectfully,
CHARLES J. BONAPARTE.
DRUGS AND MEDICINE ACT-- STANDARDS OF PURITY-- FOOD AND DRUGS ACT;
26 Op.Att'y.Gen. 311, July 17, 1907
In applying the drugs and medicine act of June 26, 1848 (9 Stat.,
237), to importations originating in Italy, the standard of strength and
purity to be enforced is that established by the pharmacopoeia of the
United States, and not that of Italy or any other foreign country.
Importations originating in any of the countries whose pharmacopoeias
are mentioned in section 2935, Revised Statutes, must conform to the
pharmacopoeia of the country of their origin; but if produced in any
other country, whose pharmacopoeias are not thus standardized, then the
pharmacopoeia of the United States must control.
When the meaning of a statute is doubtful, great weight should be
given to the construction placed upon it by the Department charged with
its execution, and where such construction has been uniform and long
continued it should not be disregarded without the most cogent reasons,
and still greater weight should be given where the statute has been
subsequently reenacted by Congress.
The drugs and medicine act of 1848 and the food and drugs act of June
30, 1906 (34 Stat., 768), are, generally speaking, cumulative and should
both be given effect, and an importation of drugs should not be admitted
if it fails to conform to the standard established by the former or to
the tests imposed under the latter.
Drugs imported from Italy, although meeting the standard required by
the drugs and medicine act of 1848, are still subject to the provisions
of the food and drugs act of 1906 regarding adulteration, misbranding,
and false labeling, and to any test that may be applied to them by the
direction of the Secretary of Agriculture in accordance with section 11
of the latter act.
The provisions of the drugs and medicine act of 1848, now
incorporated in section 2936, Revised Statutes, that importations found
to conform to the standard therein imposed shall be thereupon "passed
without reservation, on payment of the customary duties," are repealed
by implication, as applied to importations which are subject to
rejection under tests of the food and drugs act.
DEPARTMENT OF JUSTICE,
July 17, 1907.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
the 10th ultimo, in which, in connection with an application for
reexamination of certain lemon and orange oil imported by G. H.
Reitmann at the port of New York, which has been denied entry by the
appraiser, you request an expression of my opinion upon certain
questions arising under the drugs and medicine act of 1848 and the food
and drugs act of 1906.
1. The first question submitted is whether in applying the drugs and
medicine act of 1848 to importations originating in Italy, the standard
of strength and purity to be enforced is that established by either the
Italian pharmacopoeia or by any of the foreign pharmacopoeias mentioned
in the act.
The drugs and medicine act of 1848, which is embodied in sections
2933 and 2937 of the Revised Statutes, provides that all drugs,
medicines, and medicinal preparations shall, before passing the
custom-house, be examined in reference to their quality, purity, and
fitness for medical purposes to their quality, purity, and fitness for
medical purposes (sec. 2933); that if they are found, "in the opinion
of the examiner, to be so far adulterated or in any manner deteriorated,
as to render them inferior in strength or purity to the standard
established by the United States, Edinburgh, London, French, and German
pharmacopoeias and dispensatories, and thereby improper, unsafe, or
dangerous to be used for medicinal purposes, a return to that effect
shall be made upon the invoice, and the articles so noted shall not pass
the custom-house" (sec. 2935) unless the owner or consignee shall call
for an analytical reexamination at his own expense, when the collector
shall cause a careful analysis of the articles to be made by a competent
analytical chemist (secs. 2935, 2936); that the sworn report of this
chemist shall be final, and if it declares "the return of the examiner
to be erroneous and the articles to be of the requisite strength and
purity according to the standards referred to in the next preceding
section, the entire invoice shall be passed without reservation, on
payment of the customary duties" (sec. 2936); but that if the report
sustains the examiner's return, the articles shall be reexported within
six months or the collector shall cause them to be destroyed (sec.
2937).
The Italian pharmacopoeia, it will be seen, is not one of those made
a standard by the act.
The ambiguity of the language in the act, especially in the use of
the words "standard" in one section and "standards" in another, makes it
doubtful, as an original question, whether it was intended to require an
importation of drugs and medicines to conform to the several standards
of each and all of the pharmacopoeias mentioned, or to the standards of
any one of them, or to the general standard established by them all
considered together,
so that an importation falling below the standard of all of them would
necessarily be excluded, but if meeting the standard of some of them,
but not of others, it would not be excluded unless it fell so far below
the general standard as to render its use improper, unsafe, or
dangerous.
The construction of the act, therefore, being one of doubt, it is
proper to resort to the construction which has been placed upon it by
the Treasury Department. (22 Opin., 163, 167.)
It appears that almost immediately after the passage of this act a
definite construction was placed upon it by the Treasury Department,
which has been uniformly followed to the present day. I am advised that
in article 249 of the Customs Regulations published by the Treasury
Department in 1857, being the first edition after the passage of the act
of 1848, the following reference was made to the drugs and medicine act:
"It will be observed, on reference to the third section of the act,
that all imported 'drugs, medicines, and medicinal preparations, etc.,'
are to be tested in reference to their strength and purity by the
standards established by the United States, Edinburgh, London, French,
and German pharmacopoeias and dispensatories. It is not conceived to be
the intention of the law that the articles referred to should conform in
strength and purity to each and all of those standards, as such
conformity is believed to be impracticable, owing to the variations in
those standards. If, therefore, the articles in question be
manufactured, produced, or prepared in England, Scotland, France, or
Germany, as the case may be, and prove to conform in strength and purity
to the pharmacopoeia and dispensatory of the country of their origin,
said articles become exempt from the penalties of the law. All articles
of the kind mentioned produced, manufactured, or prepared in any other
country than those before mentioned must conform to the qualities stated
in the United States pharmacopoeia and dispensatory."
I am further advised that the construction thus given to the drugs
and medicine act has been retained in all subsequent editions of the
Customs Regulations, article 1285 of the Customs Regulations of 1889,
which are now in force, providing that if imported drugs, medicines, and
medicinal preparations are "manufactured, produced, or prepared in
England, Scotland, France, or Germany, and conform in strength and
purity to the pharmacopoeia and dispensatory of the country of their
origin, they are exempt from the penalties of the law; but if produced,
manufactured, or prepared in any other country than those last
mentioned, they must conform to the United States pharmacopoeia and
dispensatory."
It is a well-settled rule that "when the meaning of a statute is
doubtful, great weight should be given to the construction placed upon
it by the Department charged with its execution, where the construction
has for many years controlled the conduct of the public business," and
that uniform and long-continued executive construction is "not to be
disregarded without the most cogent and persuasive reasons" (Robertson
v. Downing, 127 U.S., 607; United States v. Healey, 160 U.S., 136,
141), the weight to be given such construction being greater where the
statute has been subsequently reenacted by Congress (United States v.
Falk, 204 U.S., 143, 152).
Applying this rule of construction, I am of opinion that, in view of
the great doubt as to the true meaning of the original act of 1848, the
construction which has been uniformly given to its provisions by the
Treasury Department for more than half a century should not now be
disregarded, especially in view of the fact that it was reenacted in the
Revised Statutes after this construction had been given for many years,
and that the provisions of the Revised Statutes in which the act is
embodied are to be now construed in conformity with the Customs
Regulations, that is to say, that if the importation originates in any
of the countries whose pharmacopoeias are mentioned such pharmacopoeia
is to be the standard, but if it originates in any other country, then
the United States pharmacopoeia is to control;
and hence, to specifically answer your question, that in enforcing the
provisions of the drugs and medicine act of 1848 in reference to an
importation originating in Italy, the pharmacopoeia whose standard is to
be applied is not that of Italy or any other foreign country, but that
of the United States.
2. The other question which you submit is: Whether the conformity of
such importation to the standard imposed by the act of 1848 entitles it
to admission into this country as against any test which may be applied
by the direction of the Secretary of Agriculture under section 11 of the
food and drugs act of June 30, 1906, or whether the provisions of the
act of 1906 regarding adulteration, misbranding, and false labeling are
also to be applicable.
The food and drugs act of 1906 (34 Stat., 768), is a general act
relating to the manufacture, sale, and transportation of adulterated or
misbranded food or drugs. It defines specifically the various cases in
which any food or drug shall be deemed to be adulterated or misbranded
and provides in section 11 that--
"The Secretary of the Treasury shall deliver to the Secretary of
Agriculture, upon his request from time to time, samples of foods and
drugs which are being imported into the United States or offered for
import, giving notice thereof to the consignee, who may appear before
the Secretary of Agriculture, and have the right to introduce testimony;
and if it appear from the examination of such samples that any article
of food or drug offered to be imported into the United States is
adulterated or misbranded within the meaning of this act, or is
otherwise dangerous to the health of the people of the United States, or
is of a kind forbidden entry into or forbidden to be sold or restricted
in sale in the country in which it is made or from which it is exported,
or is otherwise falsely labeled in any respect, the said article shall
be refused admission, and the Secretary of the Treasury shall refuse
delivery to the consignee and shall cause the destruction of any goods
refused delivery which shall not be exported by the consignee within
three months from the date of notice of such refusal under such
regulations as the Secretary of the Treasury may prescribe."
Comparing the drugs and medicine act and the food and drugs act, it
will be seen that not only is the one special and the other general, but
that, in reference to the importation of drugs, while the drugs and
medicine act, on the one hand, contains no restriction as to
misbranding, each of the two acts, on the other hand, imposes certain
tests in regard to the admission of imported drugs which are not
contained in the other.
In an opinion which I rendered the Secretary of the Treasury on
February 23, 1907, in reference to the tea inspection act of 1897, the
effect of the food and drugs act upon an earlier special statute was
carefully considered (26 Opin., 166). For reasons analogous to those
which are therein stated, I am of the opinion that in the matter of the
importation of drugs, the drugs and medicine act and the food and drugs
act are, generally speaking, cumulative and should both be given effect,
and that an importation of drugs should not be admitted if it fails to
conform either to the standard established by the drugs and medicine act
or to the tests imposed under the food and drugs act; and, hence, to
reply specifically to your question, that drugs imported from Italy,
although meeting the standard required by the drugs and medicine act,
are still subject to the provisions of the food and drugs act regarding
adulteration, misbranding, and false labeling, and to any test that may
be applied to them by the direction of the Secretary of Agriculture in
accordance with section 11 of that act.
It follows of course that the provisions of the drugs and medicine
act, that importations found to conform to the standard therein imposed
shall be thereupon "passed without reservation, on payment of the
customary duties" (R.S., 2936) are repealed by implication, as applied
to importations which are subject to rejection under the tests of the
food and drugs act.
In this connection it should be noted that if, as I have been
advised, the laws of Italy forbid the sale of a drug which does not
conform to the standard of the Italian pharmacopoeia,
it would follow that although a drug imported from Italy might not be
subject to exclusion under the drugs and medicine act by reason of
non-conformity to the Italian pharmacopoeia, it might still be excluded
under section 11 of the food and drugs act as being "of a kind forbidden
entry into or forbidden to be sold or restricted in sale in the country
in which it is made or from which it is exported."
Respectfully,
CHARLES J. BONAPARTE.
NAVAL BRIGADE-- NATIONAL GUARD-- ORGANIZED MILITIA; 26 Op.Att'y.
Gen. 303, July 15, 1907
Those portions of the military organizations of the several States,
Territories, and the District of Columbia that are intended for naval
service are portions of the organized militia, and as such are entitled
to participate in the contest for prizes and trophies provided for in
the act of March 2, 1907 (34 Stat., 1175).
The terms "National Guard" or "Organized Militia," as used in the act
of March 2, 1907 (34 Stat., 1175), embrace the whole of the militia
organized under the laws of the States or Territories, whether intended
for land or naval service, and are not restricted to such portions
thereof as are intended for land service only.
Argument in favor of a particular construction of a statute because
other statutory provisions have that meaning, though permissible, is not
of great force.
DEPARTMENT OF JUSTICE,
July 15, 1907.
The SECRETARY OF WAR.
SIR: In your note of July 8, 1907, with its inclosures, to which I
have the honor to reply, you ask my opinion in substance whether those
portions of the militia of the several States, organized as naval
brigades or for naval service are entitled to participate in the contest
for prizes and trophies provided for by the act of March 2, 1907 (34
Stat., 1175). You transmit also the opinion of the
Judge-Advocate-General of the Army, adverse to such right, with which
you express your concurrence; and a note from the Secretary of the
Navy, expressing a contrary opinion, concurred in by the
attorney-general and chief of staff of Massachusetts; and a memorandum
of authorities in support of the right to thus participate.
Specifically the question arises as to the right of the naval brigade of
Massachusetts to participate in the national contest to be held at Camp
Perry, Port Clinton, Ohio, on August 29, 1907.
The act referred to is one of several for the promotion of the
efficiency and usefulness of the militia by teaching, training, and
practice, and to this end provision is made for annual competitive
contest to be "open to the Army, Navy, Marine Corps, and the National
Guard or organized militia of the several States, Territories, and of
the District of Columbia." And the question is whether that portion of
the militia of the State organized as a naval brigade or for naval
service is embraced in the above designation, "National Guard," or
"Organized Militia;" for if they are so included, then by the express
terms of the act they are entitled to thus participate, even though in
some other acts upon the same subject the same terms are evidently not
intended to include them.
The act of January 21, 1903 (32 Stat., 775), "to promote the
efficiency of the militia, and for other purposes," provides--
"That the militia shall consist of every able-bodied male of the
respective States, Territories, and the District of Columbia, and every
able-bodied male of foreign birth who has declared his intention to
become a citizen,
who is more than eighteen and less than forty-five years of age, and
shall be divided into two classes-- the Organized Militia, shall be
known as the National Guard of the State, Territory, or District of
Columbia, or by such other designations as may be given them by the laws
of the respective States or Territories, and the remainder to be known
as the reserve militia."
Thus all male persons, of the description mentioned, except as stated
in the next section, are part of and constitute the militia of the
several States, Territories, and District, and when organized into
regiments, battalions, companies, or naval brigades, and officered,
under the laws of the State they are organized militia by such
designations as the State may give them.
And this is equally so, no matter whether they are thus organized for
land or for naval service. It is impossible to say that when a portion
of this "?militia" is thus organized it is or is not a portion of the
organized militia, dependent upon the branch of the military service for
which it is intended. The designation "National Guard," "Organized
Militia," or "such other designations as may be given them by the laws
of the respective States or Territories," are but names used to identify
these organized portions of the militia and distinguish them from the
unorganized portions, or "reserve," and not at all to indicate the
branch of military service for which it is intended. This is so manifest
as not to require argument.
And it is equally certain that any and every law referring to
organized militia, national guard, by whatever name called, unless it
should be otherwise expressly stated, refers prima facie to those
portions of this militia which are thus organized, and equally so, no
matter whether intended for land or for naval service. When it is
intended to distinguish the naval from the land portion, this is done by
language which does not necessarily mean the whole, instead of merely a
portion. And if not so done when intended, the language must still be
taken to mean just what it plainly says.
It must then be taken as beyond serious doubt that the terms
"National Guard" or "Organized Militia," as used in the act of March 2,
1907, supra, refers to the whole of the militia thus organized under the
laws of the States or Territories, and are not restricted to such
portions thereof as are intended for land service. That is the plain
meaning of the language, and it must be so held.
It is believed that the statutory provisions above referred to do not
permit construction of any kind, either by reference to other acts or to
other portions of the same act. The meaning of the language used, in its
ordinary sense, is plain, unambiguous, and certain; and being so, we
are forbidden by a familiar rule of law to resort to construction of any
kind to make it mean something different.
Indeed, the whole question may be very tersely disposed of. Thus, if
these naval brigades, by whatever name they may be called, are
"able-bodied male citizens," or are, in so far as not citizens
"able-bodied males of foreign birth, who have declared their intention
to become citizens," between the ages of 18 and 45 years, and are not
within the exemptions of the second section, then under the first
section of the above act of 1903 they necessarily belong to the
"militia." And, as the entire militia is divided into two classes, the
"organized militia" and the unorganized "reserve militia," it follows
that, if formed into known military organizations under the laws of
their respective States or Territories, they belong to the "organized"
and not to the unorganized "reserve militia," for there is nothing else
to which they can belong. This disposes of the whole question, and it
seems to leave no alternative disposition or room for construction.
But for some other provisions on the same subject it is believed that
no one can seriously doubt that the terms "National Guard," "Organized
Militia," as used in the statutes above referred to, embrace the whole
of the organized militia and not merely that portion intended for land
service. If this be so, this of itself forbids us to examine the other
acts with a view to a different meaning.
But you invite my attention to the opinion of the acting
Judge-Advocate-General of the Army, transmitted with your note, which
opens the whole field of construction, and especially that based upon a
consideration of other acts of Congress upon the same general subject.
And, first, it may be said that this argument in favor of a
particular construction because other provisions have or must have that
meaning is not of great force, at the best. It is based upon some sort
of presumption that the legislative body is always consistent in using
the same language upon the same subject, with the same meaning, or in
having the same intention or meaning in its enactments upon the same
subject at different times. The reverse of this is so often true that
while this mode of construction is sometimes permissible, it is not of
great force.
In the opinion above referred to of the Acting Judge-Advocate-General
of the Army there is en exhaustive reference to the various acts of
Congress, early and recent, referring to the militia, land and naval,
for the purpose of showing that, as he says, Congress did not regard
that portion intended for naval service as part of the organized
militia; and that Congress has frequently made specific appropriations
expressly stated to be for the naval militia, thus also showing, as he
thinks, that Congress did not consider them as constituting any portion
of the organized militia.
As to the first, it may be observed that, with the exceptions
referred to below, those acts were before the act of January 21, 1903,
expressly defining and declaring what constitutes the organized militia.
So that if the conclusion were correct that this earlier legislation
shows that Congress then regarded only the land militia as being the
organized militia, this could not, in the slightest degree, affect the
meaning of the act of 1903, expressly declaring what shall thereafter
constitute this organized militia or national guard. No matter what was
the case before that act, after its passage the organized militia were
those who, under the laws of the several States and Territories, were
formed into the known military organizations, whether for land or sea
service.
This is equally true as to the acts making specific appropriations
for, or specific reference to, that portion of the militia organized for
sea purposes, even if, by possibility, these were not regarded as being
any portion of the organized militia.
Still that act made them such, for as they necessarily belong to the
militia, as does any able-bodied man subject to military service, and
are certainly not in the unorganized militia "reserve," it follows that
they are of the organized militia, as of course.
But there is another satisfactory reason why the legislation here
considered affords no indication that Congress did not regard this naval
militia as any portion of the organized militia. These branches of the
military service are essentially different in their organization, arms,
equipment, quartermaster's supplies, etc., and, while in statutes the
language and terms usually used in reference to the Army would be
generally appropriate with reference to the land militia, yet, when
statutes, appropriation or otherwise, have specific reference to the
naval militia, it is necessary to have some distinctive name to point
out their specific reference. And that is all that is done by this
legislation, specifically for the naval militia. And as this
distinctive specific legislation would be equally appropriate and
necessary, whether the naval militia was or was not regarded as a
portion of the organized militia, there is, of course, no implication
either way. And this applies to such specific legislation since the
defining act of 1903.
The only legislation that is referred to as showing that Congress did
not regard these naval brigades as being portions of the organized
militia which might cause any appreciable hesitation on my part is that
portion of section 3 of the act of January 21, 1903, relating to the
organization, armament, and discipline of the organized militia, and
requiring those to conform to the rules prescribed for the Army. This
section provides that--
"The organization, armament, and discipline of the organized militia
in the several States and Territories and in the District of Columbia
shall be the same as that which is now or may hereafter be prescribed
for the Regular and Volunteer Army of the United States within five
years from the date of the approval of this act."
While this language in terms embraces the entire organized militia,
land or naval, it is manifest that the provision can not be executed as
to the naval brigades, for these are, and are required to be, organized,
armed, and disciplined under different rules and regulations.
If there were any doubt whether section 1 of the act of January 21,
1903, supra, included all of the organized militia, land and naval, this
provision would tend to show that it did not, but that only that portion
of the organized militia intended for land service was included. But, as
to any question here, this is its only office or effect. We are not
considering here whether this part of section 3 can be carried into
effect as to that portion of the organized militia intended for naval
service, but are concerned only with the question how far, if at all,
this provision operates to limit or restrict the meaning of section 1 of
that act. I refer again specifically to that section.
After declaring that, with the exceptions stated, every able-bodied
man, subject to military duty, shall constitute the militia, it says,
"and shall be divided into two classes-- the organized militia, to be
known as the national guard of the State, Territory, or District of
Columbia, or by such other designations as may be given them by the laws
of the respective States and Territories, and the remainder to be known
as the reserve militia."
It is absolutely certain that every person subject to military duty
is embraced in this section, as a portion of the militia, and equally
certain that all those who are organized into known military
organizations, under the laws of the State, Territory, or District, and
by whatever name called, are portions of the organized militia within
that section. There are but the two classes-- the organized and the
unorganized or reserve militia.
And this is not changed by the fact that Congress has, by
inadvertence or otherwise, made a provision in terms applicable to the
whole, which can be carried into effect as to only a part. Such
instances of general language so broad as to necessarily embrace more
than was intended are not unusual. But it is certain that this provision
of section 3 does not and can not change the plain meaning of section 1
of the act.
If anything further was necessary it might be pointed out that the
act of March 2, 1907, making appropriation for this coming contest,
makes express reference to the act of 1903, which so plainly declares
that all those State organizations shall constitute the Organized
Militia and with full knowledge that the act referred to included the
naval as well as the land organizations in the "Organized Militia,"
still used as before the term "Organized Militia." And further, that if,
as is claimed, Congress actually had it in mind, and did not intend that
these naval organizations should participate in these contests, then in
view of the plain meaning of the act of 1903 something different from
this would have been said to express this intention.
Nor is there anything incongruous or incompatible in the idea of a
naval militia to suggest its exclusion when the militia is mentioned.
While a more or less organized land militia is as old as the feudal
system, a naval militia, in this country, at least, is of modern date.
And yet it was well known and Congress had made frequent appropriations
for it. And indeed when ue consider the difficulties of manning our Navy
with American seamen, it may well be thought that a naval militia from
which recruits for this purpose may be drawn is quite as necessary as
are such organizations for the Army. And inasmuch as the naval service
peculiarly requires practice and training in order to be of any
usefulness whatever, it would seem strange that Congress should
purposely debar from its training and practice those who most need it.
I do not think it has done so.
I am therefore of opinion that those portions of the military
organizations of the several States, Territories, and the District of
Columbia that are intended for naval service are portions of the
organized militia, and as such are entitled to participate in the
contest for prizes and trophies provided for in the act of March 2,
1907, and other acts for the same purpose.
Respectfully,
CHARLES J. BONAPARTE.
CIVIL SERVICE-- ELIGIBILITY-- MEMBERS OF THE SAME FAMILY; 26 Op.
Att'y.Gen. 301, July 12, 1907
An applicant for a position in the competitive classified service who
resides with her father, a clerk in the Post-Office Department, and who
has two brothers also in the classified service who maintain separate
homes apart from their father, is entitled to appointment if otherwise
qualified under the civil-service law.
Children who have established and maintain separate homes apart from
their parents are no longer members of the same family as their parents
within the meaning of section 9 of the civil-service act of January 16,
1883 (22 Stat., 406).
DEPARTMENT OF JUSTICE,
July 12, 1907.
The PRESIDENT.
SIR: I have the honor to acknowledge receipt of your letter of June
5, enclosing a communication from the Civil Service Commission, in which
reference is made to my opinion of May 25, 1907 (ante, p. 260), in
regard to the effect of section 9 of the act of January 16, 1883 (22
Stat., 406).
The Commission requests to be further advised as to the effect of this
section, and submits for my consideration the case of Miss Mabel L.
Stratton, who is an applicant for a position in the competitive
classified service. It appears that Miss Stratton is a daughter of
Samuel R. Stratton, at present employed as a clerk in the Post-Office
Department; that she has a brother who is a clerk in the office of the
Civil Service Commission, and another brother who is employed in the
United States custom-house in Philadelphia. Miss Stratton resides with
her father in the city of Washington. Both her brothers maintain
separate homes and live apart from their father.
Section 9 of the act of January 16, 1883, supra, reads as follows:
"That whenever there are already two or more members of a family in
the public service in the grades covered by this act, no other member of
such family shall be eligible to appointment to any of said grades."
Miss Stratton's eligibility for appointment, therefore, depends upon
whether her father, Samuel R. Stratton, and his two sons are members of
a family within the meaning of the act.
In the Century Dictionary "family" is defined as "that collective
body of persons who form one household, under one head and one domestic
government, including parents, children, and servants."
In the Worcester Dictionary the definition is given as "persons
collectively who live together in a house or under one head."
In the Webster Dictionary the definitions are: "The collective body
of persons who live in one house and under one head or management; a
household including parents, children, and servants, and, as the case
may be, lodgers or boarders; the group consisting of husband and wife
and their dependent children, constituting a fundamental unit in the
organization of society."
In Dodge v. The Boston and Providence Railroad Company (154 Mass.,
299, 301), the following language is used in regard to the signification
of the word "family:" "Its primary meaning is the collective body of
persons who live in one house and under one management * * * .
Unless the context manifests a different contention, the word 'family'
is usually construed in its primary sense."
This definition is quoted with approval in Poor v. The Hudson
Insurance Company (2 Fed., 432, 438).
Possibly the most satisfactory definition of the legal meaning of the
word "family" is contained in the opinion of Lord Chief Justice Kenyon
in King v. Darlington (4 T.R., 797), in which he says:
"In common parlance, the family consists of those who live under the
same roof with the pater familias-- those who form, if I may use the
expression, his fireside; but when they branch out and become heads of
new establishments, they cease to be part of the father's family."
Applying these definitions to the case under consideration, it seems
clear that the sons of Samuel R. Stratton are no longer members of his
family within the meaning of the civil-service act. That being so, it is
clear that there is but one member of the family at present employed in
the classified civil service, and that Miss Mabel Stratton is therefore
eligible to appointment if otherwise qualified under the civil-service
act and rules.
Respectfully,
CHARLES J. BONAPARTE.
JURISDICTION-- CONDUIT ROAD, MARYLAND; 26 Op.Att'y.Gen. 289, July 3,
1907
The laws of Maryland confer upon the mayor of the town of Glen Echo
no authority to impose or collect fines, either for violations of the
ordinances of that town or for offenses against the laws of the State of
Maryland.
Congress has the right of exclusive jurisdiction over the entire
length of the Conduit road, provided the roadbed is owned in fee by the
United States and has been acquired in accordance with the consent of
the legislature of the State of Maryland contained in the act of May 3,
1853 (Laws of Md., 1853, ch. 179).
The provisions in Article I, section 8, of the Constitution, that
Congress shall have power to exercise exclusive legislation in all cases
whatsoever over the District of Columbia and "all places purchased by
the consent of the legislature of the State in which the same shall be,
for the erection of forts, magazines, arsenals, dockyards, and other
needful buildings," contemplates the purchase of land "needful," for any
reason, to the discharge of any of the constitutional duties or the
exercise of any of the constitutional powers of the United States.
The reservoirs, aqueducts, and other constructions appurtenant to the
water supply of the city of Washington, D.C., are to be considered
"needful buildings" within the meaning of Article I, section 8, of the
Constitution, and since a roadway is an appropriate and necessary
appurtenance to such works, the Conduit road constitutes territory
within the exclusive jurisdiction of Congress.
The Conduit road is not a public highway, but is subject to the
control of the Chief of Engineers (section 1800, Revised Statutes), and
its use by the public may be subjected to such regulations as may be
appropriate, obedience to which may be secured by the use of such
reasonably sufficient force as the Secretary of War may deem advisable.
DEPARTMENT OF JUSTICE,
July 3, 1907.
The SECRETARY OF WAR.
SIR: Your letter of June 8, 1907, and accompanying documents were
duly received. In these papers reference is made to certain alleged
proceedings on the part of the mayor of Glen Echo, a small town in
Montgomery County, Md., and you request my opinion "as to the steps
necessary to be taken, either by direct intervention or through the
courts, to prevent the continuance of the alleged abuses by the mayor,
who is imposing fines and collecting them by force without a hearing
from the members of the public using that part of the road which runs
through the town of Glen Echo," the road in question being one generally
known as the "Conduit road."
In so far as your letter relates to the action of the mayor of Glen
Echo, it is material, first, to determine how far, if at all, he has
authority to impose and collect fines in accordance with the laws of
Maryland. The town of Glen Echo was incorporated by chapter 436 of the
Laws of Maryland of the year 1904, approved April 8, 1904. The charter
then granted conferred no power specifically upon the corporation to
regulate the speed of vehicles, but at the session of 1906 two acts were
passed, nearly or quite identical in their terms, constituting,
respectively, chapters 560 and 826 of the laws of that year, both being
approved April 8, 1906, whereby the above-mentioned act of 1904 was
repealed and reenacted with amendments. These laws conferred on the town
council of Glen Echo the power inter alia "to regulate the speed of all
conveyances upon the streets or any public highway or road within the
town, such as carriages, bicycles, autocycles, motorcycles, automobiles,
locomobiles, and street cars." At the same session another act was
passed, being chapter 449 of the laws of that year, ,with respect to
motor vehicles, the material provision of which for the present purpose
is as follows:
"The following rates of speed may be maintained, but shall not be
exceeded, upon any public street, public road or turnpike, public park
or parkway, public driveway or public highway in this State by anyone
driving a motor vehicle: (1) A speed of one mile in ten minutes upon
the sharp curves of a highway and at the intersection of prominent
crossroads, where such road or highway passes through the open country.
(2) A speed of one mile in ten minutes where such street or highway
passes through the built-up portion of a city, town, or village, except
cities of 16,000 inhabitants or over; elsewhere, except as otherwise
provided in this sub-title, a speed of one mile in five minutes."
I am informed by the papers sent with your letter that the town
council of Glen Echo has adopted an ordinance in the precise terms of
the general law of the State above quoted, and that the mayor's action,
of which complaint is made in your letter, has been taken professedly in
the enforcement of the above-mentioned ordinance.
Of course the authority of the town council of Glen Echo to regulate the
speed of vehicles on the Conduit road depends upon whether this road, in
so far as contained within the limits of the town of Glen Echo, is a
"street," "public highway," or "road" within the said town; but
supposing, for the sake of argument only, that it is such street, public
highway, or road, we have yet to inquire whether the mayor has any power
to impose and collect fines for the violation of the above-mentioned
ordinance or any ordinance of the town council.
Section 8 of the charter of Glen Echo is as follows:
'And be it enacted, That the mayor shall have all the powers of a
justice of the peace in criminal cases where the town of Glen Echo is a
party, and shall receive fees allowed justices of the peace in similar
cases, and an appeal from his judgment when the demand or fine exceeds
five dollars may be taken to the circuit court for the county, which
shall hear and determine the matter as upon appeal from justices of the
peace."
It will be perceived that this provision of the statute professes to
give to the mayor only such jurisdiction as a justice of the peace would
have in criminal cases "to which the town of Glen Echo is a party."
There are many authorities on the question whether, in the absence of
any statute on the subject, proceedings to punish the violation of a
municipal ordinance should be undertaken in the name of the municipality
or of the State; and, speaking broadly, it may be said that this has
been generally held to depend upon whether such proceedings are regarded
as civil or criminal in their nature, the weight of authority being, on
the whole, that they are civil, and should therefore be prosecuted in
the name of the municipality. In Maryland, however, this question has
been determined by statute. Article 38, section 1, of the code of
public general laws of that State, provides that--
"When any fine or penalty is imposed by any act of assembly of this
State or by any ordinance of any incorporated city or town in this State
enacted in pursuance of sufficient authority for the doing of any act
forbidden to be done by such act of assembly or ordinance, or for
omitting to do any act required to be done by such act of assembly or
ordinance, the doing of such act or the omission to do such act shall be
deemed a criminal offense;
such offense in the city of Baltimore shall be prosecuted by the arrest
of the offender and by holding him to appear in or committing him for
trial in the criminal court of Baltimore, which said court shall have
jurisdiction in the said case, and shall proceed to try or dispose of
the same in the same manner as other criminal cases may be tried or
proceeded with or disposed of, or such offense may be prosecuted by
indictment in such court; such offense in any county of this State
shall be prosecuted by the arrest of the offender for such offense and
by holding him to bail to appear in or committing him for trial in the
circuit court for the county in which such offense was committed. * * *
."
By article 27, section 447, of the same act, it is further provided
that indictments for such offenses shall conclude "against the form of
the ordinance in such case made and provided and against the peace,
government, and dignity of the State." It seems clear that the powers
conferred by various statutes of the State of Maryland upon justices of
the peace to dispose summarily of certain criminal charges can not
affect the character of the proceeding; in my opinion, therefore, in
Maryland, proceedings to punish offenders against municipal ordinances
are made criminal by express law, and the only appropriate, or indeed
possible, "parties" to such proceedings are the State of Maryland and
the alleged offender or offenders. It would seem to follow that the
mayor of Glen Echo has no jurisdiction to impose fines for the violation
of the ordinances of the town council, since to such a proceeding the
town of Glen echo is not a party. Of course, if the proceedings were
undertaken under chapter 449 of the laws of 1906 or any other general
law of the State, it is quite clear that section 8 of the charter above
quoted would give him no jurisdiction whatever in the premises.
There is, moreover, room for a further inquiry in this connection.
Article 4, sections 1 and 42, of the constitution of Maryland, contain
the following provisions:
"The judicial power of this State shall be vested in a court of
appeals, circuit courts, orphans courts, such courts for the city of
Baltimore as are hereinafter provided for, and justices of the peace. *
* * The governor, by and with the advice and consent of the senate,
shall appoint such number of justices of the peace and county
commissioners of the several counties, and the mayor and city council of
Baltimore, respectively, shall appoint such number of constables, for
the several election districts of the counties and wards of the city of
Baltimore, as are now or may hereafter be prescribed by law. * * * The
justices of the peace and constables, so appointed and commissioned,
shall be conservators of the peace, shall hold their office for two
years, and shall have jurisdiction, duties, and compensation, subject to
such right of appeal, in all cases, from the judgment of justices of the
peace as hath been heretofore exercised or shall be hereafter prescribed
by law."
In McBee v. Fulton (47 Md., 425), the court of appeals of Maryland
says: "By our constitution justices of the peace are made part of the
judiciary in whom the judicial power of the State is vested."
There can be no doubt that the legislature of Maryland intended to
confer upon the mayor of Glen Echo a portion of "the judicial power of
the State." Beside what is contained in section 8 of the charter above
quoted, section 17 provides that--
"The mayor shall have full power to conduct investigations as to
violations of any ordinance of said town, hold court at some public
place whenever the case requires; issue warrants, summons, and
attachments. Said mayor shall have power to punish any person or persons
for contempt; shall have power in case of conviction of any offender or
violator of a town ordinance to commit said offender to the Montgomery
County jail; in default of surety for his appearance for trial or in
default of fine and cost, and in the cases as herein provided, he shall
have the power to commit offenders to the Maryland House of Correction
or to labor upon the streets."
And section 20 is as follows:
"And be it enacted, That the mayor shall keep a criminal docket with
index, and shall record all proceedings of cases which come before him
for trial."
But can the legislature of Maryland thus confer a part of the
judicial power of the State upon an officer who not only is not a
justice of the peace as defined by the constitution, but is not chosen
in the manner prescribed by the constitution for the choice of justices
of the peace?
On this question the decision in Mayor & City Council of Hagerstown
v. Dechert (32 Md., 369) seems to be conclusive. Similar powers had been
conferred on the mayor of Hagerstown by a charter antedating the
constitution of 1851 (which first contained, in substance, the
provisions on this subject of the present constitution), and its
language was embodied in the Code of Local Laws of 1860. On this point
the Court of Appeals says (32 Md.,p. 383):
"It is very clear that, after the adoption of that constitution, the
legislature had no power to appoint a justice of the peace, nor could
they vest judicial power in any other officer except such as were
enumerated in the first section of the fourth article of the
constitution. When that constitution was adopted, therefore, it stripped
the mayor of the judicial power or jurisdiction appertaining to the
office of a justice of the peace, which had been conferred upon him by
the act of 1847; and it is equally clear that such jurisdiction could
not, constitutionally, be conferred upon him by the Code of 1860."
The case of Attorney-General v. McDonald (3 Wis., 805) is likewise
precisely in point and several other decisions of State courts of last
resort might be cited to show that such legislation is clearly
unconstitutional.
If the view of the Maryland law above suggested be correct, it
follows that the mayor of Glen Echo has no jurisdiction to impose or
collect fines, since the provision of the charter professing to give him
such jurisdiction is inoperative by its terms, and, if it were
operative, would be unconstitutional.
It would seem that persons who have been compelled to pay such fines,
when under arrest and threatened with imprisonment, are entitled to
recover back the same, either from the mayor himself or from the town of
Glen Echo, if the money has been (as I understand to be the case) paid
into the municipal treasury. Whether it would be practicable to arrange
a satisfactory test case to determine his authority in the premises is
not altogether clear, but, in any event, proceedings for this purpose
could be instituted only in the courts of Maryland.
It appears from the papers transmitted with your letter that your
inquiry relates to certain matters of much broader scope than the
jurisdiction of the mayor of Glen Echo. I understand from these papers
that you desire advice as to the jurisdiction of the United States and
the powers conferred upon your Department with respect to so much of the
above-mentioned "Conduit road" as lies within the limits of the State of
Maryland. With regard to this road, the material facts seem to be
substantially as follows:
In 1852 and 1853 the Congress authorized and made necessary
appropriations for the construction of works to furnish the cities of
Washington and Georgetown an abundant supply of water and for the
acquisition of such lands as might be needed for these purposes. In 1853
the legislature of Maryland passed an act whereby it was provided that
"consent is hereby given to the United States to purchase such lands and
to construct such dams, reservoirs, buildings, and other works, and to
exercise concurrently with the State of Maryland such jurisdiction over
the same as may be necessary for the said purpose." Large sums of money
were from time to time appropriated by the Congress for the completion
of the works connected with this water supply, and by an act approved
March 3, 1859, the President was directed to "place the dams, aqueducts,
water gates, reservoirs, and all fixtures and improvements connected
therewith, together with the lands, houses, fencing, water and other
rights and appurtenances connected with the same and belonging to the
United States under the immediate care, management, and superintendence
of a properly qualified officer of the United States Corps of
Engineers." /1/
The same act forbade any pollution of the water supply under penalty of
fine and imprisonment. In none of these acts is there any authority to
make this road; but in 1871 $10,000 was appropriated for "macadamizing
the top of the conduit now used as the main road to Washington." In
fact, a road had been constructed a number of years previously over or
in close proximity to the conduit, to aid in building the latter and the
other works and afterwards in keeping them in repair. It would seem that
the use of this road as an approach to Washington had already become
general among the citizens of the neighboring districts of Maryland
prior to 1871, and macadamization of the surface was then recommended to
prevent possible injury to the masonry of the conduit by reason of deep
ruts in the said road, caused by heavy vehicles passing over it in rainy
weather. No Federal statute appears to have been ever passed declaring
this road a highway or even expressly authorizing its construction, but
for more than forty years the road appears to have been, in fact, used
notoriously for highway purposes. The land in which the conduit is laid
and over which the road runs has been throughout purchased by the United
States in fee, and neither the State of Maryland nor Montgomery County
nor the town of Glen Echo nor, so far as I am aware, any other
authority, corporation, or individual has contributed to the cost of the
road's maintenance and repair, all of which has been defrayed through
liberal appropriations made by the Congress. The road is, for about 11
miles, within the limits of the State of Maryland, and, for about 1
mile, within those of the town of Glen Echo.
Article 1, section 8, of the Constitution provides that the Congress
shall have power "to exercise legislation in all cases whatsoever over
such district (not exceeding 10 miles square) as may, by cession of
particular States and the acceptance of Congress, become the seat of the
Government of the United States,
and to exercise like authority over all places purchased by the consent
of the legislature of the State in which the same shall be, for the
erection of forts, magazines, arsenals, dockyards, and other needful
buildings."
There can be no question and, so far as I am aware, none has been
raised that the word "buildings" in this passage is used in a sense
sufficiently broad to include public works of any kind; but it has been
suggested that, inasmuch as the works specifically mentioned are all of
a military character, lands can thus be acquired only for purposes
"needful" to the national defense. While this view is not wholly
unsupported by authority, it is in conflict with the opinion of my
predecessor in the matter of the New York post-office site, hereinafter
cited, and to which reference is made, with approval, by the Supreme
Court in the Leavenworth case, mentioned infra, as well as with the
weight of authority in State courts, and, in my opinion, this provision
of the Constitution contemplates the purchase of land "needful," for any
reason, to the discharge of any of the constitutional duties or the
exercise of any of the constitutional powers of the United States. In
this case the consent of the State of Maryland was clearly given to the
purchase of the land, and, if the land was acquired for a "needful"
purpose, as thus contemplated by article 1, section 8, of the
Constitution, it seems clear that the power of legislation over such
land vested in the Congress as soon as it was acquired with such
consent. In the language of the Supreme Court (Fort Leavenworth Railroad
Company v. Lowe, 114 U.S.,pp. 532, 533):
"When the title is acquired by purchase by consent of the
legislatures of the States, the Federal jurisdiction is exclusive of all
State authority. This follows from the declaration of the Constitution
that Congress shall have 'like authority' over such places as it has
over the district which is the seat of government; that is, the power
of 'exclusive legislation in all cases whatsoever.' Broader or clearer
language could not be used to exclude all other authority than that of
Congress, and that no other authority can be exercised over them has
been the uniform opinion of Federal and State tribunals and of the
Attorneys-General."
It is immaterial to inquire whether the legislature of Maryland meant
to impose any restriction or limitation upon its cession of jurisdiction
by the act of 1853, above quoted, for, the consent of the State to the
purchase being once given, the cession takes place by virtue of the
Constitution itself, and any attempt to impose a restriction by the
legislature would be unconstitutional and, therefore, void. In an
opinion relative to the New York post-office site, under date of May 6,
1861, Attorney-General Bates said (10 Op., 39):
"As to the act of consent by the legislature of New York, I remark,
in the first place, if it do not amount to a consent to the purchase
then it is simply null, and the United States hold the land, without
exclusive jurisdiction. In the second place, if it do amount to consent,
then any exceptions, reservations, or qualifications contained in the
act are void, because, consent being given by the legislature, the
Constitution vests in Congress exclusive legislation over the place,
0eyond the reach both of Congress and the legislature of New York."
I do not think there is any room for doubt that, in this case, the
consent to the purchase was given; and, such being the case, I have
only to inquire whether the purpose for which the land was purchased
came within the terms of the Constitution.
The framers of the Constitution, having provided for a seat of
government for the Union, must be presumed to have anticipated the
reasonable and necessary consequences of such provision, one being that
a considerable population, including large numbers of persons engaged in
the work of government, would be collected together within the territory
to be acquired for this purpose; and, as this territory was to be of
very limited area, they must be further presumed to have anticipated
that works indispensable to the welfare of its inhabitants, and
necessarily under the control of its government (which was to be
likewise the government of the Union) would have to be erected within
the territory of the neighboring States.
An abundant supply of pure water being a necessity of life, I think it
is clear that the reservoirs and aqueducts and other constructions
appurtenant to such water supply are to be considered "needful
buildings" within the terms of Article I, section 8, of the
Constitution; and, since a roadway is an appropriate and necessary
appurtenance to such works, being required to afford access to them on
the part of those intrusted with their management, superintendence, and
repair, I think the Conduit road constitutes territory within the
exclusive jurisdiction of the Congress, and that the legislature of the
State of Maryland has no jurisdiction over any part of it. I see no
material distinction between this question and that involved in
Commonwealth v. Clary (8 Mass., 72), in which it was held that a proviso
to the effect that civil and criminal processes might be served by the
officers of the Commonwealth of Massachusetts within the territory of
the arsenal at Springfield did not give the State courts jurisdiction to
punish an offense committed within the territory in question.
There remains to be considered the question whether the roadway over,
or in proximity to, the aqueduct, known as the "Conduit road"
constitutes a public highway; and this question I answer in the
negative. It is true that the Congress, in providing for the
macadamization of a portion of this road, appears to have recognized
that it was, in fact, very generally used as a roadway by the
inhabitants of the neighboring districts of Maryland, but I do not think
this incidental reference to the use of its property, allowed by the
Government, as a matter of grace only, to the residents of the vicinage,
can be reasonably construed as a dedication of the road to the public
use. A highway could not be "needful" for the purpose of providing a
water supply to the seat of government. As a means of access to the
waterworks, a road might come within that designation, but it was
certainly unnecessary that the means of access thus afforded should be
open to the public generally. Nor can any such right be claimed on the
ground of prescription. Without pausing to consider the application to
this question of the maxim nullum tempus occurrit regi, inasmuch as the
Congress had no right to acquire land for use as a highway, the case is
disposed of under the principle asserted in Sapp v. Northern Central
Railway Company (51 Md.,p. 124), in which case the court says:
"It is familiar and elementary law that title by prescription is
founded on the presumption of a grant, and it follows from this that in
order to establish a prescriptive right it must be claimed under and
through some one who had a right to grant or create the easement
claimed."
I think the legal incidents of this roadway are similar to those of a
so-called "street" in a navy-yard or arsenal. It was constructed for the
benefit of the Government and not of the public generally, and the fact
that its use by many of the public may have been tolerated for a long
time does not prevent the Government from restricting or even forbidding
such use should this course seem advisable.
While the use is permitted, however, it would seem that it ought to
be permitted under reasonable regulations, and I see no reason to doubt
that the officer under whose superintendence and control the road has
been placed by the President, in pursuance of the act of Congress of
1859, may prescribe such regulations in the absence of any Federal
statute regulating the subject-matter. He has, indeed, no power to fine
or imprison, or otherwise punish persons who may violate these
regulations, but he can exclude them from the use of the road if they
are disorderly or refuse to recognize his authority, and such military
force may be appropriately placed under his command as will insure
obedience to his orders.
In the papers submitted with your letter, the question is discussed
as to whether, if the Conduit road were closed to the public, this would
affect the right of travelers on intersecting roads to cross it. So far
as I can perceive, this question has not yet arisen practically, and,
inasmuch as there seems to be no reason to expect that it will
necessarily arise in the near future, I think it will be advisable to
reserve its consideration until its determination may be needed for some
useful and practical purpose.
I advise you, therefore, first, that, in my opinion, the laws of
Maryland confer upon the mayor of the town of Glen Echo no authority to
impose or collect fines, either for violations of the ordinances of that
town or for offenses against the laws of the State of Maryland;
second, that the Congress has the right of exclusive jurisdiction over
the entire length of the Conduit road, supposing, as I understand to be
the fact, that its entire roadbed is owned in fee by the United States,
and has been acquired in accordance with the consent of the legislature
of the State of Maryland to such acquisition contained in the act of
1853; third, that the said Conduit road is not a public highway, but is
subject to the control of the officer designated by the President in
accordance with the act of 1859, and that its use by the public may be
subjected to such regulations as may be appropriate, obedience to which
regulations may be secured by the use of such reasonably sufficient
force as you may deem advisable.
I remain, sir, yours very respectfully,
/1/ Section 1800, Revised Statutes, contains the following provision:
"The Chief of Engineers shall have the immediate superintendence of
the Washington Aqueduct, together with all rights, appurtenances, and
fixtures connected with the same, and belonging to the United States,
and of all other public works and improvements in the District of
Columbia in which the Government has an interest, and which are not
otherwise specifically provided for by law."
CHARLES J. BONAPARTE.
IMMIGRATION-- CONTRACT LABOR; 26 Op.Att'y.Gen. 284, June 18, 1907
Two alien lithographic artists, who came to the United States in
pursuance of a contract of employment entered into with the American
Lithographic Company, of New York, their passage being prepaid by that
company, and who have been excluded upon the ground that their admission
would be in violation of the acts of February 26, 1885 (23 Stat., 332),
and March 3, 1903 (32 Stat., 1213), relating to contract labor, should
be admitted, it being shown beyond reasonable doubt that there are not a
sufficient number of lithographic artists in the country at the present
time to meet the demands of business.
DEPARTMENT OF JUSTICE,
June 18, 1907.
The SECRETARY OF COMMERCE AND LABOR.
SIR: I have the honor to acknowledge receipt of your letter of May
23, with inclosures, in which my attention is invited to the case of two
aliens detained at New York, who have been excluded from the United
States by the decision of a board of special inquiry on the ground that
their admission would be a violation of the provisions of the acts of
February 26, 1885 (23 Stat., 332), and March 3, 1903 (32 Stat., 1213),
relating to contract labor. From this decision of the board an appeal
has been taken to you, and my opinion is asked as to what your decision
should be.
It appears from the testimony taken at the hearings held by the board
that the aliens in question-- August Kurzdorfer and John Haering-- are
lithographic artists and natives of Germany, who are coming to this
country in pursuance of a contract of employment entered into by them
with the American Lithographic Company, of New York.
The company, through an agent abroad, prepaid their passage, and agreed
to employ them for a period of one year at a stipulated weekly salary.
Unless saved by an excepting clause or a proviso, this contract is
squarely within the prohibition of the statutes referred to. While this
is not denied by the appellants, it is insisted in their behalf that,
under the first proviso of section 5 of the act of February 26, 1885
(supra), and the second and third provisos of section 2 of the act of
March 3, 1903 (supra), they should be admitted.
The material part of section 5 of the act of 1885 reads as follows:
" * * * Provided, That skilled labor for that purpose can not be
otherwise obtained; nor shall the provisions of this act apply to
professional actors, artists, lecturers, or singers, nor to persons
employed strictly as personal or domestic servants: * * * "
Section 2 of the act of 1903 specifies certain classes of persons who
shall be excluded; among others, "those who have been, within one year
from the date of application for admission to the United States,
deported as being under offers, solicitations, promises, or agreements
to perform labor or service of some kind therein." This section also
contains the following provisos:
" * * * And provided further, That skilled labor may be imported if
labor of like kind unemployed can not be found in this country: And
provided further, That the provisions of this law applicable to contract
labor shall not be held to exclude professional actors, artists,
lecturers, singers, ministers of any religious denomination, professors
for colleges or seminaries, persons belonging to any recognized learned
profession, or persons employed strictly as personal or domestic
servants."
Unless, then, it can be shown that these aliens are artists within
the meaning of the statutes, or that skilled labor of like kind,
unemployed, can not be found in this country, the appeal must be
dismissed.
A decision upon either point in favor of the aliens would entitle them
to admission.
As the appeal should clearly be sustained on the second ground upon
the evidence submitted, I deem it unnecessary to determine whether the
appellants are artists.
On the former point the evidence is so free from contradiction that
were the case being tried by a judge and jury the court would be obliged
to direct a verdict for the aliens. Their counsel, at the hearing before
the board of inquiry, called officers of five different lithographic
companies to testify to the scarcity of lithographic artists in this
country. Henry W. Kupfer, superintendent of the art drawing department
of the American Lithographic Company, testified that he had been for
four years in charge of that department, and that during all that time
part of his duty had been to hire lithographic artists; that while his
company could use to advantage twenty or twenty-two artists it had only
ten. He further testified that for three or four years there had been
the same difficulty in securing men to do this work. It also appears
from his testimony that the company, in the belief that to meet this
situation it was necessary to bring men in from abroad, applied early in
1907 to your Department to know how this might be done. The
Commissioner-General of Immigration suggested that before any steps were
taken looking to the importation of labor it was advisable to
demonstrate to the satisfaction of the authorities that no labor of like
kind, unemployed, was available in this country. In accordance with his
suggestions advertisements were inserted three times a week for four
weeks in twelve newspapers of general circulation in the eight cities
where it seemed most likely that lithographic artists could be secured.
There were thirty-two answers to these advertisements. No personal
applications were made, and the company did not secure a single
lithographic artist as a result of its efforts. The reasons why none of
the thirty-two who communicated with the company were selected are
clearly and satisfactorily explained in the record you have submitted
for my consideration. The company thereupon entered into contract, above
referred to, with Kurzdorfer and Haering, informing the
Commissioner-General of Immigration of the fact and of the date upon
which the aliens would reach New York in order that a test case might
thus be made.
Olin D. Gray, president of the Gray Lithographic Company, testified
that he had been for twenty-two years in the business, and that for
three or four years past he has been unable to get a sufficient number
of lithographic artists, and as a result has been repeatedly forced to
decline to take orders requiring a high grade of workmanship. These
orders have then been placed abroad. His company has advertised in
almost every Eastern paper, and has applied to the National Lithographic
Artists, Engravers, and Designers' League, the trades union of the
craft, without getting relief. Mr. Gray further testified that he had
sent emissaries to different cities in the United States to secure men
without getting relief. While he admitted his unwillingness to employ
union men, he testified that there were no union men unemployed
qualified to do the work he wanted.
J. L. Ketterlinus, president of the Ketterlinus Lithographic
Manufacturing Company, testified that he had been unable to secure the
number of lithographic artists he needed for five years back.
W. F. Powers, president of the W. F. Powers Lithographic Company,
testified that he had been obliged to refuse work because he could not
get men.
C. W. Frazier testified to the same effect.
All of these witnesses swore that the demand for high-grade
lithographic artists was constantly increasing in this country. The
work, however, has been going abroad, because the lack of skilled
lithographic artists, according to the statements of these witnesses,
prevents its being done in this country.
Counsel for appellants has also put in evidence a report of the
Bureau of Statistics, showing that the value of lithographic
importations has increased from under $950,000 for the fiscal year
ending June 30, 1898, to approximately $2,700,000 for the last fiscal
year. This development has been gradual and steady, every year showing
an increase over the year before, and the figures for the first nine
months of the current fiscal year show a still further increase.
This testimony as to the scarcity of labor is practically
uncontradicted. Counsel for the Lithographic Artists, Engravers, and
Designers' League attempted to show that the difficulty in securing men
was due to a strike which had been declared in August, 1906. This idea
is negatived by the statements of the witnesses above referred to to the
effect that the shortage existed for several years prior to the time the
strike was declared. Nowhere in the record is there a scintilla of
evidence even tending to contradict this.
Richard Kitchett, president of the National Lithographic Artists,
Engravers, and Designers' League, testified that there were about two
hundred and forty members of his organization unemployed in the United
States, and that this was a sufficient number to fill all vacancies and
to meet the demands of the lithographic business. Counsel for the aliens
then put in evidence a circular issued, with the knowledge of Mr.
Kitchett, by the national advisory board of the Lithographic Artists,
Engravers, and Designers' League, of which he admitted he was the head,
which ran in part as follows: "The employers' own figures show that the
number of men they lack in the art department is actually greater than
the whole number now out, so that were the strike to be settled
to-morrow there would not be enough men to fill all vacancies."
In view of this statement, issued with his authority by a board of
which he was the head, his testimony to the contrary is entitled to but
little weight.
I therefore advise you that the record you have submitted shows
beyond any reasonable doubt that there are not in the country at this
time a sufficient number of lithographic artists, employed and
unemployed, to meet the demands of the business. The decision of the
board of special inquiry should, therefore, be reversed, and the aliens
admitted.
Respectfully,
CHARLES J. BONAPARTE.
COMPROMISE-- VIOLATION OF THE OLEOMARGARINE LAW; 26 Op.Att'y.Gen.
282, June 18, 1907
The officers of the Treasury Department are authorized, in accordance
with the provisions of section 3228, Revised Statutes, to compromise a
case involving a violation of the "Oleomargarine" statutes, upon terms
which, in their judgment, are just and reasonable.
DEPARTMENT OF JUSTICE,
June 18, 1907.
The SECRETARY OF COMMERCE AND LABOR.
SIR: I have the honor to acknowledge receipt of your letter of May
10, inclosing an opinion of the Solicitor of Internal Revenue, and
requesting my opinion upon two questions:
First. Whether under section 3229 of the Revised Statutes, the
Secretary of the Treasury is authorized to compromise a case involving a
violation of the provisions of the "Oleomargarine" statutes, where an
offer of compromise had been made.
Second. Whether the Secretary of the Treasury would have power to
accept a compromise after the assessment was made, the taxpayer being
solvent.
Under the facts as stated to me it is unnecessary for me to express
an opinion as to the individual merits of the case. That matter is
primarily within the province of the Commissioner.
Section 3229, Revised Statutes, is broad and general in its terms.
It provides for the compromise of both criminal and civil cases. Its
provisions extend to cases both before and after suits commenced. While
in the one case the action of the Commissioner must be with advice and
consent of the Secretary of the Treasury, and in the other with the
advice and consent of the Secretary and the recommendation of the
Attorney-General, the intention of the Legislature evidently was to
place the authority and responsibility primarily with the Commissioner.
This section may be, and has been, considered in connection with
section 3469, Revised Statutes. By that section, upon a report of a
district attorney, or any special attorney or agent having charge of any
claim in favor of the United States, showing in detail the condition of
such claim, and the terms upon which the case may be compromised and
recommending that it be compromised upon the terms so offered, and upon
the recommendation of the Solicitor of the Treasury, the Secretary is
authorized to compromise the claim. The only restriction is as to claims
arising under the postal laws.
It is clear that section 3229 (supra), which is restricted to cases
under the internal-revenue laws, is much broader in its language than
section 3469. The initiative of action is with the Commissioner. It is
unnecessary to say that he is obliged to proceed with regard to the
facts in the case as to neglect or violation of law by the persons
reported to him. The statute provides that when the compromise is made
there shall be placed on file in the office of the Commissioner, the
opinion of the Solicitor of Internal Revenue, with his reasons therefor,
with the statement of the amount of tax assessed, the amount of
additional tax or penalty imposed by law in consequence of the neglect
or delinquency of the persons against whom the tax is assessed, and the
amount actually paid in accordance with the terms of the compromise.
This matter was carefully considered by my predecessor,
Attorney-General MacVeagh (17 Op., 213), in an opinion upon the general
power of the Secretary in cases submitted to him for compromise.
I refer you to his reasoning and to the conclusion he there reached.
I reply, then, that the officers of the Department of the Treasury,
in accordance with the provisions of section 3229 (supra), are fully
authorized to make the compromise alluded to upon terms which, in their
judgment, are just and reasonable.
In view of the facts presented to me, no assessment having been made,
I do not deem it advisable or necessary to further answer the second
question addressed to me.
Respectfully,
CHARLES J. BONAPARTE.
EIGHT-HOUR LAW-- JETTY WORK, COLUMBIA RIVER; 26 Op.Att'y.Gen. 278,
June 17, 1907
The act of August 1, 1892 (27 Stat., 340), known as the eight-hour
law, applies to the jetty work at the mouth of the Columbia River, which
is being conducted directly by the Government, and those employed upon
that work who come fairly within the meaning of the words "laborers and
mechanics" should be restricted to eight hours of effective labor in any
one calendar day, irrespective of enforced idleness on other days,
except in case of a sudden emergency requiring prompt action.
The exception, in section 1 of that act, of cases of extraordinary
emergency, was designed to excuse overtime work which must be rendered
to avert some sudden unusual emergency, unexpectedly arising and calling
for prompt action.
DEPARTMENT OF JUSTICE,
June 17, 1907.
The SECRETARY OF WAR.
SIR: I have the honor to respond to your note of June 10, 1907, in
which you refer to me a letter from Lieutenant-Colonel Roessler, Corps
of Engineers, with a request for my opinion as to the applicability of
the eight-hour law, so called (27 Stat., 340), to the jetty work at the
mouth of the Columbia River, which is being conducted directly by the
Government.
The facts are stated as follows: The jetty, when completed, will
consist of a pile trestle 6 1/2 miles in length, with an enrockment of
rubblestone superimposed. About 5 miles of the jetty have been
constructed, and the work is now centered upon the outer 2 miles of this
portion, which "is exposed to the full force of the breakers which have
made the bar of the Columbia River a terror to all navigators. The seas
are never smooth and often rough, even during the summer season,
rendering the operation of constructing the pile trestle and conveying
rock over it a matter of considerable risk to life and property." The
work seems to be steadily progressing, but it is liable to frequent
interruptions. Sometimes there is no interruption for two or three days,
and again all work, except small jobs on shore, must be suspended for
periods varying from a few hours to several days. The delays are
occasioned partly by fogs, which prevent the barges bearing the stone
from reaching their destination as soon as required, and partly because
of vibrations imparted to the trestle by the action of the waves, which
stop, for varying periods, the work of the pile driver and the carriage
of the stone. On account of these natural causes, hindering the speedy
completion of the jetty, it seems that laborers and mechanics are worked
over eight hours a day when conditions are favorable. The question of
preventing this overtime work has been considered by the officer in
charge of the construction, but he believes that the employment of an
extra gang of men is not practicable. The impracticability of employing
an extra shift, however, does not arise from any difficulty inherent in
the project. It is based almost entirely on economical considerations of
speedy and cheap methods. He says:
"The question of providing an extra gang of men has had careful
consideration, but it is believed to be wholly impracticable. If an
extra gang were employed, the two gangs would have probably not over
five hours per day, on an average, a month during the working season,
and many days at a time at least one gang would be in idleness * * * .
Even if the employment of two gangs were feasible from other reasons, it
would still be very objectionable from the delays that would result in
changing from one gang to another, such changes being likely to come at
a time when the interruption would mean the loss of a valuable
opportunity. It is estimated that the labor item alone would be
increased from 60 to 80 per cent of it should become necessary to employ
two gangs of laborers."
Upon consideration of all the facts, it fairly appears in my opinion,
that the difficulties of construction are such as were known and fully
appreciated at the time of the preliminary survey. They are not so grave
as to compel the conviction that Congress never could have intended the
statute to apply to such work. In the cases of Eastern Dredging Company
v. The United States and Bay State Dredging Company v. The United
States (206 U.S., 246), the Supreme Court, in holding that dredging an
artificial channel is not one of the "public works" intended by
Congress, assigned as one of its reasons "the very great difficulty, if
not impossibility, of dredging in the ocean, if such a law is to govern
it * * * ." Here, however, it appears to me that the difficulty results
at most merely in an inconvenience, and, as was pointed out in the
dissenting opinion in those cases, that "is a consideration fit to be
addressed to Congress" rather than to the courts or administrative
officers. The work belongs to the United States and is a complete whole,
having structural unity and a permanent existence, and is within the
rule laid down in those cases.
Nor does it seem to me that the facts show a case of extraordinary
emergency within the exception to the law contained in its first
section, "in case of extraordinary emergency." That exception was not
intended to have a wide but a narrow operation, and was mainly designed
to excuse overtime work which must be rendered to avert some sudden,
unusual exigency quickly and unexpectedly arising and calling for prompt
action. In Ellis v. The United States (206 U.S., 246, 257), it was said:
"It needs no argument to show that the disappointment of a contractor
with regard to obtaining some of his materials, a matter which he knew
involved some difficulty of which he took the risk, does not create such
an emergency as is contemplated in the exception to the law."
In the lower court the judge had instructed the jury:
" * * * an extraordinary emergency * * * is the sudden, unexpected
happening of something not of the usual, customary, or regular kind,
demanding prompt action to avert imminent danger to life, limb, health,
or property. The possibility of danger is not enough."
This ruling, indirectly approved by the Supreme Court, was adopted in
the case of The United States v. The Sheridan Kirk Contract Company (149
Fed.Rep., 809, 813); by Attorney-General Moody, now Mr. Justice Moody,
in a circular letter dated October 31, 1906, and by your Department in
two circulars.
In Circular No. 33, under date of July 30, 1906, it was said:
"Attention is called to the fact that the emergency provision in the
law is considered to cover any extraordinary emergencies which can not
be foreseen, such as might be necessary for saving life or property of
the United States, and not cases which depend for their emergency solely
upon economical methods of work or importance of rapid construction."
Again, in Circular No. 62, under date of December 26, 1906, it was
said:
"An 'extraordinary emergency' under the act is one not to be foreseen
in time to avoid the necessity of exceeding the limit of the fixed daily
hours of labor by the employment of more men or more shifts of men. More
economical considerations do not affect the question at all. It is to be
assumed that in making the requirement Congress knew that under many
conditions the law would impose great expense upon the Government."
Although there can be no doubt that in the prosecution of this work
in this dangerous locality extraordinary emergencies within the
exception to the law have arisen and will arise, still, upon the facts
stated, I am of opinion that no case of continuing extraordinary
emergency exists,
and, therefore, upon the questions suggested by your communication you
are advised that the eight-hour law applies to this work, and that I
fully concur with the view of your Department, as expressed in the
circulars quoted above, that those who fairly come within the ordinary
meaning of the words "laborers and mechanics" should be restricted to no
more than eight hours of effective labor upon each calendar day,
irrespective of enforced idleness on other days, except when a sudden
emergency must be met by prompt action.
Very respectfully,
CHARLES J. BONAPARTE.
SURETY COMPANIES-- STATUTORY REQUIREMENTS-- VALIDITY OF BOND; 26 Op.
Att'y.Gen. 276, June 14, 1970
The validity of a bond executed jointly and severally by the American
Surety Company, of New York, and the People's Trust Company, of
Lancaster, Pa., guaranteeing the faithful performance of the duties of a
pay officer of the Navy, is not impaired by the fact that the latter
company has not obtained the written authority of the Attorney-General
to do business, as required by the act of August 13, 1894 (28 Stat.,
279).
The People's Trust Company, having exercised the powers conferred by
its charter and received the benefit arising therefrom, can not
discharge itself from the duties imposed by the above-named act,
notwithstanding the company has not complied with certain statutory
requirements to which the State alone can object.
DEPARTMENT OF JUSTICE,
June 14, 1907.
The SECRETARY OF THE NAVY.
SIR: I have the honor to acknowledge the receipt of your letter of
the 1st instant relating to a bond executed jointly and severally by the
American Surety Company, of New York, and the People's Trust Company, of
Lancaster, Pa., guaranteeing, in the full amount thereof, the faithful
performance of the duties of a pay officer of the United States Navy.
The bond has been approved by you. I assume that the People's Trust
Company had the requisite corporate power.
You desire my opinion as to whether the validity of the bond or the
obligation of either of the sureties is impaired by the fact that one of
them is not authorized by the Attorney-General to act as surety in
United States matters.
The act of Congress of August 13, 1894 (28 Stat., 279), provides that
any company having the necessary corporate power and a capital stock of
not less than $250,000 in cash, or its equivalent, may execute as sole
surety any bond required or permitted by the laws of the United States
to be executed with one surety or with two or more sureties; and
requires that, before being in a position to act as surety, the company
shall have from the Attorney-General authority in writing to do such
business.
The American Surety Company has complied with the provisions of the
law and is authorized to execute the bond as sole surety. The People's
Trust Company has no such authority. The doubt suggested by your letter
is whether, in the absence of authority upon the part of the People's
Trust Company, its contract of insurance, whether executed jointly or
severally, is invalid or renders invalid the entire contract executed by
both sureties.
Although the People's Trust Company has not complied with the
statutory requirements, yet, inasmuch as it has exercised the powers
conferred by its charter and received the benefits arising therefrom,
the duties imposed upon it by the act will attach, from which it can not
discharge itself. This position is fully sustained by the authorities.
Beach on Private Corporations, 24; Abbott v. Aspinwall, 26 Barbour
(N.Y.), 206; Dooley v. Cheshire Glass Co., 15 Gray (Mass.), 495;
Merrick v. Reynolds Co., 101 Mass., 384; Hawes v. Anglo-Saxon Co., 101
Mass., 394; Whitney v. Wyman, 101 U.S., 392, and cases cited.
In the Whitney v. Wyman case the defense was made that at the date of
the letters ordering the machinery the corporation was forbidden to do
business, not having filed its articles of association, as required by
statute. To this defense the Supreme Court held that the "corporation
having assumed by entering into the contract with the plaintiff to have
the requisite power, both parties are estopped to deny it. * * * The
restriction imposed by the statute is a simple inhibition. It did not
declare that what was done should be void nor was any penalty
prescribed. No one but the State could object. The contract is valid as
to the plaintiff, and he has no right to raise the question of its
invalidity."
In reply, then, to your inquiry, I have the honor to say that, in my
opinion, the validity of the bond or the obligation of either of the
sureties is not impaired by the fact that one of them has not the
written authority required by the act of Congress of August 13, 1894.
Very respectfully,
CHARLES J. BONAPARTE.
NUMBER OF PASSENGERS ALLOWED ON STEAMBOATS-- ENFORCEMENT OF THE LAW;
26 Op.Att'y.Gen. 272, June 12, 1907
The duty of enforcing the law limiting the number of passengers a
steamer may carry rests equally on officers of the customs and on
steamboat inspectors under section 4496, Revised Statutes; and the
Secretary of Commerce and Labor, the Steamboat-Inspection Service having
been transferred from the Treasury Department to his Department, has the
authority to appoint additional inspectors at certain ports and to
assign them to the duty in question, but he is not authorized to assume
entire control of the enforcement of this provision of the law.
The "inspectors aforesaid," referred to in section 30 of the act of
February 28, 1871 (16 Stat., 440), from which section 4496, Revised
Statutes, is taken, were local inspectors of steam vessels, and
therefore the words "all inspectors," in section 4496, refer to such
inspectors, being the only ones included in Title LII of the Revised
Statutes, and not to inspectors of customs.
DEPARTMENT OF JUSTICE,
June 12, 1907.
The SECRETARY OF THE TREASURY.
SIR: Your letter of May 28 inquires whether the enforcement of the
limitations of the law as to the number of passengers which a steamer
may carry is a duty which should be performed by the Secretary of
Commerce and Labor, through the agents of that Department, or by the
Secretary of the Treasury, through the agency of the inspectors of
customs.
Title LII, Revised Statutes, "For the Regulation of Steam Vessels,"
is divided into two chapters, the first of which deals with the
inspection of vessels and the second with the transportation of
passengers and merchandise.
The appointment of a supervising inspector-general is provided for by
section 4402, to superintend the administration of the
steamboat-inspection laws. Section 4404 provides for the appointment of
10 supervising inspectors to supervise local boards of inspectors.
Section 4414, as amended by acts of 1887, 1890, 1895, 1897, 1898, 1900
(vol. 3, U.S. Comp. Stat., p. 3020), provides for an inspector of hulls
and an inspector of boilers at each of certain enumerated collection
districts, and also for assistant inspectors, to be appointed by the
Secretary of the Treasury in collection districts where there are 225
steamers and upward to be inspected annually. The duties of such
inspectors are prescribed by succeeding sections; they relate mainly to
the inspection of hulls, machinery, and safety appliances. In addition,
however, these inspectors are required by section 4450 to "investigate
all acts of incompetency or misconduct committed by any licensed officer
while acting under the authority of his license;" and for this purpose
the inspectors may summon and compel the attendance of witnesses, and if
they are satisfied that such licensed officer is incompetent or has been
guilty of misconduct, etc., or has willfully "violated any provision of
this title, they shall immediately suspend or revoke his license."
Since the provisions of this title relate not only to the inspection of
the vessels themselves, but to the transportation of passengers (ch.
2), it is the duty of inspectors to investigate as well violations of
the provisions limiting the number of passengers to be carried (secs.
4464, 4465).
Section 4464 requires the inspectors to state in every certificate of
inspection granted to passenger steamers the number of passengers that
may be carried with prudence and safety, and section 4465 makes it
unlawful to take on board a greater number of passengers than is stated
in such certificate, and imposes a penalty for violation of the
provision. Special permits may be issued by the inspectors to excursion
steamers, stating the additional number of passengers that may be
carried, etc. (Sec. 4466.) Section 4496 provides:
"All collectors, or other chief officers of the customs, and all
inspectors within the several districts shall enforce the provisions of
this title against all steamers arriving and departing."
And by section 4497 "every collector, or other chief officer of the
customs, or inspector," who omits any duty under the preceding section
is liable to removal from office and to a penalty.
It seems beyond question that the "inspectors" referred to in
sections 4496 and 4497 are the local inspectors so frequently mentioned
throughout the entire title as belonging to the Steamboat-Inspection
Service. Customs inspectors are not referred to in any of the sections,
and the wording and punctuation of sections 4496 and 4497 would seem to
make it perfectly clear what inspectors are meant. It might be suggested
that because the words "all inspectors" are used in section 4496,
customs inspectors are intended to be included thereby, but it is much
more likely that steamboat inspectors only are meant, while customs
inspectors would be included in fact in the opening phrases of the
section, because a collector or other chief officer of customs
proceeding to enforce the law under section 4496 would necessarily
perform the particular duty here in question by subordinates, namely,
customs inspectors.
Further, an examination of the original act from which Title LII of
the Revised Statutes was drawn, together with prior acts relating to the
same subject, shows conclusively that the inspectors referred to in
section 4496 are steamboat inspectors and not inspectors of customs.
(Sec. 30, act of Feb. 28, 1871, 16 Stat., 440; secs. 9, 24, act of Aug.
30, 1852, 10 Stat., 61; sec. 3, act of July 7, 1838, 5 Stat. 304.) By
these acts provision was made for steamboat inspectors, referred to
throughout the legislation as inspectors and local inspectors, who were
constantly appropriated for as "local inspectors of steam vessels" (e.
g., appropriation acts of July 15, 1870, March 3, 1871, 16 Stat., 292,
496, 516).
The act of February 28, 1871 (supra), from which section 4496 is
taken, provides (sec. 30):
"That it shall be the duty of the collectors or other chief officers
of the customs and of the inspectors aforesaid within the said several
districts, to enforce the provisions of law against all steamers
arriving and departing, etc."
In my opinion, there can be no doubt, upon consideration of the
entire series of acts, that the "inspectors aforesaid" were the local
inspectors of steam vessels, and, therefore, that the phrase "all
inspectors," in section 4496, refers to such inspectors, being the only
ones included within that title of the Revised Statutes, and not to
inspectors of customs.
It seems especially appropriate that the inspectors who are charged
with the duty of issuing certificates of inspection to passenger
steamers, stating the number of passengers that may be carried with
prudence and safety (sec. 4464), shall also be charged with the duty of
seeing that the requirements of the law are complied with.
The duty, then, of enforcing the law limiting the number of
passengers a steamer may carry appears to rest equally on officers of
the customs and steamboat inspectors under section 4496; and the
Secretary of Commerce and Labor, the steamboat-inspection service having
been transferred from the Treasury Department to his Department, has the
authority to appoint additional inspectors at certain ports and to
assign them to the duty in question. (Sec. 4414, Revised Statutes, as
amended, vol. 3, U.S. Comp. Stat., 3020, 3021; act of Feb. 14, 1903,
establishing the Department of Commerce and Labor, sec. 10, 32 Stat.,
825, 829.)
The Secretary of Commerce and Labor states that he is advised that
"hitherto officers of the customs have been regarded as primarily
responsible for the observation of those requirements which are enforced
by the levy of fines, although officers of the Steamboat-Inspection
Service have very generally cooperated with them and have borne a share
of the work of counting passengers," but that the law could be more
efficiently enforced if the responsibility were not divided, and he
suggests that the Department of Commerce and Labor take over the task
altogether. This, however, is not authorized as the law now stands, the
duty of enforcing the provisions in question, as has been seen, resting
upon customs authorities as well as upon steamboat inspectors and not
belonging exclusively to either.
Very respectfully,
CHARLES J. BONAPARTE.
THE SECRETARY OF AGRICULTURE-- EMPLOYMENT OF GEOLOGISTS; 26 Op.
Att'y.Gen. 269, June 10, 1907
The Secretary of Agriculture is not authorized to pay the expenses of
geologists employed by the Geological Survey of the Department of the
Interior to examine mining claims in forest reserves out of the
appropriation "General expenses, Forest Service, * * * to protect,
administer, improve, and extend the national forest reserves" (act of
June 30, 1906, 34 Stat., 683), or the appropriation raised by section 5
of the act of February 1, 1905 (33 Stat., 628), for the "protection,
administration, improvement, and extension of the Federal forest
reserves," where such employment is for the purpose of securing the
cancellation of those claims and the geologists are to be wholly under
the control of and paid by the Department of the Interior.
The Secretary of Agriculture has, however, the right to make any
investigations necessary or appropriate to the proper discharge of his
duties "to protect, administer, improve, and extend the national forest
reserves," and for these purposes the ascertainment of the geological
conditions of the soil in certain parts of these reserves may be
obviously relevant and the employment of the geologists above referred
to clearly within his authority.
Information thus obtained may be placed at the disposition of the
Department of the Interior and used for any purpose appropriate to the
duties of that Department.
DEPARTMENT OF JUSTICE,
June 10, 1907.
The PRESIDENT.
SIR: In accordance with your instructions, I have examined the two
decisions of the Comptroller of the Treasury bearing date May 2 and May
27, 1907, respectively, and the several communications from the
Departments of the Interior and of Agriculture accompanying the same,
and submit my opinion respecting the question of law therein discussed.
This question is thus stated in the Memorandum of the Law Officer of the
Forest Service to the Comptroller requesting a reconsideration of the
former of these decisions:
"May the Secretary of Agriculture, out of the appropriation 'General
expenses, Forest Service, * * * to protect, administer, improve, and
extend the national forest reserves' (act of June 30, 1906, 34 Stat.,
683), or the appropriation raised by section 5 of the act of February 1,
1905 (33 Stat., 628), for the 'protection, administration, improvement,
and extension of the Federal forest reserves,' pay the expenses of
geologists employed by the Geological Survey of the Department of the
Interior to examine mining claims in forest reserves with a view to
securing the cancellation of such claims, such geologists to be wholly
under the control of and paid by the Department of the Interior?"
The italics in this citation are my own.
There can be, I think, no doubt that, under ordinary circumstances, a
specific appropriation for a purpose particularly designated is so far
exclusive that it prohibits the expenditure for that particular purpose
of money covered by a general appropriation which might be otherwise
available for the said purpose. This view accords with the spirit and
intent of section 3678, Revised Statutes, cited by the Comptroller in
his second decision, and which is in the words following:
"All sums appropriated for the various branches of expenditure in the
public service shall be applied solely to the objects for which they are
respectively made, and for no others."
In this case the Secretary of the Interior has a specific
appropriation of $250,000--
"to meet the expenses of protecting timber on the public lands and
for the more efficient execution of the law and rules relating to the
cutting thereof; of protecting public lands from illegal and fraudulent
entry or appropriation; and of adjusting claims for swamp lands and
indemnity for swamp lands."
Moreover, the "transfer act," approved February 1, 1905 (33 Stat.,
628, sec. 1), provides that--
"The Secretary of the Department of Agriculture shall, from and after
the passage of this act, execute or cause to be executed all laws
affecting public lands heretofore or hereafter reserved under the
provisions of section twenty-four of the act entitled 'An act to repeal
the timber-culture laws, and for other purposes,' approved March third,
eighteen hundred and ninety-one, and acts supplemental to and amendatory
thereof, after such lands have been so reserved, excepting such laws as
affect the surveying, prospecting, locating, appropriating, entering,
relinquishing, reconveying, certifying, or patenting of any of such
lands."
The passage which I have italicized in this quotation indicates very
clearly an intention on the part of the Congress that the Department of
the Interior and not the Department of Agriculture should administer the
laws relating to the cancellation of fraudulent or irregular claims to
public lands within the forest reserves, and, taken in connection with
the other provisions of law above cited, it shows, in my opinion, as the
question is stated in the "Memorandum" first quoted, that the said
question must be answered, as the Comptroller has answered it, in the
negative.
I think, however, that this answer is required or even justified only
by so much of the said question as I have put in italics. Were these
words omitted and the question put as follows:
"May the Secretary of Agriculture, out of the appropriation 'General
expenses, Forest Service, * * * to protect, administer, improve, and
extend the national forest reserves' (act of June 30, 1906, 34 Stat.,
683), or the appropriation raised by section 5 of the act of February 1,
1905 (33 Stat., 628), for the 'protection, administration, improvement,
and extension of the Federal forest reserves,' pay the expenses of
geologists employed by the Geological Survey of the Department of the
Interior to examine mining claims in forest reserves?"
I should have no difficulty in answering it "yes." Not only has the
Secretary of Agriculture very clearly the right to make any
investigations necessary or appropriate to the proper discharge of his
duties "to protect, administer, improve, and extend the national forest
reserves," and for these purposes the ascertainment of the geological
conditions of the soil in certain parts of these reserves may be
obviously relevant, but, as noted by the law officer of the Forest
Service in his letter to the Comptroller of May 18, 1907, the
appropriation acts approved June 30, 1906 (34 Stat., 684), and March 4,
1907 (ibid., 1269), expressly authorize the expenditure of this
appropriation "to ascertain the natural conditions of * * * the national
forests."
Neither the Comptroller nor the Attorney-General is in any wise
concerned with the use which the Secretary of Agriculture may propose to
make of the information thus acquired; the information itself being
relevant to the discharge of his duties under the law, it must be
presumed that it is acquired for use in connection with the duties
aforesaid, in the absence of an official statement that it is acquired
for other purposes. The fact that some one may have attempted to locate
a mining claim on the part of the forests so investigated can not affect
the right of the Secretary of Agriculture to make the investigation;
nor is it material that this fact may have suggested to the Secretary
the advisability of having the "natural conditions" of the particular
tract investigated.
Of course, when any information has been thus obtained by the
Department of Agriculture the President can place it at the disposition
of the Department of the Interior (or any other Department) to be used
for any purpose appropriate to the duties of the last-mentioned
Department, and, no less obviously, the geologists or other persons
employed by the Department of Agriculture to obtain this information may
be required to testify or otherwise cooperate in any proceedings
undertaken by the Department of the Interior to secure the cancellation
of fraudulent or irregular claims.
Very respectfully,
CHARLES J. BONAPARTE.
PURE-FOOD LAW-- WHISKY-- ETHYL ALCOHOL-- BLEND; 26 Op.Att'y.Gen.
262, May 29, 1907
Opinion of April 10, 1907 (ante, p. 216), as to the construction of
section 8 of the act of June 10, 1906 (34 Stat., 768), known as the
pure-food law, reconsidered and reaffirmed.
The primary aim of this law was to secure an accurate and serviceable
nomenclature for articles of food, and its construction is, therefore,
governed by rules in some respects different from those applicable to
statutes passed wholly for different purposes, as, for example, laws
imposing duties on imports.
Congress must be presumed to have legislated with reference to
well-established processes in the manufacture and sale of distilled
spirits, and according to such practice, "straight" whisky was mixed
only with two substances besides mere coloring and flavoring materials,
namely, with "straight" whisky of another kind and with ethyl alcohol.
The evident intent of the statute was to confine the use of the word
"blend" to one kind of mixture and to forbid its use for another; and
since such mixture must be either composed of two different kinds of
whisky, or of whisky with one other substance generally mixed with it,
namely, ethyl alcohol, it is clear that Congress intended to deny the
designation "blend" to a mixture of whisky and ethyl alcohol.
Ethyl alcohol can not, for the purposes of the pure-food law, be
considered to be a "like substance" to whisky.
The proper definition of the word "whisky," for this purpose, is a
question of law, and the term is to be given its ordinary significance
as a word of everyday speech, and should not be understood in any
commercial or scientific sense.
DEPARTMENT OF JUSTICE,
May 29, 1907.
The PRESIDENT.
SIR: In accordance with your instructions, I gave a hearing on
Wednesday, May 15, to persons desiring to submit to the Department
criticism or other comment on my opinion of April 10 last past as to the
construction of section 8 of the act approved June 30, 1906, and
generally known as the pure-food law. About thirty persons appeared on
this occasion and a number of oral arguments were presented, some
critical and some approbatory of the opinion in question. At the
conclusion of this argument I announced my willingness to receive and
consider any matters in writing which might be submitted to me touching
its subject-matter, and, in response to several requests for a further
hearing, stated that I would give these requests due consideration and
announce later whether I saw any sufficient reason to comply with them.
As heretofore stated to you verbally, I do not think any useful purpose
would be served by another oral argument, and, with your approval, I
have therefore announced that in this respect the matter must be
considered closed. I received a large number of written communications
from various persons commenting on the opinion in question, and I have
carefully considered all of them. I find no reason to withdraw the said
opinion or to modify it in any respect, and I respectfully report that,
in my judgment, this opinion correctly states the law on the subject to
which it relates. As a matter of courtesy, however, to the gentlemen who
have favored me with their views, and to remove some misapprehensions
which seem to exist respecting the opinion in question, I think it
appropriate to further consider in this final report some of the
questions discussed at the oral hearing and in the written
communications hereinbefore stated.
It seems to be thought by some of the critics of the opinion
heretofore rendered that I considered myself bound by the definition of
"whisky" adopted by the Department of Agriculture and contained in the
papers heretofore submitted to me, and therefore that the correctness of
the opinion, in so far as this depended upon an accurate definition of
the word in question, would be successfully impeached by showing an
error on the part of the said Department in its said definition.
This view misapprehends the purport of the opinion. In point of fact,
while stating, in substance, that I held the definition in question to
be accurate for all purposes directly material to the subject under
discussion, I yet ventured to respectfully question its entire accuracy,
because, in the words of my opinion, it was not "quite broad enough to
meet the general intent of the law of 1906." Of course, if the proper
definition of "whisky" were a question of fact, this Department would be
bound by the statements on the subject contained in the papers submitted
to it when instructed to furnish an opinion; but I do not consider this
a question of fact. When words are used in a technical or conventional
sense, their proper definition must be established by evidence and found
by a tribunal appropriate to pass upon questions of fact; but when the
words are used in their ordinary meaning, then, in the words of Mr.
Justice Gray in Nix v. Hedden (149 U.S., 306), "of that meaning the
court is bound to take judicial notice as it does in regard to all words
in our own tongue, and upon such a question dictionaries are admitted,
not as evidence, but only as aids to the memory and understanding of the
court;" that is to say, in the language of the Chief Justice in Sonn v.
Magone (159 U.S., 421), "the interpretation of words of common speech is
within the judicial knowledge, and matter of law." In the first of these
two cases the Supreme Court held it to be a question of law whether
tomatoes were fruits or vegetables; in the second, whether dried
lentils and white beans were vegetables or seeds; as it had previously
determined in Marvel v. Merritt (116 U.S., 11) that iron ore was a
mineral substance. I think, therefore, the proper definition of
"whisky" for the purposes of the pure-food law is a question of law, it
being, to my mind, quite clear that for these purposes the term is to be
given its ordinary significance as a word of everyday speech, and is not
to be understood in any commercial or scientific sense, as it might be
by a distiller or rectifier, a chemist or a physician.
For the purposes of my opinion, I had to determine its proper definition
just as in Eureka Vinegar Company v. Gazette Printing Company (35 Fed.,
570) the court had to determine the definition of "cider," and as in
U.S. v. Ash (75 Fed., 652) the court took judicial cognizance of what
was "whisky" and even of what was a "whisky cocktail."
In establishing the meaning of "like substances," as used in the
pure-food law, to determine whether a mixture shall be properly called a
"blend" or a "compound," I was able to find no judicial authority which
appeared to me sufficiently in point to make its citation appropriate.
The essential meaning of "like," as here used, is evidently "of the same
class," and on what this class includes must depend the purpose of the
classification, or, in other words, the ends of the law. The primary aim
of the pure-food law, as explained in my previous opinion, is, in my
judgment, to secure an accurate and serviceable nomenclature for
articles of food, and its construction is therefore governed by rules in
some respects different from those applicable to statutes passed for
wholly different purposes, as, for example, laws imposing duties on
imports; therefore, although my attention had been called, even before
the hearing on May 15, to certain decisions of the Supreme Court
construing the phrase "of similar description," which may be assumed
argumenti gratia to be synonymous with "like," I did not consider it
necessary in that opinion to cite or discuss these decisions. It may be,
however, well for me to here point out that if they are to be regarded
as authorities relevant to the question considered in this connection in
the previous opinion, namely, whether ethyl alcohol and whisky are "like
substances," they appear to fully sustain the conclusion therein
announced. In Greenleaf v. Goodrich (101 U.S., 278) and Schmieder v.
Barney (113 U.S., 646) the Supreme Court held that the similarity
required by this designation is "a similarity in respect to the product
and its adaptation to uses and to its uses, and not merely to the
process by which it was produced," and that the material question to be
determined in each case would be whether "the goods were or not
substantially the same or substantially different."
Now I think it is quite clear that, while there may be a similarity in
the processes whereby whisky and ethyl alcohol, respectively, are
produced from grain mash, alcohol and whisky are not, according to the
common understanding of the general public, similar in their respective
adaptation to uses and their respective uses in fact. I believe that
according to the first thought of an ordinarily intelligent and
well-informed man whisky is adapted for use, and is used, as a beverage,
and alcohol is adapted for use, and used, in medicine or in the arts,
and I am satisfied that such a man, if asked the question, would, in a
great majority of instances, reply without hesitation that alcohol and
whisky were substantially different and not substantially the same
things.
It was developed at the hearing before me that some, at least, of the
dealers in whisky who questioned the correctness of my opinion claimed
that ethyl alcohol and whisky are not merely "like," but identical;
that whisky is ethyl alcohol and ethyl alcohol is whisky. Their
argument was, in substance, that ethyl alcohol was whisky from which
certain congeneric substances, termed by them "impurities," had been
removed; and whisky was ethyl alcohol in which these "impurities" had
been allowed to remain, or to which some substitute for them had been
added. Now it is obvious that "impurities" is a question-begging term,
and, if it be admitted that substances so designated are really
congeneric with the whisky it is an illogical and therefore an
inappropriate designation. Pearls in an oyster may be the result of
disease or injury to the animal, but when we speak of "pearl-bearing
oysters" they constitute a very important portion of the idea thus
expressed. If the so-called "impurities" are an essential part of
whisky, or, in other words, if, in the language of the definition of the
Department of Agriculture, they "give character to the distillate," then
it is as inaccurate to describe a substance destitute of them as
"purified" or "rectified" whisky as it would be to speak of sugar and
water as "lemonade without lemons."
To show how the Congress intended the pure-food law, and especially
the provision as to "like substances," "blends," and "compounds," to be
construed, my attention has been called to remarks of speakers in debate
on the bill and to proceedings before committees of one or the other
House of Congress. In the language of Mr. Justice Peckham, in U. S. v.
Trans-Missouri Freight Association (166 U.S., 318), "there is * * * a
general acquiescence in the doctrine 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. * * * The reason is that
it is impossible to determine with certainty what construction was put
upon an act by the members of a legislative body that passed it by
resorting to the speeches of individual members thereof. Those who did
not speak may not have agreed with those who did, and those who spoke
might differ from each other, the result being that the only proper way
to construe a legislative act is from the language used in the act, and,
upon occasion, by a resort to the history of the times when it was
passed." Thus construed, there would seem to be little difficulty in
determining the purpose of the Congress in restricting the use of the
word "blend" to a mixture of "like substances," supposing, of course,
that this provision was inserted with a view inter alia to the labeling
or branding of whisky. The Congress must be presumed to have legislated
with reference to well-established processes in the manufacture and sale
of distilled spirits. There can be no doubt that, according to such
practice, "straight" whisky was mixed only with two substances besides
mere coloring and flavoring materials, namely, with "straight" whisky of
another kind and with ethyl alcohol. There is an evident intent on the
face of the statute to confine the use of the word "blend" to one kind
of mixture and to forbid its use for another kind of a mixture; and
since the Congress must be supposed to have legislated with regard to
existing facts,
and, consequently, since the mixture to which it intended to deny the
designation "blend" must be either a mixture of two different kinds of
whisky or a mixture of whisky with the one other substance generally
mixed with it-- namely, ethyl alcohol-- it follows that, unless we are
prepared to say that ethyl alcohol is more "like" to whisky than one
whisky is to another, it is reasonable to conclude that the Congress
intended to deny the designation "blend" to a mixture of whisky and
ethyl alcohol. If this provision was, in fact, inserted with some
reference to whiskies (which seems to be generally assumed as a fact by
both sides to this controversy), then it is impossible to see why the
provision as to blends and compounds was inserted at all, if the
Congress considered whisky and ethyl alcohol to be "like substances." So
far as I am informed, no combination of whisky with another substance
was manufactured and sold, either as a "blend" or otherwise, when the
pure-food law was enacted, to which the designation "blend" could be
denied, or which could be properly labeled a "compound," if the Congress
held ethyl alcohol to be a "like substance" to whisky. I have found,
therefore, no difficulty in concluding that, according to all the
well-established canons of statutory construction, these two kinds of
spirits are not to be considered "like substances" for the purposes of
the pure-food law.
Of course, if the Congress thinks they should be, effect can be
readily given to the legislative will by an amendment of the law.
However, having given a very patient and careful consideration to the
entire subject, I respectfully advise you that, as above stated, the
opinion already rendered must stand as that of this Department; and I
suggest that parties whose interests may suffer from the administration
of the law as thus determined take, as soon as may be practicable,
appropriate measures to obtain a judicial determination of the questions
involved.
I remain, sir, yours respectfully,
CHARLES J. BONAPARTE.
CIVIL SERVICE-- ELIGIBILITY-- MEMBERS OF THE SAME FAMILY; 26 Op.
Att'y.Gen. 260, May 25, 1907
The Civil Service Commission can not refuse to examine an applicant
upon the ground that he may subsequently be disqualified for appointment
under section 9 of the civil-service act of January 16, 1883 (22 Stat.,
406), but it may inform persons to whom appointments could not be
tendered at the time of examination that unless the disability is
removed before their names are reached for certification, they can not
be certified.
The Commission is authorized and required to withhold from
certification the name of any person where two or more members of the
same family are already in the public service under the civil-service
act.
Congress probably intended that all questions in regard to
eligibility under the civil-service law should be decided by the
Commission.
DEPARTMENT OF JUSTICE,
May 25, 1907.
The PRESIDENT.
SIR: I have the honor to acknowledge receipt of your letter of May
22, requesting me to answer the query contained in the letter of the
Civil Service Commission, addressed to you under date of May 20, in
regard to the effect of section 9 of the civil-service act. (22 Stat.,
406.)
This section reads as follows:
"That whenever there are already two or more members of a family in
the public service in the grades covered by this act, no other member of
such family shall be eligible to appointment to any of said grades."
In an opinion dated June 12, 1883 (17 Op., 554), Attorney-General
Brewster held that the Commission could not refuse to examine a person
otherwise qualified on the ground that there was already a member of the
family of such applicant in the public service. In passing upon this
question the following language was used:
"The disability in question is a fluctuating one, material only as
regards 'appointment.' The state of things which creates it may exist at
examination and disappear before appointment, or, vice versa, be
nonexistent at examination and yet have arisen at appointment."
With so much of the opinion as passes upon the point necessary to the
determination of the question under discussion, I find myself in entire
accord.
It seems to me clear that the Commission can not refuse to examine an
applicant on the ground that such applicant may subsequently be
disqualified for appointment under section 9 of the act.
While this is undoubtedly true, I can not agree that the enforcement
of this section is, under the law, to be left to the appointing power
alone. The civil-service act provided a comprehensive scheme for
determining the relative merit and fitness of certain classes of persons
applying for positions in the public service. It authorized the
President to extend the classification from time to time as he might see
fit, and to promulgate such rules as might be necessary for carrying the
act into effect. It further created a Commission of three members, which
was charged with the duty of assisting the President in preparing the
rules which were to provide for open competitive examinations. The
general management of these examinations has been, by every set of rules
promulgated in accordance with this provision, vested wholly in the
Commission. The whole object of the Commission's existence is to
determine who shall be eligible for appointment to positions in the
Government service. Its duty, among other things under the rules, has
been to certify the first four, and in later years, the first three,
names from an appropriate register of eligibles, to the appointing
officer who might make a requisition upon it. It has no more right to
certify the name of a person disqualified under section 9, than to
certify a person habitually using intoxicating beverage to excess, and
thus disqualified under section 8 of the act.
I am of opinion, then, that the Civil Service Commission is
authorized and required to withhold from certification the name of a
person, two or more of the members of whose family are already in the
public service under this act.
Good faith requires that the fullest information shall be imparted to
all applicants for examination. That being so, it is clearly proper for
the Civil Service Commission, while examining persons to whom
appointments could not be tendered at the time of examination, to inform
such persons that unless the disability is removed before their names
are reached for certification, their names can not be certified.
This answers the question asked by the Civil Service Commission. I
might add that the practical advantages of the rule I have laid down,
make it appear likely that Congress intended that all questions in
regard to eligibility should be decided by the Commission, which has a
complete record of all persons in the service and can, by reference to
its own files, easily and expeditiously decide any question of this
kind.
The appointing officer, on the other hand, has no satisfactory method
of determining whether a person certified has or has not near relatives
in the service.
Respectfully,
CHARLES J. BONAPARTE.
AREAS OF FORBIDDEN ANCHORAGE-- AUTHORITY TO ESTABLISH; 26 Op.Att'y.
Gen. 258, May 24, 1907
There is no general authority under existing law conferred on any
Executive Department to establish areas of "forbidden anchorage" in the
harbors of the United States.
A criminal statute (act of July 7, 1898, 30 Stat., 717), which
punishes willful or malicious injury to the harbor-defense system of the
United States and intentional violation of any regulation of the War
Department respecting the same, can not be taken as a grant of power to
make regulations on the subject in question, however important and
desirable such regulations may be.
The Attorney-General concurs in the view that general legislation by
Congress is necessary for the protection of submarine cables connecting
the several military stations in the various fortified harbors of the
United States.
DEPARTMENT OF JUSTICE,
May 24, 1907.
The SECRETARY OF WAR.
SIR: I am in receipt of your note of May 16, 1907, in which you
refer me to five acts of Congress authorizing the Secretary of War and
the Secretary of Commerce and Labor, respectively, to establish
anchorage regulations in the localities named in said acts. Those acts
are:
"The act of May 16, 1888, for New York Harbor, extended in the act of
March 3, 1899, to include Kill van Kull, Newark Bay, Arthur Kill, and
Raritan Bay;
"The act of February 6, 1893, for Chicago Harbor and the waters of
Lake Michigan adjacent thereto;
"The act of June 6, 1900, for Kennebec River, near Bath, Me.; and
"The act of April 26, 1906, for St. Marys River and other channels
connecting the Great Lakes."
You state that in the matter of the protection of submarine cables
connecting the several military stations in the various fortified
harbors of the United States it is important that areas of "forbidden
anchorage" should be established to cover them, and you request to be
advised whether, beyond such specified acts, "under existing law there
is any general authority conferred on any Executive Department to
establish areas of 'forbidden anchorage' in the harbors of the United
States."
The acts cited give authority to define and establish anchorage
grounds in the waters specified, to adopt suitable rules and regulations
in relation thereto, and to take all necessary measures for the proper
enforcement of such rules and regulations. Congress has not enacted any
general legislation of this character, and the fact that legislation for
particular localities has been enacted excludes the idea that a general
power in the matter may be implied or deduced from other powers
conferred upon the Executive Departments.
The act of February 29, 1888 (25 Stat., 41), protects submarine
cables through civil and criminal liability for injuries to the same, in
pursuance of the convention of March 14, 1884 (24 Stat., 989), which
obviously relates to international cables only. The act of 1888 (sec.
12) is restricted to cables to which the convention applies, although it
embraces injuries (sec. 13) within as well as outside the territorial
waters of the United States. It would seem clear that the act does not
relate to domestic Government cables maintained in connection with
military stations in fortified harbors, and at all events the act
furnishes no authority for establishing anchorage areas "for the
protection of cables or any other United States interests."
The act of July 7, 1898 (30 Stat., 717), enacted for the protection
of harbor defenses and fortifications, punishes willful or malicious
injury to the harbor-defense system of the United States and intentional
violation of any regulation of the War Department respecting the same.
But, for the reasons already given, it is plain that this criminal
statute can not be taken as a grant of power to make regulations on the
subject in question, however important and desirable such regulations
may be.
I concur, therefore, in your view that it is necessary to procure
general legislation along the lines of the special legislation referred
to, and I have the honor to answer your inquiry in the negative.
Very respectfully,
CHARLES J. BONAPARTE.
CIVIL SERVICE-- TRANSFER OF CLERKS AND EMPLOYEES; 26 Op.Att'y.Gen.
254, May 17, 1907
The three years' limitation as to transfers in the Executive
Departments, prescribed by section 5 of the appropriation act of June
22, 1906 (34 Stat., 389, 449), does not apply to employees and
subordinates in post-offices, pension agencies, customs-houses,
ordinance establishments, sub-treasuries, navy-yards, and
quartermasters' establishments.
The language of that act imports that the persons to which it applies
are actually in the Departments at the seat of government, or that the
performance of duties away from such Departments is by direct orders
from and under supervision by those Departments.
The rule laid down by Attorney-General Devens in 15 Op., 262, 267, as
to what bureaus and offices may be deemed bureaus and offices in any of
the Executive Departments, approved and held applicable.
Although debates in Congress are not appropriate sources of
information from which to discover the meaning of an act of Congress,
yet the Supreme Court has, on occasion, examined the reports of
committees of either House with a view to determining the scope of
statutes passed on the strength of such reports. (United States v.
Binns, 194 U.S., 486, 495.)
DEPARTMENT OF JUSTICE,
May 17, 1907.
The PRESIDENT.
SIR: I have the honor to acknowledge receipt, by reference from you,
of the request of the Civil Service Commission for my opinion on the
effect of section 5 of the legislative, executive, and judicial act
approved June 22, 1906. (34 Stat., 389, 449.)
This section reads 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 construing this section, submitted to you under date of
March 29 last (ante, p. 209), I advised you, (1) that clerks or other
employees actually on duty at the seat of government in any one of the
nine Departments referred to in section 158, Revised Statutes, as
amended, were within the prohibition of the statute; (2) that clerks
and other employees under the immediate control of the Departments
mentioned above, even if employed usually or invariably outside the City
of Washington, were also within the prohibition of the act; and (3)
that the Interstate Commerce Commission, the Civil Service Commission,
the Isthmian Canal Commission, the Philippine Commission, and certain
other governmental agencies, which I enumerated, were not attached to
any Department within the meaning of the act quoted, and that employees
could be transferred to or from these offices without regard to the
three year restriction.
The Civil Service Commission now asks for a supplemental opinion as
to whether this section applies to persons in the classified service in
offices under the supervision of one of the nine Executive Departments,
but established and located outside such Departments. As examples of the
classes of persons referred to, the Commission instances employees and
subordinates in post-offices, pension agencies, custom-houses, ordnance
establishments, sub-treasuries, navy-yards, and quartermasters'
establishments.
In the opinion which has been followed for thirty years as laying
down the proper rule for executive guidance, Attorney-General Devens
said (15 Op., 262, 267):
"The several Executive Departments are by law established at the seat
of government; they have no existence elsewhere.
Only those bureaus and offices can be deemed bureaus and offices in any
of these Departments which are constituted such by law of its
organization. The Department, with its bureaus or offices, is in the
contemplation of the law an establishment distinct from the branches of
the public service and the offices thereof which are under its
supervision. Thus, the office of postmaster, or of collector of internal
revenue, or of pension agent, or of consul, is not properly a Department
office-- not an office in the Department having supervision over the
branch of the public service to which it belongs. True, an official
relation exists here between the office and the Department, one,
moreover, of subordination of the former to the latter; but this does
not make the office a part of the Department."
While this opinion, as I have pointed out in my former communication
to you above referred to, does not apply to special agents, inspectors,
etc., who in contemplation of law are part of the Department proper, it
obviously has application to the various classes mentioned in the letter
of the Civil Service Commission.
While Attorney-General Devens was discussing the right to use franked
envelopes, and we are here concerned with the subject of transfers in
the classified service, it seems clear that the reasons which led to the
ruling I have quoted are applicable here.
The section now under consideration, as has been observed, was a
provision in the legislative, executive, and judicial act approved June
22, 1906. In the course of the debate in the House a criticism was made
that the bureaus of every Department of the Government were competing
against each other by offering to clerks an increase of wages to come
from one Department to another. Mr. Tawney, chairman of the committee
reporting the bill, said:
"If the gentleman will permit me, if he has read this bill he has
observed that the committee has reported a provision for the
accomplishment of that identical purpose by prohibiting the transfer
from one Department to another Department until the clerk desiring the
transfer has served at least three years in the Department from which he
desires to be transferred." (Cong. Rec., vol. 40, part 4, p. 3928, 59th
Cong., 1st sess.)
In the case of United States v. Binns (194 U.S., 486, 495), the
court, speaking through Mr. Justice Brewer, said:
" * * * While it is generally true 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, * * * yet it is also true
that we have examined the reports of the committees of either body with
a view of determining the scope of statutes passed on the strength of
such reports."
The statement of the chairman, explaining the purpose of the
legislation, was really the report of the committee within the spirit of
the rule here laid down. The meaning of the statute was definitely
declared. By the specification of clerk it would seem that, primarily,
the intention of the legislature was to discourage and render more
difficult the transfers of persons in clerical positions from one
Department to another, and that the general words "other employee" were
inserted to prevent a possible failure to accomplish the purpose sought.
Be that as it may, the limitation of the statute as to persons was
advisedly made. These persons must be in the classified service in the
Executive Departments. This language imports that the persons are
actually in the Departments at the seat of Government or that the
performance of duties away from the Departments is by direct orders from
the supervision by the Departments at the seat of Government.
These views are in full accord with my previous opinion, and I think
the extent of that opinion should not be enlarged. They are based upon
well-settled rules of construction, and there appears to be no ambiguity
in the terms of the statute.
Answering your inquiry specifically, then, I am of opinion that the
three-year limitation, as to transfers, of section 5 of the
appropriation act of June 22, 1906, does not apply to persons referred
to in the communication of the Commission or to persons occupying
similar positions.
Respectfully,
CHARLES J. BONAPARTE.
MEXICAN BOUNDARY-- DIVERSION OF THE RIO GRANDE; 26 Op.Att'y.Gen.
250, May 16, 1907
The authority of the International Water Boundary Commission, under
the convention of 1889 (26 Stat., 1512) with Mexico, is restricted to
the determination of questions respecting the boundary alone, and does
not extend to the adjudication of private rights and liabilities.
The Commission having found that the American Rio Grande Land and
Irrigation Company, by the construction of its works, which changed the
channel of the Rio Grande at a point forming the boundary line between
the United States and Mexico, violated the stipulations of that treaty,
the judgment is binding upon both countries, and the Commission is
functus officio as regards the carrying into effect of their decision.
The Federal statutes (sec. 563, Rev. Stat., and act of August 13,
1888, sec. 1; 25 Stat., 433) provide a right of action and a forum to
citizens of Mexico who have been injured by the action of the irrigation
company.
It is the duty of the United States to vindicate the injury done to
Mexico regarding the boundary line, and to that end the United States
may proceed by bill in equity to obtain mandatory relief in some
appropriate form to compel the restoration of the status quo ante.
Opinion of Attorney-General Harmon (21 Op., 274) distinguished.
DEPARTMENT OF JUSTICE,
May 16, 1907.
The SECRETARY OF STATE.
SIR: Your letter of April 20 submits certain findings of the
International Water Boundary Commission, and requests my opinion as to
whether or not the present statutory provisions enable the findings of
the Commission to be given effect.
The Commission investigated a complaint by the Mexican authorities in
relation to the diversion of the waters of the Rio Grande by the
American Rio Grande Land and Irrigation Company on the American side
near Horcon ranch, Mexico, and found:
"That the said American Rio Grande Land and Irrigation Company did
wrongfully and knowingly cause a change in the current channel of the
Rio Grande where it constituted the boundary line between the United
States of Mexico and the United States of America, by artificial means,
and in direct violation of Article III of the convention of November 12,
1884, between the two governments, and if said Article III is applied,
the change in the running channel of the river produces no alteration of
the boundary line, which still continues in the old bed of the river.
"The Commissioners are of opinion that indemnity should be made for
this wrong, but they do not understand that the treaties under which it
was organized and under which this investigation was conducted confers
upon it jurisdiction over the title to land, damage to property, the
control of riparian rights, or the enforcing of reparation for wrongs by
offenders for changing the channel of the river where it constitutes the
boundary."
The boundary convention of 1889 with Mexico gives to the
International Boundary Commission exclusive jurisdiction to decide the
differences and questions growing out of natural or artificial changes
in the beds of the Rio Grande and Colorado rivers where they form the
boundary line between the United States and Mexico. The authority of the
Commission under that treaty is restricted to the determination of
questions respecting the boundary alone, and does not extend to the
adjudication of private rights and liabilities. The Commission has found
here, within its jurisdiction, that the American Rio Grande Land and
Irrigation Company, by the construction of its works changing the
channel of the river, violated the stipulations of that treaty, which
refers to and incorporates the stipulations of earlier treaties.
Both Commissioners having agreed to this finding or decision, their
judgment is binding upon both countries by the express provision of
Article VIII of that treaty. Manifestly the Commission is functus
officio in this matter, and the question is, how can their decision be
carried into effect?
The question of suspending the construction of prohibited works,
which is authorized and directed by the treaty, does not arise here,
because it appears from the report of the joint engineers that the work
had progressed so far as to be beyond control.
As to indemnity for injuries which may have been caused to citizens
of Mexico, I am of opinion that existing statutes provide a right of
action and a forum. Section 563, Revised Statutes, clause 16, gives to
district courts of the United States jurisdiction "of all suits brought
by any alien for a tort only in violation of the law of nations or of a
treaty of the United States." The act of August 13, 1888, amending and
superseding earlier laws (25 Stat., 433, sec. 1), gives to the circuit
courts of the United States "original cognizance, concurrent with the
courts of the several States, of all suits of a civil nature at common
law or in equity * * * in which there shall be * * * a controversy
between citizens of a State and foreign states, citizens, or subjects,
in which the matter in dispute exceeds, exclusive of interest and costs,
the sum or value aforesaid ($2,000)."
I repeat that the statutes thus provide a forum and a right of
action. I can not, of course, undertake to say whether or not a suit
under either of the foregoing statutes would be successful. That would
depend upon whether the diversion of the water was an injury to
substantial rights of citizens of Mexico under the principles of
international law or by treaty, and could only be determined by judicial
decision. In a case where the diversion of water for irrigation occurred
within the United States above the point where the Rio Grande becomes
the international boundary, Attorney-General Harmon held that the United
States is under no obligation or liability by treaty or the principles
of international law, but he did not consider a diversion, as here,
where the river is the boundary, nor the liability of private parties in
such case.
As to the public tort, so to speak-- that is, the injury to Mexico in
respect to the boundary line by changing the channel of the river-- I
incline to the view that a treaty of the United States, which is part of
the supreme law of the land, having been violated, a remedy exists to
redress that wrong. The United States owes the duty and has the right of
vindicating the treaty. It can hardly be doubted that in a proper case
calling for prevention the United States may proceed by bill in equity
to obtain an injunction, and that in a case like the present, where the
prohibited thing has been done, the United States may proceed in the
same way to obtain mandatory relief in some appropriate form to compel
the restoration of the status quo ante. I find provision for this course
in the act of 1888, already referred to. That act gives jurisdiction to
the circuit courts of the United States of all suits of a civil nature
at common law or in equity in which the United States are plaintiffs or
petitioners. I am of the opinion that the limitation of jurisdictional
amount in that act does not apply to such suits.
Whether, in view of all the circumstances and the effect upon the
various Mexican as well as American interests involved, it is wise or
expedient for the United States to file a bill against the offending
corporation to compel the restoration of the river channel as it was is
not a matter for me determine, although it is undoubted that the
question whether legal proceedings should actually be undertaken is
finally referable to me. Awaiting an expression of your views upon this
point, I have the honor to remain,
Very respectfully,
CHARLES J. BONAPARTE.
APPOINTMENT-- HOLDING OF TWO OFFICES-- COMMISSIONER OF LABOR; 26 Op.
Att'y.Gen. 247, May 6, 1907
The appointment of the Commissioner of Labor as a member of the
Immigration Commission provided for by section 39 of the act of February
20, 1907 (34 Stat., 898. 909) is not an appointment to an "office"
within the meaning of section 2 of the act of July 31, 1894 (28 Stat.,
205), and he may receive compensation for his services on that
Commission in addition to the salary attaching to his office as
Commissioner of Labor.
DEPARTMENT OF JUSTICE,
May 6, 1907.
The PRESIDENT.
SIR: I have the honor to acknowledge the receipt of your letter of
April 29, in which you inform me that you have appointed Commissioner of
Labor Charles P. Neill a member of the Immigration Commission provided
for under section 39 of the act of February 20, 1907 (34 Stat., 898,
909). You ask my opinion upon the question whether or not such
appointment is an office within the meaning of the statute prohibiting
the appointment to or holding of an office by any person while holding
an office with a compensation of over $2,500, and whether Commissioner
Neill may be given additional compensation for his services on the
Immigration Commission.
The act of February 20, 1907, creating that Commission provides as
follows (sec. 39):
"That a commission is hereby created, consisting of three Senators,
to be appointed by the President of the Senate, and three members of the
House of Representatives, to be appointed by the Speaker of the House of
Representatives, and three persons to be appointed by the President of
the United States. Said commission shall make full inquiry, examination,
and investigation by sub-committee or otherwise into the subject of
immigration. For the purpose of said inquiry, examination, and
investigation, said commission is authorized to send for persons and
papers, make all necessary travel, either in the United States or any
foreign country, and, through the chairman of the commission or any
member thereof, to administer oaths and to examine witnesses and papers
respecting all matters pertaining to the subject, and to employ
necessary clerical and other assistance. Said commission shall report to
the Congress the conclusions reached by it and make such recommendations
as in its judgment may seem proper. Such sums of money as may be
necessary for the said inquiry, examination, and investigation are
hereby appropriated and authorized to be paid out of the 'immigrant
fund,' on the certificate of the chairman of said commission, including
all expenses of the commissioners and a reasonable compensation, to be
fixed by the President of the United States, for those members of the
commission who are not Members of Congress. * * * "
The statute referred to by you, which forbids the holding of two
offices by persons receiving a salary of $2,500, is the act of July 31,
1894 (28 Stat., 205), section 2 of which provides:
"No person who holds an office, the salary or annual compensation
attached to which amounts to the sum of two thousand five hundred
dollars, shall be appointed to or hold any other office to which
compensation is attached, unless specially heretofore or hereafter
specially authorized thereto by law * * * ."
There have been many judicial definitions of a public office. In the
leading case of United States v. Hartwell, 6 Wall., 385, 393, the
Supreme Court said: "An office is a public station, or employment,
conferred by the appointment of government.
The term embraces the ideas of tenure, duration, emolument, and duties.
The employment of the defendant was in the public service of the United
States. * * * His compensation was fixed by law. * * * His duties were
continuing and permanent, not occasional or temporary." This definition
has been often cited and approved. (United States v. Moore, 95 U.S.,
762; United States v. Germaine, 99 U.S., 511; Hall v. Wisconsin, 103
U. S., 8; Auffmordt v. Hedden, 137 U.S., 327.)
Office has also been defined as authority to exercise a function of
government, as implying a delegation of a portion of the sovereign power
to the person filling the office. (Opinion of the judges, 3
Greenl.(Me.), 461; Eliason v. Coleman, 86 N.C., 235, quoting from High
Ex. Rem., sec. 620.)
But the idea runs through all the cases that in order to constitute
an office the employment must be continuing and not temporary. Chief
Justice Marshall expresses that view in United States v. Maurice, 2
Brock., 96, as follows:
"A man may certainly be employed * * * without becoming an officer.
But if a duty be a continuous one, which is defined by rules prescribed
by the Government and not by contract, which an individual is appointed
by government to perform, * * * if those duties continue, though the
person be changed, it seems very difficult to distinguish such a charge
of employment from an office."
It was held by one of my predecessors in a somewhat analogous case
(22 Op., 184) that the word "office" as used in the act of 1894 did not
include the appointment of a circuit judge as commissioner under the
convention of 1896 with Great Britain, concerning claims growing out of
seizures of vessels in Bering Sea. Although this conclusion was based
mainly on the theory that such an appointment was not a constitutional
office, it was also held that the temporary character of the employment,
which was to terminate at the end of the examination of a certain number
of specified claims, "withdraws one of the elements of an office which
the Supreme Court regards as essential."
In United States v. Germaine, 99 U.S., 508, where the court found in
the case of a surgeon in the Pension Office that his duties were not
continuing and permanent, but occasional and intermittent, and that no
regular appropriation was made to pay his compensation, which was paid
out of money appropriated for paying pensions in his district, it was
held that he was not an officer of the United States.
Applying these tests to the present case, I think it must be held
that the appointment of Commissioner Neill on the Immigration Commission
does not constitute an office in the sense in which the term is used in
the statute under consideration. Here the tenure and duration are
limited to the accomplishment of a specific act. The commissioners are
to make an investigation into the subject of immigration, and it is
assumed that their duties will cease when they have made the report to
Congress contemplated by the act. Thus the employment is not permanent
and continuous. Nor is their compensation fixed by law; as in the
Germaine case, no regular appropriation is made for that purpose, but
they are to be paid out of the "immigrant fund" on the certificate of
the chairman of the commission, the President to fix a "reasonable
compensation."
I therefore answer your inquiry by advising you that, in my opinion,
Commissioner Neill's appointment as a member of the Immigration
Commission is not an office within the meaning of section 2 of the act
of 1894, and that he may receive compensation for his services on said
commission in addition to the salary attaching to his office as
Commissioner of Labor.
Very respectfully,
CHARLES J. BONAPARTE.
PRIBILOF ISLANDS-- PELAGIC SEALING-- AUTHORITY OF AGENTS OF THE
DEPARTMENT OF COMMERCE AND LABOR TO MAKE ARRESTS; 26 Op.Att'y.Gen.
243, May 3, 1907
The agents of the Department of Commerce and Labor have power under
section 174 of the act of March 3, 1899 (30 Stat., 1280), upon
reasonable ground for suspecting that a violation of the laws for the
protection of the Alaska seal fisheries has occurred, to search any
vessel within the 3-mile limit, according to the practice of customs
officers when acting under section 3059, Revised Statutes, and to seize
such vessels and any property on board. They may also make arrests of
persons on board such vessels reasonably believed to be guilty of a
crime, and need not previously obtain a warrant.
In like manner, arrests and seizures may be made on land when
probable cause exists to believe a criminal offense has been committed.
Sealskins reasonably believed to have been acquired as the fruits of
such crime may be seized either upon land or at sea within the 3-mile
limit.
DEPARTMENT OF JUSTICE,
May 3, 1907.
The SECRETARY OF COMMERCE AND LABOR.
SIR: I have received your letter of the 30th ultimo setting forth
certain facts and laws concerning the Pribilof Islands and fur seals and
asking my opinion, as follows:
"I have the honor to submit for your consideration the question
whether, under existing law, and especially under section 174 of the act
of March 3, 1899 (30 Stat., 1280), which reenacts in part section 1957
of the Revised Statutes, the Secretary of this Department may authorize
the agents of this Department charged with the management of the Alaska
seal fisheries to make arrests on the Pribilof Islands for violation of
the laws for the protection of the said fisheries. * * * Recently these
islands have been surrounded by a greatly increased number of pelagic
schooners which have displayed unusual activity in taking seals close to
the shores of the islands. In view of this fact, it is desirable to
furnish the agents with more explicit instructions regarding the making
of arrests than hitherto."
I understand that you desire to know whether section 174 of the act
referred to, or any other statute, authorizes the agents you mention to
make arrests of persons and seizures of property, especially vessels,
for the purpose of enforcing the provisions of law to which you call
especial attention, and if so, how and under what circumstances. The
statutory provisions in question are--
"Section 1956, Revised Statutes (act March 3, 1899, sec. 173), which
prohibits the killing, among other animals, of any fur seals within the
limits of Alaska Territory.
"Section 1959, Revised Statutes (act March 3, 1899, sec. 176), which
declares the islands of St. Paul and St. George a Government reservation
and makes it unlawful for any person to land or remain there except by
authority of the Secretary of Commerce and Labor.
"Section 1960, Revised Statutes (act March 3, 1899, sec. 177), which
makes it unlawful to kill any seals on these islands except during
certain months or by the use of fire-arms, etc.
"Section 1961, Revised Statutes (act March 3, 1899, sec. 178), which
prohibits the killing of any female seals or any seals under one year of
age, the killing of seals in the water around the islands or on the
beaches, cliffs, or rocks where they haul up from the sea to remain."
Section 174 of the act of March 3, 1899, reads as follows:
"That the collector or deputy collectors appointed for Alaska
Territory, and any person authorized in writing by either of them or by
the Secretary of the Treasury, shall have power to arrest persons and
seize vessels and merchandise liable to fines, penalties, or forfeitures
under this and the other laws extended over the Territory and to keep
and deliver the same to the marshals."
Section 174 above quoted is identical with the middle part of Revised
Statutes, section 1957, which was originally adopted in 1868,
immediately after the United States acquired the Territory of Alaska
from Russia.
Section 1957 appears in the Revised Statutes as part of a chapter
entitled "Provisions relating to the unorganized Territory of Alaska."
The first section of the chapter provides that the laws of the United
States relating to customs, commerce, and navigation are extended over
the mainland, islands, and waters of the Territory. That chapter further
provides for the restriction by the President of the importation of
fire-arms and distilled spirits, and for their forfeiture and the
forfeiture of the vessel on which they may be found, with her tackle,
etc., and provides a fine and imprisonment for willfully violating the
President's regulations upon the subject. The killing of otter, mink,
etc., is forbidden under penalty of fine and imprisonment and forfeiture
of vessels; and other sections of the chapter forbid the killing of
seals during certain months and the killing of female seals under
penalty of fine and imprisonment and forfeiture of vessels, etc. A
number of sections of this chapter are embodied in the criminal code of
Alaska in connection with section 174, above quoted. These sections were
chiefly taken from the same act of 1868 and an act of 1870.
It is unnecessary to inquire whether Congress, by retaining in
section 174 of the criminal code of Alaska the original language,
"fines, penalties, and forfeitures under this and the other laws
extended over the Territory," intended to authorize agents of the
Treasury to arrest persons and seize goods, etc., for all offenses under
that code, notwithstanding its provisions relating to arrests by
marshals and other officers; we are concerned here exclusively with
some of the ends originally sought by Congress when in 1868 and 1870 it
enacted the laws of those years.
The arrests and seizures then authorized were to be made in a wild
region where no legal machinery existed for arresting, bailing, seizing,
or trying offenders against the laws; and the succeeding prosecutions
were to take place in the far-distant district courts of California,
Oregon, or Washington under United States Revised Statutes, section
1957. Such arrests and seizures by these agents were evidently
authorized by analogy to the summary seizures by customs officers and
other agents of the Treasury Department, for the laws regulating customs
duties, commerce, and navigation were extended over the Territory of
Alaska by the same act of 1868, which contains the language now found in
section 174 of the act of 1899. It could not have been expected that
warrants would be obtained before such powers should be exercised in
places so remote and unsettled. Like powers have long been exercised in
the Indian country by the military officers and Indian agents under
section 2150 of the Revised Statutes.
I find no reason to doubt the constitutionality of laws conferring
such powers when intended to be exercised in wild districts in which
there exists no adequate and regular machinery for the enforcement of
the law.
If your agents reasonably suspect that a violation of the law has
occurred, in my opinion they have power to search any vessel within the
3-mile limit, according to the practice of customs officers when acting
under section 3059 of the Revised Statutes, and to seize such vessels
and any property aboard in like manner. They may also make arrests of
persons on board such vessels reasonably believed to be guilty of a
crime, and need not previously obtain any warrant.
In like manner, arrests and seizures may be made on land when
probable cause exists to believe a criminal offense has been committed.
Seal-skins reasonably believed to have been acquired as the fruits of
such crime may, of course, be seized either upon land or at sea within
the 3-mile limit.
Respectfully,
CHARLES J. BONAPARTE.
Court-martial-- DESERTION-- DISAPPROVAL OF SENTENCE; 26 Op.Att'y.
Gen. 239, April 25, 1907
Where the sentence of a court-martial which found a soldier guilty of
desertion was disapproved by the proper reviewing officer, being deemed
inadequate, and the soldier ordered, at his own expense, to join his
regiment, such disapproval operated, under article 104 of the Articles
of War, as an acquittal of the charge, and, as the term of enlistment
had expired, there was no warrant for ordering him to further duty.
Having been legally tried, he can not be again tried or any other
sentence imposed for that offense.
The disapproval of the sentence of a properly constituted
court-martial by the proper reviewing authority is, in legal effect,
tantamount to an acquittal of the accused by the court of the offense
charged, and relieves him from any and all liabilities to which his
conviction would have subjected him.
Article 48 of the Articles of War applies to a soldier who has been
convicted of desertion or, having deserted, is restored to duty without
trial, which carries with it an acknowledgment on his part of the fact
of desertion, but does not apply to a soldier who, after trial and
conviction, has been ordered to duty after the sentence has been
expressly disapproved by the proper reviewing officer.
DEPARTMENT OF JUSTICE,
April 25, 1907.
The SECRETARY OF WAR.
SIR: I have the honor to respond to the request in your note of
April 11, 1907, for an expression of my opinion upon the case there
presented, in substance, as follows:
On May 11, 1903, Private Gustave Liesendahl enlisted in the Army to
serve for three years.
On September 14, 1904, he deserted, and surrendered himself May 31,
1906, twenty-one days after the period of his enlistment had expired.
He was tried by court-martial and found guilty upon his plea of
desertion and was sentenced to be dishonorably discharged. The reviewing
authority disapproved the sentence deeming it inadequate, and directed
that Private Liesendahl be released from confinement and sent, at his
own expense, to join his proper station.
The question you submit is this: "Whether, in view of the virtual
acquittal of Private Liesendahl by the action of the reviewing authority
in disapproving the sentence, and of the fact that Private Liesendahl's
term of enlistment had expired, it was lawful to hold him to duty."
The forty-eighth article of war, which applies in this case, is as
follows:
"Every soldier who deserts the service of the United States shall be
liable to serve for such period as shall, with the time he may have
served previous to his desertion, amount to the full term of his
enlistment; and such soldier shall be tried by a court-martial and
punished, although the term of his enlistment may have elapsed previous
to his being apprehended and tried."
And article 104 provides that--
"No sentence of a court-martial shall be carried into execution until
the same shall have been approved by the officer ordering the court, or
by the officer commanding for the time being."
The Judge-Advocate-General of the Army, following a line of opinions
of that office extending through a period of many years, has held in
this case, in substance, that the disapproval by the reviewing authority
of the sentence of the court-martial, operated under above article 104
as an acquittal of Liesendahl of the charge of desertion, and that, as
his term of enlistment had then expired, he should have been discharged,
and could not be by the reviewing authority ordered to complete his term
of service under above article 48.
The commander of the Department of the East, the reviewing authority
in this case, does not agree that this disapproval of the sentence of
the court-martial was tantamount to an acquittal of the accused, and
especially contends that, whether this be so or not, he still had
authority under this article 48 to order him back to complete his term
of service.
And, speaking of this article, you inform me that "this article has
been held by the War Department to be a penal statute and therefore to
be strictly construed. The article has been held to apply, and the
penalty of making good the time lost to be operative, where a soldier
has been tried and found guilty of desertion, but not separated from the
service in pursuance of a sentence, or where a soldier, having deserted,
is restored to duty without trial, this carrying with it an
acknowledgment on the part of the soldier of the fact of his desertion
and the acceptance of the provision of the article of war."
And this is in accordance with various opinions of
Judge-Advocates-General of the Army.
I think it must be considered as settled law that where the sentence
of a properly constituted court-martial is expressly disapproved by the
proper reviewing authority, this is, in legal effect, tantamount to an
acquittal of the accused by the court of the offense charged, and
relieves him from any and all liabilities to which his conviction would
have subjected him. (13 Op., 459; 1 Winthrop, Mil.Law and Pro.(2d ed.),
p. 690, et seq.; Dig. Opin., J.A.G., pars. 64, 1157, 2229, 2320.)
In 13 Op., supra, it is said on page 460:
"The inquiry then remains, what is the effect of the disapproval of
the sentence and the order thereupon by the reviewing officer. The
uniform practice of the Government seems to have been to regard such
action by the reviewing officer as tantamount to an acquittal by the
court itself, and it can not be doubted that such is the effect of the
order of the reviewing officer in this case."
The one hundred and second article of war provides that "no person
shall be tried a second time for the same offense."
Indeed, so absolutely are those proceedings an acquittal, in legal
contemplation, that they may be pleaded as an acquittal in bar of a
second trial.
(1 Winthrop, M.L., 387 and 389.) He has been none the less tried when
the reviewing authority disapproves the sentence. (1 Winthrop, M.L.p.
389.) And, as it is entirely certain that no power can, after that,
impose or execute any sentence as a result of that trial, it follows
that such proceedings are, in legal effect, a trial and acquittal of the
accused.
But it is urged that, even if this be so, still the forty-eighth
article of war authorizes the ordering of a deserter to make good by
service the time lost in his desertion; that this is entirely
independent of any conviction or sentence for desertion, and may be
ordered whether the accused is tried for desertion or not; that this is
a mere contractual matter between the Government and the soldier,
arising under his contract to serve for a specified time, and that
courts-martial do not sit to pass upon such civil or contractual
questions, and the decision of the Comptroller in 12 Comp.Dec., 328, is
relied upon.
Several answers might be made to this contention, but a single one
will suffice.
The only authority for ordering the man Liesendahl back to duty after
his trail and the disapproval of his sentence for desertion, and after
his term of enlistment has expired, is article 48 above quoted. But
this, in express terms, refers only to a "soldier who deserts." But here
the soldier was tried for and, in legal effect, acquitted of desertion.
Therefore, this article does not refer to him. And, in any case, before
this provision can be carried into effect after the soldier's term of
enlistment has expired, either he must be convicted of the desertion or,
having deserted, he is restored to duty without trial, which, as you
state in substance, may be taken as his admission of desertion and his
acceptance of the provision in this article.
The decision of the Comptroller in 12 Comp.Dec., 328, is not believed
to affect the question here. That decision had relation to the question
whether, by reason of his virtual acquittal in such a case as this, the
pay of the soldier continued during the period of his desertion.
Inasmuch as the pay of a soldier may depend upon his performance of his
contract of enlistment, it might be held, as it was there, that, even
though virtually acquitted of the crime of desertion, still, as he had
performed no service during that time, he was not entitled to pay
therefor, without at all challenging the conclusion here reached, that
such disapproval is a virtual acquittal of the charge of desertion;
or that one who has been thus acquitted can not, after his term has
expired, be ordered to duty under article 48 of the Articles of War.
The question of pay during a period of desertion, and when the sentence
therefor has been disapproved, is not before me, and I express no
opinion upon it.
I am of opinion that Private Liesendahl was legally tried for the
crime of desertion, and, as he can not be again tried or any other
sentence be imposed for that offense, the disapproval, by the reviewing
authority, of the sentence of the court that tried him operated as his
acquittal of the charge, and, as his term of enlistment had expired,
there was no warrant for ordering him to further duty. He should have
been discharged.
Respectfully,
HENRY M. HOYT,
Acting Attorney-General.
NOTARIES PUBLIC-- SECTION 558, CODE OF THE DISTRICT OF COLUMBIA; 26
Op.Att'y.Gen. 236, April 18, 1907
The proviso in the act of June 29, 1906 (34 Stat., 622), amending
section 558 of the Code of the District of Columbia, which provides that
no notary public shall be authorized to take acknowledgments, etc., or
perform any official act in connection with matters in which he is
employed as counsel, etc., before any of the Executive Departments,
applies not only to local attorneys, but to all notaries who practice
before the Departments.
DEPARTMENT OF JUSTICE,
April 18, 1907.
The SECRETARY OF THE INTERIOR.
SIR: I duly received your request for my opinion whether the
"proviso" in the recent act of Congress (34 Stat., 622), amending
section 558 of the Code of the District of Columbia applies to local
notaries only or to notaries throughout the country. Briefs on both
sides of the question and an opinion of the Assistant Attorney-General
for your Department accompanying your letter have been carefully
considered by me.
Section 558 before amendment was as follows:
"Notaries: The President shall also have power to appoint such
number of notaries public, residents of said District, as, in his
discretion, the business of the District may require."
The amendatory act, complete, is as follows:
"AN ACT To amend section five hundred and fifty-eight of the Code of
Law for the District of Columbia.
"Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That section five
hundred and fifty-eight of the Code of Law for the District of Columbia,
relating to notaries public, be amended by adding at the end of said
section the following: 'Provided, That the appointment of any person as
such notary public, or the acceptance of his commission as such, or the
performance of the duties thereunder, shall not disqualify or prevent
such person from representing clients before any of the Departments of
the United States Government in the District of Columbia or elsewhere,
provided such person so appointed as a notary public who appears to
practice or represent clients before any such Department is not
otherwise engaged in Government employ, and shall be admitted by the
heads of such Departments to practice therein in accordance with the
rules and regulations prescribed for other persons or attorneys who are
admitted to practice therein: And provided further, That no notary
public shall be authorized to take acknowledgments, administer oaths,
certify papers, or perform any official acts in connection with matters
in which he is employed as counsel, attorney, or agent in which he may
be in any way interested before any of the Departments aforesaid.'"
Do the words "no notary" in the last sentence mean no notary of the
District of Columbia, or is the prohibition general? This question is
not altogether free from difficulty.
It appears probable that this second proviso was added to the bill to
meet an objection raised by the Secretary of the Treasury and the
Comptroller, which is thus stated by the latter officer:
"Persons who are notaries public and not Government employees may, in
the business represented by them as attorneys before the Departments,
act as notaries-- e.g., have executed before them affidavits and powers
of attorney-- in cases in which they are acting as attorneys in claims
before the Departments.
Such practice, in my opinion, would open the doors to fraud and deceit."
I do not see that any sufficient reason exists for limiting the
prohibition contained in this proviso to notaries public of the District
of Columbia; the practice it was intended to prevent is no less
objectionable on the part of other notaries than on theirs. Doubtless
the law was originally intended to remove a legal disability which
affected only notaries of the District. But it must be remembered that
the one legislative body, by one method of lawmaking at one and the same
sitting, enacts laws for at least three different classes of business in
the District. It makes laws to be applies by the Executive Department,
situated in the District, to the whole country; it makes laws to
regulate the practice and management of those Executive Departments
themselves; and it is the legislature of the District considered as a
quasi Territory. There is no constitutional or other legal obstacle to
the embodiment of laws of all three kinds in one act.
Such being the case, when debate or committee deliberation may
suggest a wise and needed rule of law, so busy a body as the Congress
may be unwilling to postpone its enactment merely to effect a logical
separation of subjects among these three classes. The Senate added this
final proviso to the bill after it had passed the House.
The amendatory law not only deals with notaries of the District, but
also with the practice and management of the Executive Departments and
with the relations of notaries to that practice.
The attention of the Congress being thus directed to the subject of
departmental practice, it seems, to my mind, reasonable to believe that
when it said "no notary public" shall act as such in cases in which he
is attorney before any of the Departments, it meant what it said; that
is to say, it intended to embrace all the notaries who could practice
before those Departments.
The fact that the enactment took the form of a proviso in an act
relating in other respects to notaries of the District is unquestionably
entitled to weight; but it is not decisive. Had Congress intended to
restrict the operation of the proviso to notaries of that District, it
could have inserted the word "such" or some equivalent qualifying
expression, as it actually did in the body of the act.
Not having done this, I feel bound to assume it acted advisedly and
intended to say what it said in fact. Therefore, although there may be
room for a reasonable divergence of views in the premises, I am, on the
whole, of the opinion that the proviso applies to all notaries who may
practice before the Departments.
Respectfully,
CHARLES J. BONAPARTE.
THE PRESIDENT-- RECESS APPOINTMENT-- NAVAL OFFICER, 26 Op.Att'y.Gen.
234, April 17, 1907
The President has power during the recess of the Senate, and pursuant
to the act of March 4, 1907 (34 Stat., 1407), which authorized him, by
and with the consent of the Senate, "to reinstate Leonard Martin Cox in
the Corps of Civil Engineers of the Navy," to appoint Mr. Cox to the
position indicated, provided such appointment be expressed to expire at
the end of the next session of the Senate.
The words "may happen," in Article II, section 2, clause 3, of the
Constitution, mean "may happen to exist." Therefore the President has
power whenever and however a vacancy first occurred, whether by death,
resignation, etc., or by the creation of a new office by act of
Congress, which is an "original vacancy," to fill the place during the
recess of the Senate by a temporary appointment under a commission which
shall expire at the end of the next session of the Senate.
The salary or compensation of a person so appointed can not be paid,
"if the vacancy existed while the Senate was in session and was by law
required to be filled by and with the advice and consent of the Senate,
until such appointee has been confirmed by the Senate." (Sec. 1761, Rev.
Stat.)
DEPARTMENT OF JUSTICE,
April 17, 1907.
The SECRETARY OF THE NAVY.
SIR: In your letter of April 15 you submit the act of March 4, 1907,
"to reinstate Leonard Martin Cox in the Corps of Civil Engineers of the
Navy," by which the President was "authorized to restore, by and with
the advice and consent of the Senate, Mr. Cox to the Corps of Civil
Engineers," etc., and you ask whether the Navy Department "should during
the recess of the Senate present to the President, with request for his
signature, a commission appointing Mr. Cox a civil engineer in the Navy
under special act of March 4, 1907."
The power of the President under the Constitution is "to fill up all
vacancies that may happen during the recess of the Senate, by granting
commissions which shall expire at the end of the next session." The
great weight of authority is that in reference to any vacancy, whether
occurring by death, resignation, etc., or by the creation of a new
office by act of Congress, which is an "original vacancy," the words
"may happen" mean "may happen to exist;" and therefore, whenever and
however the vacancy first occurred, it may be filled during the recess
by a temporary appointment under a commission which shall expire at the
end of the next session of the Senate. (12 Op., 455; 16 Op., 522; 19
Op., 261.) The theory is that the President does not fill the office
without the concurrence of the Senate, but may fill the vacancy in the
recess, yet only by an appointment which lasts until the end of the next
session. (12 Op., 32, 41.)
It is, however, to be borne in mind that under section 1761, Revised
Statutes, the salary or compensation of a person so appointed may not be
paid, "if the vacancy existed while the Senate was in session and was by
law required to be filled by and with the advice and consent of the
Senate, until such appointee has been confirmed by the Senate."
That is this case, of course, for the vacancy arose and existed while
the Senate was in session, although it continues to exist in the
subsequent recess.
I have, therefore, the honor to answer your question in the
affirmative, pointing out again, however, that Mr. Cox's commission,
since the appointment will be a recess appointment, must be expressed to
expire at the end of the next session of the Senate.
Very respectfully,
HENRY M. HOYT,
Acting Attorney-General.
POSTAGE STAMPS-- PORTRAITS-- NAMES OF INDIVIDUALS; 26 Op.Att'y.Gen.
231, April 13, 1907
The Postmaster-General is not required to have the names of persons
whose portraits are placed upon postage stamps inscribed below such
portraits.
Postage stamps are not "securities" of the United States within the
meaning of the proviso in the act of March 2, 1889 (25 Stat., 939, 945),
which requires that the name of each person whose portrait shall be
placed upon any of the plates for bonds, securities, notes, and silver
certificates of the United States shall be inscribed below such
portrait.
Postage stamps are treated as supplies for the Post-Office
Department, and as coming within the terms of section 3709, Revised
Statutes, respecting purchases and contracts for supplies for the
Executive Departments.
DEPARTMENT OF JUSTICE,
April 13, 1907.
The POSTMASTER-GENERAL.
SIR: In response to your request for my opinion upon the question
whether the name of a person whose portrait shall be placed upon a
postage stamp must be inscribed below such portrait, I have the honor to
reply as follows:
Section 3576, which appears in the Revised Statutes under Title
XXXVIII, The Currency, provides that "no portrait shall be placed upon
any of the bonds, securities, notes, fractional or postal currency of
the United States, while the original of such portrait is living."
By the act of March 2, 1889 (25 Stat., 939, 945), it was provided
"that hereafter the name of each person whose portrait shall be placed
upon any of the plates for bonds, securities, notes, and silver
certificates of the United States shall be inscribed below such
portrait."
Section 3576 was taken from the deficiency act of April 7, 1866, and
was a proviso to the appropriation for plates, engraving, printing, and
paper for national currency notes.
The proviso in the act of 1889 for inscribing the name of each person
whose portrait shall be placed upon any of the plates for printing
United States evidences of indebtedness was a proviso in the section
appropriating for wages of plate printers in the Department of the
Treasury, to be expended under the direction of the Secretary of the
Treasury. In neither of these statutes were postage stamps included in
the designation of issues upon which portraits might be placed. The
former expressly mentions bonds, securities, notes, fractional or postal
currency, the latter certainly not embracing postage stamps. The latter
expressly mentions bonds, securities, notes, and silver certificates.
All of these were prepared in the Treasury Department under the
direction of the Secretary.
But postage stamps are provided for in an entirely different manner.
These are treated as supplies for the Post Office Department, and as
coming within the terms of section 3709, Revised Statutes, which directs
that "all purchases and contracts for supplies or services, in any of
the Departments of the Government, except for personal services, shall
be made by advertising a sufficient time previously for proposals
respecting the same." The propriety of treating postage stamps as
supplies was recognized by this Department in an opinion of
Attorney-General Devens (15 Op., 226).
The uniform practice of the Post Office Department has been to obtain
postage stamps after advertisement and award in compliance with this
law.
I am informed that none of the work of printing the postage stamps was
done in the Treasury Department until 1894; and that then, and since
then, the stamps were printed in the Bureau of Engraving and Printing,
when that Bureau was the successful competitor after advertisement for
proposals.
By sections 3914 and 3917 Revised Statutes, the Postmaster-General
shall prepare postage stamps of suitable denominations, and may from
time to time adopt such improvements in postage stamps as he may deem
advisable.
In view of all the legislation above cited, and the recognized
practices of the Departments, it would seem that the act of 1889 was
intended not to apply to postage stamps.
However, it has been suggested that, by reason of the definition
contained in section 5413 Revised Statutes, the word securities in the
act of 1889 must be construed as including postage stamps. That section
is as follows:
"The words 'obligation or other security of the United States' shall
be held to mean all bonds, certificates of indebtedness, national (bank)
currency, coupons, United States notes, Treasury notes, fractional
notes, certificates of deposit, bills, checks, or drafts for money,
drawn by or upon authorized officers of the United States, stamps and
other representatives of value, of whatever denomination, which have
been or may be issued under any act of Congress."
If this construction of section 5413 is correct, it follows that
wherever in the statutes of the United States the words "securities of
the United States" occur, those words must have the meaning put upon the
words "obligation or other security" in that section. I think this is
not a correct conclusion. An examination of the context shows the
meaning to be placed upon this expression. The section was adopted from
the act of June 30, 1864 (13 Stat., 218, 222), and is the thirteenth
section of that act. The words "now in this act" were omitted by the
revisers, but the context shows that the intention of the Congress was
to apply the language of this definition to the penal provisions enacted
for the punishment of crimes against the operations of the Government.
This appears from the inclusion in sections 5414, 5430, and 5431,
Revised Statutes, of sections 10, 11, and 12 of the act of 1864, and the
further embodiment of all other statutes for similar offenses.
And notwithstanding the comprehensive scope of the definition of
"obligation or other security," we find the specific extension of
penalties for like offenses-- to the forging and counterfeiting of
postage stamps, and dies, plates, and engraving therefor.
The question of the application of this section 5413 to other
statutes has been presented to several of my predecessors. In
considering the matter in reference to a statute providing for engraving
and printing notes, bonds, and other securities of the United States,
Mr. Attorney-General Griggs, in 22 Op., 40, advised the
Postmaster-General that the section did not apply to and limit the
meaning of the words "other securities of the United States" as used in
that act. I agree with him in the reasoning and conclusions arrived at.
I am of the opinion that the Postmaster-General is not obliged to
insert names of persons in connection with portraits on postage stamps.
Respectfully,
ALFORD W. COOLEY,
Acting Attorney-General.
PURE-FOOD LAW-- LABELING OR BRANDING WHISKY; 26 Op.Att'y.Gen. 216,
April 10, 1907
The words "Compound" or "Blend" are substantially synonymous, in
ordinary speech, when applied to mixtures or liquids; but the pure-food
law establishes a distinction of its own between them, based upon the
character of the ingredients entering into the mixture.
In what may be termed a "Blend" of, or "Blended," wines or whiskies,
the two articles mixed must be capable of accurate and sufficient
description by a single generic term; they must be substances known by
the same name and sufficiently distinctive to afford reasonable warning
to purchasers.
The intent of the pure-food act of 1906 (34 Stat., 768) is that the
term "Blended Sherry," for instance, or "Blend of Sherries," shall
designate a mixture of two or more kinds of sherry; while the titles
"Compound of port and sherry," or "Compounded port and sherry," would
appropriately designate a mixture of two substances, unlike in the view
of the law, namely, two distinct and different kinds of wine-- "unlike"
in the sense that diamonds and coal are unlike.
Whisky is a natural spirit having certain "congeneric substances"
which give character to the distillate.
A mixture of two or more different whiskies, as thus defined, whether
their differences arise from the character of the substances from which
they are distilled or from the method of distillation used, or even from
their several ages and the environment in which they are kept
subsequently to distillation, would be appropriately termed a "Blend of
whisky," or "Blended whisky," or "Blended whiskies," any one of which
would be correct, provided each article entering into the combination,
standing alone, could be properly designated as "Whisky."
A mixture of a spirit properly designated "Whisky" with another
spirit which, standing alone, could not be properly designated as
"Whisky," such as ethyl alcohol, must be labeled or branded as a
"Compound" or as "Compounded."
For the purposes of the pure-food law, neutral spirit, or ethyl
alcohol, if absolutely pure, would be not only like, but identical
whether it were derived from fruit, from cereals, from sugar cane, or
from any other of the many substances which can furnish alcohol.
A neutral spirit is not a like substance to whisky.
A mixture of whisky with neutral spirit must be deemed a "Compound"
and not a "Blend," although the spirit may be a distillate from the same
substance used to furnish the whisky.
If ethyl alcohol, either pure or mixed with distilled water, were
given, by the addition of harmless coloring and flavoring substances,
the appearance and flavor of whisky, no other name could be found for
the product, in conformity with the pure-food law, than "Imitation
whisky;" but it is questionable whether such mixture ought to be labeled
"Whisky" at all.
When the words "Compound" or "Compounded" are used in the act, it is
ordinarily necessary that two substances at least should be mentioned as
entering into the combination described, as, for instance, "Sherry
compounded with port" or "Port compounded with sherry" or "Compounded
port and sherry."
It is not, however, universally true that two substantives must
follow "Compound" or "Compounded," although it is true that only one
substantive can appropriately follow "Blend" or "Blended."
A combination of whisky with ethyl alcohol, supposing, of course,
that there is enough whisky in it to make it a real compound and not a
mere semblance of one, may be fairly called "Whisky," provided the name
is accompanies by the word "Compound" or "Compounded," and a statement
of the presence of another spirit is included in substance in the title;
it can not, however, properly be styled "Blended whisky."
DEPARTMENT OF JUSTICE,
April 10, 1907.
The PRESIDENT.
SIR: In accordance with your instructions, I have examined the
papers referred to me by you, at the suggestion of the Secretary of
Agriculture, and herewith submit you my opinion on certain questions
which appear from the said papers to have arisen in connection with the
labeling or branding of different kinds of spirit claimed by their
manufacturers or proprietors to be entitled to the name of "Whisky,"
with or without qualifying words. In addition to the papers referred to
me by you, I have received and considered a number of other papers
submitted to me by various individuals, including Messrs. Hemphill and
Worthington and Mr. W. M. Hough, as counsel for certain distillers and
rectifiers interested in the questions under consideration, and I have
personally gathered some further information which seemed to me material
in view of the character of the questions involved.
These questions have arisen in the construction of section 8 of the
act approved June 30, 1906 (34 Stat., 768), entitled:
"An act for preventing the manufacture, sale, or transportation of
adulterated or misbranded or poisonous or deleterious foods, drugs,
medicines, and liquors, and for regulating traffic therein, and for
other purposes," and generally known as "The pure-food law."
The portion of that law bearing upon the points in dispute is section 8,
which, so far as is material, is as follows:
"SEC. 8. That the term 'misbranded,' as used herein, shall apply to
all drugs, or articles of food, or articles which enter into the
composition of food, the package or label of which bear any statement,
design, or device regarding such article, or the ingredients or
substances contained therein which shall be false or misleading in any
particular. * * * That for the purposes of this act an article shall
also be deemed to be misbranded: * * * In the case of food: First. If
it be an imitation of or offered for sale under the distinctive name of
another article. * * * Fourth. If the package containing it or its label
shall bear any statement, design, or device regarding the ingredients or
the substances contained therein, which statement, design, or device
shall be false or misleading in any particular: Provided, That an
article of food which does not contain any added poisonous or
deleterious ingredients shall not be deemed to be adulterated or
misbranded in the following cases:
"First. In the case of mixtures or compounds which may be now or from
time to time hereafter known as articles of food, under their own
distinctive names, and not an imitation of or offered for sale under the
distinctive name of another article, if the name be accompanied on the
same label or brand with a statement of the place where said article has
been manufactured or produced.
"Second. In the case of articles labeled, branded, or tagged so as to
plainly indicate that they are compounds, imitations, or blends, and the
word 'compound,' 'imitation,' or 'blend,' as the case may be, is plainly
stated on the package in which it is offered for sale: Provided, That
the term blend as used herein shall be construed to mean a mixture of
like substances, not excluding harmless coloring or flavoring
ingredients used for the purpose of coloring and flavoring only: And
provided further, That nothing in this act shall be construed as
requiring or compelling proprietors or manufacturers of proprietary
foods which contain no unwholesome added ingredient to disclose their
trade formulas, except in so far as the provisions of this act may
require to secure freedom from adulteration or misbranding."
Before stating or discussing the particular questions as to which you
desire my opinion, I think it will conduce to clearness to call
attention to the general purpose of this act and to some considerations
founded thereon.
The primary purpose of the pure-food law is to protect against fraud
consumers of food or drugs; as an incidental 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.
According to the recognized canons of statutory construction, the
language of its provisions must be interpreted with reference to and in
harmony with this primary general purpose; so that, in determining the
proper nomenclature for articles of food as defined in the act, the
intention of the law will be best observed by giving to such articles
names readily understood and conveying definite and familiar ideas to
the general public, although such names may be inaccurate in the view of
a chemist or physicist or an expert in some particular industrial art,
as in the distillation and refining of spirits. Moreover, the same name
may be given by dealers or by the general public to two or more
substances varying very materially in their scientific characteristics,
and this fact must be given due weight in passing upon questions of
branding or labeling under the law.
Human experience has associated certain impressions on the senses of
taste and smell with the consumption of certain articles of food, and
the so-called "flavor" which expresses the resultant of these
impressions constitutes a factor of decisive weight in determining the
similarity or identity of substances of this character to the mind of
the ordinary member of the community, quite irrespective of the relative
importance of those chemical or physical properties in the substances
which impart this flavor as compared to their other chemical or physical
properties.
This fact is aptly illustrated by a question considered at much length
in the papers referred and also submitted to me as above, namely: "What
is whisky?" A chemist or a distiller might answer this question
altogether differently from the ordinary purchaser of whisky for his own
consumption; but the purchaser's view of the matter is material to
attain the primary purpose of the pure-food law; and I think it may be
safely said that what he means by "whisky" when buying it is a distilled
spirit, fit for use as a beverage and having the particular flavor which
human experience has classified as that of "Whisky." Undoubtedly the
flavors of different kinds of spirits, all known as "Whisky," differ
considerably, and it may be that the general impression of their
similarity is due, in some measure, to imagination or imperfect memory;
nevertheless, a distinct and definite idea is suggested to the mind by
the words "whisky flavor;" this idea is an essential factor in
ascertaining the identity of a spirit claimed to be whisky, and, in my
opinion, it is the decisive factor in determining the relative weight of
the claims of two or more kinds of spirit to the name.
With this preliminary explanation, I proceed to state what I
understand to be the questions as to which my opinion is desired. In
substance, these are:
First. Under what circumstances should a distilled spirit be labeled
or branded "Whisky" without any qualifying words?
Second. Under what circumstances should a liquid be marked a "Blend
of whiskies," or "Blended whisky," or "Blended whiskies?"
Third. Under what circumstances should a liquid be marked as a
"Compound of whisky," or "Compounded whisky," and what word or words, if
any, must be added to such title to make the same appropriate under the
law?
Fourth. Under what circumstances, if at all, could a distilled
spirit, with additions of coloring and flavoring substances, be termed
"Imitation whisky?"
Before dealing directly with these questions, I think it may be well
to indicate the application of this law to a class of liquids affording
a field for its interpretation with less opportunity for dispute-- I
refer to wines.
It will not be questioned that to be branded or labeled "Sherry,"
"Port," or "Madeira," a wine must have inherently, and not because any
other substance is added to it, the flavor known as that of sherry,
port, or madeira, as the case may be. There are different kinds of each
of these wines; experts can recognize different brands or vintages by
their respective flavors, and these flavors vary considerably;
nevertheless, there can be no doubt that the sherry, the port, and the
madeira flavors are distinct from each other, and that each of them has
some quality of its own shared by all varieties of the same species of
wine.
There is, however, an evident distinction to be drawn between a wine
such as sherry, port, or madeira, and a wine such as champagne. In the
view of a chemist or physicist, champagne would be doubtless described
as "a compound," for it consists essentially of a wine, of sugar, and of
an aerating gas, three substances obviously "unlike." The law, however,
in my opinion, does not contemplate that an article should be marked as
a "blend," "compound," or "imitation" unless its designation would be
otherwise "false or misleading" to the consumer; and the name
"Champagne" would indicate to any would-be purchaser, who was ordinarily
intelligent and well-informed, a wine artificially sweetened and
aerated, or, in other words, a composite substance.
To determine the proper use of the term "Blend" we must first note
that the definition of the word in the law is novel and arbitrary. It is
thus defined by Webster:
"Blend, n. A thorough mixture of one thing with another, as colors,
liquors, etc.; a shading or merging of one color, tint, etc., into
another, so that it can not be known where one ends or the other
begins."
There is nothing in this definition about "likeness" in the
substances mingled; this feature is introduced for some special purpose
in the law, and the latter must be interpreted so as to give effect to
this purpose. To show this more clearly we may also note the same
dictionary's definition of "Compound." This is:
"Compound, n. That which is compounded or formed by the union or
mixture of elements, ingredients, or parts; a combination of simples."
"Compound" and "Blend" are substantially synonymous when applied to
mixtures of liquids in ordinary speech; but the pure-food law
establishes a distinction of its own between them, based upon the
character of the ingredients entering into the mixture. In discussing
therefore what degrees of "likeness" between the mingled substances will
justify their designation as a "Blend" it must be always and carefully
remembered (1) that "Blend" is meant to be something essentially
different from "Compound," and (2) that the subject under consideration
is a name for an article of food to be embodied in a label or brand in
harmony with the primary purpose of the law as above explained. Without
going into metaphysical distinctions, or needless explanations, it is my
opinion that effect will be most surely given to the evident intent of
this provision of the law if it be held that "Blend," as a substantive,
or "Blended," as an adjective, can be properly and legally used in
brands or labels under the act of 1906 only when a single substantive,
either in the singular or in the plural, need follow to appropriately
and adequately designate the combination; thus we can speak of a "Blend
of teas" or a "Blended tea," but not of a "Blend of tea and coffee." To
state the same proposition in different language, I think the two
articles mixed must be capable of accurate and sufficient description by
a single generic term; they must be substances known by the same name,
and that name must be sufficiently distinctive to afford reasonable
warning to the purchaser.
If, therefore, the question be what ought to be called "Blend of
sherry," or "Blended sherry," or "Blended sherries," I think that such
terms could be applied with propriety only to a mixture of two or more
sherries, and not to a mixture of sherry with port or with maderia.
This is not because "likeness" does not exist between the three kinds of
wine mentioned, nor because great similarity may not be found in their
chemical composition; it is quite possible that, in the latter respect,
some kinds of sherry would be found to have a greater resemblance to
some kinds of port than to other kinds of sherry;
just as the chemical composition of a diamond might have much greater
similarity to that of coal than to that of some other gems; but the
term "Blended sherry" could not be appropriate to a mixture of sherry
and port; it would mislead an intending purchaser as to the fact that
port entered into the combination; the latter might be named with equal
propriety "Blended port." On the other hand, if this mixture should be
termed a "Blend of port and sherry," there is no distinction in generic
designation between a mixture of these two distinct wines and a mixture
of two sherries or of two ports, and I think the law clearly intended
there should be such a distinction. It might be, perhaps, consistent
with the law to call such a mixture "Blended wines," but this title
would be insufficiently specific; it might designate a mixture of
burgundy and claret as well as one of port and sherry. In my opinion, it
is the intent of the act of 1906 that the term "Blended sherry," or
"Blend of sherry," or "Blend of sherries" shall designate a mixture of
two or more kinds of sherry; while the titles "Compound of port and
sherry" or "Compounded port and sherry" would appropriately designate a
mixture of two unlike substances in the view of the law, namely, two
distinct and different kinds of wine-- "unlike" just as diamonds and
coal are "unlike" substances.
It may be that by diluting neutral spirit (ethyl alcohol) with enough
distilled water to reduce it to the normal alcoholic strength of sherry
wine, and, by adding appropriate flavoring and coloring substances, a
mixture can be produced which tastes and smells and looks like sherry,
and when consumed produces substantially the same effects; this
mixture, supposing it to contain no article deleterious to health, would
be appropriately labeled or branded, under the law, "Imitation sherry."
If it were mixed with real sherry, no one would for a moment claim that
the two substances thus combined were sufficiently "like" to warrant the
description of the resultant as a "Blend;" it could only be accurately
labeled, under the law, as a "Compound of genuine and imitation
sherries," a designation which would not probably promote its sale.
Applying the same principles to the choice of brands or labels for
distilled spirits, and especially for whiskies, we are at once
confronted by the question whether whisky corresponds to a wine like
sherry or to a wine like champagne; that is to say, whether it is a
natural or artificial spirit; meaning by the first term, of course, not
that it exists anywhere as a product of nature, but that it is the
resultant of the process of distillation alone, without needing any
further addition to furnish its characteristic qualities. In the first
case, it would be assimilated to brandy or rum; in the second
contingency, to gin, since gin is essentially a distilled spirit,
frequently as nearly neutral as may readily be, flavored by an infusion
of juniper berries. I learn from the papers referred to me that the
Department of Agriculture has reached the conclusion that whisky, like
brandy and rum and unlike gin, is a natural spirit, its peculiar taste
and aroma being imparted to it in the course of distillation and arising
primarily from essential oils existing in the substances from which it
may be distilled; that is to say, it corresponds to a wine like sherry
and not to a wine like champagne. This conclusion seems to be fully
warranted by information contained in the papers before me and by such
other information as I have been able to obtain; nevertheless, as
hereinafter set forth, the statement may, perhaps, need some
qualification, or, rather, some explanation. It is doubtful, however,
whether the definition of "Whisky" contained in the papers aforesaid,
and which I understand to have received the approval of the Department
of Agriculture, is quite broad enough to meet the general intent of the
law of 1906. This definition I understand to be as follows:
"Whisky is a distillate, at the required alcoholic strength, from the
fermented mash of malted cereals, or from malt with unmalted cereals,
and contains the congeneric substances formed with ethyl alcohol which
are volatile at the ordinary temperatures of distillation, and which
give the character to the distillate."
In Webster's Dictionary "Whisky" is defined as:
"An intoxicating liquor distilled from grain, potatoes, etc.,
especially in Scotland, Ireland, and the United States. In the United
States whisky is generally distilled from maize, rye, or wheat, but in
Scotland and Ireland is often made from malted barley."
In Worcester's Dictionary it is defined as:
"A kind of spirit distilled from barley, wheat, rye, maize, potatoes,
etc."
In Chamber's Encyclopedia of 1875 it is defined as follows:
"A spirit made by distillation from grain of any sort and from other
materials, as buckwheat, potatoes, and even turnips."
A large number of similar definitions from standard popular works of
reference might be given, and I think there can be no doubt that a
spirit generally known and described as "Whisky" is often distilled from
potatoes and occasionally from some other substances which could
scarcely be correctly classed as cereals. I note this fact because it
appears to me contrary to the spirit and subversive of the purpose of
the pure-food law to adopt a definition which would exclude from the
name any substance generally understood by the public to be entitled to
it; that is to say, the nomenclature adopted to give effect to the act
ought to be, in my opinion, popular and not scientific. This matter,
however, is of only subordinate importance in connection with the
questions immediately under discussion.
It being admitted that whisky is a natural spirit having certain
"congeneric substances," which, in the language of the above definition,
"give the character to the distillate," it seems obvious that a mixture
of two or more different whiskies as thus defined, whether their
differences arise from the character of the substances from which they
were distilled or from the method of distillation used in each case
respectively, or even from their several ages and the environment in
which they were kept subsequently to distillation, would be
appropriately termed a "Blend of whiskies," or "Blended whisky," or
"Blended whiskies;" any one of these three terms would be appropriate,
provided that each article entering into the combination, standing
alone, would be appropriately designated as "Whisky."
The mixture of a spirit properly designated as "Whisky" with another
spirit which, standing alone, could not be properly designated as
"Whisky," such as ethyl alcohol, must, in my opinion, be labeled or
branded as a "Compound," or as "Compounded." This question has given
rise to a very animated dispute, and it is understood that great
importance is attached by dealers to its determination, which is thought
to involve serious pecuniary loss or gain to some or others among them;
I have, therefore, considered it very carefully. In Chambers's
Encyclopedia, above quoted, Volume III, article "Distillation," occurs
the following passage:
"If only alcohol and water passed over in distillation, all spirits,
from whatever extracted, would be the same; but this is not the case.
Brandy, which is distilled from wine, has a peculiar essential oil
derived from the grape and also some acid; rum is impregnated with an
essential oil from the sugar cane, and with other impurities; malt
liquor has the essential oil of barley, etc. It is these essential oils
that give to the various spirits their distinguishing flavors. Some of
the oils and other impurities are disagreeable and positively noxious,
and it is one of the objects of rectifying to remove these. The
mellowing effects of age upon spirits is owing to the evaporation or
spontaneous decomposition of the essential oils. Newly distilled spirits
are, in general, fiery and specially unwholesome."
This statement from a popular work seems to be fully sustained by
works of greater scientific authority and shows, in my opinion, that,
for the purposes of the pure-food law, neutral spirit or ethyl alcohol,
if absolutely pure, would be not only like, but actually identical,
whether it were derived from fruit, from cereals, from sugar cane, or
from any other of the many substances which can furnish alcohol.
Inasmuch as a state of absolute purity can not be attained by any
treatment appropriate for commercial purposes, it may be, perhaps, more
nearly accurate to say that each of these different kinds of neutral
spirit is a like substance to one of any other kind;
but, if we concede that ethyl alcohol is a "like substance" to whisky,
then we must also concede that brandy and rum are "like substances" to
whisky also, because each of them, on precisely the same grounds, can be
likened to neutral spirit. It is undoubtedly true that only a very small
proportion (less than the half of 1 per centum) of the ingredients
entering into whisky are different from those entering into neutral
spirit; but this is equally true of brandy and rum, and it is precisely
those substances which "give the character to the distillate" in each of
these cases.
In the nature of things there can have been, as yet, no judicial
decisions as to the meaning of the terms used in the pure-food law, but
section 3287 of the United States Revised Statutes, as amended in 1879,
1880, and 1899, has been cited to me to show the "likeness" of whisky
and neutral spirit as matter of law; I find, however, nothing in that
section at all relevant to the present discussion. It requires the cask
to indicate "the particular name of such distilled spirits as known to
the trade-- that is to say, high wines, alcohol, or spirits, as the case
may be." It is undoubtedly true that in distillation under the improved
methods of modern times a neutral spirit may be produced at a later
stage of the process out of something which at an earlier stage of the
process was crude whisky or so-called "high wines;" but this no more
shows neutral spirit to be a "like substance" to whisky than vinegar is
a "like substance" to cider or to wine, or that beef if a "like
substance" to veal.
My attention has been likewise called to the case of Taylor Company
v. Taylor in the Court of Appeals of Kentucky (85 S.W.R., 1085) as
establishing the propriety of designating a mixture of whisky and ethyl
alcohol as "a blend" or "blended." In this case it was determined that
the selling of whisky mixed with neutral spirit under a label which
might lead the uninitiated to suppose that it was a "straight whisky"
was a fraud upon the public as well as upon the manufacturer of the
"straight" article.
In its opinion the court says (p. 1088):
"The defendant may properly sell his brand of 'Old Kentucky Taylor,'
provided he so frames his advertisements as to show that it is a blended
whisky; but he can not be allowed to impose upon the public a cheaper
article, and thus deprive appellant of the fruits of his energy and
expenditures by selling his blended whisky under labels or
advertisements which conceal the true character of the article, for this
would destroy the value of the appellant's trade."
This decision was rendered on March 17, 1905, more than a year before
the approval of the pure-food law. In speaking of a mixture of whisky
and neutral spirit as "blended whisky," the court had not, of course, in
mind the definition of "blend" in that law, which, as above noted, is
altogether novel and arbitrary. On the other hand, the decision may have
been considered by the Congress when it framed the pure-food law, and
the special and original definition of "blend" given in that law may
have been intended for the very purpose of making more difficult such
frauds as the Court of Appeals in Kentucky condemned in this case.
I conclude, therefore, that according to the true intent of the
pure-food law a mixture of whisky with neutral spirit must be deemed a
"compound" and not a "blend," although the spirit may be a distillate
from the same substance used to furnish the whisky, and that such a
mixture stands on the same footing as a mixture of whisky and brandy or
of whisky and rum.
The definition of "whisky" as a natural spirit involves as its
corollary that there can be such a thing as "imitation whisky." If the
same process were followed of which we spoke in connection with
artificial wine, namely, if ethyl alcohol, either pure or mixed with
distilled water, were given, by the addition of harmless coloring and
flavoring substances, the appearance and flavor of whisky, it is
impossible to find any other name for the product, in conformity with
the pure-food law, than "Imitation whisky."
An interesting question remains, the question, in my opinion, of
greatest difficulty connected with the subject, namely, whether a
mixture of a liquid such as has just been described, or, indeed, a
mixture of ethyl alcohol itself with whisky, ought to be labeled
"Whisky" at all. When the words "compound" or "compounded" are used in
the act, it is, in my judgment, ordinarily necessary that two substances
at least should be mentioned as entering into the combination described;
in other words, it would not be accurate to call a mixture of port and
sherry "Compounded sherry" or "Compounded port;" such a mixture must be
designated as "Sherry compounded with port" or "Port compounded with
sherry" or "Compound of port and sherry." As above stated, this would
be, to say the least, no less true if an imitation sherry were used to
mix with a genuine sherry, and, at first sight, it would seem that the
same reasoning would deny the name "Whisky" to a compound of "straight"
whisky and ethyl alcohol whether with or without coloring and flavoring
substances. There is, however, a distinction between the two cases, and
it is not universally true that two substantives, at least, must follow
"compound" or "compounded," although it is true, in my opinion, that
only one substantive can appropriately follow "blend" or "blended."
In the first place, we may note that the "imitation sherry" described
above would not be a wine at all, while ethyl alcohol is clearly a
spirit; this distinction, however, is not essential. But, so far as I
know, no practice exists in the wine trade of mixing port with sherry or
genuine with artificial sherry and calling the mixture by the name of
either one of its ingredients. On the other hand, there is and has been
for a long time in existence a well-known practice of mixing ethyl
alcohol with whisky to give the latter an artificial age, and thus
produce the so-called "mellowness" of old whisky, which is caused by the
gradual and partial evaporation of the essential oils contained in new
whisky; and it seems to be a long and well established custom in the
trade to call the mixture of whisky and alcohol thus produced "Blended
whisky." For the reasons above set forth, I think the law has forbidden
the use of the adjective, but it is otherwise with the noun.
In the Encyclopaedia Britannica of 1878, Vol. VII, under the head
"Distillation," there is the following statement:
"Flat-bottomed and fire-heated stills are considered the best for the
distillation of malt spirit, as by them the flavor is preserved.
Coffey's still, on the other hand, is the best for the distillation of
grain spirit, as by it a spirit is obtained almost entirely destitute of
flavor, and of a strength varying from 55 to 70 over proof. Spirit
produced of this high strength evaporates at such a low temperature that
scarcely any of the volatile oils on which the peculiar flavor of
spirits depends are evaporated with it, hence the reason why it is not
adapted for the distillation of malt whisky, which requires a certain
amount of these oils to give it its requisite flavor. The spirit
produced by Coffey's still is, therefore, chiefly used for making gin
and factitious brandy by the rectifiers, or for being mixed with malt
whiskies by the wholesale dealers."
The practice therein described has become during the past
twenty-eight years much more general than it then was, in the United
States as well as in Great Britain, and improvements in the art of
distillation have rendered it much easier and more profitable.
As above explained, I consider "Champagne" a suitable label or brand
for the composite wine known by that name. If a natural wine existed
which was sweet and sparkling and also generally known as "Champagne," a
mixture of the two might be, I think, appropriately called "Compound" or
"Compounded champagne," and, in accordance with this analogy, I conclude
that a combination of whisky with ethyl alcohol, supposing, of course,
that there is enough whisky in it to make it a real compound and not the
mere semblance of one, may be fairly called "Whisky," provided the name
is accompanied by the word "Compound" or "Compounded," and provided a
statement of the presence of another spirit is included in substance in
the title. I am strengthened in this conclusion by understanding from
the papers you have referred to me that it has been reached by the
Department of Agriculture as well.
The following seem to me appropriate specimen brands or labels for
(1) "straight" whisky, (2) a mixture of two or more "straight" whiskies,
(3) a mixture of "straight" whisky and ethyl alcohol, and (4) ethyl
alcohol flavored and colored so as to taste, smell, and look like
whisky:
(1) Semper Idem Whisky: A pure, straight whisky mellowed by age.
(2) E Pluribus Unum Whisky: A blend of pure, straight whiskies with
all the merits of each.
(3) Modern Improved Whisky: A compound of pure grain distillates,
mellow and free from harmful impurities.
(4) Something Better than Whisky: An imitation under the pure-food
law, free from fusel oil and other impurities.
In the third specimen it is assumed that both the whisky and the
alcohol are distilled from grain.
I remain, sir,
Yours, very respectfully,
CHARLES J. BONAPARTE.
EXECUTIVE DEPARTMENTS-- TRANSFER OF CLERKS AND EMPLOYEES; 26 Op.
Att'y.Gen. 209, March 29, 1907
The terms "Departments," or "Executive Departments," as used in acts
of Congress and in the Revised Statutes, invariably apply to one or more
of the several Executive Departments mentioned in section 158 Revised
Statutes, or included within the terms of that section by subsequent
enactments, unless a different meaning is clearly indicated by the
context.
The term "Department," as used in laws relating to the civil service,
is distinguished from "Office," "bureau," and "branch;" and subordinates
of the several Executive Departments are distinguished from employees of
the last-mentioned governmental agencies.
It is lawful for the Civil Service Commission to consent to the
transfer of a classified employee from an independent office of the
Government to a Department or another independent office or bureau,
although such employee may not have served three years in the office or
bureau from which he seeks transfer, as is required by section 5 of the
act of June 22, 1906 (34 Stat., 389, 449), of clerks and employees of
the Executive Departments.
The "field force" of an Executive Department-- that is, its
classified employees under its immediate control, as inspectors,
examiners, and agents, though employed usually or invariably away from
the seat of Government-- are governed by the above-mentioned statutory
provision with regard to transfers.
The Government Printing Office, the Interstate Commerce Commission,
and the Smithsonian Institution are independent of any of the Executive
Departments mentioned in section 158 Revised Statutes.
The Bureau of Insular Affairs is an integral part of the War
Department.
The provisions of the act of June 22, 1906 (34 Stat., 449), with
regard to transfer of clerks and employees, are not applicable to the
Philippine Commission or to the Isthmian Canal Commission.
DEPARTMENT OF JUSTICE,
March 29, 1907.
The PRESIDENT.
SIR: I have the honor to acknowledge your letter transmitting a
communication under date of February 28, 1907, from the Civil Service
Commission to you, and instructing me to give my opinion as to the
several questions asked by the Commission in the said communication.
These questions all depend upon the following provision contained in the
legislative, executive, and judicial appropriation bill approved June
22, 1906 (34 Stat., 389, 449):
"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."
The first query of the Commission is thus stated:
"The Commission desires to be advised whether under this section it
is lawful to transfer, or to consent to the transfer, of a classified
employee from an independent office-- such as the Civil Service
Commission, the Isthmian Canal Commission, or any other of the
independent bureaus or offices-- to a Department, or to another
independent office or bureau."
Title 4 of the Revised Statutes of the United States is headed:
"Provisions applicable to all the Executive Departments."
Section 158, being the first section under the title aforesaid, is as
follows:
"Application of provisions of this title.-- The provisions of this
title shall apply to the following Executive Departments:
"First. The Department of State.
"Second. The Department of War.
"Third. The Department of the Treasury.
"Fourth. The Department of Justice.
"Fifth. The Post-Office Department.
"Sixth. The Department of the Navy.
"Seventh. The Department of the Interior."
By subsequent enactments the provisions of this section are extended
to the Department of Agriculture and the Department of Commerce and
Labor. Section 159 is in the words following:
"Word 'Department.'-- The word 'Department' when used alone in this
title, and titles five, six, seven, eight, nine, ten, and eleven, means
one of the Executive Departments enumerated in the preceding section."
The several titles mentioned in the foregoing section relate
respectively in succession to each one of the several Departments
therein mentioned.
In a very large number of provisions of law, some of them included in
the Revised Statutes, and some of them in acts of Congress subsequently
approved, the terms "Department" or "Executive Department" are used,
and, so far as I can ascertain, these terms invariably apply to one or
more of the several Executive Departments mentioned in section 158, or
included within the terms of that section by subsequent enactments,
unless a different meaning is clearly and unmistakably indicated by the
context. The proviso in the act of 1906 evidently was not intended to
apply to the entire classified civil service, for, if it were, the words
"in any of the Executive Departments" would be altogether superfluous.
It is evident, therefore, that some portion of the classified civil
service was to be excluded from its operation, and, in view of the
circumstances hereinbefore enumerated, there would seem to be little, if
any, room for doubt that only the subordinates of the several agencies
of the Government enumerated in section 158 as Executive Departments
were to be included.
If, however, there were any room for doubt on this subject, I think
it would be removed by the language of the Civil-Service law (22 Stat.,
403) itself. Section 2 of the said act provides as follows:
"That is shall be the duty of said commissioners:
"First. To aid the President, as he may request, in preparing
suitable rules for carrying this act into effect, and when said rules
shall have been promulgated it shall be the duty of all officers of the
United States in the Departments and offices to which any such rules may
relate to aid, in all proper ways, in carrying said rules, and any
modification thereof, into effect."
The third clause of section 6 of the same act is as follows:
"Third. That from time to time said Secretary, the
Postmaster-General, and each of the heads of Departments mentioned in
the one hundred and fifty-eighth section of the Revised Statutes, and
each head of an office, shall, on the direction of the President, and
for facilitating the execution of this act, respectively, revise any
then existing classification or arrangement of those in their respective
departments and offices, and shall, for the purposes of the examination
herein provided for, include in one or more of such classes, so far as
practicable, subordinate places, clerks, and officers in the public
service pertaining to their respective Departments not before classified
for examination."
Finally, section 11 is in the words following:
"That no Senator, or Representative, or Territorial Delegate of the
Congress, or Senator, Representative, or Delegate-elect, or any officer
or employee of either of said houses, and no executive, judicial,
military, or naval officer of the United States, and no clerk or
employee of any department, branch, or bureau of the executive,
judicial, or military or naval service of the United States, shall,
directly or indirectly, solicit or receive, or be in any manner
concerned in soliciting or receiving, any assessment, subscription, or
contribution for any political purpose whatever, from any officer,
clerk, or employee of the United States, or any Department, branch, or
bureau thereof, or from any person receiving any salary or compensation
from moneys derived from the Treasury of the United States."
These provisions make it quite clear that the term "Department" as
used in laws relating to the civil service, is distinguished from
"office," "bureau," and "branch," and that subordinates of the several
Executive Departments are distinguished from employees of the
last-mentioned several governmental agencies, and it is to be supposed
that Congress in using the same words in a provision relating to the
same subject-matter used them in the same well established sense. I
reply, therefore, to the first inquiry, that it is lawful for the
Commission to consent to the transfer of a classified employee from an
independent office to a Department or another independent office or
bureau, although such employee may not have served for a term of three
years in the independent office or bureau from which he has sought to be
transferred.
The second query of the Commission is as follows:
"The Commission desires to be advised whether under existing statutes
what is known as the 'field force' of an Executive Department-- that is
to say, the classified employees of an Executive Department not on duty
with the Department proper at Washington-- may be transferred to another
Department until after such employees shall have served for a term of
three years in the Department from which they desire to be transferred.
Or, in other words, are the classified employees of any of the Executive
Departments outside of Washington governed by the statutes
aforementioned?"
There is nothing in the language of the proviso itself which limits
its application to subordinates of the Executive Departments at
Washington. The act itself makes provision for the compensation of
officers and employees in all parts of the country; and if it had been
the intention of Congress to restrict the effect of the proviso to those
employees whose duties were performed at the seat of Government, it may
be reasonably presumed that it would have used appropriate language to
give effect to this intention. To restrict the operation of this proviso
to this particular class of employees, would require an arbitrary
addition to its language, for which no necessity is perceived, and which
would materially change the sense of what the legislative branch of the
Government, in fact, has said. It is true that in an opinion by
Attorney-General Devens, rendered May 16, 1877 (15 Op., 262), it is held
that certain provisions of law permitting the use of official envelopes
to "each of the Executive Departments of the United States" and their
respective "subordinate offices" were limited to "subordinate offices"
of the said several Departments at the seat of Government. This opinion,
however, does not affect the present question, if I rightly understand
to what class of subordinates the Civil Service Commission refers as
"the 'field force' of an Executive Department." Attorney-General Devens
says of the "subordinate offices" he excluded from the operation of the
statutes he had under consideration:
"The Department, with its bureaus or offices, is in contemplation of
the law an establishment distinct from the branches of the public
service and the offices thereof which are under its supervision.
Thus the office of postmaster, or of collector of internal revenue, or
of pension agent, or of consul, is not properly a departmental office--
not an office in the Department having supervision over the branch of
the public service to which it belongs. True, an official relation
exists here between the office and the Department, one, moreover, of
subordination of the former to the latter, but this does not make the
office a part of the Department."
I do not, however, understand the Commission's inquiry to refer to
subordinates in any such offices as are mentioned in the opinion, but to
such as are under the immediate control of the several Departments, like
inspectors, examiners, and agents, although employed usually or
invariably away from the seat of Government. Thus understanding the
question, I reply, that the classified employees of the several
Executive Departments outside of Washington are governed by the
above-mentioned statute.
The third query of the Commission is to the following effect:
"What is the status, under this act, of the Philippine Commission,
the Isthmian Canal Commission, the Bureau of Insular Affairs, the
Government Printing Office, the Interstate Commerce Commission, and the
Smithsonian Institution? Is each of the above an independent bureau or
is it a part of one of the Executive Departments mentioned in the act of
June 22, 1906?"
Of the various establishments mentioned, there can be no doubt that
the Government Printing Office, the Interstate Commerce Commission, and
the Smithsonian Institution are independent of any of the Executive
Departments mentioned in section 158 of the Revised Statutes. Neither
can there be any doubt of the fact that the Bureau of Insular Affairs is
an integral part of the War Department. The only two agencies as to
which there can be, in my opinion, any question, are the Philippine
Commission and the Isthmian Canal Commission, and, as to the first, the
question would appear to be determined by opinion of the Comptroller of
the Treasury (11 Comp.Dec., 702), of which the head note says: "An
employee of the Philippine government is not an employee of the United
States within the meaning of the prohibition in section 1765, Revised
Statutes, against the payment of additional or extra compensation."
This decision is based upon the opinion of the Supreme Court in Dorr v.
United States (195 U.S., 138) and, although the last-mentioned case
related to a totally different question, it sustains, in my opinion, the
position that a statute of the character of this proviso will not be
held applicable to the Philippine civil service without words making it
expressly and specifically apply to it. There does not seem to be any
authority on the status of officers or employees of the Isthmian Canal
Commission, but I think, by a fair analogy, they must be distinguished
from officers or employees of the War Department. In an opinion of
Solicitor-General Richards, approved by Attorney-General Knox (24 Op.,
541), it is said to be "a reasonable inference that, until otherwise
provided, Congress intended that the government for the Philippine
Islands, authorized and approved by the act of July 1, 1902, should be
regarded as a branch of the War Department." Notwithstanding this fact
it was held in the same opinion (p. 538), as well as by the Comptroller,
in the opinion above cited, that the government for the Philippine
Islands was "distinct from our own and not governed by the same laws,"
and this determination is sustained by the decision of the Supreme Court
in Dorr's case, above cited. Therefore, although the Isthmian Canal
Commission has been placed by the President under the supervision of the
Secretary of War, I think it clear that its service is to be regarded as
altogether distinct from that of the War Department, and that this
proviso does not affect employees of the Isthmian Canal Commission, or
in anywise apply to them.
I remain, sir,
Yours very respectfully,
CHARLES J. BONAPARTE.
IMMIGRATION AND CONTRACT LABOR LAWS-- STATE IMMIGRATION; 26 Op.
Att'y.Gen. 199, March 20, 1907
It is lawful for a State to advertise its inducements to immigration
and to state, as part of such advertisement, the scale of wages
generally prevailing within its territory. The status of immigrants
induced to come to this country by reason of such advertisements would
be the same as that of any other aliens lawfully admitted to the United
States.
The word "person" in section 4 of the act of March 3, 1903 (32 Stat.,
1214), providing that it shall be unlawful for "any person" to prepay
the passage of an alien induced to migrate by any offer, solicitation,
promise, or agreement to perform labor, does not include a State, but it
does include an officer of a State professing to act under its
authority.
The effect of the payment of the passage of an alien by another is to
throw upon the alien the burden of proof that he is not liable to
exclusion for the reasons mentioned in section 2 of the act of March 3,
1903 (32 Stat., 1214), or as a contract laborer under the act of
February 26, 1885 (23 Stat., 332).
A State may prepay the passage of an alien immigrant out of its
public funds, provided he is qualified in other respects, the
advertisement being lawful, and neither the State, nor its officers, nor
anyone else having otherwise solicited or encouraged the immigration.
The status of such an immigrant would be the same as that of any other
alien lawfully admitted to this country.
The words "promise of employment," in section 6 of the act of March
3, 1903 (32 Stat., 1215), are used in a broad sense, meaning not merely
an offer of employment which, by acceptance, would create a contract
enforceable against some definite person or persons, but any form of
words which might be reasonably understood as holding out to a possible
immigrant the prospect of assured employment.
The contribution of money by individuals to a State fund, to be used
by the State in advertising its inducements to immigrants, which
advertisement could not lawfully be published by private persons, and to
prepay the passage of aliens attracted by such advertisement, though
without promise of employment, express or implied, would amount to
encouraging or assisting immigration in the form prohibited by section 6
of the act of 1903, and render the parties contributing liable to the
penalties provided by section 5 of that act.
The immigrants themselves, however, could not be excluded. There is
nothing in the act of 1903, or in any previous act, which would
authorize their exclusion because the immigration was induced by
advertisement, or even by solicitation or promise of employment, unless
there was an enforceable contract existing at the time of application
for admission requiring them to render service as laborers.
The act of February 20, 1907 (34 Stat., 898), provides for the
exclusion, after that act takes effect, of aliens solicited or induced
to migrate by reason of offers, or promises, even when there is no
contract, of employment. Under existing law, although their importation
is unlawful, and the parties responsible subject to punishment, the
aliens themselves are allowed to enter.
Under that act, a person whose passage money is paid by another must
be prepared to show, not merely that he does not come within any of the
categories of immigrants to be excluded, but also that his passage was
not paid, directly or indirectly, by a corporation, association,
society, municipality, or foreign government.
The payment of passage money of immigrants by a State with its funds
is not prohibited by the act of 1907, but its payment with funds
contributed by any society or association renders the immigrant liable
to exclusion, even though the payment be made through the agency of the
State or its officers, and although the immigrant would otherwise be
entitled to admission.
The same prohibition does not extend, however, to the payment of
passage money by individuals, whether directly or through the agency of
a State, provided their action is, and is shown to be, in good faith
individual, and not attended by such combination or concert of action as
would make it substantially the act of an association or a society.
DEPARTMENT OF JUSTICE,
March 20, 1907.
The PRESIDENT.
SIR: I have the honor to acknowledge your letter of the 18th
instant, inclosing a letter to you of March 16 from the governor of
South Carolina, and instructing me to give you my opinion as to the
subject-matter of the said letter in the form of answers to the several
questions therein contained. Of these questions the first is as follows:
"Is it a violation of the immigration law in force up to the time of
the taking effect of the act approved February 20, 1907, for a State,
acting through its officers, to advertise its inducements and publish
abroad the scale of wages prevailing within its borders, provided no
contract or agreement, express or implied, is entered into between such
immigrants and the officers of the State or with any other person? What
would be the status of an alien applying for admission under such
conditions?"
The act approved March 3, 1903, entitled "An act to regulate the
immigration of aliens into the United States" (32 Stat., 1213), contains
the following provisions:
"SEC. 4. That it shall be unlawful for any person, company,
partnership, or corporation, in any manner whatsoever, to prepay the
transportation or in any way to assist or encourage the importation or
migration of any alien into the United States, in pursuance of any
offer, solicitation, promise, or agreement, parole or special, express
or implied, made previous to the importation of such alien to perform
labor or service of any kind, skilled or unskilled, in the United
States.
"SEC. 5. That for every violation of any of the provisions of section
four of this Act the person, partnership, company, or corporation
violating the same, by knowingly assisting, encouraging, or soliciting
the migration or importation of any alien to the United States to
perform labor or service of any kind by reason of any offer,
solicitation, promise, or agreement, express or implied, parole or
special, to or with such alien shall forfeit and pay for every such
offense the sum of one thousand dollars, which may be sued for and
recovered by the United States, or by any person who shall first bring
his action therefor in his own name and for his own benefit, including
any such alien thus promised labor or service of any kind as aforesaid,
as debts of like amount are now recovered in the courts of the United
States;
and separate suits may be brought for each alien thus promised labor or
service of any kind as aforesaid. And it shall be the duty of the
district attorney of the proper district to prosecute every such suit
when brought by the United States.
"SEC. 6. That it shall be unlawful and be deemed a violation of
section four of this Act to assist or encourage the importation or
migration of any alien by a promise of employment through advertisements
printed and published in any foreign country; and any alien coming to
this country in consequence of such an advertisement shall be treated as
coming under a promise or agreement as contemplated in section two of
this Act, and the penalties imposed by section five of this Act shall be
applicable to such a case: Provided, That this section shall not apply
to States or Territories, the District of Columbia, or places subject to
the jurisdiction of the United States advertising the inducements they
offer for immigration thereto, respectively."
These provisions contain substantially all the law in force at the
present time and until the act approved February 20, 1907, shall become
effective in accordance with its terms, that can be material to
determine the answer to the foregoing first question, and I, therefore,
reply that it is lawful for a State to advertise its inducements to
immigration and to state, as part of such advertisement, the scale of
wages generally prevailing within its territory, it being my
understanding of the question that such advertisements be limited to
setting forth the inducements offered by conditions prevailing within
the State to immigrants, leaving the said immigrants to draw their own
conclusions from such advertisements as to the advisability of coming to
the said State. Supposing immigrants to have been induced to come to the
said State through advertisements of the character above described as
lawful, the status of the said immigrants would be the same as the
status of any other aliens lawfully admitted to the United States.
The second question propounded in the letter of the governor is as
follows:
"May a State, acting as such, and having advertised its inducements
and scale of wages, prepay with funds duly appropriated to its
immigration department the passage of the alien attracted by the
inducements advertised, provided no contract or agreement, express or
implied, is entered into between the alien and the officers of the
State, or with any other person, and such alien upon arrival is left
free to choose employment in all respects as if he had paid his passage
with his own funds and had come entirely independent of the
representatives of the State? What would be the status of an alien
applying for admission under these conditions?"
Under the provisions of section 4 of the act approved March 3, 1903,
above set forth, it is made unlawful for "any person" to prepay the
passage of an alien induced to migrate by any "offer, solicitation,
promise, or agreement" made previous to his importation "to perform
labor or service of any kind" in this country. The word "person," as
here used, does not, in my opinion, include a State; but it does
include an officer of a State professing to act under its authority.
The prepayment, however, is made unlawful only when there is also "an
offer, solicitation, promise, or agreement;" and, by section 6 of the
same act, an advertisement on the part of a State of the character
described in the first question and also in this question would not have
the effect of an offer, solicitation, or promise, although it might have
such effect if published without State authority. Sections 4, 5, and 6
of the said act do not therefore prohibit the importation of aliens
under circumstances supposed.
Section 2 of the same act provides that the following classes of
aliens shall be excluded from the United States: "All idiots, insane
persons, epileptics," and a large number of categories of undesirable
immigrants. It then proceeds: "And also any person whose ticket or
passage is paid for with the money of another, or who is assisted by
others to come, unless it is affirmatively and satisfactorily shown that
such person does not belong to one of the foregoing excluded classes."
Among the classes mentioned, persons coming within the prohibition of
section 4 of the same act above quoted are not included, nor are
"contract laborers," as defined by the previous acts relating to the
same subject. But, by the act approved March 3, 1891 (26 Stat., 1084),
it was provided in the same language that a person whose passage or
ticket was paid for by another should be excluded unless he could
affirmatively and satisfactorily show that he did not belong to the
class of contract laborers excluded by the act of 1885. The effect,
therefore, of the payment of the passage of an alien by another is to
throw upon the said alien the burden of proof that he is not liable to
exclusion either for the reasons mentioned in section 2 of the act of
1903, or as a contract laborer under the original act approved February
26, 1885 (23 Stat., 332). Supposing the immigrants qualified in other
respects, the advertisement to be lawful, in accordance with the answers
to the first question, and that neither the State nor its officers, nor
anyone else, had otherwise solicited or encouraged the immigration
except by payment of the immigrants' passage out of the public funds of
the State, this burden of proof could evidently be sustained, the
introduction of the immigrants would be lawful and their status would be
the same as that of any other aliens lawfully admitted to this country.
The third question is as follows:
"May a State, acting as such, through its officers accept
contributions to the fund appropriated for the support of its
immigration department, provided such funds are contributed free from
any contract or reciprocal agreement, and with such funds advertise its
inducements and scale of wages and prepay out of said funds the passage
of aliens attracted by such advertisement, provided such alien comes
free from any contract or agreement, express or implied, with the State
officers or with any other person, and enters as free in all respects to
choose employment and remain in or depart from the State as if he had
paid his own passage? What would be the status of an alien applying for
admission under these conditions?"
The answer to this question is not free from difficulty. It will be
seen upon examination of section 6 of the act of 1903, hereinbefore
given, that it is unlawful for anyone to "assist or encourage the
importation or migration of any alien by a promise of employment through
advertisements printed and published in any foreign country." The words
"promise of employment" are evidently here used in a broad and somewhat
loose sense, meaning, not merely an offer of employment which, by
acceptance on the part of any alien coming within its terms, would
create a contract enforceable against some definite person or persons,
but any form of words which might be reasonably understood as holding
out to a possible immigrant the prospect of assured employment, although
they might not import any legal responsibility on the part of anyone.
This construction seems to me necessary, because if the words are to be
construed strictly, in the first place, the exception in favor of States
which shall advertise their "inducements for immigration" would be
unnecessary; and, secondly, the section itself would be superfluous,
its purport being fully covered by the terms of section 4. An
advertisement, therefore, which would be lawful on the part of a State
under section 6 might be unlawful on the part of individuals; and the
hypothesis of the question is not sufficiently definite in this respect
to enable me to say whether it does or does not refer to an
advertisement of this character.
Supposing that the advertisement would be illegal if inserted by the
individual contributors without the State's intervention, then, inasmuch
as the illegality consists in causing its publication-- as an
advertisement-- and paying for such publication would help to cause it,
the contribution of money to be used for such advertisements, with
knowledge on the part of the contributor that the money was to be put to
this use, would amount, in my opinion, to encouraging or assisting
immigration in the form prohibited by section 6. That the advertisement
was actually inserted by a public officer under the authority of a State
statute would not, in my opinion, relieve the person who furnished the
means to pay for the advertisement from the consequences of his act; so
far as he was concerned, the public official inserting the advertisement
must be deemed his agent for the purpose above described.
If, therefore, as I understand to be the hypothesis of this question,
the money contributed by private persons were given with the knowledge
that it would and the intention that it should be used to pay for the
advertisement, and if the advertisement were one which could not be
lawfully published by such private persons, this contribution would
bring the advertisement within the prohibition of section 6 and render
the parties contributing liable to the penalties provided by section 5;
whether the advertisement did or did not come within this description it
would be very difficult to determine without seeing its precise
language.
With respect to the immigrants, however, the case would be different.
There is nothing in the act of 1903, or in any previous act, which would
authorize their exclusion from the country because their immigration was
induced by advertisements, or, indeed, by the solicitation or promise of
employment in any form, unless there was an enforceable contract
existing at the time of their application for admission requiring them
to render service as laborers. While, therefore, the parties providing
the money for the publication of the advertisements might be, in my
opinion, liable to the penalties imposed by section 5, the immigrants
themselves, upon the hypothesis of the third question, could not be
excluded from the United States, and their admission would be lawful.
In the foregoing answers no reference has been made to a provision in
the act of 1903 to the effect that skilled labor may be imported if
labor of the like kind unemployed can not be found in this country. I
assume that the inquiries of the governor relate wholly to the
importation either of unskilled labor or of skilled labor when labor of
like kind can be found unemployed in this country.
The fourth question is:
"Will the answers to the foregoing questions be materially different
after the taking effect of the act approved the 20th of February, 1907;
and if different, in what respect?"
This question must be answered in the affirmative. Section 2 of the
act approved February 20, 1907 (34 Stat., 898), provides that the
following classes of aliens shall be excluded from admission into the
United States: "All idiots, imbeciles, feeble-minded persons,
epileptics, insane persons," and a large number of other categories of
undesirable immigrants; and includes among the classes of aliens to be
excluded the following:
"Persons hereinafter called contract laborers, who have been induced
or solicited to migrate to this country by offers or promises of
employment or in consequence of agreements, oral, written, or printed,
express or implied, to perform labor in this country of any kind,
skilled or unskilled;" and also
"Any person whose ticket or passage is paid for with the money of
another, or who is assisted by others to come, unless it is
affirmatively and satisfactorily shown that such person does not belong
to one of the foregoing excluded classes, and that said ticket or
passage was not paid for by any corporation, association, society,
municipality, or foreign government, either directly or indirectly."
These provisions change the law in two particulars: In the first
place, aliens solicited or induced to migrate by reasons of offers, or
promises, even when there is no contract of employment will be excluded
after this act takes effect. At present, although their importation is
unlawful and subjects the parties responsible for it to punishment, the
aliens themselves are allowed to enter. Secondly, the person whose
passage money is paid by another must be prepared to show, not merely
that he does not come within any of the categories of immigrants to be
excluded, but also that his passage was not paid by a corporation, an
association, a society, a municipality, or a foreign government; and
this provision against such payment by any of the agencies mentioned is
effective whether the payment be made directly or indirectly.
While, therefore, the payment of the passage money of such immigrants
by a State with its public funds is not prohibited, its payment with
funds contributed by any society or association renders the immigrant
liable to exclusion, although the payment may be made through the agency
of the State or its officers, and although the immigrant would be
otherwise entitled to admission.
The same prohibition, however, does not extend to the payment of the
passage money by individuals, whether directly or through the agency of
a State; provided that their action is, and is satisfactorily shown to
be, in good faith individual and is not attended by such combination or
concert of action as would make it substantially the act of an
association or society.
For the sake of clearness only, I may here note that section 4 of the
same act is as follows:
"That it shall be a misdemeanor for any person, company, partnership,
or corporation, in any manner whatsoever, to prepay the transportation
or in any way to assist or encourage the importation or migration of any
contract laborer or contract laborers into the United States, unless
such contract laborer or contract laborers are exempted under the terms
of the last two provisos contained in section two of this act."
The last provisos mentioned in section 2 are those relating to the
importation of skilled labor when the like can not be found unemployed,
and to certain classes of aliens who are not included among those whose
importation is forbidden. These provisos are in the same language
precisely as is used in the law of 1903. In the act of 1903 the conduct
described in section 4 is only characterized as "unlawful," while in the
act of 1907 it is made "a misdemeanor;" this seems a matter of minor
consequence, and since, as above noted, the definition of "contract
laborers," given in section 2 of the present law, is broad enough to
include the persons whose importation is forbidden by section 4 of the
law of 1903, it follows that the same section of the act approved
February 20, 1907, although different in language from section 4 in the
act of 1903, is substantially the same in meaning.
I remain, sir,
Yours very respectfully,
CHARLES J. BONAPARTE.
INHERITANCE LEGACY TAXES-- REFUND-- DALY CASE; 26 Op.Att'y.Gen.
194, March 11, 1907
Claims arising under the act of June 27, 1902 (32 Stat., 406), are
not barred because of the failure of claimants to present them for
allowance within two years from the date of payment.
The provisions of the act of 1902 are special and apply to a
particular class of obligations against the Government, and, being
special, these claims are not governed by the provisions of a prior
general statute, section 3228, Revised Statutes.
Suits for the recovery of money due under the act of 1902 are not
actions for the recovery of taxes, but for money held by the Government
in trust for the benefit of the parties to whom it rightfully belongs.
The obligation is therefore one payable on demand, and the statute of
limitations does not begin to run until there has been a refusal to pay
or the equivalent. (United States v. Wardwell, 172 U.S., 48.)
The decision in the case of Thacher v. United States (149 Fed.Rep.,
902), as to the matter of protest in the refunding of inheritance legacy
taxes, is to be accepted as the rule of action in all claims arising
under the various sections of the act of June 27, 1902 (32 Stat., 406).
The decision in that case, together with the views expressed in this
opinion, should be regarded by the Treasury Department as the rule of
administrative action in claims arising under section 3220, Revised
Statutes. Opinion of May 7, 1906 (25 Op., 605), in so far as it
conflicts with these views, is reversed.
There is no legal objection to the dismissal, without prejudice, of
the claim of Margaret P. Daly, and other similar cases in the Court of
Claims, for the purpose of settlement in accordance with this opinion;
but only those portions of the claims which come clearly within the
decision of the Supreme Court in the case of Vanderbilt v. Eidman (196
U.S., 480) should be paid.
Such portions of the claims as are affected by the decision in the
case of Disston v. McClain (147 Fed., 114) should be allowed to remain
in statu quo until that case, now on appeal to the Supreme Court, has
been finally decided.
DEPARTMENT OF JUSTICE,
March 11, 1907.
The SECRETARY OF THE TREASURY.
SIR: Answering the letter of the Commissioner of Internal Revenue of
February 20, transmitted by you for an opinion with reference to the
right of recovery of certain internal-revenue taxes, I have the honor to
advise you as follows:
Marcus Daly, of Montana, died November 12, 1900, leaving an estate of
personal property valued at about $9,825,000. In September, 1901, and
February, 1902, Margaret P. Daly, as executrix, paid an inheritance tax
upon various bequests to the amount of $147,384.80. Later the executrix
applied to the Commissioner of Internal Revenue for a refund to her of
this tax, basing her application upon section 3 of the act of June 27,
1902. This petition for a refund was denied, on the ground that the
legacies upon which the tax was collected were vested interests, and
therefore not refundable under the act upon which claimant relied. Suit
was brought, and is now pending in the Court of Claims, asking for
judgment for the entire amount of tax paid by the estate. Application
has been made by the attorneys for the executrix to have so much of the
tax as comes within the decision of the Supreme Court in the case of
Vanderbilt v. Eidman (196 U.S., 480) refunded, leaving the balance of
the tax to be disposed of in accordance with the decision of the Supreme
Court in the case of Disston v. McClain, now pending in that court upon
appeal from the Circuit Court of Appeals of the Third Judicial Circuit
(147 Fed.Rep., 114).
Upon this statement of facts, four questions are submitted to which
answers are requested:
First. Is the decision of the Circuit Court of the United States for
the District of Massachusetts, rendered December 29, 1906, in the case
of Thacher et al. v. The United States, as to the matter of protest, to
be accepted as the rule of action in all claims arising under the
various sections of the act of June 27, 1902?
Second. Is the decision in that case as to protest to be taken as the
rule of administrative action in claims arising under section 3220,
Revised Statutes, notwithstanding the opinion of the Attorney-General to
the contrary of date May 7, 1906?
Third. Is there any legal objection to now paying that part of the
claim of Margaret P. Daly which comes under the decision of the Supreme
Court in the Vanderbilt case allowing the balance to remain in the
Treasury pending the decision of the court in the Disston case?
Fourth. The Circuit Court of Appeals in the Disston case held, in
effect, that a life estate, or an estate for years, could not be taxed,
except in so far as the income from that estate had become vested in the
possession of the life tenant prior to July 1, 1902. As an effort is to
be made to have this case heard in the Supreme Court, is there any
objection to allowing all claims of a similar nature to remain in statu
quo until that decision shall be had?
The Daly case is one of a number filed in the Court of Claims
involving substantially the same questions. In some of these cases
protest was made at the time of payment, and in the others there was no
protest. In each of the cases recovery is sought under the provisions of
section 3 of the act of Congress of June 27, 1902 (32 Stat., 406), which
is as follows:
"SEC. 3. That in all cases where an executor, administrator, or
trustee shall have paid, or shall hereafter pay, any tax upon any legacy
or distributive share of personal property under the provisions of the
act approved June thirteenth, eighteen hundred and ninety-eight,
entitled 'An act to provide ways and means to meet war expenditures, and
for other purposes,' and amendments thereof, the Secretary of the
Treasury be, and he is hereby, authorized and directed to refund, out of
any money in the Treasury not otherwise appropriated, upon proper
application being made to the Commissioner of Internal Revenue, under
such rules and regulations as may be prescribed, so much of said tax as
may have been collected on contingent beneficial interests which shall
not have become vested prior to July first, nineteen hundred and two.
And no tax shall hereafter be assessed or imposed under said act,
approved June thirteenth, eighteen hundred and ninety-eight, upon or in
respect of any contingent beneficial interest which shall not become
absolutely vested in possession or enjoyment prior to said July first,
nineteen hundred and two."
It can not be held that claims arising under this act are barred,
because of the failure of the claimants to present them for allowance
within two years from the date of payment. The provisions of the act are
special, and apply to a particular class of obligations against the
Government. Being special, these claims are not governed by the
provisions of the prior general statute. (R.S., sec. 3228.) Suits
brought to recover money due under this act are not actions for the
recovery of taxes, but for money held by the Government in trust for the
benefit of the parties to whom it rightfully belongs. The act, by its
terms, creates and acknowledges the obligation of the Government. A
method is prescribed by which each party can secure the money belonging
to him whenever he wishes it. No time has been fixed by any rule of the
Secretary of the Treasury, which has been called to my attention, within
which a claimant must apply for it, or after which the money is
forfeited to the Government. It is, therefore, an obligation payable on
demand, and the statute of limitations does not begin to run until there
has been a refusal to pay, or something equivalent thereto. (United
States v. Wardwell, 172 U.S., 48.)
It will be observed that under the provisions of this statute
Congress has granted a right of repayment, regardless of any condition
that may have heretofore operated as a bar to such repayment. The
statute is an acknowledgment by Congress of a supposed moral obligation;
a provision as a bounty of the Government. Whether or not the taxes
were originally paid under protest is eliminated, and the question of
voluntary or involuntary payment is immaterial. In the case of Thacher
et al. v. The United States (149 Fed.Rep., 902) the tax was paid
voluntarily and without protest.
In passing upon the effect of the statutes above quoted the court said
(p. 903):
"The petitioners could not at any time have maintained suit to
recover the tax as having been illegally collected. They had paid it
voluntarily, not under protest. Their claim to a refund, if they had
any, was moral only, and not legal. It appealed only to the Government's
sense of fairness, and could be satisfied only by the bounty of the
United States, given upon such terms as Congress saw fit to impose. * *
* The act of 1902 fixes no time within which the claim for a refund must
be filed with the collector, and no departmental regulation has been
called to the attention of the court. Even if the limit fixed by Revised
Statutes, section 3228, be applicable here by analogy, yet the two years
therein mentioned must run, if they run at all, not from the payment of
the tax, which was ineffective to create the claim here in suit, but
from the passage of the act providing the bounty which the petitioners
seek to obtain. That the tax paid by the petitioners in 1901 was
illegally collected is irrelevant to the issues raised by this
petition."
On the question of protest I must agree with the conclusions reached
by the court in the above decision, and the first question is therefore
answered in the affirmative.
Having concurred in the decision of the court in the case of Thacher,
as to protest, that decision, together with the views expressed in this
opinion, should be accepted as the rule of administrative action arising
under section 3220, where the recovery is sought under the provisions of
section 3 of the act of Congress of June 27, 1902. The opinion of the
Attorney-General of May 7, 1906 (25 Op., 605), in so far as it is in
conflict with this opinion, is reversed. The second question submitted,
within the limitations of this opinion, is answered in the affirmative.
Answering the third question, there is no legal objection to the
dismissal, without prejudice, of the Daly case, and other similar cases
in the Court of Claims, for the purpose of settlement in accordance with
this opinion. In fact, it would seem that the interests of the
Government, and a wise administration of public affairs, would demand
such a course.
In such settlements, only those portions of the claims which come
clearly within the decision of the Supreme Court in the Vanderbilt case
should be paid, allowing the balance to remain in the Treasury pending a
final decision of the question in the Supreme Court.
The answer to the fourth question may be inferred from what has
already been stated in this opinion. It is the duty of the
administrative officers to allow such portions of the claims in question
as are affected by the decision in the Disston case to remain in statu
quo until that case has been decided in the Supreme Court.
Very respectfully,
CHARLES J. BONAPARTE.
IMMIGRATION AND CONTRACT LABOR LAWS-- STATE IMMIGRATION; 26 Op.
Att'y.Gen. 180, March 6, 1907
The provisions of the acts of February 26, 1885 (23 Stat., 332),
February 23, 1887 (24 Stat., 414), and October 19, 1888 (25 Stat., 566),
authorizing the exclusion or deportation of contract laborers, were not
repealed by the act of March 3, 1903 (32 Stat., 1213), and immigrants
coming to the United States during the years 1904-1906 in violation of
the act of 1885 could have been and should have been excluded.
There was, however, no authority to exclude aliens not coming within
the prohibition of the law of 1885, although covered by the broader
terms of the prohibition in section 4 of the act of 1903, as the latter
act contains no provision authorizing the exclusion or deportation of
aliens who have been improperly brought to this country.
The right to exclude depended upon the act of 1887, and the right to
deport upon the act of 1888, both of which acts were dependent upon the
act of 1885, which made the coming of certain classes of aliens into
this country unlawful.
The only exception made in the contract-labor laws in favor of States
is contained in the act of March 3, 1891 (26 Stat., 1084), and section 6
of the act of 1903, in reference to advertisements printed and published
in foreign countries, stating the inducements they offer for
immigration.
In the provisions of the act of 1885 and under section 4 of the act
of 1903, in dealing with the payment of passage money or other specific
assistance to migration of individual aliens, no exception is made in
favor of States, and no exception exists, therefore, in favor of any
person because he may act as agent of a State.
Congress has the undoubted right to regulate the admission of aliens
into the United States, whether as immigrants or otherwise, and to
exclude altogether any class of aliens whose entrance it might deem
contrary to the general welfare of the Union.
No action by any State or by any officer thereof can operate to
impair or nullify the effect of a law of Congress duly enacted upon this
subject.
Aliens who came to the United States during the years 1904-1906 at
the suggestion and through the instrumentality of an officer of the
State of South Carolina, appointed under a statute which expressly
permitted him to act as agent for citizens of that State in the
procuring of desirable immigrants, which officer, largely or wholly at
the expense of such individuals, visited foreign countries and by
advertisement, promises of employment, and prepayment of passage,
induced a large number of laborers and artisans to migrate to South
Carolina, were introduced into the United States in violation of the
acts of 1885, 1887, and 1888, and should have been excluded.
Aliens coming to the United States under similar circumstances after
the act of February 20, 1907 (34 Stat. 898), becomes effective, would
unquestionably be liable to exclusion.
The determination of the existence of the facts justifying the
exclusion of immigrants is, in the first instance, vested in the
Secretary of Commerce and Labor.
DEPARTMENT OF JUSTICE,
March 6, 1907.
THE PRESIDENT.
SIR: I have the honor to acknowledge the receipt of your letter of
the 26th ultimo, inclosing one from Hon. Benjamin F. Howell, chairman of
the Committee on Immigration and Naturalization of the House of
Representatives, under date of February 25 last past, to you, in which
you are requested, on behalf of that committee, to refer to me, for my
opinion, the question as to whether certain aliens, described in a
resolution, of which a copy was inclosed, were lawfully admitted into
the United States. The resolution, however, describes these aliens only
as "foreign laborers" introduced "into the State of South Carolina by
one E. J. Watson." To ascertain the circumstances of their introduction
it is necessary to refer to a pamphlet, also accompanying the letter of
the committee, and which contains Decision No. 111 of the Solicitor of
the Department of Commerce and Labor, which appears to have been
"published for the information of those interested" on December 26,
1906, by that Department. I shall refer later to the facts set out in
this decision with respect to the subject-matter of inquiry. It will,
however, conduce to clearness if I state first the general provisions of
law relating to the exclusion and deportation of aliens existing at the
time when these immigrants were introduced into the United States. The
precise date does not appear, but it was evidently after February 23,
1904, and before December 15, 1906; and no material change in the law
took place between these dates.
By the original alien contract-labor law of February 26, 1885 (23
Stat., 332), it was made unlawful for any person to prepay the
transportation or assist or encourage the importation of any alien,
under contract or agreement previously made, to perform labor in the
United States (sec. 1), provided that skilled workmen might be engaged
upon any new industry not then established in the United States, if
skilled labor for such purpose could not be otherwise obtained (sec.
5).
By an amendatory act of February 23, 1887 (24 Stat., 414), it is
provided that any immigrants "included in the prohibition" of the
contract-labor act should not be permitted to land and should be sent
back to the nation whence they came (sec. 8). And, by a further
amendment of October 19, 1888 (25 Stat., 566), the Secretary of the
Treasury was authorized to cause any immigrant who had been allowed to
land contrary to the prohibition of the contract-labor law to be
returned within one year after his landing.
By an act of March 3, 1891, "in amendment to the various acts"
relative to the immigration and the importation of alien laborers (26
Stat., 1084), it was enacted that certain classes of aliens should be
excluded from admission "in accordance with the existing acts regulating
immigration," namely: All idiots, insane persons, and other specified
classes of aliens, and also any person whose ticket is paid for by
another, or who is assisted by others to come, unless it is
affirmatively and satisfactorily shown that such person does not belong
to one of the foregoing excluded classes," or to the class of contract
laborers excluded by the act of February 26, 1885" (sec. 1). And it was
further provided that it should be deemed a violation of the act of
February 26, 1885, to assist or encourage the importation of any alien
by promise of employment through advertisements printed and published in
a foreign country, except by States and immigration bureaus of States
advertising the inducements they offer for immigration (sec. 3). This
act contained no repealing clause, and while it contained no express
provision excluding alien contract laborers from admission, on the other
hand, it did not purport to repeal any of the excluding provisions of
the contract-labor lab; but, on the contrary, recognized these
provisions as still in force by providing that the payment of an
immigrant's passage by another should put upon him the burden of showing
affirmatively that he did not belong to the class of contract laborers
excluded by the act of 1885, and also by a provision in section 3, that
any alien coming to this country in consequence of a promise of
employment through an advertisement should be treated as coming under a
contract as contemplated by the act of 1885.
It seems clear that this act of 1891 did not repeal any of the former
provisions excluding contract laborers from admission, and, after the
passage of this act, any contract laborer coming within the terms of the
prohibition of either the original act of 1885 or the amendment of 1891
should be denied admission to this country; that is to say, after the
passage of that act no alien laborer was entitled to admission whose
passage had been prepaid or whose migration had been assisted when he
was under previous contract to labor, or who came to this country in
consequence of a promise of employment through a foreign advertisement
other than that of a State.
The act of March 3, 1903, entitled "An act to regulate the
immigration of aliens into the United States" (32 Stat., 1213), embraces
provisions relating both to immigration and to contract labor. Section
2, which is the general clause relating to the exclusion of immigrants,
provides that the following classes of aliens shall be excluded from
admission into the United States: "All idiots, insane persons," and
other specified classes; "those who have been, within one year from the
date of the application for admission to the United States, deported as
being under offers, solicitations, promises, or agreements to perform
labor or service of some kind therein; and also any person whose ticket
or passage is paid for with the money of another, or who is assisted by
others to come, unless it is affirmatively and satisfactorily shown that
such person does not belong to one of the foregoing excluded classes;"
provided that "skilled labor may be imported, if labor of like kind
unemployed can not be found in this country;" and provided further,
"that the provisions of this law applicable to contract labor shall not
be held to exclude professional actors" and other specially excepted
persons. Section 4 of this act makes it unlawful for any person to
prepay the transportation or assist or encourage the importation of any
alien in pursuance of any offer, solicitation, promise, or agreement
made previous to the importation of such alien to perform labor in the
United States.
And section 6 makes it unlawful and a violation of section 4 to assist
or encourage the importation of any alien by a promise of employment
through advertisements printed and published in a foreign country,
except by States or Territories, the District of Columbia, or other
Federal places advertising the inducements they offer for immigration.
By section 36 all inconsistent acts are repealed, with a proviso that
the Chinese exclusion acts shall not be thereby affected.
A question of no little intrinsic difficulty, and of great
importance, arises as to the effect of this act. It would seem, at first
sight, that Congress intended by its enactment to provide for the entire
subject of the immigration of aliens into the United States. Section 2
of the act contains no reference to the previously existing laws on the
subject, such as was contained in the act of 1891, above cited; and the
enumeration in that section of the classes of aliens to be excluded from
the United States appears on its face to be exhaustive. These facts
suggest very strongly the necessity of an application of the
well-established rule of statutory construction, which requires that a
legislative enactment covering the entire subject-matter embraced in
previous statutes and apparently intended by the legislature to embody
the whole law on the subject, repeals, by implication, such preceding
enactments, although their provisions may not be inconsistent with those
of the new law. The decisions in Daviess v. Fairbairn (3 How., 636) and
State v. Stoll (17 Wall., 425) illustrate the application of this
doctrine. If, however, it is to be applied to the statute under
consideration, the result must be that between the date of the latter's
approval (March 3, 1903) and the date of the approval of the statute
recently enacted (February 20, 1907) no law existed under which aliens
coming to this country under contracts of employment could be either
excluded or deported for that reason. The right to exclude them depended
on the act of 1887; the right to deport them upon the act of 1888. But
both of these acts were dependent for their efficacy upon the prior act
of 1885, which made the coming of this class of aliens into the United
States unlawful, although it did not authorize their exclusion or
deportation; but, on the contrary, evidently contemplated that they
would remain in this country.
The act of 1891 made the payment of the immigrant's passage money by
another prima facie proof that he was a contract laborer under the terms
of the act of 1885. If all four of these acts were superseded and
impliedly repealed by the act of 1903, it would follow that no law was
on the statute book subsequent to the approval of the last-mentioned
act, which provided for the deportation or exclusion of "contract labor
aliens;" for, although that act broadened the provisions making the
importation of this class of aliens a crime, and imposed appropriate
penalties on those guilty of the offense, it contained no provision
authorizing their exclusion from the country or their deportation after
they had been introduced. There is, however, one provision in section 2
of the law of 1903 which indicates that Congress contemplated the
deportation of aliens under the authority originally conferred by the
statute of 1888, and therefore did not intend to repeal in toto all of
the previously existing statutes on the subject of the immigration of
aliens. This is the provision denying admission to those who within one
year previously have been deported "as being under offers,
solicitations, promises, or agreements to perform labor or service of
some kind therein." If this clause had merely referred to persons
deported as being under contracts, promises, or agreements, it might be
referable solely to persons deported prior to the passage of this act;
but as prior to the passage of this act there was no provision for
excluding or deporting persons "under offers or solicitations" of labor,
and such persons could not have been previously deported, this phrase is
only explainable on the theory that Congress understood that persons
coming in pursuance of the offers or solicitations prohibited in section
4 of the act of 1903 were to be thereafter subject to deportation. The
force of any argument against the repeal, by implication, which can be
fairly drawn from the insertion of this provision is, however, seriously
weakened by the fact that the persons coming in pursuance of offers or
solicitations prohibited in section 4 of the act of 1903, but not
embraced under the terms of the act of 1885, in fact, were not made
subject to deportation by the first-mentioned act, although it is
possible, and even probable, that its framers thought they were.
Congress used no apt words to subject them to this penalty either in
section 2, or in section 4, or in any other section of the act in
question; and it may be not unreasonably held that the true inference
to be drawn from the provision in question was, not that Congress
intended to keep alive the statutes on the same subject previously
enacted, but that it passed the law of 1903 under a misapprehension as
to its legal effect. I should, therefore, find great difficulty in
escaping the conclusion that the provisions of law authorizing the
exclusion or deportation of aliens by reason of their coming to the
United States under contracts of employment had been repealed by the act
of 1903, if it were not that the question in dispute seems to have been
determined by judicial authority. This precise point was considered in
the deportation case of In re Ellis (124 Fed., 637), decided June 25,
1903, in which two aliens-- Ellis and Charalambis-- who had been denied
admission and who were held in custody by immigration authorities,
insisted that the act of 1903 had repealed, by implication, all previous
laws on the subject, and that there was no law then existing under which
they could be deported, although their passage had been paid by others
and they came here under contract to perform labor or service. Lacombe,
Circuit Judge, after reviewing the statutes and carefully analyzing the
act of 1903, held that while section 2 of the act of 1903 was
inconsistent with section 1 of the act of 1891 as to all items wherein
they differed, it did not operate to remove the barrier to the admission
of contract laborers under the contract labor laws. He further says (p.
641):
"But, as was pointed out in Holy Trinity Church v. United States (143
U.S., 459), in construing these statutes we are to get at the spirit of
the statute and the intention of its makers, however, inconsistent that
may be with the words used. * * *
"The act now under consideration originated in the House of
Representatives. When it came to the Senate there was, in the second
section (immediately after the clause 'persons who procure or attempt to
bring in prostitutes or women for the purpose of prostitution),' the
following:
'Persons whose migration has been induced by offers, solicitations,
promises, or agreements, parol or special, express or implied, of labor
or work or service of any kind, skilled or unskilled, in the United
States.' The Senate amended the House bill by striking out the clause
last above quoted, and in several other respects. The House
non-concurred in the Senate amendments, and the bill went to a
conference committee. The committee came into accord as to which
amendments should be accepted and which should be withdrawn. This
particular amendment was accepted. The House conferees reported to the
House that they 'have concurred in the Senate amendment (in line 19, p.
3, sec. 2) striking out the part of the bill relating particularly to
the contract labor law, leaving intact the contract labor laws
heretofore enacted and now on the statute books; the only variation
being that the words 'offers, solicitations, or promises' were
substituted for the word 'contracts.'" (Congressional Record, p. 3205.)
Judge Lacombe further held that these petitioners, although expert
accountants, were not within the excepted clauses. Both Ellis and
Charalambis appealed to the Supreme Court, but subsequently, on a
rehearing before the Commissioner of Immigration, the excluding order
was reversed-- upon what ground does not appear-- and the two appeals
were dismissed without decision by that court.
In a later case before the Circuit Court of Appeals for the Second
Circuit, in which the question was squarely involved, although not
discussed by the court or counsel, it seems to have been assumed by all
concerned that the exclusions contained in the contract-labor law were
not repealed by the act of 1903. This was the case of Pearson v.
Williams (136 Fed., 734), in which the aliens, who had arrived in 1904,
had been admitted to entry by the board of inquiry, but thereafter the
Secretary of Commerce and Labor had instituted new proceedings for a
retrial to ascertain whether they were here in violation of law as alien
contract laborers who had come here under a previous contract to perform
service, all the proceedings being had pursuant to the act of March 3,
1903.
The application of the contract-labor law apparently was not denied, the
only contention being that the decision of the board of inquiry was
final and that the Secretary of Commerce and Labor had no authority to
direct the retrial. It was held-- Judge Coxe dissenting-- that he had
such authority, and the petitioners were remanded to the custody of the
Commissioner of Immigration. On writs of certiorari, issued by the
Supreme court, the judgment of the Circuit Court of Appeals was
affirmed. In the opinion by Mr. Justice Holmes in Pearson v. Williams
(202 U.S., 281), after stating the facts that the petitioners had landed
on February 1, 1904, it is said that "the only question is whether the
Secretary had the right to direct the second hearing and to make the
order under section 21 of the act of March 3, 1903, chapter 1012, when
there had been an inquiry at the time of the petitioners' landing and a
decision in their favor under section 25." Apparently it was not
suggested either by the court or by counsel that the act of 1903 had
repealed the exclusions of the contract-labor law. While these
authorities are not, perhaps, so clearly decisive as to bind a court of
last resort in passing upon this question, nevertheless they seem to me
sufficient to fix the law for this Department, and I reach the
conclusion that the provisions of the several statutes authorizing the
exclusion or deportation of contract laborers were not repealed by the
act of 1903, and that immigrants coming under the prohibition of the act
of 1885 could have been, and should have been, excluded at the date of
the introduction of the aliens in question.
For the reasons above stated, I do not think, however, that there was
any authority of law to exclude aliens not coming within the terms of
the prohibition of the law of 1885, although covered by the broader
terms of the prohibition contained in section 4 of the act of 1903. We
are therefore referred to the original alien contract-labor law approved
February 26, 1885, as the test of the propriety of the introduction of
the aliens in question. The first section of that act, which is the part
material to this inquiry, is in the words following:
"That from and after the passage of this act it shall be unlawful for
any person, company, partnership, or corporation, in any manner
whatsoever, to prepay the transportation, or in any way assist or
encourage the importation or migration of any alien or aliens, any
foreigner or foreigners, into the United States, its Territories, or the
District of Columbia, under contract or agreement, parol or special,
express or implied, made previous to the importation or migration of
such alien or aliens, foreigner or foreigners, to perform labor or
service of any kind in the United States, its Territories, or the
District of Columbia."
It appears from decision No. 111, above mentioned, that the aliens in
question came to the United States at the suggestion and through the
instrumentality of one E. J. Watson, who had been appointed an officer
of the State of South Carolina under a statute which created a
commissioner of a State department of agriculture, commerce, and
immigration, and appropriated $2,000 to defray the expenses of the said
department. Section 8 of this act is as follows (Acts of S.C., 1904, p.
451):
"That the commissioner be empowered to make such arrangements with
oceanic and river steamship companies and immigration agencies in this
country and abroad as may best serve the interests of successful
immigration, the necessary expenditures being made within the annual
appropriation for the general expenses of this department: Provided,
however, Nothing herein shall forbid the commissioner acting without fee
as the agent of such citizens of the State, who, through the South
Carolina Immigration Association and the department, wish to meet excess
expenses of bringing desirable immigrants to their farm or other lands.
That in the discharge of these duties the commissioner, or such person
as he may select, is empowered to visit such immigration centers
whenever necessary to produce the best results."
Subsequently to the enactment of this law and the appointment of Mr.
Watson as commissioner, certain private parties made up a fund,
amounting to at least $30,000, which was placed in the hands of the
commissioner.
Provided with these resources he went abroad and, by advertisements and
otherwise, in various European countries, collected a considerable
number of laborers or artisans who were willing to migrate to South
Carolina. He prepaid the passage of these immigrants under an agreement,
which was afterwards canceled, that they should repay him the amount out
of their wages from employments he might secure for them, and entered
into an agreement with each of them, which is thus stated in decision
No. 111: "Before sailing, each of the laborers signed a paper
containing the scale of wages advertised as the prevailing rates paid in
South Carolina, Commissioner Watson on his part agreeing to find
employment for such emigrants at the rates stated. * * * The
commissioner was under no obligation to supply any particular laborer,
or any laborers at all, to an employer solely because he had contributed
to the immigration fund; and, * * * the immigrants themselves were free
to reject any particular offer of employment that might be made." This
is all the information laid before this Department as to the terms of
these agreements, and upon such information it is impossible to say that
the immigrants came within the prohibition of the act of 1885.
There are several Federal decisions to the effect that the contract
under such circumstances must be one having the enforceable elements of
a binding contract. The rule is probably more strongly stated in United
States v. Edgar (45 Fed., 44) than in any other case. In that case it is
said (p. 46):
"A contract that is not enforceable for the reason that it lacks some
of the elements of a valid agreement, such as 'mutual assent' or a
consideration, is not a contract. Hence the words 'contract or
agreement,' as used in the statute, must be held to mean a complete
contract; that is to say, an agreement entered into for a sufficient
consideration to perform some kind of labor or service, to the terms of
which the parties have mutually assented."
I can not see how this contract could have been enforced legally
against the immigrants.
If they were at liberty to reject any particular offer of employment
that might be made, their agreement to work for specified wages would
seem to have been nugatory and, in fact, meaningless. As is said by
Thayer, Judge, in the case lastly above cited: "If the aliens had in
fact landed in the United States, and had declined to work for the
defendant, the latter could not, in my judgment, have maintained an
action against them as for breach of a contract to perform labor or
service for him." It seems to me that this is equally true of the aliens
in question. A general promise to do work at a specified rate of
compensation (if, indeed, such was the purport of the contracts in
question, which is not clear) amounted to nothing practical if it were
coupled with an express reservation of the right to reject any
particular kind of employment which might be offered to them. It
amounted, in effect, to nothing more than a promise by the alien that he
would work for the wages mentioned if he felt like it, when he found out
what was to be required of him; and, as we are dealing with a highly
penal statute, one in evident derogation of common rights, I have no
hesitation in saying that these aliens do not appear to have been
brought within the terms of the law of 1885.
I am equally clear that the act of 1903 could be understood as
authorizing the exclusion of those aliens whose introduction to the
country was declared unlawful by section 4 of that act, these aliens
would have been liable to exclusion, for it is quite clear from the
statements in decision No. 111 that they did come in pursuance of an
offer and solicitation on the part of Mr. Watson; but, as hereinbefore
fully explained, I do not think the act of 1903 authorized the exclusion
of the aliens mentioned in section 4 of that act, in so far as that
section widened the scope of section 1 of the act of 1885.
It is proper for me to say that if the laborers in question had been
covered by the terms of the act of 1885, the fact that Mr. Watson was a
public officer of the State of South Carolina, and acted, or professed
to act, in pursuance of the authority conferred upon him by the law of
that State above quoted, would not have authorized the introduction of
the aliens.
In the first place, under the facts stated, in paying the passage money
he apparently did not act as commissioner for South Carolina, his duties
as commissioner including only the dissemination of information and work
of like character, but under the permission given by the South Carolina
statute to act, extra-officially, as it were, as the agent of the
citizens of the State who might contribute funds for the expenses of
bringing over immigrants, and the passage money of the immigrants must
undoubtedly have been paid, in large part, if not entirely out of the
$30,000 subscribed by the citizens of the State and not from the $2,000
expense money furnished by the State, which probably paid the
commissioner's salary.
But even if he had acted entirely as commissioner for the State and
paid the money out of the State treasury, the result would apparently be
the same. Only one exception is made in the contract-labor acts in favor
of States; that is the one contained in the act of 1891, and section 6
of the act of 1903 in reference to advertisements printed and published
in foreign countries stating the inducements they offer for immigration.
Under the statutes general advertisements of this character inserted by
the States are specifically permitted, but in the provisions both of the
original act of 1885 and under section 4 of the act of 1903, in dealing
with the prepayment of passage money or other specific assistance to the
migration of individual aliens, no exception is made in favor of States.
All "persons" are prohibited from such prepayment of passage or other
assistance, and there is no exception in favor of any person simply
because he may act as agent of a State. In view of this contrast, which
runs through all the labor laws, between general advertisements by
States on the one hand and specific dealings with individual immigrants
on the other, the specific exception made in favor of the State in the
one case emphasizes the fact that no such exception is to be implied in
the other case.
There can be no question, in view of the numerous decisions of the
Supreme Court on this subject, as to the right of Congress to regulate
the admission of aliens into the United States, whether as immigrants or
otherwise; nor yet of its right to exclude altogether any class of
aliens whose entrance into the country it might deem contrary to the
general welfare of the Union;
and it is equally clear that no action by any State, or by any officer
of a State, could operate to impair or nullify the effect of a law duly
enacted on this subject. Article I, section 9 of the Constitution
provides that "The migration or importation of such persons as any of
the States now existing shall think proper to admit, shall not be
prohibited by the Congress prior to the year 1808." This section of the
Constitution postponed until the date named the exercise of the full
power possessed by Congress over its subject-matter. As soon it had
accomplished its purpose, by securing for the period mentioned the
continuance of the importation of the classes of persons contemplated in
it, the authority of the Federal Government over the subject-matter
became complete, and from that time until the present it has been freely
exercised.
To avoid misconstruction, I add a few remarks on two subjects not
directly within the terms of the question submitted. The determination
of the existence of the facts justifying the exclusion of the immigrants
is in the first instance vested in the Secretary of Commerce and Labor.
I have treated the statements as to the circumstances attending the
introduction of these laborers, which are contained in the
above-mentioned decision No. 111, as constituting the equivalent of a
special finding of facts by that Department, and therefore as fixing the
conditions of the problem submitted to this Department.
Any question as to the propriety of the introduction of aliens under
the like circumstances hereafter would involve an examination of the
provisions on this subject contained in the act of Congress approved
February 20, 1907. Without entering into any discussion of this
question, it is sufficient for me to say that under the present law such
aliens, entering under the circumstances attending the introduction of
those above mentioned, would be unquestionably liable to exclusion, in
my opinion.
With respect to the statement contained in the letter of the
chairman, "if it please you to refer this question to the
Attorney-General, the committee directs me to suggest the propriety of
considering Commissioner Watson's second importation as well as the
first," I can only say that, as no facts in reference to this alleged
"second importation" have been furnished to the Department, it is
impossible for me to give an opinion regarding it.
I remain, sir,
Yours very respectfully,
CHARLES J. BONAPARTE.
LEGISLATIVE ASSEMBLY OF PORTO RICO-- CORPORATIONS; 26 Op.Att'y.Gen.
176, February 28, 1907
The legislative assembly of Porto Rico has authority to pass laws
setting forth the conditions under which domestic corporations may be
organized and foreign corporations may do business there, subject,
however, to the exceptions and restrictions contained in the organic act
of April 12, 1900 (31 Stat., 77, 83), and the joint resolution of May 1,
1900 (31 Stat., 715), in regard to franchises of a public or
quasi-public nature, including all railroad, street railway, telegraph,
and telephone franchises, privileges, or concessions.
DEPARTMENT OF JUSTICE,
February 28, 1907.
THE PRESIDENT.
SIR: I have the honor to acknowledge the receipt of your letter of
the 2d instant, inclosing one from the Secretary of State of the same
date, and asking my opinion upon the question whether the legislative
assembly of Porto Rico can properly pass laws setting forth the
conditions under which domestic corporations may be organized and
foreign corporations do business there, or whether such power on the
part of the assembly is excluded or denied by the grant of power to the
executive council by section 32 of the organic act (31 Stat., 77, 83),
and the joint resolution of May 1, 1900 (31 Stat., 715).
Section 32 of the act in question is as follows:
"That the legislative authority herein provided shall extend to all
matters of a legislative character not locally inapplicable, including
power to create, consolidate, and reorganize the municipalities, so far
as may be necessary, and to provide and repeal laws and ordinances
therefor; and also the power to alter, amend, modify, and repeal any
and all laws and ordinances of every character now in force in Porto
Rico, or any municipality or district thereof, not inconsistent with the
provisions hereof: Provided, however, That all grants of franchises,
rights, and privileges or concessions of a public or quasi-public nature
shall be made by the executive council, with the approval of the
governor, and all franchises granted in Porto Rico shall be reported to
Congress, which hereby reserves the power to annul or modify the same."
The joint resolution approved May 1, 1900, is in the words following:
"All railroad, street railway, telegraph and telephone franchises,
privileges, or concessions granted under section thirty-two of said act
shall be approved by the President of the United States, and no such
franchise, privilege, or concession shall be operative until it shall
have been so approved. (Sec. 2.)
"That all franchises, privileges, or concessions granted under
section thirty-two of said act shall provide that the same be subject to
amendment, alteration, or repeal; shall forbid the issue of stock or
bonds, except in exchange for actual cash, or property at a fair
valuation, equal in amount to the par value of the stock or bonds
issued; shall forbid the declaring of stock or bond dividends; and, in
the case of public-service corporations, shall provide for the effective
regulation of the charges thereof and for the purchase or taking by the
public authorities of their property at a fair and reasonable valuation.
No corporation shall be authorized to conduct the business of buying and
selling real estate or be permitted to hold or own real estate except
such as may be reasonably necessary to enable it to carry out the
purposes for which it was created, and every corporation hereafter
authorized to engage in agriculture shall by its charter be restricted
to the ownership and control of not to exceed five hundred acres of
land; and this provision shall be held to prevent any member of a
corporation engaged in agriculture from being in anywise interested in
any other corporation engaged in agriculture. Corporations, however,
may loan funds upon real-estate security, and purchase real estate when
necessary for the collection of loans, but they shall dispose of real
estate so obtained within five years after receiving the title.
Corporations not organized in Porto Rico, and doing business therein,
shall be bound by the provisions of this section so far as they are
applicable." (Sec. 3.)
There can be no doubt that the general grant of power to the
legislative assembly is broad enough to include the matters mentioned in
the letter from the Secretary of State, unless it is restricted by the
proviso that "all grants of franchises, rights and privileges or
concessions of a public or quasi-public nature shall be made by the
executive council."
This question is really a very narrow one and depends upon whether the
words "of a public or quasi-public nature" qualify "franchises" and
"rights" as well as "privileges or concessions," or are restricted in
their application to the last two substantives. The attorney-general of
Porto Rico, in a carefully prepared opinion which has received due
consideration, takes the latter view; but, with all respect to his
opinion, I am unable to reach the same conclusion. If all grants of
"franchises" must be made by the executive council, then all grants of
"rights" must also be made by the executive council, and it is hard to
conceive of any form of grant or even any form of legislative action
which would not confer "rights" of some sort. This construction would
therefore largely, if not altogether, nullify so much of the act as
confers legislative authority upon the assembly; and it seems to me
clearly inconsistent with the general purpose of the law, which was to
confer autonomy as to all matters of local interest upon Porto Rico.
The restrictions upon the powers of the local government contained in
the same act must be construed with reference to its general purpose.
This construction seems to me also consistent with the language of
the joint resolution. In that resolution certain "franchises,
privileges, or concessions" clearly of a "public or quasi-public nature"
are made, subject to the approval of the President, and then all
"franchises, privileges, or concessions granted under section thirty-two
of said act" are made subject to certain conditions; and further
conditions are imposed upon "public-service corporations," indicating
again the purpose of Congress to apply different rules of law to such
corporations from those made applicable to corporations generally.
Moreover, the act and resolution must be construed with reference to
the conditions existing at the time of their enactment. It is well known
that soon after the acquisition of Porto Rico, public attention was
attracted to the probability that American capitalists and promoters
might obtain opportunities for exploiting the resources of the island
with little regard to the permanent interests of its inhabitants.
It was, therefore, believed to be just and right that the people of the
island should be protected from the dangers of rapacity and of their own
inexperience, so far as their most important public interests were
concerned; and Congress accordingly, by section 32, placed in charge of
the executive council appointed by the President and by the joint
resolution, partly in the President himself, the control of franchises,
rights, and concessions of a public or quasi-public nature-- that is to
say, franchises, etc., concerning railroads, canals, and other things
involving duties and powers deemed to be of a governmental or
quasi-governmental nature.
In furtherance of this purpose restrictions have been imposed upon
the general grant of legislative power contained in section 32 of the
act, and further restrictions applicable to corporations constituting
public agencies and, in part, to all corporations, are contained in the
joint resolution; but, subject to these restrictions, full effect must
be given to the grant of legislative power, and it seems to me clear
that this includes authority to deal with the affairs of corporations
generally, subject only to the limitations expressly provided by
Congress. It is undoubtedly true, as stated by the attorney-general of
Porto Rico, that the grant of corporate rights in any form may be
described as the grant of a "franchise," but it is not necessarily the
grant of a franchise "of a public or quasi-public nature;" and in all
cases where the corporate powers conferred do not partake of that
nature, I consider that the subject-matter is within the legislative
authority of the assembly.
In my opinion, Congress has used apt words to give to the assembly
all the legislative power usually possessed by an American legislature,
such as those that have been set up in our Territories, with the
exceptions made by the grant to the council concerning public and
quasi-public franchises, etc., and by the restrictions upon corporate
authority contained in the joint resolution of May 1, 1900.
Respectfully,
CHARLES J. BONAPARTE.
CHEROKEE ENROLLMENT-- JOHN W. GLEESON; 26 Op.Att'y.Gen. 171,
February 26, 1907
John W. Gleeson, a white man, intermarried into the Cherokee Nation
in 1873, and his name appears on the Cherokee authenticated tribal roll
of 1880. He applied to the Commission to the Five Civilized Tribes in
1901 for enrollment, which application was finally denied February 9,
1907, upon the authority of the case of Red Bird v. United States (203
-.S., 76), he having abandoned his wife in 1878. Section 667 of the
Cherokee constitution also provides that every intermarried person who
abandons his wife shall thereby forfeit every right and privilege of
citizenship in that nation: Held, that the applicant was entitled to
enrollment under section 21 of the act of June 26, 1898 (30 Stat., 495,
502), which specifically directs the Commission "to enroll all persons
now living whose names are found on said roll."
The authority given the Commission in the act of June 26, 1898, to
eliminate from the tribal rolls those placed thereon by fraud or without
authority of law is expressly limited to "any other rolls," meaning any
other than the roll of 1880, which was confirmed.
The case of Red Bird (203 U.S., 76) distinguished.
DEPARTMENT OF JUSTICE,
February 26, 1907.
THE SECRETARY OF THE INTERIOR.
SIR: I beg to acknowledge the receipt of your letter of the 25th
instant, requesting my opinion upon the Cherokee enrollment case of John
W. Gleeson. It appears from the record in this case that Gleeson applied
to the Commission of the Five Civilized Tribes on February 21, 1901, to
be enrolled as a citizen by intermarriage in the Cherokee Nation. Upon
the testimony adduced before him at that time, Commissioner Needles
held:
"The name of John W. Gleeson appears upon the 1880 authenticated roll
as well as the census roll of 1896 as an intermarried citizen. He makes
satisfactory proof of his marriage to his wife, Clarry Crittendon, a
Cherokee citizen by blood, in the year 1873.
The testimony develops the fact that he separated from his wife after
living with her some three or four years, but that separation occurred
before 1880. Since 1880 he has never been remarried; consequently said
John W. Gleeson will be duly listed for enrollment as a Cherokee citizen
by intermarriage."
Some further testimony was taken in this case on October 15, 1902, by
which it appeared that Gleeson had lived in the Cherokee Nation all the
time since 1880.
January 17, 1907, this case appears to have been again taken up by
the Commissioner to the Five Civilized Tribes. At the hearing then had
the Cherokee Nation, by its attorney, introduced testimony tending to
show that Gleeson, after living with his wife two or three years, had
abandoned her. Gleeson, it appears, died November 30, 1903, bequeathing
all his property including the allotment in the Cherokee Nation, which
he had theretofore selected, to the Catholic Church at Moskogee.
On February 9, 1907, the Commissioner to the Five Civilized Tribes
rendered the following decision:
"The records of this office show: That at Muscogee, Indian
Territory, February 21, 1901, application was received by the Commission
to the Five Civilized Tribes, for the enrollment of John W. Gleeson as
a citizen by intermarriage of the Cherokee Nation. Further proceedings
in the matter of said application were had at Muscogee, Indian
Territory, October 15, 1902, and January 17, 1907.
"The evidence in this case shows: That the applicant herein, John W.
Gleeson, is a white man, and neither claims nor possesses any right to
enrollment as a citizen of the Cherokee Nation, other than such right as
he may have acquired by virtue of his marriage, January 21, 1873, to one
Katie Gleeson, nee Crittenden, who was at the time of said marriage a
recognized citizen by blood of the Cherokee Nation. Said Katie Gleeson
was a daughter of one Moses Crittenden, a native Cherokee, who is
identified on the Cherokee authenticated tribal roll of 1880, Goingsnake
district No. 331, marked 'dead.' The said Katie Gleeson can not be
identified on the Cherokee authenticated tribal roll of 1880.
It is further shown that about the year 1878 said John W. Gleeson
abandoned the said Katie Gleeson and thereafter refused to live with
her. Section 667 of the Cherokee constitution provides: 'Every person
who has lawfully married under the provisions of this act, and
afterwards abandons his wife, should thereby forfeit every right and
privilege of citizenship of this nation.'
"It is, therefore, ordered and adjudged: That in accordance with the
decision of the Supreme Court of the United States, dated November 5,
1906, in the case of Daniel Red Bird et al. v. The United States, Nos.
125, 126, 127, 128, the said applicant, John W. Gleeson, is not
entitled, under the provisions of section 21 of the act of Congress
approved June 28, 1898 (30 Stat., 495), to enrollment as a citizen by
intermarriage of the Cherokee Nation, and his application for enrollment
as such is accordingly denied."
In the case of Red Bird v. The United States (203 U.S., 76) the
Supreme Court affirmed the decree of the Court of Claims, which held
that white persons who intermarried in the Cherokee Nation prior to
November 1, 1875, were entitled to share in the distribution of the
tribal property and to be enrolled for such purpose. The Supreme Court
also affirmed that portion of the decree of the Court of Claims which
held that white men who, having intermarried Cherokee women,
subsequently abandoned their Cherokee wives were not entitled to
participate in the distribution of the tribal property or to be enrolled
for such purpose. It will be observed that the decision of the
Commissioner is based upon the fact, found by him, that Gleeson
abandoned his wife. The testimony is conflicting upon this point, but
the matter is immaterial from any point of view, because I think that,
under the law, the Commissioner had no authority to go behind the
Cherokee roll of 1880 upon which the name of Gleeson appeared.
Section 21 of the act of June 28, 1898 (30 Stat., 495, 502),
provides:
"That in making rolls of citizenship of the several tribes, as
required by law, the Commission to the Five Civilized Tribes is
authorized and directed to take the roll of Cherokee citizens of
eighteen hundred and eighty (not including freedmen) as the only roll
intended to be confirmed by this and preceding acts of Congress, and to
enroll all persons now living whose names are found on said roll, and
all descendants born since the date of said roll to persons whose names
are found thereon; and all persons who have been enrolled by the tribal
authorities who have heretofore made permanent settlement in the
Cherokee Nation whose parents, by reason of their Cherokee blood, have
been lawfully admitted to citizenship by the tribal authorities and who
were minors when their parents were so admitted; and they shall
investigate the right of all other persons whose names are found on any
other rolls and omit all such as may have been placed thereon by fraud
or without authority of law, enrolling only such as may have lawful
right thereto, and their descendants born since such rolls were made,
with such intermarried white persons as may be entitled to citizenship
under Cherokee laws."
It will be observed that the act of June 10, 1896, confirmed all the
rolls of citizenship of the several tribes as then existing, and that
the act of June 7, 1897, provided that the words "rolls of citizenship,"
as used in the act of June 10, 1896, should be construed to mean "the
last authenticated rolls of each tribe which have been approved by the
council of the nation, and the descendants of those appearing on such
rolls, and such additional names and their descendants as have been
subsequently added, either by the council of such nation, the duly
authorized courts thereof, or the Commission under the act of June
tenth, eighteen hundred and ninety-six."
The act of June 28, 1898, limits the confirmation of Congress to the
Cherokee roll of 1880, and specifically directs the Commission "to
enroll all persons now living whose names are found on said roll." The
authority given the Commission to eliminate from the tribal rolls those
placed thereon by fraud or without authority of law is also expressly
limited to "any other rolls," meaning any other than the roll of 1880,
which was confirmed.
It seems to me clear, therefore, that if due effect is to be given to
the language used by Congress in this act, the Commissioner was bound to
enroll Gleeson, since his name appeared on the Cherokee roll of 1880,
and he was a resident of the Nation at the time of the passage of the
act of June 28, 1898, as required therein.
In the Red Bird case the Supreme Court held that the confirmation
given to the roll of 1880 "was not intended to create any rights which
citizens of the Cherokee Nation had not before enjoyed, but merely to
furnish the basis for making up the roll of citizens." By this it
evidently meant that although a person was upon that roll he was not,
because of that fact alone, entitled to share in the distribution of the
tribal property. But where, as here, a person belonged to a class
entitled to share in the distribution of the tribal property, and the
only question was as to whether he had forfeited his citizenship, the
fact that his name appeared on such confirmed roll must be held to
remove that question from the realm of controversy, he being a resident
of the nation as required by the act of June 28, 1898. To hold that the
Commission could go behind the roll of 1880 and investigate the right to
citizenship of persons whose names appeared thereon would be to put that
roll on exactly the same footing as the other rolls of the tribe which
were not confirmed, but expressly left open to investigation.
As I understand it, that part of the decree of the Court of Claims in
the Red Bird case, affirmed by the Supreme Court, in regard to "married
out and abandoned whites" has no reference to a case of this kind.
I am therefore of the opinion that Gleeson was entitled to be
enrolled.
Respectfully,
CHARLES J. BONAPARTE.
TEA INSPECTION ACT-- FOOD AND DRUGS ACT-- CONSTRUCTION; 26 Op.
Att'y. Gen. 166, February 23, 1907
There is no such repugnancy between the special tea inspection act of
March 2, 1897 (29 Stat., 604), and the general food and drugs act of
June 30, 1906 (34 Stat., 768), as to prevent them, generally speaking,
from standing together.
The food and drugs act does not appear to have been intended as a
substitute for the earlier statute in the matter of the importation of
tea, but both statutes are cumulative in so far as the importation of
tea is concerned, and both should be given effect.
An importation of tea is, therefore, subject to the provisions of
both acts-- that is, it must comply with the standards established by
the Secretary of the Treasury under the tea inspection act, and must
also stand the tests in reference to adulteration and misbranding
imposed by the food and drugs act.
Imported tea, although meeting the requirements of the tea inspection
act of 1897, is still subject to the provisions of the good and drugs
act of 1906 regarding adulteration, labeling, misbranding, and guaranty.
In case of repugnancy between any specific provisions of the two
statutes, the provisions of the food and drugs act would prevail to the
extent of that repugnancy, and any conflicting provisions of the tea
inspection act would, to that extent, be impliedly repealed.
In the absence of an express repeal of an earlier statute by a later
one covering the same subject, effect should be given to both unless
there is a positive repugnance between them, in whole or in part, in
which case the earlier statute is repealed by implication to the extent
of such repugnancy, or unless the provisions of the latter statute cover
the whole subject of the earlier law and are plainly intended as a
substitute therefor, in which case there is likewise a repeal of the
earlier statute by implication.
DEPARTMENT OF JUSTICE,
February 23, 1907.
THE SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge receipt of your letter of
February 8 in reference to the tea inspection act of March 2, 1897, and
the food and drugs act of June 30, 1906, in which, as a preliminary to
your action upon certain cases arising out of the administration of the
laws governing the importation and examination of teas, you request my
opinion "upon the question of law whether the provisions of the food and
drugs act of June 30, 1906, regarding adulteration, labeling,
misbranding, and guaranty, are applicable to imported tea meeting the
requirements of the tea act of March 2, 1897."
The tea inspection act of 1897 is a special act, relating solely to
the importation of tea. It provides that the Secretary of the Treasury
shall annually appoint a board of tea experts, who shall prepare and
submit to him standard samples of tea, and that, upon the recommendation
of this board, he "shall fix and establish uniform standards of purity,
quality, and fitness for consumption of all kinds of teas imported into
the United States." It is made unlawful to import into the United States
any tea which is inferior to the standards so provided, and provision is
made for the examination of all imports of tea at the custom-house by an
examiner to determine their conformity to the standards so fixed, and
for re-examination by general appraisers in case of a protest against
the finding of an examiner. (29 Stat., 604.)
The food and drugs act of 1906, on the other hand, is a general act
relating to all adulterated or misbranded food or drugs and is not
limited in its prohibitions to the matter of their importation. It
defines specifically the various cases in which any food or drug shall
be deemed to be adulterated or misbranded, and makes it unlawful to
manufacture any such adulterated or misbranded food or drug in any
Territory or in the District of Columbia, or to introduce the same into
any State or Territory, or the District of Columbia, either through
interstate of foreign commerce, or to ship the same to any foreign
country. In addition to general authority given the Secretaries of the
Treasury, of Agriculture, and of Commerce and Labor, to make uniform
rules and regulations for carrying out the provisions of the act,
including the collection of specimens of food and drugs, for examination
in the Bureau of Chemistry of the Department of Agriculture, or under
its direction, it is provided, in reference to imports, that the
Secretary of Agriculture shall, upon his request, receive samples of
food and drugs being imported or offered for import, and that if upon
examination any of such articles appear to be adulterated or misbranded,
or otherwise dangerous to health, or of a kind forbidden entry or
restricted sale in the country of its manufacture or export, or
otherwise falsely labeled, it shall be refused admission into this
country. (34 Stat., 768.)
This food and drugs act contains no repealing clause whatever, and
does not refer to either the tea-inspection act or any of the other
earlier statutes regulating the admission of other food and drugs, such
as the act of June 26, 1848, providing for the examination at the
custom-house of drugs and medicines with reference to their quality,
purity, and fitness for medical purposes. (Rev. Stat., sec. 2933 et
seq.)
Comparing the tea inspection act and the food and drugs act, it will
be seen that not only is the one special and the other general, but
that, even in reference to the importation of teas, the tea inspection
act on the one hand contains no restrictions in reference to the
misbranding of teas, and on the other goes further than the food and
drugs act in regard to standards of admission, and authorizes the
Secretary of the Treasury to establish standards which are not limited
to the purity of the tea, but extend broadly to matters of quality and
fitness for consumption.
In Buttfield v. Stranahan (192 U.S., 470, 496), in which the
constitutionality of the tea inspection act was upheld, and in which the
importation was a pure green tea of low grade that had been rejected as
inferior to standard in cup quality alone, that is, in taste and flavor,
it was said that the statute, when properly construed, "expresses the
purpose to exclude the lowest grades of tea, whether demonstrably of
inferior purity, or unfit for consumption, or presumably so, because of
their inferior quality."
It thus appears that under the tea inspection act the Secretary of
the Treasury may prescribe a standard for the qualify of tea whose
effect will be to exclude from admission tea which, although in no wise
adulterated or misbranded within the meaning of the food and drugs act,
is, nevertheless, of such inferior quality as, in his opinion, to
require exclusion, while, on the contrary, importation of teas may fall
within the prohibition of the food and drugs act, as being deemed either
adulterated or misbranded within the meaning of the food and drugs act,
although fully complying with the standards of admission that may be
established by the Secretary of the Treasury.
The question then arises as to what extent, if any, these two acts
can stand together. In the absence of an express repeal of an earlier
statute by a later one covering the same subject, the rule is well
settled that, as repeals by implication are not favored, effect shall be
given to both statutes, unless there is a positive repugnancy between
them, in whole or in part, in which case the earlier statute is repealed
by implication to the extent of such repugnance; or, unless the
provisions of the later statute cover the whole subject-matter of the
earlier and are plainly intended as a substitute therefor, in which case
there is likewise a repeal of the earlier statute by implication. (Wood
v. United States, 16 Pet., 342; Daviess v. Fairbairn, 3 How., 636;
United States v. Tynen, 11 Wall., 88; Henderson's Tobacco, 11 Wall.,
652; State v. Stoll, 17 Wall., 425; Fabbri v. Murphy, 95 U.S., 191;
Ex parte Crow Dog, 109 U.S., 556; Chew Hoeng v. United States, 112,
U.S., 536.)
In Wood v. United States, 16 Pet., 342, 362, it is said, in reference
to the question of the repeal of an earlier statute by implication: "It
is not sufficient * * * that subsequent laws cover some or even all of
the cases provided for by it; for they may be merely affirmative, or
cumulative, or auxiliary." And in State v. Stoll (17 Wall., 425, 431)
the rule is thus stated: "If, by any reasonable construction, the two
statutes can stand together, they must so stand. If harmony is
impossible, and only in that event, the former law is repealed in part
or wholly, as the case may be."
Further, in Ex parte Crow Dog (109 U.S., 556, 570), it is said, in
reference to the rule that a later general act is not to be construed as
repealing a previous special act, except by express provision or
positive repugnancy:
"The rule is generalia specialibus non derogant. 'The general
principle to be applied,' said Bovill, C. J., in Thorpe v. Adams (L.R.
6 C.P., 135), 'to the construction of acts of Parliament is that a
general act is not to be construed to repeal a previous particular act,
unless there is some express reference to the previous legislation on
the subject, or unless there is a necessary inconsistency in the two
acts standing together.'
'And the reason is,' said Wood, V. C., in Fitzgerald v. Champenys (30
L.J.N.S.Eq., 782; 2 Johns & Hem., 31-54), 'that the legislature having
had its attention directed to a special subject, and having observed all
the circumstances of the case and provided for them, does not intend by
a general enactment afterwards to derogate from its own act when it
makes no special mention of its intention so to do.'"
Applying these principles of construction to the two acts in
question, I am of the opinion that there is no such repugnancy between
the special tea-inspection act of 1897 and the general food and drugs
act of 1906 as to prevent them, generally speaking, from standing
together; that the provisions of the tea-inspection act cover in
respect to the importation of tea matters not embraced within the food
and drugs act, while the food and drugs act in turn imposes restrictions
upon the importation of all food and drugs, including tea, which are not
necessarily embraced in the tea-inspection act; that the food and drugs
act does not plainly appear to have been intended as a substitute for
the earlier statute in the matter of the importation of tea; but that,
generally speaking, the two statutes are cumulative in so far as the
importation of tea is concerned and should both be given effect; and
hence, that an importation of tea is now subject to the provisions of
both of these acts, that is to say, it must comply with the standards
established by the Secretary of the Treasury under the tea-inspection
act and must also stand the tests in reference to adulteration and
misbranding imposed by the food and drugs act. I am therefore of the
opinion, to reply specifically to your question, that imported tea,
although meeting the requirements of the tea-inspection act of 1897, is
still subject to the provisions of the food and drugs act regarding
adulteration, labeling, misbranding, and guaranty.
It, of course, follows from what has been said that, if in the
administration of these laws there should develop a repugnancy between
any specific provisions of the two statutes, to the extent of such
repugnancy the provisions of the food and drugs act would prevail, and
any conflicting provisions of the tea-inspection act would, to such
extent, be impliedly repealed.
Respectfully,
CHARLES J. BONAPARTE.
CHOCTAW CITIZENSHIP CASES-- CITIZENSHIP COURT-- FINALITY OF JUDGMENT;
26 Op.Att'y.Gen. 127, February 19, 1907
Myrtie Randolph and W. J. Thompson were children of a white father by
his third wife, a white woman, his first and second wives having been
Choctaws. Both parents and these children lived in the Choctaw Nation
and were recognized and regarded as Choctaw citizens. The children were
enrolled by the Choctaw Committee on Citizenship in 1892. Their
application to the Commission to the Five Civilized Tribes for
enrollment under the act of June 10, 1896 (29 Stat., 321, 339), was
denied, which decision was reversed by the United States court in the
Indian Territory, and its judgment affirmed by the Supreme Court. (174
U.S., 445, 469.) Subsequently, on appeal by the Nation under the act of
July 1, 1902 (32 Stat., 641, 646-649), their application was denied by
the Choctaw and Chickasaw Citizenship Court. Held, that the citizenship
court had jurisdiction and that its judgment is final.
The application for enrollment under the act of June 10, 1896 (29
Stat., 339), notwithstanding the fact that applicants were already on
the rolls, was a waiver of the conclusiveness of the rolls in their
cases, the act providing that the Commission shall hear and determine
the application of all persons who may apply to them for citizenship in
any of said nations.
The act of July 1, 1902 (32 Stat., 641), contemplated that the
Citizenship Court should have a revisory jurisdiction of all judgments
of the United States courts in the Indian Territory admitting persons to
citizenship on appeal from the judgments of the Commission, whether the
applicants were on the tribal rolls or not.
No authority has been conferred upon the Secretary of the Interior by
the acts of July 1, 1902, paragraph 30 (32 Stat., 646), and April 26,
1906 (34 Stat., 137), to review the judgments of the Citizenship Court.
Cyrus H. Kingsbury and Lucy E. Littlepage, children of white parents
who had become affiliated with the Choctaw Nation by an act of the
Choctaw council, and thereby granted all rights, privileges, and
immunities of Choctaw citizens, were born in the Choctaw Nation, have
always resided there as its recognized citizens, and their names appear
upon various tribal rolls. They applied to the Commission to the Five
Civilized Tribes under the act of June 10, 1896 (29 Stat., 321, 339) and
were enrolled, and no appeal was taken by the nation.
Held, that they are clearly entitled to enrollment.
The only names which the act of June 28, 1898, section 21 (30 Stat.,
495, 502-503), declares shall be eliminated from the tribal rolls are
those placed thereon by fraud or without authority of law.
Since 1875 the Choctaw Nation never intended that a white person
intermarrying into the tribe should have power to confer citizenship
upon his children by a subsequent marriage to other than a citizen by
blood, but this does not apply where both parents have been adopted into
the tribe.
Loula West was admitted to citizenship in the Choctaw Nation by the
Commission to the Five Civilized Tribes. The nation appealed to the
United States courts in the Indian Territory and the judgment was
affirmed. Later, under the act of July 1, 1902 (32 Stat., 641, 647), the
case was removed to the Citizenship Court had jurisdiction of such
cases, and its judgments therein are final.
William C. Thompson applied to the Commission to the Five Civilized
Tribes for the enrollment of himself, wife, and children. The
application was denied by the Commission, and no appeal was taken
therefrom. Claimant relies upon the fact that their names appear upon
the tribal roll prepared pursuant to the Choctaw acts of September 18
and October 30, 1896. Held, that the action of the Commission, not
having been appealed from, was final, and that the Choctaw Nation, even
if it attempted to do so, had no right thereafter to admit them, such
enrollment being without authority of law.
The provision in the act of June 10, 1896 (29 Stat., 339), that "any
person who shall claim to be entitled to be added to said rolls as a
citizen of either of said tribes and whose right thereto has either been
denied or not acted upon" might apply to the legally constituted court
or committee of such tribes, with right of appeal to the United States
court, had reference to a previous denial or failure of the tribal
authorities to act, and not to action or nonaction of the Commission.
Richard B. Coleman and children were admitted to citizenship in the
Choctaw Nation by an act of the general council of the nation, which the
record of the case shows was procured by fraud, and the Commission held
that they had no right to disregard this act of the council. Held, that
their names should be stricken from the rolls.
Ethel Pierson's case. The children of Choctaw freedmen who were
minors living March 4, 1906, are entitled to enrollment.
DEPARTMENT OF JUSTICE,
February 19, 1907.
THE SECRETARY OF THE INTERIOR.
SIR: I have the honor to communicate to you my opinion in certain
Choctaw Indian citizenship cases, the first two submitted by your letter
of May 29, 1906, and the others by the direction of the President under
date of January 19, 1907.
1. The first case is that of Myrtie Randolph and her brother, W. J.
Thompson, in regard to which you say:
"Myrtie Randolph and W. J. Thompson are children of Giles Thompson,
white, intermarried in the Choctaw Nation in Mississippi prior to the
treaty of September 27, 1830 (7 Stat., 333), and was one of the parties
named by supplementary Article II (ib. 340) as entitled to a section and
a half, reserved to him from the ceded lands, to be so selected as 'to
include their present residence and improvement.' His first and second
wives were Choctaws. His name appears on page 64, volume 7, American
State Papers (Public Lands), as a beneficiary of Article XIX of the
treaty of September 27, 1830, and on page 28, volume 1, of the record in
suit of the Choctaw Nation v. United States, Court of Claims. He was
registered under the treaty as citizen of the Choctaw Nation,
Mushulatubbee's District, and with his family was transported under the
treaty as Choctaws, at expense of the United States, from Mississippi to
the Choctaw Nation, west, prior to October 24, 1833, when he petitioned
the President, from Doakesville, near the Red River, in the southern
part of the Choctaw Nation, to approve sale of his Mississippi lands to
James Gay, of Mississippi, and for issue of patent therefor (copy A
inclosed). In the Choctaw Nation, west, in Indian Territory, in 1863, in
accordance to Choctaw law, he married a white woman, citizen of the
United States, of whom the applicants were born. He was living October
19, 1865, and was paid by the Choctaw Nation for beeves furnished June,
1865. (Copy of act council of October 19, 1865, is inclosed, B.) He
continued to live in the nation, and was recognized as a citizen until
his death, aged 76 years, and his estate was administered in the Choctaw
courts as that of an Indian and within their jurisdiction. The
applicants, his children, were born in the Choctaw Nation, were admitted
to and attended the Choctaw schools as Choctaws, and in all respects
enjoyed and were accorded the privileges of native-born Choctaws. The
applicants were enrolled by Choctaw Committee on Citizenship in 1892 as
Choctaw citizens.
The Department is not yet advised whether they are borne on any other of
the Choctaw rolls. They settled and improved tribal lands, as the father
before had done in Mississippi, as Choctaws, erected homes, and were
never ousted or objected to or regarded as intruders.
"September 8, 1896, these applicants and others applied to the
Commission to the Five Civilized Tribes for enrollment under the act of
June 10, 1896 (29 Stat., 321, 339), and December 7, 1896, were denied.
Applicants appealed to the United States court, southern district,
Indian Territory, which, January 18, 1898, reversed the Commission and
admitted the applicants. From this judgment the nation appealed and the
judgment was affirmed (reported as Stephens v. Cherokee Nation and
Choctaw Nation v. Robinson, 174 U.S., 445, foot note page 469, case No.
589; Same v. Randolph et al.). Subsequently, under the act of July 1,
1902 (32 Stat., 641, 646-9), the matter was brought by appeal of the
nations to the Choctaw-Chickasaw Citizenship Court, which, November 29,
1904, denied the application-- copy of opinion therein, and in Wall v.
Choctaw Nation et al., and in E. H. Bounds v. Choctaw and Chickasaw
Nations, whereon both were founded, are inclosed (C, D, E)."
The validity and finality of the citizenship court are therefore a
vital feature of this case. In regard to its judgment you say in your
letter:
"Bearing upon the validity of this judgment, your attention is called
to the fact that the act of June 10, 1896, gave no power to the
Commission to the Five Civilized Tribes to purge the tribal rolls, which
were by the act confirmed. Power to purge the rolls were first conferred
on the Commission by the act of June 7, 1897 (30 Stat., 84), and further
by section 21, act of June 28, 1898 (30 Stat., 495, 502). Wherefore
this Department holds that no jurisdiction was given the Commission, or
to the courts on appeal therefrom, to exclude persons having tribal
recognition and borne on the tribal rolls, but that such persons,
notwithstanding prior adverse action by the Commission or the courts,
are entitled to enrollment under the act of 1898 and supplementary acts,
unless their inscription on the tribal rolls was procured by fraud or
was without authority of law. Such has been the rule of this Department
since decision in the case of Wiley Adams, May 21, 1903, discussed and
concurred in by the Assistant Attorney-General, Interior Department
(Opinions of March 24, 1905), in cases of Benjamin J. Vaughn and Mary
Elizabeth Martin.
In Vaughn's case counsel for the nations acceded to it as the proper
rule."
To determine the validity and the finality of the judgment of the
Citizenship court, as well as other questions arising in these cases, it
is necessary to consider carefully the entire legislation of the
Congress on this subject.
The act June 10, 1896 (29 Stat., 321, 339), directed the Commission
to the Five Civilized Tribes in the Indian Territory to continue the
exercise of the authority theretofore conferred upon them to negotiate
with such tribes for the extinguishment of the tribal title to their
lands, by the cession of the same or a part thereof to the United
States, or their allotment in severalty to the members of such tribes,
with a view to the ultimate creation of a State or States embracing such
lands.
That act also provided--
"That said Commission is further authorized and directed to proceed
at once to hear and determine the application of all persons who may
apply to them for citizenship in any of said nations, and after such
hearing they shall determine the right of such applicant to be so
admitted and enrolled: Provided, however, That such application shall
be made to such Commissioners within three months after the passage of
this Act. The said Commission shall decide all such applications within
ninety days after the same shall be made. That in determining all such
applications said commission shall respect all laws of the several
nations or tribes, not inconsistent with the laws of the United States,
and all treaties with either of said nations or tribes, and shall give
due force and effect to the rolls, usages, and customs of each of said
nations or tribes: And provided, further, That the rolls of citizenship
of the several tribes as now existing are hereby confirmed, and any
person who shall claim to be entitled to be added to said rolls as a
citizen of either of said tribes and whose right thereto has either been
denied or not acted upon,
or any citizen who may within three months from and after the passage of
this Act desire such citizenship, may apply to the legally constituted
court or committee designated by the several tribes for such
citizenship, and such court or committee shall determine such
application within thirty days from the date thereof.
"In the performance of such duties said Commission shall have power
and authority to administer oaths, to issue process for and compel the
attendance of witnesses, and to send for persons and papers, and all
depositions and affidavits and other evidence in any form whatsoever
heretofore taken where the witnesses giving said testimony are dead or
now residing beyond the limits of said Territory, and to use every fair
and reasonable means within their reach for the purpose of determining
the rights of persons claiming such citizenship, or to protect any of
said nations from fraud or wrong, and the rolls so prepared by them
shall be hereafter held and considered to be the true and correct rolls
of persons entitled to the rights of citizenship in said several tribes:
Provided, That if the tribe, or any person, be aggrieved with the
decision of the tribal authorities or the commission provided for in
this Act, it or he may appeal from such decision to the United States
district court: Provided, however, That the appeal shall be taken
within sixty days, and the judgment of the court shall be final.
"That the said Commission, after the expiration of six months, shall
cause a complete roll of citizenship of each of said nations to be made
up from their records, and add thereto the names of citizens whose right
may be conferred under this Act, and said rolls shall be, and are
hereby, made rolls of citizenship of said nations or tribes, subject,
however, to the determination of the United States courts, as provided
herein.
"The Commission is hereby required to file the lists of members as
they finally approve them with the Commissioner of Indian Affairs to
remain there for use as the final judgment of the duly constituted
authorities."
The act of June 7, 1897 (30 Stat., 62, 84), contained this provision:
"That said Commission shall continue to exercise all authority
heretofore conferred on it by law to negotiate with the Five Tribes, and
any agreement made by it with any one of said tribes, when ratified,
shall operate to suspend any provisions of this Act if in conflict
therewith as to said nation: Provided, That the words 'rolls of
citizenship,' as used in the Act of June tenth, eighteen hundred and
ninety-six, making appropriations for current and contingent expenses of
the Indian Department and fulfilling treaty stipulations with various
Indian tribes for the fiscal year ending June thirtieth, eighteen
hundred and ninety-seven, shall be construed to mean the last
authenticated rolls of each tribe which have been approved by the
council of the nation, and the descendants of those appearing on such
rolls, and such additional names and their descendants as have been
subsequently added, either by the council of such nation, the duly
authorized courts thereof, or the Commission under the act of June
tenth, eighteen hundred and ninety-six. And all other names appearing
upon such rolls shall be open to investigation by such Commission for a
period of six months after the passage of this Act. And any name
appearing on such rolls and not confirmed by the Act of June tenth,
eighteen hundred and ninety-six, as herein construed, may be stricken
therefrom by such Commission where the party affected shall have ten
days' previous notice that said Commission will investigate and
determine the right of such party to remain upon such roll as a citizen
of such nation: Provided, also, That any one whose name shall be
stricken from the roll by such Commission shall have the right of
appeal, as provided in the Act of June tenth, eighteen hundred and
ninety-six."
The act of June 28, 1898 (30 Stat., 495, 502-3), provided:
"SEC. 21. That in making rolls of citizenship of the several tribes,
as required by law, the Commission to the Five Civilized Tribes is
authorized and directed to take the roll of Cherokee citizens of
eighteen hundred and eighty (not including freedmen) as the only roll
intended to be confirmed by this and preceding Acts of Congress, and to
enroll all persons now living whose names are found on said roll, and
all descendants born since the date of said roll to persons whose names
are found thereon;
and all persons who have been enrolled by the tribal authorities who
have heretofore made permanent settlement in the Cherokee Nation whose
parents, by reason of their Cherokee blood, have been lawfully admitted
to citizenship by the tribal authorities, and who were minors when their
parents were so admitted; and they shall investigate the right of all
other persons whose names are found on any other rolls and omit all such
as may have been placed thereon by fraud or without authority of law,
enrolling only such as may have lawful right thereto, and their
descendants born since such rolls were made, with such inter-married
white persons as may be entitled to citizenship under Cherokee laws.
"Said Commission is authorized and directed to make correct rolls of
the citizens by blood of all the other tribes, eliminating from the
tribal rolls such names as may have been placed thereon by fraud or
without authority of law, enrolling such only as may have lawful right
thereto, and their descendants born since such rolls were made, with
such intermarried white persons as may be entitled to Choctaw and
Chickasaw citizenship under the treaties and the laws of said tribes.
"The rolls so made, when approved by the Secretary of the Interior,
shall be final, and the persons whose names are found thereon, with
their descendants thereafter born to them, with such persons as may
intermarry according to tribal laws, shall alone constitute the several
tribes which they represent."
The act of May 31, 1900 (31 Stat., 221, 236), provided:
"That said Commission shall continue to exercise all authority
heretofore conferred upon it by law. But it shall not receive, consider,
or make any record of any application of any person for enrollment as a
member of any tribe in Indian Territory who has not been a recognized
citizen thereof, and duly and lawfully enrolled or admitted as such, and
its refusal of such application shall be final when approved by the
Secretary of the Interior."
The act of March 3, 1901 (31 Stat., 1058, 1077), contained this
provision:
"The rolls made by the Commission to the Five Civilized Tribes, when
approved by the Secretary of the Interior, shall be final, and the
persons whose names are found thereon shall alone constitute the several
tribes which they represent; and the Secretary of the Interior is
authorized and directed to fix a time by agreement with said tribes or
either of them for closing said rolls, but upon failure or refusal of
said tribes or any of them to agree thereto, then the Secretary of the
Interior shall fix a time for closing said rolls, after which no name
shall be added thereto."
The act of July 1, 1902 (32 Stat. 641), ratified an agreement made by
the Commission to the Five Civilized Tribes with the Commission
representing the Choctaw and Chickasaw tribes. This agreement was
subsequently ratified by those two nations as required therein. In
regard to rolls of citizenship it provided:
"27. The rolls of the Choctaw and Chickasaw citizens and Choctaw and
Chickasaw freedmen shall be made by the Commission to the Five Civilized
Tribes, in strict compliance with the act of Congress approved June 28,
1898 (30 Stat., 495), and the act of Congress approved May 31, 1900 (31
Stat., 221), except as herein otherwise provided: Provided, That no
person claiming right to enrollment and allotment and distribution of
tribal property, by virtue of a judgment of the United States court in
the Indian Territory under the act of June 10, 1896 (29 Stat., 321), and
which right is contested by legal proceedings instituted under the
provisions of this agreement, shall be enrolled or receive allotment of
lands or distribution of tribal property until his right thereto has
been finally determined.
"28. The names of all persons living on the date of the final
ratification of this agreement entitled to be enrolled as provided in
section 27 hereof shall be placed upon the rolls made by said
Commission; and no child born thereafter to a citizen or freedom and no
person intermarried thereafter to a citizen shall be entitled to
enrollment or to participate in the distribution of the tribal property
of the Choctaws and Chickasaws.
"29. No person whose name appears upon the rolls made by the
Commission to the Five Civilized Tribes as a citizen or freedman of any
other tribe shall be enrolled as a citizen or freedman of the Choctaw or
Chickasaw nations.
"30. For the purpose of expediting the enrollment of the Choctaw and
Chickasaw citizens and Choctaw and Chickasaw freedmen, the said
Commission shall, from time to time, and as early as practicable,
forward to the Secretary of the Interior lists upon which shall be
placed the names of those persons found by the Commission to be entitled
to enrollment. The lists thus prepared, when approved by the Secretary
of the Interior, shall constitute a part and parcel of the final rolls
of citizens of the Choctaw and Chickasaw tribes and of Choctaw and
Chickasaw freedmen, upon which allotment of land and distribution of
other tribal property shall be made as herein provided. Lists shall be
made up and forwarded when contests of whatever character shall have
been determined, and when there shall have been submitted to and
approved by the Secretary of the Interior lists embracing names of all
those lawfully entitled to enrollment, the rolls shall be deemed
complete. The rolls so prepared shall be made in quintuplicate, one to
be deposited with the Secretary of the Interior, one with the
Commissioner of Indian Affairs, one with the principal chief of the
Choctaw Nation, one with the governor of the Chickasaw Nation, and one
to remain with the Commission to the Five Civilized Tribes.
"31. It being claimed and insisted by the Choctaw and Chickasaw
nations that the United States courts in the Indian Territory, acting
under the Act of Congress approved J4ne 10, 1896, have admitted persons
to citizenship or to enrollment as such citizens in the Choctaw and
Chickasaw nations, respectively, without notice of the proceedings in
such courts being given to each of said nations; and it being insisted
by said nations that, in such proceedings, notice to each of said
nations was indispensable, and it being claimed and insisted by said
nations that the proceeding in the United States courts in the Indian
Territory, under the said Act of June 10, 1896, should have been
confined to a review of the action of the Commission to the Five
Civilized Tribes, upon the papers and evidence submitted to such
commission, and should not have extended to a trial de novo of the
question of citizenship;
and it being desirable to finally determine these questions, the two
nations, jointly, or either of said nations acting separately and making
the other a party defendant, may, within 90 days after this agreement
becomes effective, by a bill in equity filed in the Choctaw and
Chickasaw citizenship court hereinafter named, seek the annulment and
vacation of all such decisions by said courts. Ten persons to admitted
to citizenship or enrollment by said courts, with notice to one but not
to both of said nations, shall be made defendants to said suit as
representatives of the entire class of persons similarly situated, the
number of such persons being too numerous to require all of them to be
made individual parties to the suit; but any person so situated may,
upon his application, be made a party defendant to the suit. Notice of
the institution of said suit shall be personally served upon the chief
executive of the defendant nation, if either nation be made a party
defendant as aforesaid, and upon each of said ten representative
defendants, and shall also be published for a period of four weeks in at
least two weekly newspapers having general circulation in the Choctaw
and Chickasaw nations. Such notice shall set forth the nature and prayer
of the bill, with the time for answering the same, which shall not be
less than thirty days after the last publication. Said suit shall be
determined at the earliest practicable time, shall be confined to a
final determination of the questions of law here named, and shall be
without prejudice to the determination of any charge or claim that the
admission of such persons to citizenship or enrollment by said United
States courts in the Indian Territory was wrongfully obtained as
provided in the next section. In the event said citizenship judgments or
decisions are annulled or vacated in the test suit hereinbefore
authorized, because of either or both of the irregularities claimed and
insisted upon by said nations as aforesaid, then the files, papers and
proceedings in any citizenship case in which the judgment or decision is
so annulled or vacated, shall, upon written application therefor, made
within ninety days thereafter by any party thereto,
who is thus deprived of a favorable judgment upon his claimed
citizenship court by the court having custody and control of such files,
papers and proceedings, and, upon the filing in such citizenship court
of the files, papers and proceedings in any such citizenship case,
accompanied by due proof that notice in writing of the transfer and
certification thereof has been given to the chief executive officer of
each of said nations, said citizenship case shall be docketed in said
citizenship court, and such further proceedings shall be had therein in
that court as ought to have been had in the court to which the same was
taken on appeal from the Commission to the Five Civilized Tribes, and as
if no judgment or decision had been rendered therein.
"32. Said citizenship court shall also have appellate jurisdiction
over all judgments of the courts in Indian Territory rendered under said
Act of Congress of June tenth, eighteen hundred and ninety-six,
admitting persons to citizenship or to enrollment as citizens in either
of said nations. The right of appeal may be exercised by the said
nations jointly or by either of them acting separately at any time
within six months after this agreement is finally ratified. In the
exercise of such appellate jurisdiction said citizenship court shall be
authorized to consider, review, and revise all such judgments, both as
to findings of fact and conclusions of law, and may, whenever in its
judgment substantial justice will thereby be subserved, permit either
party to any such appeal to take and present such further evidence as
may be necessary to enable said court to determine the very right of the
controversy. And said court shall have power to make all needful rules
and regulations prescribing the manner of taking and conducting said
appeals and of taking additional evidence therein. Such citizenship
court shall also have like appellate jurisdiction and authority over
judgments rendered by such courts under the said act denying claims to
citizenship or to enrollment as citizens in either of said nations. Such
appeals shall be taken within the time hereinbefore specified and shall
be taken, conducted and disposed of in the same manner as appeals by the
said nations, save that notice of appeals by citizenship claimants shall
be served upon the chief executive officer of both nations:
Provided, That paragraphs thirty-one, thirty-two and thirty-three hereof
shall go into effect immediately after the passage of this Act by
Congress.
"33. A court is hereby created to be known as the Choctaw and
Chickasaw citizenship court, the existence of which shall terminate upon
the final determination of the suits and proceedings named in the last
two preceding sections, but in no event later than the thirty-first day
of December, nineteen hundred and three. Said court shall have all
authority and power necessary to the hearing and determination of the
suits and proceedings so committed to its jurisdiction, including the
authority to issue and enforce all requisite writs, process and orders,
and to prescribe rules and regulations for the transaction of its
business. It shall also have all the power of a circuit court of the
United States in compelling the production of books, papers and
documents, the attendance of witnesses, and in punishing contempt.
"Except where herein otherwise expressly provided, the pleadings,
practice and proceedings in said court shall conform, as near as may be,
to the pleadings, practice and proceedings in equity causes in the
circuit courts of the United States. The testimony shall be taken in
court or before one of the judges, so far as practicable. Each judge
shall be authorized to grant, in vacation or recess, interlocutory
orders and to hear and dispose of interlocutory motions not affecting
the substantial merits of the case. Said court shall have a chief judge
and two associate judges, a clerk, a stenographer, who shall be deputy
clerk, and a bailiff. The judges shall be appointed by the President, by
and with the advice and consent of the Senate, and shall each receive a
compensation of five thousand dollars per annum, and his necessary and
actual traveling and personal expenses while engaged in the performance
of his duties. The clerk, stenographer, and bailiff shall be appointed
by the judges, or a majority of them, and shall receive the following
yearly compensation: Clerk, two thousand four hundred dollars;
stenographer, twelve hundred dollars; bailiff, nine hundred dollars.
The compensation of all these officers shall be paid by the United
States in monthly installments.
The moneys to pay said compensation are hereby appropriated, and there
is also appropriated the sum of five thousand dollars, or so much
thereof as may be necessary, to be expended under the direction of the
Secretary of the Interior, to pay such contingent expenses of said court
and its officers as to such Secretary may seem proper. Said court shall
have a seal, shall sit at such place or places in the Choctaw and
Chickasaw nations as the judges may designate, and shall hold public
sessions, beginning the first Monday in each month, so far as may be
practicable or necessary. Each judge and the clerk and deputy clerk
shall be authorized to administer oaths. All writs and process issued by
said court shall be served by the United States marshal for the district
in which the service is to be had. The fees for serving process and the
fees of witnesses shall be paid by the party at whose instance such
process is issued or such witnesses are subpoenaed, and the rate or
amount of such fees shall be the same as is allowed in civil causes in
the circuit court of the United States for the western district of
Arkansas. No fees shall be charged by the clerk or other officers of
said court. The clerk of the United States court in Indian Territory,
having custody and control of the files, papers, and proceedings in the
original citizenship cases, shall receive a fee of two dollars and fifty
cents for transferring and certifying to the citizenship court the
files, papers, and proceedings in each case, without regard to the
number of persons whose citizenship is involved therein, and said fee
shall be paid by the person applying for such transfer and
certification. The judgment of the citizenship court in any or all of
the suits or proceedings so committed to its jurisdiction shall be
final. All expenses necessary to the proper conduct, on behalf of the
nations, of the suits and proceedings provided for in this and the two
preceding sections shall be incurred under the direction of the
executives of the two nations, and the Secretary of the Interior is
hereby authorized, upon certificate of said executives, to pay such
expenses as in his judgment are reasonable and necessary out of any of
the joint funds of said nations in the Treasury of the United States."
It appears that the agreement in these paragraphs provides for the
establishment of the Choctaw and Chickasaw Citizenship Court, and gives
it jurisdiction of a test suit to annul and vacate the decisions of the
United States courts in the Indian Territory admitting persons to
citizenship and enrollment as citizens of the Choctaw and Chickasaw
nations, respectively, on the ground of want of notice to both of said
nations and because the United States courts tried such cases de novo,
with a right, in the event such judgments should be annulled because of
either or both of the irregularities mentioned on the part of any party
thus deprived of a favorable judgment to remove his case to the
Citizenship court, where such further proceedings were to be had therein
"as ought to have been had in the court to which the same was taken on
appeal from the Commission to the Five Civilized Tribes, and if no
judgment or decision had been rendered therein;" and also "appellate
jurisdiction over all judgments of the courts in Indian Territory,
rendered under said act of Congress of June tenth, eighteen hundred and
ninety-six, admitting persons to citizenship or to enrollment in either
of said nations." In the exercise of such appellate jurisdiction the
citizenship court was "authorized to consider, review, and revise all
such judgments, both as to findings of fact and conclusions of law, and
may, whenever in its judgment substantial justice will thereby be
subserved, permit either party to any such appeal to take and present
such further evidence as may be necessary to enable said court to
determine the very right of the controversy."
It will be noted that the agreement further provides (paragraph 33)
that "the judgment of the citizenship court in any or all of the suits
or proceedings so committed to its jurisdiction shall be final."
The agreement also contained this provision:
"34. During the ninety days first following the date of the final
ratification of this agreement, the Commission to the Five Civilized
Tribes may receive applications for enrollment only of persons whose
names are on the tribal rolls, but who have not heretofore been enrolled
by said Commission, commonly known as "delinquents," and such
intermarried white persons as may have married recognized citizens of
the Choctaw and Chickasaw nations in accordance with the tribal laws,
customs, and usages on or before the date of the passage of this act of
Congress, and such infant children as may have been born to recognized
and enrolled citizens on or before the date of the final ratification of
this agreement;
but the application of no person whomsoever for enrollment shall be
received after the expiration of the said ninety days: Provided, That
nothing in this section shall apply to any person or persons making
application for enrollment as Mississippi Choctaws, for whom provision
has herein otherwise been made."
By the act of April 21, 1904 (33 Stat., 189, 204), it was provided
that the Commission to the Five Civilized Tribes should conclude its
work and terminate on or before July 1, 1905, and cease to exist on that
date, the powers theretofore conferred upon it being continued.
By the act of March 3, 1905 (33 Stat., 1048, 1060), it was provided
"that the work of completing the unfinished business, if any, of the
Commission to the Five Civilized Tribes shall devolve upon the Secretary
of the Interior, and that all the powers heretofore granted to the said
Commission to the Five Civilized Tribes are hereby conferred upon the
said Secretary on and after the first of July, nineteen hundred and
five."
By the act of April 26, 1906 (34 Stat., 137), it was provided:
"That after the approval of this act no person shall be enrolled as a
citizen or freedman of the Choctaw, Chickasaw, Cherokee, Creek, or
Seminole tribes of Indians in the Indian Territory, except as herein
otherwise provided, unless application for enrollment was made prior to
December first, nineteen hundred and five, and the records in charge of
the Commissioner to the Five Civilized Tribes shall be conclusive
evidence as to the fact of such application; and no motion to reopen or
reconsider any citizenship case, in any of said tribes, shall be
entertained unless filed with the Commissioner to the Five Civilized
Tribes within sixty days after the date of the order or decision sought
to be reconsidered except as to decisions made prior to the passage of
this act, in which cases such motion shall be made within sixty days
after the passage of this act."
By that act the rolls of citizenship of the several tribes were
required to be completed by March 4, 1907.
After very carefully considering this legislation in the light of the
circumstances under which it was enacted, I am constrained to the
conclusion that the Citizenship court had jurisdiction of the cases now
under consideration, and that its judgment therein is final.
By the act of June 10, 1896, the Commission to the Five Civilized
Tribes was "authorized and directed to proceed at once to hear and
determine the application of all persons who may apply to them for
citizenship in any of said nations." It is true that this act also
confirmed the then existing rolls of the several tribes, but the
question whether an applicant was, as matter of fact, already duly
enrolled upon one of the rolls so confirmed constituted, in my opinion,
an issue upon which the Commission was authorized and required to pass.
The applicant may be fairly held to have waived by his application the
conclusiveness of the confirmation of the rolls in his case.
Independently of any such waiver, I do not see how the proposition
that the Commission did not have jurisdiction of the case of a person
whose name was upon a tribal roll can be maintained in the face of the
provision of the act of June 10, 1896, that "in determining all said
applications said Commission shall * * * give due force and effect to
the rolls, usages, and customs of each of said nations or tribes." I
think that act left it to the Commission to determine whether or not the
applicant was upon a roll which was confirmed, and evidently it did not
so hold in these cases.
It is unnecessary, however, to determine what might have been the
effect of an adverse judgment in the case of an applicant whose name was
upon a roll so confirmed, for such confirmation was certainly and very
materially modified by the act of June 7, 1897, and apparently
altogether withdrawn by the act of June 28, 1898. The act of June 7,
1897, provided that the words "rolls of citizenship" as used in the act
of June 10, 1896, should be construed to mean the "last authenticated
rolls of each tribe which have been approved by the council of the
nation."
I am informed that there never was any such an authenticated roll of the
Choctaw tribe, either at the time of the passage of the act of June 10,
1896, or subsequently thereto. Moreover, by the act of June 28, 1898, it
was provided that in making rolls of citizenship of the several tribes,
the Commission should take the Cherokee roll of 1880 as the only roll
intended to be confirmed by that and preceding acts of Congress. It
seems to be clear from the further provisions of the act that the
Congress did not here refer to the Cherokee rolls only, but had in mind
those of all the tribes. To my mind, however, the decisive consideration
is that Congress, knowing there were certain cases of contested
citizenship in the Choctaw and Chickasaw nations, referred these cases,
under carefully defined conditions, to the Citizenship court and made
the determination of that court in those cases final. This provision of
law repealed, as to cases in this category, any inconsistent provisions
(if any there were) in the act of 1896 or any other prior act. These
cases were unquestionably within the terms of the law; the claimants
had been admitted to citizenship by decisions of the United States
courts, and it seems clear that, under the agreement with the Choctaw
and Chickasaw nations ratified by the act of July 1, 1902, it was
intended that the Citizenship court should have a revisory jurisdiction
of judgments of the United States courts in the Indian Territory in
citizenship cases, irrespective of the grounds on which these suits had
been entertained by the said courts. That agreement was made after the
conformation given to the tribal rolls had been qualified, if not
withdrawn, and, we must presume, with a knowledge of the fact that the
Commission, under the act of June 10, 1896, had exercised jurisdiction
in the case of persons whose names appeared upon some of the rolls of
the tribes. Its action seems to show that Congress did not intend to
confirm any roll of the Choctaw and Chickasaw tribes; but, however that
may be, when, with a knowledge of all that had gone before, it created
the Citizenship court, this was done, in my opinion, with the evident
purpose of giving it jurisdiction of all citizenship cases which had
been decided by the United States courts for the Indian Territory on
appeal from the judgments of the Commission.
As neither Congress nor the nations made any distinction in the act and
agreement referred to as to the cases of persons whose names were on a
tribal roll which might have been confirmed by the act of June 10, 1896,
if Congress had not decided otherwise, I do not think any other
authority can make this distinction. Indeed, as I have suggested, the
applicants themselves, having voluntarily submitted to the jurisdiction
of the Commission, might be fairly held estopped to now deny it.
I understand that it is not contended, nor do I think it could be
successfully maintained, that any authority to review the judgments of
the Citizenship court was intended to be conferred upon you by Congress
when it made the rolls, as finally compiled, subject to your approval
(see paragraph 30 of the agreement ratified by the act of July 1, 1902).
Neither do I think that the provision in the act of April 26, 1906,
above quoted, as to enrolling persons and entertaining motions to reopen
or reconsider citizenship cases, was intended to recognize or confer any
such authority, the purpose of that provision being simply to limit the
time in which the authority previously conferred might be exercised. To
hold thus would be to treat the later act as a repeal of so much of the
former as expressly declared the judgments of the Citizenship court to
be final, which seems to me untenable.
This disposes of the cases of Myrtie Randolph and her brother, W. J.
Thompson. Whatever their intrinsic merits, these claims have been
finally decided adversely to the claimants by the judgment of the
citizenship court.
The second case is that of Cyrus H. Kingsbury and Lucy E.
Littlepage, in regard to whom you say:
"Cyrus H. Kingsbury and Lucy E. Littlepage are children of John
Parker-Kingsbury and wife, Hannah Mariah, white, affiliated by act of
the Choctaw council of November 15, 1854, which enacted:
"'That all rights, privileges, and immunities of Choctaw citizens are
hereby granted unto John Parker-Kingsbury and to his wife, Hannah
Mariah, and they shall enjoy all the benefits to which the citizens of
this nation may hereafter be entitled, except in the participation of
any sum of money which may now be due the nation under treaty
stipulations heretofore made.'
"Both applicants were born in the Choctaw Nation and have always
resided there as its recognized citizens. Both are on the tribal Choctaw
1885 census roll, Atoka County, Nos. 819, 821. September 7, 1896, they
applied to the Commission to the Five Civilized Tribes under the act of
June 10, 1896, were enrolled and no appeal was taken. Cyrus H. Kingsbury
is on the 1896 Choctaw census roll. Lucy E. Littlepage is on the partial
roll of Choctaw citizens by blood, and her husband, Patrick H.
Littlepage, is on the roll of intermarried citizens-- both rolls
approved by the Secretary of the Interior, October 21, 1904. Patent,
signed and executed by the principal chief of the Choctaw Nation,
conveying to Cyrus H. Kingsbury allotted tribal lands as a citizen by
blood, is now before the Secretary of the Interior for approval, but is
not yet approved or delivered. No objection to occupation of tribal
lands was ever made against either applicant as an intruder."
Paragraph 27 of the agreement with the Choctaw and Chickasaw nations,
ratified by the act of July 1, 1902, provides that the rolls of Choctaw
and Chickasaw citizens shall be made by the Commission to the Five
Civilized Tribes "in strict compliance" with the acts of June 28, 1898,
and May 31, 1900.
Section 21 of the act of June 28, 1898, after providing that in
making rolls of citizenship of the several tribes the Commission shall
take the roll of Cherokee citizens of 1880 as the only roll intended to
be confirmed by that and preceding acts of Congress, and providing for
the enrollment of the Cherokees, authorizes and directs the Commission
"to make correct rolls of the citizens by blood of all the other tribes,
eliminating from the tribal rolls such names as may have been placed
thereon by fraud or without authority of law, enrolling such only as may
have lawful right thereto, and their descendants born since such rolls
were made, with such intermarried white persons as may be entitled to
Choctaw and Chickasaw citizenship under the treaties and the laws of
said tribes."
It might be held that the only white persons intended to be enrolled
by this act were such intermarried ones as were entitled to citizenship
under the treaties and laws of the tribes, if it were not for the
reference to the tribal rolls, on which, as appears from your statement
as to these parties, there were undoubtedly the names of adopted whites.
The only names which the act declares shall be eliminated from the
tribal rolls are those placed thereon by fraud or without authority of
law, and it is not suggested that the names of these parties were open
to either of those objections.
Light, it seems to me, is thrown on this matter by the act of May 31,
1900, which was also directed to be strictly complied with in making the
rolls of citizenship of these tribes. That act is plainly intended to be
of a restrictive nature, yet a fair construction of it would seem to
authorize the enrollment of these parties. It provides that the
Commission shall continue to exercise all authority theretofore
conferred upon it by law, "but it shall not receive, consider, or make
any record of any application of any person for enrollment as a member
of any tribe in the Indian Territory who has not been a recognized
citizen thereof and duly and lawfully enrolled or admitted as such, and
its refusal of any such application shall be final when approved by the
Secretary of the Interior."
This act recognizes the authority of the Commission to receive,
consider, and record the application of a recognized citizen of any of
the tribes referred to who has been duly and lawfully enrolled or
admitted as such, its refusal of the application of any person not so
qualified being made final when approved by the Secretary of the
Interior.
These applicants appear to possess all of these qualifications. Your
letter states that they were born and have always resided in the Choctaw
Nation as its recognized citizens; that their names appear upon various
tribal rolls, and that they were admitted by the Commission in 1896 as
citizens, no appeal from the decision of the Commission being taken by
the nation. That they were duly and lawfully enrolled by the tribal
authorities would seem to result from the fact that both of their
parents had been adopted into the tribe, and the failure to contest the
action of the Commission in admitting them would indicate that their
citizenship rights were regarded as indisputable.
You say that you would not have doubt that these applicants, born to
the allegiance of the Choctaw Nation, are entitled to be enrolled, but
for the report of my predecessor to the President of February 24, 1906,
in the case of persons without Indian blood, and the order to you of
February 27, 1906, that "in the President's judgment, without reference
to the act of Congress, it is perfectly clear equity demands that the
son of white parents, who has no Indian blood in his veins, even though
one of these parents has been adopted into the tribe, should not be
treated as an Indian."
The report of Mr. Moody and the order of the President thereon had
reference to the case of children of white persons, one of whom had
previously acquired Indian citizenship by virtue of his marriage into
the Choctaw tribe, but had afterwards, upon the death of his Indian
spouse, married a white person. Mr. Moody was of opinion that the right
of citizenship acquired by an intermarried white was a personal right
and could not be conferred upon children by such subsequent marriage,
which is also the view taken by the citizenship court.
I see no reason to question the soundness of that conclusion,
assuming that the matter is still open for consideration. It is
expressly provided by the Choctaw act of November 9, 1875, providing for
the intermarriage of whites with Choctaws, that a white person
intermarrying into the tribe in pursuance of that act should forfeit his
rights of citizenship acquired thereunder, if upon the death of his
Indian spouse he married "a white man or woman, or person, as the case
may be, having no rights of Choctaw citizenship by blood."
I am aware that it has been held by one of the United States courts
in the Indian Territory that this law is inconsistent with the treaty of
April 28, 1866, but, with great respect for the said court, I do not so
consider it. That treaty provides:
"ART. 38. Every white person who, having married a Choctaw or
Chickasaw, resides in the said Choctaw or Chickasaw Nation, or who has
been adopted by the legislative authorities, is to be deemed a member of
said nation, and shall be subject to the laws of the Choctaw and
Chickasaw nations according to his domicile, and to prosecution and
trial before their tribunals, and to punishment according to their laws
in all respects as though he was a native Choctaw."
This article merely recognizes a pre-existing custom of the Choctaw
and Chickasaw nations as to the intermarriage and adoption of white
persons, and can not fairly be said to have been intended to prevent
them from decitizenizing an intermarried person for good cause; and
what better cause could there be than that the tie which bound him to
the tribe, and because of which alone citizenship was granted, was
broken?
An act of the Choctaw Nation, approved October 30, 1896, providing
for the enrollment of Choctaw citizens, provided that "the Commission
shall enroll as citizens all who come under any one of the following
heads, and all such persons are hereby declared citizens of the Choctaw
Nation:"
"V. All white men who have married Choctaw women by blood in strict
conformity to the laws of the Choctaw Nation of 1875 regulating
intermarriage, and have not been divorced from same nor married any
other than a Choctaw woman by blood since said marriage.
"VIII. All white women who have married Choctaws by blood legally and
have not been divorced from them nor since married any other than a
Choctaw by blood, a recognized citizen and resident of the Choctaw or
Chickasaw Nation."
That act further provided that "the commissions are especially
prohibited from enrolling as citizens any persons coming under the
following heads:"
"II. The children of any marriage where neither the father nor mother
are Choctaws by blood, though one or both of said children's parents may
have enjoyed intermarried rights.
"III. All persons who, though they had at one time intermarried
rights, afterwards married a person not a Choctaw by blood (being the
father or mother of Choctaw children shall not save a person from this
clause).
"VI. All white persons who have been admitted to citizenship with
their wife or husband by the General Council and afterwards the wife or
husband, Choctaw by blood, dying, the surviving party, being a white
person, has intermarried with a person not a Choctaw by blood."
It is clear that, at least since 1875, the Choctaw Nation never
intended that a white person intermarrying into the tribe should have
power to confer citizenship upon his children by a subsequent marriage
to other than a citizen by blood. The informal opinion of
Attorney-General Moody unquestionably had reference to cases of this
character.
The case of the present applicants is quite different from that just
referred to. Here both parents were adopted into the tribe. It must have
been contemplated that they might have children; and if so, what was to
be their citizenship if not that of their parents?
The facts in the present case answer this inquiry. Your letter states
that these applicants have always been recognized as citizens of the
Choctaw Nation; that their names appear on the tribal census roll of
1885, as well as upon the rolls prepared in pursuance of the Choctaw act
of October 30, 1896. It seems clear, therefore, irrespective of the
action of the Commission in admitting them as citizens in pursuance of
the authority granted to it by the act of June 10, 1896, that they are
clearly entitled to be enrolled for allotment purposes.
It appears from the papers in this case that Loula West applied to
the Commission to the Five Civilized Tribes, pursuant to the act of June
10, 1896, for admission to citizenship in the Choctaw Nation and was
admitted as a citizen by blood;
that the Choctaw Nation appealed to the United States Court for the
Central District of the Indian Territory, which affirmed the judgment of
the Commission; that this judgment was annulled and vacated by the
judgment of the Citizenship court in the test case provided for by the
act of July 1, 1902 (32 Stat., 641, 647), and thereupon she removed her
case to that court, which denied her application.
This case is similar to that of Myrtie Randolph and her brother, W.
J. Thompson, children of Giles Thompson, above referred to, in that it
involves the question of the finality of the judgment of the Citizenship
court, it being contended that the Commission in the first instance and
the Citizenship court ultimately on appeal had no jurisdiction of the
case because at the time of her application to the Commission her name
was upon a tribal roll.
For the reasons heretofore stated, I think this contention is not
well founded, and that the Citizenship court had jursidiction of such
cases, and its judgments therein were final.
In this case the record shows that Thompson applies to the Commission
to the Five Civilized Tribes, pursuant to the act of June 10, 1896, for
the enrollment of himself, his wife, and children, with the exception of
a daughter, Mary M. McNeese, who made a separate application for
herself, her husband, a white man, and their children. The Commission
denied Thompson's application, and also that of his daughter. No appeal
was taken from these judgments, and it is contended, on behalf of the
nation, that under the act of June 10, 1896, they were final and
conclusive against the right of these parties to be enrolled.
The claimants, however, rely upon the fact that their names appear
upon the tribal roll prepared in pursuance of the Choctaw acts of
September 18 and October 30, 1896.
In my judgment, the action of the Commission, under the act of June
10, 1896, not having been appealed from, was final and conclusive
against the right of these parties to be admitted to citizenship, and
the Choctaw Nation, even if it attempted to do so, had no right
thereafter to admit them.
It will be observed that the act of June 10, 1896, provided that
applications should be made to the Commission within three months after
the passage of the act, and that the Commission should decide all such
applications within ninety days after they were made; that the rolls of
citizenship of the several tribes as then existing were confirmed, and
"any person who shall claim to be entitled to be added to said rolls as
a citizen of either of said tribes and whose right thereto has either
been denied or not acted upon, or any citizen who may within three
months after the passage of this act desire such citizenship, may apply
to the legally constituted court or committee designated by the several
tribes for such citizenship, and such court or committee shall determine
such application within thirty days from the date thereof;" and that "if
the tribe or any person be aggrieved with the decision of the tribal
authorities or the Commission provided for in this act, it or he may
appeal from such decision to the United States District Court:
Provided, however, That the appeal shall be taken within sixty days, and
the judgment of the court shall be final."
As I read this act, it authorized application to be made either to
the Commission to the Five Civilized Tribes or the "legally constituted
court or committee" of such tribes, with a right of appeal by the party
aggrieved by the decision of either to the United States Court.
Therefore, and in view, also, of the fact that the act contemplated
contemporaneous action by the Commission and the tribal courts, I think
it clear that the provision that "any person who shall claim to be
entitled to be added to said rolls (the existing rolls of the tribe) as
a citizen of either of said tribes whose right thereto has either been
denied or not acted upon," had reference to a previous denial or failure
to act of the tribal authorities, and not to the subsequent action or
non-action of the Commission, the tense of the verbs "has either been
denied or not acted upon," not "shall be denied or not acted upon"--
indicating that past action or non-action was referred to. Prior to the
passage of this act the Commission had no jurisdiction of these
citizenship matters.
When, therefore, as here, the claimant had applied to the Commission
to be admitted and enrolled, and his application denied, his only
remedy, under the act in question, lay in an appeal to the United States
court. It is true Thompson claims to have received no notice of the
denial of his application by the Commission, but that is not a valid
excuse.
But aside from this question of jurisdiction in the Choctaw Nation to
admit persons to citizenship who had been denied by the Commission, it
appears that the nation never undertook to authorize the admission or
enrollment of these parties, and that, in any aspect of the case, they
were enrolled without authority of law and their names should, in
pursuance of the mandate in the act of Congress of June 28, 1898, be
eliminated from the tribal rolls.
The Choctaw Nation does not appear to have proceeded under the
authority of the act of Congress of June 10, 1896, authorizing the
establishment by the several tribes of a court or committee for the
purpose of passing upon applications for citizenship as provided
therein. It was not until September 18, 1896, ten days after the
expiration of the period in which applications for citizenship were to
be submitted to the "legally constituted court or committee" of the
tribes under the act of June 10, 1896, that the Choctaw council passed
the act above referred to. That act provided for the appointment of
census commissioners in each county, with authority "to enroll all
recognized citizens of the Choctaw Nation by blood, intermarriage, and
adoption who are recognized as citizens of the Choctaw Nation under the
treaties, constitution, and law of the said nation." It further provided
that "the rolls when completed by said commissioners shall be certified
to by said commissioners and delivered to the principal chief of the
Choctaw Nation on or before the twentieth day of October, 1896, to be
revised and approved by the next general council of the Choctaw Nation."
It is manifest that this act conferred no power upon such
commissioners to admit any person to citizenship, but only to enroll
"recognized citizens." Yet in virtue thereof one of the county
committees assumed to pass upon a petition prepared by Thompson's
attorney, under date of August 1, 1896, and addressed to the general
council of the Choctaw Nation, "at its regular session October, 1896,"
praying that "all rights, privileges, and immunities of the Choctaw
Nation" be granted to himself, his wife, family, and certain other
relatives, "and they be enrolled with the legal citizenship of said
nation."
This petition does not appear ever to have been presented to the
Choctaw council or referred by any competent authority to the committee
which assumed to pass upon it. Upon its back is the following
indorsement:
"William C. Thompson, together with the names appearing on the face
of the within application, lineal descendants of Margaret McCoy, are
hereby recognized and admitted to the citizenship of the Choctaw Nation
or tribe of Indians by the legally constituted Choctaw census commission
duly assembled at Kiowa, Ind. T., this the 8th day of October, 1896,
upon the testimony of Henry Perkins, Mrs. Lavinia Franklin, they being
enrolled Choctaw Indians by blood. The within names, parties not being
present, were passed for further enrollment.
"A. G. FOLSOM,
"Secretary of Census Committee."
This was a manifest attempt to exercise an authority not delegated to
the committee.
On October 30, 1896, the Choctaw council, at its regular session,
passed an act creating three commissions, one from each district, one
member of each of which to be designated as "chief commissioner," "to
make a complete roll of the citizens of the Choctaw Nation." By that act
it was made the duty of said commissions "to examine the rolls made by
the commissions under the act of September 18, 1896, and also to expunge
from said rolls of September 18, 1896, the names of all persons whom
they shall adjudge not to be citizens." It was further provided:
"The Commission shall enroll as citizens all who come under any of
the following heads, and all such persons are hereby declared citizens
of the Choctaw Nation:
"I. All Choctaws by blood born and raised in the Choctaw Nation.
"II. All Choctaws by blood who have been admitted to citizenship by
the general council and now residents of the nation."
It was provided that "at the expiration of the time allowed the
commissions in each district, the chief commissioners shall meet at
Tushka Homma at their earliest convenience, and not later than the first
Monday in December, 1896, and shall revise the rolls made by their
respective district commissions during the succeeding ten days after
they meet." The chief commissioners were authorized to "enroll the name
of any citizen who for any good cause failed to appear before the
district commissions." It was further provided that "the roll as
completed and signed by the chief commissioners, when approved by the
principal chief, shall be the legal and authorized roll of citizens of
the Choctaw Nation."
These parties were enrolled by the revisory board, but that their
enrollment was unauthorized is clear. The act just referred to only
authorized the enrollment of Choctaws by blood who were "born and
raised" in the Choctaw Nation or had "been admitted to citizenship by
the general council." The applicants possessed neither of these
qualifications. According to his own statement, William C. Thompson was
not raised in the Choctaw Nation, having been taken to Mississippi
shortly after his birth, and returning only once during his boyhood for
about a year. It is further stated that he remained in Mississippi until
the war, when he went to Texas, not returning again to the Choctaw
Nation until 1887. He had never been "admitted to citizenship by the
general council." His wife and children could claim no greater rights
than he possessed. The other applicants named in his petition were
descendants of his brother, who was born in Mississippi and whose record
appears to be otherwise about the same as William C. Thompson's.
Moreover, it appears from the opinion of the Assistant
Attorney-General for the Interior Department, of March 24, 1905, in the
case of Mary Elizabeth Martin, that on July 17, 1897, the principal
chief of the Choctaw Nation advised the Commission to the Five Civilized
Tribes that he had refused to approve the last revised roll made in
accordance with the act of October 30, 1896, because he was satisfied
there were some names thereon "that have been registered through fraud
or misrepresentation."
As such approval was necessary in order to make the roll so prepared
"the legal and authorized roll of citizens of the Choctaw Nation," it
would seem that in no aspect of the case could these parties be said to
be lawfully admitted and enrolled.
It further appears that these applicants, or some of them, including
William C. Thompson, applied in 1900 to the Commission for the Five
Civilized Tribes for identification as Mississippi Choctaws under the
following provision of section 21 of the act of June 28, 1898:
"Said Commission shall have authority to determine the identity of
Choctaw Indians claiming rights in the Choctaw lands under article
fourteen of the treaty between the United States and the Choctaw Nation
concluded September twenty-seventh, eighteen hundred and thirty, and to
that end they may administer oaths, examine witnesses, and prepare all
other acts necessary thereto and make report to the Secretary of the
Interior."
Article 14 of the treaty of September 7, 1830 (7 Stat., 335),
provided:
"ART. XIV. Each Choctaw head of a family being desirous to remain and
become a citizen of the States, shall be permitted to do so, by
signifying his intention to the agent within six months from the
ratification of this treaty, and he or she shall thereupon be entitled
to a reservation of one section of six hundred and forty acres of land,
to be bounded by sectional lines of survey; in like manner shall be
entitled to one-half that quantity for each unmarried child which is
living with him over ten years of age; and a quarter section to such
child as may be under ten years of age, to adjoin the location of the
parent. If they reside upon said lands, intending to become citizens of
the States, for five years after the ratification of this treaty, in
that case a grant in fee simply shall issue; said reservation shall
include the present improvement of the head of the family, or a portion
of it. Persons who claim under this article shall not lose the privilege
of a Choctaw citizen, but if they ever remove are not to be entitled to
any portion of the Choctaw annuity."
The only evidence adduced in any way tending to show a compliance
with the terms of this article were statements to the effect that
William C. Thompson's grandfather applied for land under the treaty of
1830, but was refused by the Indian agent. Congress, however, by the
acts of March 3, 1837, and August 23, 1842 (5 Stat., 180, 513),
appointed commissioners for the purpose of adjusting claims of this
kind, and there was no evidence to the effect that the ancestors of the
claimants had endeavored to comply with the provisions of those acts, or
received patents or certificates for land as therein provided for. The
Commission properly held, therefore, that it was impossible to identify
the applicants as Mississippi Choctaws.
Upon the whole case, it seems to me clear that these applicants, and
those claiming intermarried rights with them, should be denied
enrollment.
The other cases consolidated with this are of a similar nature, and
under the views above stated the parties referred to therein are, in my
judgment, not entitled to be enrolled.
The enrollment of the parties referred to in this case depends upon
the effect to be given to the following act of the general council of
the Choctaw Nation, passed November 8, 1889:
"An act to establish the citizenship of R. B. Coleman, his wife, and
their children.
"SEC. 1. Be it enacted by the general council of the Choctaw Nation
assembled, That Richard Benjamin Coleman and his wife, Eva Coleman, and
their children, as follows: Richard St. Clair, age 15 years; Ida Clay,
age 13; Bennetta, age 11; Bettie Withers, age 9; Henry Allen, age 6;
Willie Norma Coleman, age 4 years, are hereby admitted to citizenship in
the Choctaw Nation, with rights, privileges, and immunities, and that
this act shall take effect and be in force from and after its passage."
It is contended that this act was procured by fraud and bribery, and
that therefore the names of Coleman and his family should be eliminated
from the tribal rolls upon which they appear, under the act of Congress
of June 28, 1898, which provides:
"Said Commission is authorized and directed to make correct rolls of
citizens by blood of all the other tribes, eliminating from the tribal
rolls such names as may have been placed thereon by fraud or without
authority of law, enrolling such only as may have lawful right thereto *
* * ."
The Commission held that they had no authority to go behind the act
of the Choctaw council referred to, but in an informal opinion rendered
you December 7, 1904, Acting Attorney-General Day, after quoting the
above provision, said:
"It appears to me the above-quoted provisions of the statute impose
upon the Commission to the Five Civilized Tribes the duty and gave it
the power to determine whether any name appearing upon a tribal roll was
placed there by fraud or without authority of law, and that the mere
fact that such enrollment was by virtue of an act of the national
council is not sufficient to preclude an inquiry. An act of the council
should be treated with respect as prima facie valid and efficacious, and
nothing done as the result thereof should be lightly set aside; but if
it clearly appears that the act was procured by deliberate fraud and
perjury I do not think that Congress intended that benefits thereunder
should be enjoyed."
Mr. Day did not pass upon the facts of this case. Subsequently, the
Assistant Attorney-General for the Interior Department, upon a
consideration of the record, held that it did not clearly appear
therefrom that the act in question had been fraudulently procured.
In my judgment the record in this case clearly shows deliberate fraud
on the part of Richard B. Coleman in procuring the passage of the act
admitting him to citizenship. It appears that Coleman came into the
Choctaw Nation about 1880. In 1887 he made application to the
citizenship committee of the Choctaw council for admission as a citizen
by blood, representing by himself and witnesses he brought before the
committee that his father was a Choctaw boy named Frank Coleman, the son
of a John Coleman and Chapponia, a full-blood Choctaw, who had lived in
Mississippi with his parents prior to the migration in 1830.
The boy Frank, it was testified, had been sent to Kentucky to school and
nothing afterwards heard of him.
The testimony adduced on behalf of the nation before the Commission
to the Five Civilized Tribes shows that the father of Coleman was
Francis S. Coleman, a son of a Francis Coleman who was born and raised
in Orange County, Va., and was not a Choctaw. That testimony was given
in the form of a deposition by Mrs. Harriet Henry, a sister of Francis
S. Coleman, and R. L. Coleman, a nephew, residing at Columbia, Mo. The
identity of Francis S. Coleman with the father of the applicant appears
from the fact testified to by the applicant as well as the two witnesses
just referred to, that he married Ann Elizabeth Bedford, the daughter of
John Bedford, in Kentucky, and the testimony of all parties that Francis
S. Coleman went to Denton, Tex., and died there. Although duly advised
as to the intention of the attorneys for the Choctaw Nation to take this
testimony, no effort was made by Coleman or his attorney to file cross
interrogatories or in any way rebut it, but they confined themselves to
an endeavor to have the testimony stricken from the records as not
having been taken in accordance with law. The authority of the
Commission to take the testimony in this way is clear, under the act of
June 28, 1898 (30 Stat., 495, 503), which provides:
"Said Commission shall make such rolls descriptive of the persons
thereon, so that they may be thereby identified, and it is authorized to
take a census of each of said tribes, or to adopt any other means by
them deemed necessary to enable them to make such rolls."
This testimony was further enforced by another deposition of said R.
L. Coleman, taken by Commissioner Tams Bixby, in which R. L. Coleman
stated further that he knew the applicant, Richard B. Coleman; that he
was his cousin. A motion was likewise made to strike this testimony from
the record, because taken without notice to the applicant, but it was
overruled by the Commission, who held that under the authority of the
above act they could take such measures as they deemed necessary to
satisfy themselves as to the justice of the applicant's claim.
I do not think it is shown that they abused their discretion in this
matter.
It appears that the application of Richard B. Coleman to be enrolled
as a citizen by blood of the nation, upon the grounds above stated, was
passed over by the citizenship committee of the council in 1887; taken
up again in 1888, and a bill of rejectment passed by the committee or
the council; renewed at the session of 1889, and a bill of admission
introduced into the House of Representatives, which was rejected, and
then a new bill introduced and enacted into the law above quoted.
I think it sufficiently appears from the testimony in this case,
particularly that given by and on behalf of the applicant himself, that
the council in admitting him and his family to citizenship did so upon
the strength of the testimony adduced by him before the committee on
citizenship that he was a Choctaw by blood, descended as he represented.
It is to be observed that he and his family all claim that he was
admitted as a Choctaw by blood.
Some testimony was introduced for the purpose of showing that Coleman
had bribed one Roebuck, the member of the Council who introduced the
second bill, but the evidence on that point is not sufficient to
establish the fact.
In October, 1898, the general council of the Choctaw Nation passed an
act repealing the act of November 8, 1889, admitting Coleman and his
family to citizenship. This act was, however, disapproved by President
McKinley, upon the recommendation of the Secretary of the Interior,
under the authority of the act of Congress of June 28, 1898, which
required the approval of the President to all acts of the Choctaw and
Chickasaw nations in any manner affecting the lands of the tribes.
Although this act was thus invalidated it may fairly be taken to
indicate the sense of the nation at that time that Coleman was
improperly admitted. The reason for its disapproval does not appear, but
it might reasonably have been rejected on the ground that by the act of
June 28, 1898, the work of making up the rolls of citizenship and
eliminating therefrom those placed thereon by fraud was committed
entirely to the Commission to the Five Civilized Tribes.
It is to be observed that Commissioner Bixby, who was the only
commissioner who considered this case on its merits, was "clearly of the
opinion from such evidence as has been presented to this Commission that
the evidence presented to and acted upon by the citizenship committee of
the Choctaw general council, which passed upon the petition of these
applicants, and upon which evidence their admission to Choctaw
citizenship was based, was fraudulent, false, and misleading."
In my opinion, these parties should be stricken from the rolls.
This case presents the question of your authority to enroll the
children of Choctaw freedmen who were minors living March 4, 1906. The
decision of this question turns upon the construction to be given to
section 2 of the act of April 26, 1906 (34 Stat., 137), as amended by
the act of June 21, 1906 (34 Stat., 342).
The act referred to originally provided:
"SEC. 2. That for ninety days after approval hereof applications
shall be received for enrollment of children who were minors living
March fourth, nineteen hundred and six, whose parents have been enrolled
as members of the Choctaw, Chickasaw, Cherokee, or Creek tribes, or have
applications for enrollment pending at the approval hereof, and for the
purpose of enrollment under this section illegitimate children shall
take the status of the mother, and allotments shall be made to children
so enrolled. If any citizen of the Cherokee tribe shall fail to receive
the full quantity of land to which he is entitled as an allotment, he
shall be paid out of any of the funds of such tribe a sum equal to twice
the appraised value of the amount of land thus deficient. The provisions
of section nine of the Creek agreement ratified by Act approved March
first, nineteen hundred and one, authorizing the use of funds of the
Creek tribe for equalizing allotments, are hereby restored and
reenacted, and after the expiration of nine months from the date of the
original selection of an allotment of land in the Choctaw, Chickasaw,
Cherokee, Creek, or Seminole tribes, and after the expiration of six
months from the passage of this Act as to allotments heretofore made, no
contest shall be instituted against such allotment:
Provided, That the rolls of the tribes affected by this Act shall be
fully completed on or before the fourth day of March, nineteen hundred
and seven, and the Secretary of the Interior shall have no jurisdiction
to approve the enrollment of any person after said date: Provided
further, That nothing herein shall apply to the intermarried whites in
the Cherokee Nation, whose cases are now pending in the Supreme Court of
the United States."
The amendatory act provided (34 Stat., 341-2):
"That section two of the Act entitled "An Act to provide for the
final disposition of the affairs of the Five Civilized Tribes in the
Indian Territory, and for other purposes," approved April twenty-sixth,
nineteen hundred and six, be, and the same is hereby, amended by
striking out thereof the words "Provided further, That nothing herein
shall be construed so as to hereafter permit any person to file an
application for enrollment in any tribe where the date for filing
application has been fixed by agreement between said tribe and the
United States: Provided further, That nothing herein shall apply to the
intermarried whites in the Cherokee Nation whose cases are now pending
in the Supreme Court of the United States." And insert in said Act in
lieu of the matter repealed, the following: Provided further, That
nothing herein shall be construed so as hereafter to permit any person
to file an application for enrollment or to be entitled to enrollment in
any of said tribes, except for minors the children of Indians by blood,
or of freedmen members of said tribes, or of Mississippi Choctaws
identified under the fourteenth article of the treaty of eighteen
hundred and thirty, as herein otherwise provided, and the fact that the
name of a person appears on the tribal roll of any of said tribes shall
not be construed to be an application for enrollment."
In the agreement with the Choctaw and Chickasaw nations ratified by
the act of July 1, 1902 (32 Stat., 641), it was provided (paragraphs 1
and 3) that the words "member" or "members" and "citizen" or "citizens,"
"whenever used in this agreement, shall be held to mean members or
citizens of the Choctaw or Chickasaw tribe of Indians in Indian
Territory, not including freedmen."
The Commissioner to the Five Civilized Tribes, in passing upon this
case, held that, in view of the above definition, the act of April 26,
1906, as amended, was not intended to apply to the children of freedmen
in the Choctaw and Chickasaw nations, but only to those of the Cherokee
and Creek nations.
There would be some force in the argument that minors the children of
freedmen members of the Choctaw Nation were not included in the act of
April 26, 1906, if it were not for the proviso substituted by the
amendatory act of June 21, 1906. That proviso was, as the Commissioner
said, "in the nature of a construction by Congress of the meaning
intended to be conveyed by the section as originally enacted." It says,
in so many words, that minors the children of freedmen members of said
tribes (referring to all of the tribes, which are separately named in
the preceding part of section 2, among them the Choctaw and Chickasaw
tribes) may be enrolled. This definition settles the doubt that
otherwise might have arisen as to the children of freedmen members of
said tribes, as well as the children of Mississippi Choctaws. If,
therefore, the Choctaw freedmen are members of said nation, the right of
their children to be enrolled can not be questioned.
The Choctaw freedmen were adopted by an act of the general council of
the nation approved May 21, 1883, entitled "An act to adopt the freedmen
of the Choctaw Nation," which provided (Report of Commissioner of Indian
Affairs, 1884, p. XLV):
"Whereas by the third and fourth articles of the treaty between the
United States and the Choctaw and Chickasaw nations, concluded April 28,
1866, provision was made for the adoption of laws,
rules, and regulations necessary to give all persons of African descent
resident in said nations at the date of the treaty of Fort Smith,
September 13, 1865, and their descendants, formerly held in slavery
among said nations, all the rights, privileges, and immunities,
including the right of suffrage, of citizens of said nations, except in
the annuities, moneys, and public domain claimed by or belonging to said
nations respectively; and also to give to such persons who were
residents as aforesaid, and their descendants, 40 acres each of the
lands of said nations on the same terms as Choctaws and Chickasaws, to
be selected on the survey of said lands; until which said freedmen
shall be entitled to as much land as they may cultivate for the support
of themselves and families; and
"Whereas the Choctaw Nation adopted legislation in the form of a
memorial to the United States Government in regard to adopting freedmen
to be citizens of the Choctaw Nation, which was approved by the
principal chief November 2, 1880, setting forth the status of said
freedmen and the inability of the Choctaw Nation to prevail upon the
Chickasaws to adopt any joint plan for adopting said freedmen, and
notifying the United States Government of their willingness to accept
said freedmen as citizens of the Choctaw Nation in accordance with the
third and fourth articles of the treaty of 1866 as a basis; and
"Whereas a resolution was passed and approved November 5, 1880,
authorizing the principal chief to submit the aforesaid proposition of
the Choctaw Nation to adopt their freedmen to the United States
Government; and
"Whereas a resolution was passed and approved November 6, 1880, to
provide for the registration of freedmen in the Choctaw Nation,
authorizing the principal chief to appoint three competent persons in
each district, citizens of the nation, whose duty it shall be to
register all freedmen referred to in said third article of the treaty of
1866 who desire to become citizens of the nation in accordance with said
treaty, and upon proper notification that the Government of the United
States had acted favorably upon the proposition to adopt the freedmen as
citizens, to issue his proclamation notifying all such freedmen as
desire to become citizens of the Choctaw Nation to appear before said
commissioner for identification and registration; and
"Whereas in the Indian appropriation act of Congress May 17, 1882, it
is provided that either of said tribes may adopt and provide for the
freedmen in said tribe in accordance with said third article: Now,
therefore,
"Be it enacted by the general council of the Choctaw Nation, That all
persons of African descent resident in the Choctaw Nation at the date of
the treaty of Forth Smith, September 13, 1865, and their descendants,
formerly held in slavery by the Choctaws or Chickasaws, are hereby
declared to be entitled to and invested with all the rights, privileges,
and immunities, including all the right of suffrage, of citizens of the
Choctaw Nation, except in the annuities, moneys and the public domain of
the nation.
"SEC. 3. Be it further enacted, That all said persons are hereby
declared to be entitled to forty acres each of the lands of the nation,
to be selected and held by them under the same title and upon the same
terms as the Choctaws."
It appears that this act was accepted by the Secretary of the
Interior on behalf of the United States as a substantial compliance with
the terms of the treaty of 1866, and the moneys authorized to be paid by
that treaty upon a compliance therewith were turned over to the nation.
I am of opinion, therefore, that the Assistant Attorney-General for
the Interior Department was right in his conclusion that minors the
children of Choctaw freedmen living March 4, 1906, are entitled to be
enrolled.
This disposes of the several cases submitted. The papers therein are
herewith returned.
Respectfully,
CHARLES J. BONAPARTE.
CHEROKEE ENROLLMENT-- MRS. ALICE L. OWEN AND CHILDREN; 26 Op.Att'y.
Gen. 123, February 18, 1907
The action of the attorney for the Cherokee Nation in protesting to
the Secretary of the Interior on behalf of the Cherokee Nation against
the enrollment of Alice L. Owen and her children as citizens by blood of
the Cherokee tribe was not a compliance with the conditions named in the
act of June 21, 1906 (34 Stat., 340), which authorized such enrollment
provided it should not be objected to by said tribe, and should be
approved by the Secretary of the Interior.
The authority of the attorney to act for the Nation did not extend to
matters wherein positive action by the Nation itself was essential, as
is required by the express terms of the act.
The tribal council not having been reelected, and there being now
probably no officer or body in a position to make the objection required
by the act, the first conditioned mentioned therein appears to have been
fulfilled.
The Secretary of the Interior is required to determine for himself
whether as matter of equity and public policy the enrollment should be
made.
Suggested, that the children of Mrs. Owen were never bona fide
citizens of the Cherokee Nation, and their enrollment would be clearly
without justification were it not for the special act of Congress in
question.
Suggested, that the marriage of Alice L. Owen to a white man, her
departure from the Cherokee Territory and permanent residence in a
distant State, operated as a relinquishment of her rights as a citizen
under the terms of the Cherokee constitution, but she might still have
been readmitted to citizenship by the governing body of the Cherokee
Nation. Her enrollment, therefore, is not open to the objection existing
in the cases of her children.
DEPARTMENT OF JUSTICE,
February 18, 1907.
THE SECRETARY OF THE INTERIOR.
SIR: I have the honor to submit my opinion in the matter of the
Cherokee enrollment case of Alice L. Owen and her children, recently
transmitted to me by you, upon the request of the President.
It appears to me unnecessary to recapitulate the various aspects in
which this case has been presented to your Department and other official
bodies, since the material feature in the case is contained in the
following provision of the Indian appropriation act, approved June 21,
1906 (34 Stat., 340):
"That the Commissioner to the Five Civilized Tribes is hereby
authorized to add the names of * * * Alice Owen and her children, to the
final roll of the citizens by blood of the Cherokee tribe, the said
persons being * * * Cherokee Indians by blood, whose names, through
neglect on their part or on the part of their parents, have been omitted
from the tribal rolls:
Provided, That the enrollment of said persons by the Commissioner to the
Five Civilized Tribes shall not be objected to by the said tribes, and
shall be approved by the Secretary of the Interior."
It will be observed that the authority hereby conferred upon the
Commissioner to the Five Civilized Tribes was subject to two conditions:
He was empowered (which in this case is equivalent to his being
directed) to make the enrollment authorized, provided it should not be
objected to by the tribe and should be approved by the Secretary of the
Interior. It appears that on July 17 the Commissioner wrote to the
attorney for the Cherokee Nation calling his attention to the foregoing
provision of law, and notifying him that fifteen days would be allowed
within which to file such protest as he might desire to make against the
enrollment of the parties mentioned. On July 24 the attorney for the
Cherokee Nation replied to this letter, protesting against the
enrollment of Alice L. Owen and her children "on behalf of the Cherokee
Nation." No other action by the Nation, or any of its officers, has been
taken in the premises, and it is therefore material to determine whether
the objection thus made by the attorney can be considered an objection
made by the tribe under the terms of the act of Congress.
I have examined the agreement between the attorney and the tribe,
which appears to have been executed on April 4, 1906, by the principal
chief and the attorney, and do not think it confers upon the attorney
authority to act for the Nation in a matter wherein positive action by
the Nation itself is required by the express terms of an act of
Congress.
After various experiences extending during a period of some six
years, and which had been preceded by an agitation of the questions
involved in the governing body of the Cherokee Nation for nearly twenty
years, it had been finally decided that none of the parties mentioned in
this act were entitled to enrollment. In passing this special act for
their benefit, Congress therefore conferred on them,
not as a matter of right but as a matter of favor, the privileges of
Cherokee citizenship, and required as a condition the implied assent of
the Cherokee Nation itself to this gratuity. I do not think the attorney
was qualified or empowered to act for the nation in a matter of this
kind, but that the objection required by the act of Congress must have
been made by the regularly constituted authorities of the Nation itself.
I am informed that the tribal council was not reelected at the
expiration of the terms of its members, and that it is, at least,
extremely doubtful whether any officer or body is now in a position to
make the objection on behalf of the Cherokee Nation required by the
terms of this statute. It does not appear, however, that either Alice L.
Owen or any of her children had any responsibility for this condition of
affairs, and their interests ought not, therefore, to suffer in
consequence. It follows that the first condition mentioned in the act of
Congress, namely, that the tribe shall not object, appears on the record
to have been fulfilled in this case. There remains the second condition,
namely, the approval of the Secretary of the Interior. With respect to
this, I am quite clear that it was the intention of the Congress to
lodge a special discretion as to the approval of this enrollment with
the Secretary of the Interior. His approval is required in general to
all acts of the Commissioner to the Five Civilized Tribes, but I do not
construe the provision of law above quoted as merely requiring this
general and customary approval, but as obliging the Secretary of the
Interior to determine for himself whether, as a matter of equity and
public policy, the enrollment should take place. In this view of the
matter, it would be under ordinary circumstances obviously inappropriate
for me to express any opinion as to how this discretion should be
exercised. I limit myself, therefore, to calling your attention to
certain circumstances disclosed by the record, which appear to be
material in connection with this question.
The children of Mrs. Owen were never, in my judgment, bona fide
citizens of the Cherokee Nation. They were the offspring of a white man,
a resident and presumably a citizen of Virginia, and appear to have
always considered and demeaned themselves as citizens of that State;
one of them, at least, even exercised the right of suffrage there.
It does not appear that any of them ever removed to the territory of the
Cherokee Nation with the intention of making it their home, and, as they
have in no respect shared the burdens or discharged the duties of
Cherokee citizens, their enrollment as such would clearly be without
justification either in law or according to the principles of equity, if
it were not for the special act of Congress so, as aforesaid, passed for
their benefit, and which can become effective only through your
affirmative action in their favor.
The case of Alice L. Owen herself appears to be different. She is a
Cherokee by blood, at least to some extent; was born within the
territory of the Nation, and spent her childhood there. There seems no
good reason to doubt that prior to her marriage she was a Cherokee
citizen. The Cherokee constitution provides:
"That whenever any citizen shall remove with his effects out of the
limit of this Nation, and become a citizen of any other government, all
his rights and privileges as a citizen of this Nation shall cease:
Provided, nevertheless, that the national council shall have power to
readmit by law to all the rights of citizenship any such person or
persons who may at any time desire to return to the Nation, on
memorializing the national council for such readmission."
While I think her marriage to a white man, departure from the
Cherokee territory, and permanent residence in Virginia must be
considered a relinquishment of her rights and privileges as a citizen
under the terms of this provision of the constitution, I think it is
also clear that she might have been readmitted to citizenship by the
governing body of the Nation. It is true that no such action was taken
by the council, but the committee on citizenship appears to have
admitted not only Mrs. Owens but all her children "to all the rights and
privileges of Cherokee citizenship by blood" as long ago as January 31,
1881; and it is not improbable that this action would have been
confirmed by the national council had such conformation been deemed
necessary.
Under all the circumstances I think the enrollment of Mrs. Owen a
matter fully and clearly within your discretion, and that no such
argument against it exists as can be found in the cases of her children.
I remain, sir, respectfully,
CHARLES J. BONAPARTE.
CUSTOMS LAW-- INVOICE-- APPRAISEMENT; 26 Op.Att'y.Gen. 119, February
1, 1907
In an importation of a number of crates of glassware which were
consolidated on one invoice at a lump sum, where the several crates were
of different values, but chargeable with the same rate of duty, the
assessment of duty should not be made upon the basis of the highest
valued goods, but all the glassware is chargeable with the same rate of
duty, and similarly with regard to a number of cases of pickles imported
at the same time which were also placed on one invoice though of
different values, but subject to the same rate of duty-- the provisions
of section 2910, Revised Statutes, having no application in either case.
Section 2910, Revised Statutes, is a rule for the assessment of rates
of duty and not a rule for the appraisement of values, and has no
application except to cases where the goods that have been invoiced at
an average rate are not merely of different values, but are also subject
to different rates of duty, in which case the duty is to be assessed
upon the whole invoice at the rate to which the highest valued goods are
subject.
In case of doubt as to whether a higher or a lower duty is imposed by
a statute, the doubt should be resolved in favor of the importer, "since
the intention of Congress to impose the higher duty should be expressed
in clear and unambiguous language." (American Net and Twine Co. v.
Worthington, 141 U.S., 468.)
DEPARTMENT OF JUSTICE,
February 1, 1907.
THE SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge receipt of your letter of
November 14, 1906, in reference to thirteen crates of common glassware
and thirty-two cases of pickles, imported at the port of San Juan, P.
R., with inclosed copies of letters of the collector at that port, from
which it appears that the several crates of glassware were consolidated
on one invoice at a lump sum, and that the several cases of pickles were
likewise consolidated upon another invoice; that upon examination the
appraiser found the merchandise to be of different values and so
returned it-- that is, that the glassware in the several crates was of
different values and the pickles in the several cases likewise of
different values; but that, as stated in your letter, the whole of the
glassware is chargeable with the same rate of duty, as are also the
pickles.
In your letter you request my opinion as to whether in such case a
rule of appraisement is afforded by the provisions of section 2910 of
the Revised Statutes providing that, "When merchandise of the same
material or description, but of different values, is invoiced at an
average price, and not otherwise provided for, the duty shall be
assessed upon the whole invoice at the rate to which the highest valued
goods in such invoice are subject," and whether under this section the
assessment of the duty upon the glassware and pickles, respectively, is
required to be made upon the basis of the highest valued goods involved
in either invoice, or whether, on the other hand, this statute is to be
construed literally as relating only to cases where the goods are
subject to different rates of duty.
I am of the opinion that section 2910 is a rule for the assessment of
the rates of duty, and not a rule for the appraisement of values, and
that it has no application except to cases where the goods that have
been invoiced at an average rate are not merely of different values but
are also subject to different rates of duty, in which case the duty is
to be assessed upon the whole invoice at the rate to which the highest
valued goods are subject;
and that as it appears in this instance that all the glassware is
chargeable with the same rate of duty, and the pickles likewise, the
provisions of section 2910 have no application to either invoice.
While in the first part of this section it is made one of the
conditions of its application that the goods involved shall be "of
different values," the final clause laying down the rule that shall then
govern does not provide that the goods shall be appraised at an average
value based upon that of the higher valued goods, but uses the very
different and explicit language that "the duty shall be assessed upon
the whole invoice at the rate to which the highest valued goods in such
invoice are subject."
That this section was intended to refer to the rate of assessment
rather than the appraisement of values is further emphasized by the
contrast between the language of this section and that of section 2911,
immediately following, which provides that, "Whenever articles composed
wholly, or in part, of wool or cotton, of similar kind, but different
quality, are found, in the same package, charged at an average price, it
shall be the duty of the appraisers to adopt the value of the best
article contained in such package, and so charged, as the average value
of the whole."
The contrast between the concluding phrase, "the duty shall be
assessed upon the whole invoice at the rate to which the highest valued
goods in such invoice are subject," in section 2910, and the
corresponding phrase, "it shall be the duty of the appraisers to adopt
the value of the best article contained in such package * * * as the
average value of the whole," in section 2911, is very marked and
indicates clearly that section 2910 was intended to apply only in cases
where the goods were not only of different values, but also chargeable
with different rates of duty.
Hence, when the merchandise thus invoiced all bears the same rate of
duty, it follows that section 2910 has no application, and that the
values of the goods are not to be fixed by that of the highest valued
article, but are to be appraised at actual values, in accordance with
the general provisions of the customs laws, except in such special cases
as may be provided for under section 2911, or otherwise.
I regret that in reaching this conclusion I have been compelled to
differ from the contrary views expressed in Treasury Decisions Nos.
9516, 12393, and 25326. I am unable, however, to concur in the view
expressed in No. 9516 that "the word 'rate,' used in the latter part of
the section, is used in the sense of amount of duty," or to reach the
conclusion that the express provision of section 2910 that "the duty
shall be assessed" at a certain "rate" is equivalent to a direction as
to the amount at which the values of the goods shall be appraised; a
conclusion which would require the language of the statute to be
construed in a manner at variance with its fixed legal significance and
would, furthermore, result in the unnecessary hardship of imposing upon
the importer, merely because he has consolidated upon one invoice, at an
average rate, articles of the same description and bearing the same rate
of duty, an artificial valuation in excess of their real value. In case
of doubt as to whether a higher or lower duty is imposed, that doubt
should be resolved in favor of the importer, "since the intention of
Congress to impose a higher duty should be expressed in clear and
unambiguous language." (American Net and Twine Co. v. Worthington, 141
U.S., 468.)
In none of these Treasury Decisions, furthermore, is the distinction
noted between the provisions of section 2910 and of section 2911, and in
fact, in No. 25326 it is apparently assumed that they are the same, the
decision referring to the case of In re Schefer (49 Fed.Rep., 216) as
involving section 2910, whereas, in fact, the goods involved in that
case were cotton goods and section 2911 was the only section considered
by the court.
Respectfully,
CHARLES J. BONAPARTE.
THE PRESIDENT-- GOVERNMENT OF THE CANAL ZONE; 26 Op.Att'y.Gen. 113,
January 30, 1907
The President may now, directly or through persons appointed and
employed by him to govern the Canal Zone and build the Panama Canal,
adopt needed rules and regulations for the government of that Zone, and
he has not lost the power to modify any of the rules and regulations
established by the Canal Commission prior to the Fifty-eighth Congress.
Section 2 of the act of April 28, 1904 (33 Stat., 429), which
provided that until the expiration of the Fifty-eighth Congress, unless
provision for the temporary government of the Canal Zone be sooner made
by Congress, "the power to make all rules and regulations necessary for
the government of the Canal Zone * * * shall be vested in such person or
persons and shall be exercised in such manner as the President shall
direct," is to be considered as declaratory only of what would have been
the rights and duties of the President if it had not been enacted.
The limitation of the effect of the provision to the Fifty-eighth
Congress merely indicates that during the period of its own lawful
existence, unless sooner modified, Congress intended that the powers of
government which it might have lawfully exercised in the Canal Zone
should be exercised by the President, or such officers or persons as he
might designate.
Articles II and III of the treaty between the United States and the
Republic of Panama (33 Stat., 2234), imposed upon the United States the
obligations as well as the powers of a sovereign within the Canal Zone,
including among these the obligation of providing a government for the
territory in question.
In the absence of action by Congress distinctly denying that right,
the President would have the power to administer the Canal Zone merely
because control, with the incidents of sovereignty, over it was passed
to the United States, and no other provision for its orderly government
had been made.
This authority involves the right and power to modify or repeal any
laws previously existing within that territory, whether originally
enacted before or after its acquisition by the United States.
Laws governing a territory which has passed from one sovereign power
to another continue in force after the authority which enacted them has
ceased to exist, only by the consent of the succeeding authority to
their continuing validity, implied from its failure to modify or repeal
them.
As soon as the new government considers existing laws no longer
appropriate to attain the ends of government, it has the inherent right
to change or annul them, unless its authority in this respect has been
curtailed.
DEPARTMENT OF JUSTICE,
January 30, 1907.
THE SECRETARY OF WAR.
SIR: I have received your letter of the 21st instant, submitting for
my opinion "the question whether by section 2 of the act of April 28,
1904, the President, as distinguished from the Isthmian Canal
Commission, is prohibited from putting into effect by Executive order
needed rules and regulations for the government of the Canal Zone, and,
as a corollary thereto, whether he has lost the power to modify any
rules and regulations established by the Isthmian Canal Commission prior
to the expiration of the Fifty-eighth Congress."
To answer this question it is necessary to consider the section of
the act mentioned in your letter immediately preceding the one to which
you especially refer. This section (sec. 1) of the said act, so far as
it is material to the present question, is as follows:
"That the President is hereby authorized, upon the acquisition of the
property of the New Panama Canal Company and the payment to the Republic
of Panama of the ten millions of dollars provided by article fourteen of
the treaty between the United States and the Republic of Panama, the
ratifications of which were exchanged on the twenty-sixth day of
February, nineteen hundred and four, to be paid to the latter
Government, to take possession of and occupy on behalf of the United
States the zone of land and land under water of the width of ten miles,
extending to the distance of five miles on each side of the center line
of the route of the canal to be constructed thereon, which said zone
begins in the Caribbean Sea three marine miles from the mean low-water
mark and extends to and across the Isthmus of Panama into the Pacific
Ocean to the distance of three marine miles from mean low-water mark,
and also of all islands within said zone, and in addition thereto the
group of islands in the Bay of Panama named Perico, Naos, Culebra, and
Flamenco, and, from time to time, of any lands and waters outside of
said zone which may be necessary and convenient for the construction,
maintenance, operation, sanitation, and protection of the said canal, or
of any auxiliary canals or other words necessary and convenient for the
construction,
maintenance, operation, sanitation, and protection of said enterprise,
the use, occupation, and control whereof were granted to the United
States by article two of said treaty."
Articles 2 and 3 of the treaty between the United States and the
Republic of Panama, mentioned in this section, are in the terms
following:
"The Republic of Panama grants to the United States in perpetuity the
use, occupation, and control of a zone of land and land under water for
the construction, maintenance, operation, sanitation, and protection of
said canal of the width of ten miles extending to the distance of five
miles on each side of the center line of the route of the canal to be
constructed; the said zone beginning in the Caribbean Sea three marine
miles from mean low-water mark and extending to and across the Isthmus
of Panama into the Pacific Ocean to a distance of three marine miles
from mean low-water mark with the proviso that the cities of Panama and
Colon and the harbors adjacent to said cities, which are included within
the boundaries of the zone above described, shall not be included within
this grant. The Republic of Panama further grants to the United States
in perpetuity the use, occupation, and control of any other lands and
waters outside of the zone above described which may be necessary and
convenient for the construction, maintenance, operation, sanitation, and
protection of the said canal or of any auxiliary canals or other works
necessary and convenient for the construction, maintenance, operation,
sanitation, and protection of the said enterprise.
"The Republic of Panama further grants in like manner to the United
States in perpetuity all islands within the limits of the zone above
described and in addition thereto the group of small islands in the Bay
of Panama, named Perico, Naos, Culebra, and Flamenco.
"The Republic of Panama grants to the United States all the rights,
power, and authority within the zone mentioned and described in Article
II of this agreement and within the limits of all auxiliary lands and
waters mentioned and described in said Article II which the United
States would possess and exercise if it were the sovereign of the
territory within which said lands and waters are located, to the entire
exclusion of the exercise by the Republic of Panama of any such
sovereign rights, power, or authority."
It appears from these sections that the United States acquired in
perpetuity "the use, occupation, and control" of the so-called Canal
Zone, and also "all the rights, power, and authority within the zone
mentioned * * * which the United States would possess and exercise if it
were the sovereign of the territory." Unquestionably these provisions of
the treaty imposed upon the United States the obligations as well as the
powers of a sovereign within the territory described, and it is no less
obvious that among these obligations was that of providing a government
for the territory in question for the purpose, in the language of the
second section of the act of Congress approved April 28, 1904, of
"maintaining and protecting the inhabitants thereof in the free
enjoyment of their liberty, property, and religion." This obligation has
been recognized by the Supreme Court of the United States in repeated
decisions, among which I need only refer to American Insurance Company
v. Canter (1 Peters, 512), and Cross v. Harrison (16 Howard 164).
It being, therefore, the duty of the United States to provide a
government for the territory over which its control, with all the
incidents of sovereignty, was established by the terms of the treaty, in
the absence of any provision by Congress to effect this object, the
President would be authorized and obliged by his duty as executive head
of the nation under the Constitution to discharge the obligation thus
resting upon the nation; and if Congress had taken no action whatever
on the subject, the right of the President to thus administer the
territory controlled by the nation would not be open to question. In
fact, however, Congress, by the first section of the act above quoted,
authorized the President "to take possession of and occupy on behalf of
the United States" the territory generally known as the Canal Zone, and
covered by the terms of the treaty.
This authority to take possession of and occupy would, of itself, imply
the authority to govern in so far as government was needful to secure
the safety and welfare of the inhabitants of the territory occupied,
whether such inhabitants dwelt there at the time of its cession or came
there for lawful purposes, and with the consent of the United States
afterwards.
The second section of the act approved April 28, 1904, which is
particularly mentioned in your letter, is as follows:
"That until the expiration of the Fifty-eighth Congress, unless
provision for the temporary government of the Canal Zone be sooner made
by Congress, all the military, civil, and judicial powers, as well as
the power to make all rules and regulations necessary for the government
of the Canal Zone and all the rights, powers, and authority granted by
the terms of said treaty to the United States shall be vested in such
person or persons and shall be exercised in such manner as the President
shall direct for the government of said Zone and maintaining and
protecting the inhabitants thereof in the free enjoyment of their
liberty, property, and religion."
In my opinion this provision is to be considered as declaratory only
of what would have been the rights and duties of the President if it had
not been enacted. It is true that by its terms its effect is limited to
the duration of the Fifty-eighth Congress, but I do not understand this
as meaning that Congress intended the Canal Zone to be without any legal
government after the period fixed. Such a conclusion would be, in my
opinion, wholly inadmissible, in view of the universally recognized duty
on the part of any civilized power to provide a government for all
territory under its control; and the limitation of time mentioned in
this section must be interpreted, in my opinion, as inserted merely to
show that, during the period of its own lawful existence, and unless led
to hold differently by succeeding events, the Fifty-eighth Congress
intended that the powers of government, which it might have lawfully
exercised over the Canal Zone, should be exercised, by its authority and
under its delegation, by the President or such officers or persons as he
might employ for the purpose.
That Congress did not intend, or expect, the President's authority over
the Canal Zone to end at the time mentioned in the second section of the
act approved April 28, 1904, seems clear by the provision in the act
approved December 21, 1905 (34 Stat., 5), making appropriations to
continue the construction of the canal, to the effect that "the
President shall annually cause to be made, by the persons appointed and
employed by him in charge of the government of said Canal Zone * * *
estimates of expenditures." By this provision Congress recognized the
President as authorized to govern the Canal Zone and appoint and employ
persons to take part in that government. Evidently, then, Congress did
not consider the power expressly conferred upon the President by section
two of the act of Congress approved April 28, 1904, as terminating at
the time mentioned in that section.
In the case of Wilson v. Shaw (204 U.S., 24), the several acts of
Congress are referred to as ratifying, by recognition, previous acts of
the Executive in the acquisition of the Canal Zone and the construction
of the canal. If it were necessary to do so, the terms of the act
approved December 1, 1905, above quoted, might be relied upon as a
ratification by Congress of the President's assumption of authority over
the Canal Zone subsequently to the end of the Fifty-eighth Congress. In
my opinion, however, no such ratification was necessary; and, in the
absence of action by Congress distinctly denying him that right and
establishing by law a state of anarchy in the Canal Zone, the President
would have the power to administer this territory, merely because
control, with the incidents of sovereignty, over it was possessed by the
United States, and no other provision for its orderly government had
been made.
It is hardly necessary to add that this authority on his part
involves the right and the power to modify or repeal any laws previously
existing within this territory, whether originally enacted before or
after its acquisition by the United States. Laws, whatever their form,
continue in force after the authority which enacted them has ceased to
exist, only by the consent of the succeeding authority to their
continuing validity, implied from its failure to modify or repeal them;
so soon as the new governing power considers them no longer appropriate
to attain the ends of government, it has the inherent right to change or
annul them, unless its authority in this respect has been expressly
curtailed. There is nothing in this act approved April 28, 1904, or in
any other act of Congress relating to this subject-matter, which
discloses any purpose on the part of the Congress to give to
determinations of the Isthmian Canal Commission a peculiar permanency,
or to exempt them from modification or rescission in the discretion of
the President.
I therefore answer your question in the negative and advise you that,
in my opinion, the President may now, directly or through the persons
appointed and employed by him to govern the Zone and build the canal,
adopt needed rules and regulations for the government of the Canal Zone,
and that he has not lost the power to modify any of the rules and
regulations established by the Canal Commission prior to the expiration
of the Fifty-eighth Congress.
Respectfully,
CHARLES J. BONAPARTE.
NAVAL OFFICERS-- ADVANCEMENT ON RETIRED LIST; 26 Op.Att'y.Gen. 111,
January 22, 1907
The act of June 18, 1884 (23 Stat., 45), which provides for the
nomination and appointment of Assistant Engineer John W. Saville, of the
United States Navy, then on the retired list, to be a passed assistant
engineer in the Navy and that he be placed on the retired list with the
highest rate of retired pay of that grade, did not effect a new
retirement nullifying the original retirement, but merely effected an
advancement on the retired list, the effect of which was merely to
advance him one grade on that list.
Mr. Saville is therefore debarred from advancement under the act of
June 29, 1906 (34 Stat., 553, 554), which provides that the act shall
not apply to any officer who received an advance of grade at or since
the date of his retirement.
DEPARTMENT OF JUSTICE,
January 22, 1907.
THE SECRETARY OF THE NAVY.
SIR: Your letter of January 11, and the accompanying official
indorsements, show that on April 3, 1885, John W. Saville, an assistant
engineer in the Navy, then on the retired list, was commissioned a
passed assistant engineer and placed on the retired list from June 19,
1884, under the authority of a special act of June 18, 1884 (23 Stat.,
45), which provides:
"That the President of the United States be, and is hereby,
authorized to nominate, and by and with the advice and consent of the
Senate, to appoint Assistant Engineer John W. Saville, of the United
States Navy, a passed assistant engineer in the Navy, to date with his
class on the active list;
and that he be placed on the retired list of the Navy with the highest
rate of retired pay of that grade, to date from and after the passage of
this act."
You ask whether Mr. Saville is entitled to the benefits of the naval
appropriation act of June 29, 1906 (34 Stat., 553, 554), which provides
for the advancement one grade on the retired list, with certain
limitations, of 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 on account of wounds or disability incident
to the service, etc. Passed Assistant Engineer Saville falls within this
category, and the doubt in the case arises because of the proviso to the
act of June 29, 1906, which is as follows:
"Provided, That this Act shall not apply to any officer who received
an advance of grade at or since the date of his retirement or who has
been restored to the Navy and placed on the retired list by virtue of
the provisions of a special Act of Congress."
It appears clear to me that Mr. Saville, being retired in 1871, as
appears from the official record, the special act of 1884 for his
benefit did not effect a new retirement nullifying the original
retirement, but merely effected an advancement on the retired list in
pursuance of the usual legislative method adopted for that purpose. The
obvious intention, meaning, and effect of the act of 1884 simply was to
advance Mr. Saville, already on the retired list, one grade on that
list. As he thereby received an advance of grade since the date of his
retirement, he is debarred from the benefits of the act of 1906 by the
very terms of the proviso.
Accordingly I have the honor to answer your question in the negative.
Very respectfully,
CHARLES J. BONAPARTE.
SURVEYORS OF CUSTOMS-- DISBURSEMENT OF PUBLIC MONEYS; 26 Op.Att'y.
Gen. 108, January 15, 1907
Surveyors of customs at ports where there are no collectors are not
to be considered as collectors, and therefore within the provisions of
section 3657, Revised Statutes, which requires collectors of customs to
disburse all moneys that may be appropriated for the construction of
custom-houses, court-houses, post-offices, etc.
Suggested, that authority for the designation of a surveyor of
customs to act in that capacity, where there is no collector, would seem
to exist under sections 255 and 3658, Revised Statutes, and for extra
compensation, under section 3554, Revised Statutes.
DEPARTMENT OF JUSTICE,
January 15, 1907.
THE SECRETARY OF THE TREASURY.
SIR: In your letter of December 20, 1906, you request my opinion
whether "surveyors of customs at ports where there are no collectors are
to be considered as collectors and therefore within the provision of the
law requiring collectors of customs to disburse the moneys appropriated
for the construction of custom-houses, court-houses, post-offices, and
marine hospitals."
The provision referred to is section 3657, Revised Statutes, which
reads:
"SEC. 3657. The collectors of customs in the several collection
districts are required to act as disbursing agents for the payment of
all moneys that are or may hereafter be appropriated for the
construction of custom-houses, court-houses, post-offices, and marine
hospitals;
with such compensation, not exceeding one-quarter of one per centum, as
the Secretary of the Treasury may deem equitable and just."
As part of the case submitted, you say:
"Surveyors of customs of inland ports over which they preside are the
principal customs officers at those ports and are not subordinate to any
collector, and it has been the practice of the Department for a great
many years to regard such surveyors as collectors of customs.
"These officers transact all the business of a collector at the ports
where they are located, and are treated as collectors in all their
dealings with the Department.
"It has also been the practice of the Department, for a great many
years, in thus treating such surveyors as collectors to designate them
under the provisions of section 3657 of the Revised Statutes as
disbursing agents of funds appropriated for the erection of public
buildings at the various ports over which they preside. In some cases
such officers have been designated to make such disbursements under
their bonds as surveyors or under separate bonds required of them as
special disbursing agents, and they have been allowed the commission of
three-eighths of 1 per cent of such disbursements, which the law allows
to be paid to collectors of customs in certain cases."
My attention has been called to no statute imposing generally upon
surveyors of customs at ports where a surveyor only is appointed all the
duties of a collector of customs, and I am unable to find such a
statute. Section 2623, Revised Statutes, provides that at ports to which
a collector only is appointed, the collector shall solely execute the
duties in which the cooperation of the naval officer is requisite, where
a naval officer is appointed, and "shall also, as far as may be, perform
all the duties prescribed for surveyors at ports where surveyors are
authorized." But section 2628, which covers the case of ports where
surveyors only are appointed, does not undertake to impose upon such
surveyors all the duties of collectors. The only cases in which a
surveyor is required by law to perform all the duties of a collector are
those of the disability or death of the collector,
when there is no deputy collector or naval officer (sec. 2625) and when,
in case of insurrection, it may be necessary for the President to cause
duties to be collected at the port of delivery instead of the port of
entry (sec. 5314).
This being so, I am unable to see any authority for holding that
surveyors of customs at ports where there are no collectors are to be
considered as collectors and therefore within the provision of section
3657, requiring collectors to disburse the moneys appropriated for the
construction of custom houses, etc.
I may suggest, however, that authority for the designation of a
surveyor of customs to act in the capacity above mentioned at a port
where there is no collector would seem to exist, if not under section
3658, at least under section 255, Revised Statutes.
"SEC. 3658. Where there is no collector at the place or location of
any public work specified in the preceding section, the Secretary of the
Treasury may appoint a disbursing agent for the payment of all moneys
appropriated for the construction of any such public work, with such
compensation as he may deem equitable and just."
The act of July 31, 1894, section 2 (28 Stat., 205), providing that
"no person who holds an office the salary or annual compensation
attached to which amounts to the sum of two thousand five hundred
dollars shall be appointed to or hold any other office to which
compensation is attached unless specially heretofore or hereafter
specially authorized by law," would preclude the appointment of
surveyors under this section, where the annual compensation attached to
their office amounts to the sum named. But section 255 seems to cover
the case exactly.
"SECTION 255. The Secretary of the Treasury may designate any officer
of the United States, who has given bonds for the faithful performance
of his duties, to be disbursing agent for the payment of all moneys
appropriated for the construction of public buildings authorized by law
within the district of such officer."
The allowance of extra compensation for such service appears to be
authorized by section 3654, Revised Statutes, as amended by the act of
March 3, 1875, section 4 (18 Stat., 415).
"SEC. 3654. No extra compensation exceeding one-eighth of one per
centum shall in any case be allowed or paid to any officer, person, or
corporation for disbursing moneys appropriated to the construction of
any public building."
The act of March 3, 1875, amended this provision so as to make it
read three-eighths of 1 per centum instead of one-eighth.
Respectfully,
CHARLES J. BONAPARTE.
DRY DOCK AT NEW YORK-- CONSTRUCTION OF CONTRACT; 26 Op.Att'y.Gen.
103, January 9, 1907
The contractor, and not the Government, is responsible, under his
contract for the erection of a dry dock at the navy-yard at New York,
for damages to the excavation and structural work there in progress,
caused by water flowing from a concealed drain pipe, the existence of
which neither the contractor nor the Government knew, and by a breakage
in the rebuilt portion of a sewer which had been diverted around the
head of the dry dock, caused, in large measure, by the ground support on
the side next the dry dock having been weakened by the excavation, the
contract expressly providing, among other things, that the contract
price covered all contingencies of every kind; that the entire
responsibility for the sufficiency of the shoring and protection of the
excavation and various structures should rest upon the contractor; that
he shall be responsible for any settlement or damage to the structures
that may result directly or indirectly from his operation; and that he
shall be responsible for the entire work and every part thereof until
completion and acceptance.
DEPARTMENT OF JUSTICE,
January 9, 1907.
THE SECRETARY OF THE NAVY.
SIR: Your letter of December 31, 1906, submits for my consideration
a question which has arisen under a contract between George B. Spearin
and the Navy Department for the construction of a dry dock at the United
States navy-yard, New York, N.Y., "as to whether the Government or the
contractor is responsible for the injuries that have resulted and are
likely to result to the work in progress by leakage from a concealed
drain pipe and a broken 6-foot sewer in the vicinity of the excavation
for the dock."
You inclose for my information a copy of the contract in question,
together with correspondence bearing upon the subject; and you state
that the contractor has been notified by the Navy Department that in its
judgment responsibility for the damages rests on him, but that he has
requested a rehearing, and that, upon further consideration, you are in
some doubt whether the Government should not properly assume the expense
of repairing the damages and of guarding against further injury
anticipated in the near future.
From your letter and the papers transmitted it appears that the sewer
referred to formerly intercepted the dock site; that it was diverted
around the head of the dry dock under the terms of the contract; that
the break occurred in the part of the sewer which was rebuilt in that
new course, and was caused by pressure on the inside of the sewer during
unusually heavy rains last August, the sewer not being of sufficient
area to carry off all the water which then fell and not being
sufficiently supported at the point where the crack occurred; that
because of these conditions the contractor has suspended work, and now
claims, not only that he is not responsible for the breaking of the
sewer, but that he is entitled to reimbursement for the damages thus
caused to his work and property.
In order to fix the responsibility in this matter it is necessary to
make a careful examination of the contract between Mr. Spearin and the
Navy Department. The instrument is dated February 7, 1905, and is for
the construction of a dry dock at the navy-yard, New York, N.Y., to be
completed within forty-two calendar months from the date of the
contract, the contractor to furnish at his own risk and expense all
labor, materials, temporary structures, etc., and to take all necessary
and suitable precautions, during the progress and until completion of
the work, to avoid or prevent accidents; and to save the United States
from all claims against it by reason of any injury to person or property
resulting from any accident which may occur during the prosecution of
the work and in connection with it. By paragraph 5 of the specifications
accompanying and forming part of the contract,
a United States civil engineer or other authorized representative is to
have control and direction of the work, and all questions and disputes
as to the details shall be decided by such officer subject to appeal to
the Chief of the Bureau of Yards and Docks. There are provisions for
extensions of time and for damages, in the form of daily deductions, for
avoidable delays in completing the work within the time specified or the
extensions allowed; and also for the annulment of the contract if from
the progress made it shall appear that the work is not likely to be
completed within the time allowed.
It is unnecessary to follow the details of the specifications as to
materials to be used, workmanship, temporary works, construction
(including, among other things, the diversion of the intercepting
sewer), proposals, etc. But it is to be observed that the contract
contains numerous provisions safeguarding the Government from claims for
damages, and placing complete responsibility upon the contractor for all
accidents, injuries, and contingencies of every kind. Paragraph 21 is as
follows:
"The contractor shall be responsible for the entire work and every
part thereof, until completion and final acceptance by the Chief of the
Bureau of Yards and Docks, and for all tools, appliances, and property
of every description used in connection therewith. * * * Provided, That
the contractor shall specifically and distinctly assume all risks of
damages or injury from any cause to property or persons used or employed
on or in connection with the work, and of all damages or injury to any
person or property, wherever located, resulting from any action or
operation under the contract or in connection with the work, and
undertakes and promises to protect and defend the United States against
all claims on account of any such damage or injury."
It is also agreed that the Government and the contractor will labor
to mutual advantage where their several works may touch upon or
interfere with each other, and that in case of a necessary interference
no claim for extra compensation shall arise, "the contract price
covering all contingencies of every kind," except such changes in the
contract as the United States may deem necessary and advisable to make
(par. 30).
Again, under paragraph 149, requiring the removal of railroad tracks,
sewers, and pipes on the dock site, the contractor "will be held
responsible for and be required to repair all damages" to pipes and
tracks by reason of the building of the new sewer; and in paragraph
152, relating to the shoring and protection of the excavation and
various structures, while the method and plans for the same are subject
to the approval of the civil engineer in charge, "the entire
responsibility for its sufficiency shall rest upon the contractor, and
he shall be liable for any settlement or damage" to the structures that
may result, directly or indirectly, from his operations.
Thus, by the terms of the contract, the fullest measure of
responsibility seems to rest upon the contractor for all possible
accidents and injuries occurring in connection with his operations in
the construction of the dry dock. The question as to his responsibility
in the matter of the sewer depends upon whether the accident occurred in
connection with these operations. It is alleged that the damage was
caused, not only by the break in the sewer, but by the opening of the
manholes, the sewer not being of sufficient area to carry off all the
water which fell during a very heavy rain, and the internal pressure
being so great as to lift the covers of the manholes and force the water
up through the holes. This, as the civil engineer in charge explains in
his letter of August 29, 1906, had sometimes happened with the original
sewer during heavy downfalls of rain, a fact which the contractor
asserts was not communicated to him by the Government authorities until
after the failure of the sewer in August. But it is noted that never,
until the new portion of the sewer was built, had any break in the sewer
occurred; and the view of the engineer is that the break was directly
caused by an insufficient quantity of earth over the sewer at that
point, the ground having broken away from the inner side of the sewer
and moved toward the excavation, leaving a portion of the sewer exposed
on the side next the dock, and thus depriving it of the support
necessary to such structures in order to resist the internal pressure.
In this view, the engineer states, Mr. Spearin's representative has
concurred and it appears to be inherently highly probable.
In view of the broad terms of the contract above cited relating to
the contractor's responsibility, the undoubted fact that the break in
the sewer occurred in the rebuilt portion and the very strong
probability that it was a direct consequence of the contractor's
operations in connection with his excavation work as decided by the
engineer, I am of the opinion that he is responsible for the damage
resulting from the breaking of the sewer, and that he should restore the
sewer and deliver it in sound and proper condition to the Government, as
is contemplated by the contract. And since it is impossible to separate
the damages caused by the break from those resulting from the water
forced through the manholes, and the latter can hardly be at all
serious, I think Mr. Spearin must be considered responsible for the
entire occurrence. As to his intimation that he ought to have been
advised by the authorities at the dock of the previous overflows of the
sewer through the manholes, I hold that it was his duty before
undertaking the work to ascertain fully all the conditions connected
therewith, including the facts connected with the existing sewer, in
view of paragraph 271 of the specifications, which is as follows:
"Intending bidders are expected to examine the site of the proposed
dry dock and inform themselves thoroughly of the actual conditions and
requirements before submitting proposals."
In the matter of the leakage of the concealed 12-inch drain-pipe, you
state that Mr. Spearin bases his claim for damages caused by the flowing
of water through this drain, upon the ground that the drain was not
shown on any of the plans of the site or its surroundings, and that
neither he nor the Government authorities knew of its presence there.
It seems sufficient, in this connection, to refer to paragraph 271,
above set forth, and also to paragraph 35 of the specifications. The
latter allows intending bidders the privilege of examining the site, and
adds: "And they must satisfy themselves, by boring or otherwise, as to
the nature and character of the soil, as the Government will not assume
any risk or responsibility in connection therewith." Paragraph 271 has
been already given.
From these provisions of the specifications, as well as those already
cited,
it is clear the contractor is not entitled to any compensation or relief
because the existence of the drain in question was unknown to him when
he undertook the work.
Accordingly, I have the honor to answer your specific question by
advising you that, in my opinion, the Government is not, and the
contractor is, responsible, under the contract entered into with Mr.
Spearin, for the damages caused by water flowing from the concealed
drain-pipe and for the breaking of the sewer and the resulting damages
to the excavation and the structural work in progress.
Very respectfully,
CHARLES J. BONAPARTE.
FREE REGISTRATION OF OFFICIAL MAIL-- PENSION AGENTS; 26 Op.Att'y.
Gen. 101, January 3, 1907
The words "official mail matter," contained in paragraph 4 of the act
of July 2, 1886 (24 Stat., 122), which extends the provisions of section
3 of the act of July 5, 1884 (23 Stat., 158) relating to the free
registration of official mail to pension agents, means all matter
passing through the mails of an official as distinguished from a
personal or private character.
There is nothing to indicate an intention on the part of Congress to
exclude pension agents from the provisions of section 3 of the act of
1884 (23 Stat., 158), allowing the free registration of official mail
matter, and the delivery of part-paid letters or packets addressed to
them, which have reference to official business.
Opinion of June 13, 1906 (25 Op., 617), concurred in.
DEPARTMENT OF JUSTICE,
January 3, 1907.
THE POSTMASTER-GENERAL.
SIR: I have the honor to acknowledge receipt of your letter of
October 19, with inclosures, asking my opinion of the effect of
paragraph 4 of the act of July 2, 1886 (24 Stat., 122).
In order to understand the effect of this legislation it will be
necessary to consider generally the statutes relating to the
transmission of official mail matter.
The first act passed relating to this subject was that of March 3,
1877 (19 Stat., 335), section 5 of which provides:
"That it shall be lawful to transmit through the mail, free of
postage, any letters, packages, or other matters relating exclusively to
the business of the Government of the United States:
Provided, That every such letter or package to entitle it to pass free
shall bear over the words 'Official Business' an indorsement showing
also the name of the Department, and, if from a bureau or office, the
names of the Department and bureau or office, as the case may be, whence
transmitted." * * *
The remainder of this section provides for penalties for the illegal
use of official envelopes; and section 6 merely sets out the manner in
which the necessary envelopes shall be furnished to the various
Departments.
Section 29 of the act of March 3, 1879 (20 Stat., 362), extends the
privilege of free transmission of official mail matter to all Government
officers, whether located at Washington or elsewhere. It is also
expressly provided that this act shall not extend or apply to pension
agents.
The act of July 5, 1884 (23 Stat., 158), reenacts the two laws just
mentioned, excluding, however, Members of Congress from its provisions,
and contains the following proviso in section 3:
* * * "That any letter or packet to be registered by either of the
Executive Departments or Bureaus thereof, or by the Agricultural
Department, or by the Public Printer, may be registered without the
payment of any registry fee; and any part-paid letter or packet
addressed to either of said Departments or Bureaus may be delivered
free." * * *
And it is again provided that the act shall not extend or apply to
pension agents.
The last statute we have to consider is the act of July 2, 1886 (24
Stat., 122), which states that the provisions of section 3 of the act of
July 5, 1884, just referred to, "are hereby extended and made applicable
to all official mail matter of agents for the payment of pensions."
The last-mentioned statute was considered by my immediate predecessor
in an opinion rendered on June 13, last past (25 Op., 617), and by the
Comptroller of the Treasury in a letter to the Secretary of the Interior
bearing date April 17, 1906 (12 Comp.Dec., 617). Both of these officers
reached the conclusion that so much of the statute as referred to free
registration applied to the "official mail matter" of pension agents. In
these opinions I fully concur. I find nothing in the language of this
statute which limits its application to any particular clause of the
section to which it specifically refers.
Some discussion has arisen as to the meaning of "official mail
matter." I find nothing to show or suggest that the Congress meant by
these words anything different from what it said, i.e., all matter
passing through the mails of an official (as distinguished from a
personal or private) character; and consequently there is nothing to
indicate an intention on the part of the Congress to exclude pension
agents from the provisions of section 3 of the act of 1884, supra,
allowing the free registration of official mail matter and the delivery
of part-paid letters or packets addressed to them, and which have
reference to official business.
Respectfully,
CHARLES J. BONAPARTE.
SUBIG BAY NAVAL RESERVATION-- JURISDICTION OF THE NAVY DEPARTMENT;
26 Op.Att'y.Gen. 91, December 10, 1906
Section 12 of the act of July 1, 1902 (32 Stat., 691, 695), which
reserved to the United States in the Philippine Islands "such land or
other property as shall be designated by the President of the United
States for military and other reservations," does not confer upon him
the power to withdraw the reservation completely from the local
jurisdiction and place it under the jurisdiction of the Navy Department,
thereby erecting a new and independent authority for all purposes of
civil government.
Section 12 simply grants and reserves property; it does not confer
governmental jurisdiction.
DEPARTMENT OF JUSTICE,
December 10, 1906.
THE SECRETARY OF WAR.
SIR: I have the honor to respond to your request of October 20 for
an opinion respecting the jurisdiction over the Subig Naval Reservation,
Philippine Islands. The situation is as follows:
Under an Executive order dated November 26, 1902, a large body of
lands and coastal and other waters in and along the provinces of
Zambales and Bataan, island of Luzon, was "reserved for naval purposes,
and said reservation and all lands included within said boundaries" were
"placed under the governance and control of the Navy Department." Proper
control and sanitation demand, in the opinion of the naval authorities,
that the entire reservation should be completely under the jurisdiction
of the Navy Department. Accordingly, steps have been taken to acquire
for the United States all titles to private property in the village of
Olongapo and elsewhere in the reservation. There are still some private
lands not yet acquired or actually used for naval purposes.
Your question is, "To what extent the Navy Department has
jurisdiction over persons and property within the limits of said
reservation, and whether it is of such character and extent as to
exclude the civil powers of the Philippine government and all citizens
of said government residing within said reservation, such as the
imposition of taxes, the management and disposition of real and personal
property, the running of civil writs, the obtaining of wood for domestic
purposes, and in general the exercise of such civil rights as do not
interfere with the naval uses of the reservation."
The power to control and dispose of the public lands rests absolutely
in Congress (Constitution, Art. IV, sec. 3, cl. 2; United States v.
Fitzpatrick, 15 Pet., 407, 421; Jourdan v. Barrett, 4 How., 168, 184;
Gibson v. Chouteau, 13 Wall., 92, 99). The power of the President to
reserve public lands for public purposes is established, whether he acts
on precedent authority from Congress, or his action is afterwards
approved (Wilcox v. Jackson, 13 Pet., 498, 512; Grisar v. McDowell, 6
Wall., 363, 381; Forty-three Cases of Brandy, 14 Fed.Rep., 539; 7 Op.,
571, 574; 12 Op., 379, 381; 14 Op., 181; 17 Op., 258). Here the
authority was precedent, although inferential rather than affirmative
(sec. 12, act July 1, 1902, 32 Stat., 695, infra).
The first question is whether the President intended to confer upon
the Navy Department the power to maintain a distinct and complete
government over the reservation, independent of the local authority.
The phrase in the order on which this question hinges is "governance and
control." Other similar orders of reservation contain equivalent
language. In some cases the purpose only is stated: "For the use of the
Marine-Hospital Service;" "for custom-house purposes" (Proc. June 30,
1903, 33 Stat., 2315, 2316); in some cases the single word "control" is
used-- the reservation to be under the control of the particular
administrative service (Ex. Order January 9, 1904, G.O., War Dept., No.
14, 1904); but in other cases the language is similar to this, "under
the jurisdiction and control," as in the instance of the Culebra naval
station (G.O., 75, Navy Department, December 18, 1901).
The power of a military commandant over a reservation is necessarily
extensive and practically exclusive, forbidding entrance and controlling
residence as the public interest may demand. The police power of the
Government over lands set apart for its purposes, wherever situated, is
essentially untrammeled. The extent to which the Government may go in
the particular case (Camfield v. United States, 167 U.S., 518, 525,
526). It is "an uncontrovertible principle that the Government of the
United States may,
by means of physical force exercised through its official agents,
execute on every foot of American soil the powers and functions that
belong to it" (Ex parte Siebold, 100 U.S., 371, 395; In re Neagle, 135
U.S., 1; In re Debs, 158 U.S., 564; and see Ohio v. Thomas, 173 U.S.,
276). The military control up to the limit of the military necessities
would be paramount; but such a charter of government as is deduced here
from the President's language has not attached to any other order of
military reservation, although couched in similar terms.
The conclusion, then, is natural that the intention of the President
by his language was, as usual, to commit to the particular Department
the administration of the property for the public use, without
contemplating any separate establishment of municipal government. Such
executive control would be generally adequate for the protection and
objects of government even if individuals not in the government service
were residing on the reservation and there were embraced within its
exterior boundaries parcels of property in private ownership and
municipalities of the local government. These would exist and exercise
their functions and enjoy their rights, subject to the parmount Federal
control. So that, practically, the national demands of the situation
might be satisfied without granting the extreme claim advanced.
But your question squarely presents this claim. Assuming, then, that
the President's intention was to confer upon the Navy Department a
complete autonomous authority, to the exclusion of the local government
and laws, the question is whether he was empowered.
In regard to a military reservation in a State, it is settled that no
other legislative power than that of Congress can be exercised over
lands purchased by the United States, with the consent of the State, for
the public purposes enumerated in the Constitution (Art. I, sec. 8, cl.
17). But where exclusive jurisdiction is not reserved before the
admission of the State, or ceded afterwards, the legislative power of
the State will be as full and complete as over any other place within
her limits, except that the Federal instrumentalities are exempt from
State control. The ordinary municipal laws of the State continue in
force on the reservation, unless inconsistent with the laws of the
United States or until changed by Congress (Fort Leavenworth R.R. Co.
v. Lowe, 114 U.S., 525; Chicago, Rock Island and Pacific R.R. Co. v.
Mcglinn, id., 542, and cased cited; 7 Op., 571, ut supra).
In a Territory this precise constitutional question affecting a State
does not arise; the authority of Congress is altogether paramount. Yet
is has been held not only that the laws of the United States apply to
military reservations, but that "a territorial statute is operative upon
a military reservation within the Territory so long as it does not
conflict with the laws of the United States or with the military
administration and legitimate operations of the Government" (Op.,
J.A.G., par. 2437, 2439; Reynolds v. People, 1 Colo., 181; Territory
v. Burgess, 8 Mont., 57; Scott v. United States, 1 Wyo., 40; cf.
Articles of War for the Army, Rev. Stat., sec. 1342, art. 58, 59). The
articles for the government of the Navy (R.S., sec. 1624) do not
expressly recognize any local civil jurisdiction, although article 6
does, by inference, respecting murder committed within the territorial
jurisdiction of the United States. This distinction between the Army and
the Navy is probably for the obvious reason that the Navy articles of
war contemplate chiefly conditions on the high seas and not on land.
Now, both in a State and an organized Territory there is a Federal
jurisdiction precisely marked out and Federal courts (i.e., either
courts of the United States or the "Federal side" of territorial courts)
competent for the settlement of every controversy, civil and criminal,
which is not properly cognizable in the local tribunals and under local
laws-- that is, there is Federal "jurisdiction over all offences against
the laws of the United States * * * and in all civil cases" within the
national field as marked out by statute (e.g., secs. 563, 629, 5339,
5356, Rev. Stats.; sec. 9, act of May 2, 1890, 26 Stat., 81, 85; sec.
34, act of April 12, 1900, 31 Stat., 77, 84; c.f. Bowman and Tucker
Acts, March 3, 1883, 22 Stat., 485; March 3, 1887, 24 Stat., 505). The
present instance, however, is peculiar in that the Government, although
resting on Federal authority, is wholly local. There are no courts of
the United States and no territorial courts in the strict sense of the
term.
The executive and judicial system is based upon alien originals and a
foreign jurisprudence, and is largely administered, in the smaller
municipal sub-divisions at least, by officials selected from the native
inhabitants.
These are the general principles and the peculiar local conditions
affecting the inquiry, and I now proceed to examine the particular
doctrines and laws which seem to be controlling. The real question is,
Which branch of the Federal authority, the Philippine government or the
Navy Department, shall exercise the municipal jurisdiction claimed, both
executive and judicial, on the reservation, over property not owned by
the United States and persons not in its military service? I am not
called upon by your query to consider whether, indeed, even persons in
its reservation service may not be amenable to the local law and process
in respect of ordinary offenses and liabilities and under the ordinary
conditions of a time of peace. I have cited, ante, some of the statutes
and authorities bearing upon this question.
The United States acquired the Philippine territory under the cession
from Spain, and possesses both the rights of a proprietor and political
dominion and sovereignty. Up to the date of the ratification of the
treaty with Spain, the Executive government under the war power was
supreme. Since that date the Executive has administered the government
through military and civil agencies, and in particular by means of the
Philippine Commission, upon whom the authority to legislate was
specifically conferred (Instructions of April 7, 1900). Accordingly the
Commission have established a complete civil government and enacted a
large body of laws, and this government, both on the executive and
judicial side, is in full operation throughout the islands except in a
few localities, and embraces the territory now in question. This
Executive government was recognized by Congress and broadly sustained in
the "Spooner amendment" of March 2, 1901 (31 Stat., 910); and the
Supreme Court, in a case testing the validity of one of the Commission's
municipal laws, has sustained the competence of the government under the
Commission and the validity of its laws (Dorr v. United States, 195
U.S., 138, 143, 153).
By the act of July 1, 1902 (32 Stat., 691), enacted to provide a
civil government for the Philippine Islands, Congress confirmed the
precedent acts of the Executive in the Philippines and conferred
authority for the future (secs. 1-11). Section 12 placed all property
and rights acquired from Spain under the control of the island
government for the benefit of its inhabitants, "except such land or
other property as shall be designated by the President of the United
States for military and other reservations of the Government of the
United States." The remainder of the act deals with the disposal of
public lands and other matters not necessary to specify here.
Congress has thus acted fully and deliberately. The local government
is now the instrument and agency of the legislature rather than of the
Executive, although the entire administration is practically committed
to the Executive, and the local government is treated as a branch of the
Executive, directed by and responsible to the President in the first
instance. In other words, Congress enacts the law or ratifies it, for
the President to execute.
The Philippine Commission, in pursuance of its authority thus
confirmed by Congress, enacted a law undertaking to deal with military
reservations of the United States in the Philippines, by which it was
provided (act No. 530, November 24, 1902; 2 Pub.Laws Phil.Com., 157)
that no license for the sale of liquor on a military reservation shall
be granted; that the military authorities shall have the right to eject
trespassers from a reservation and to suppress open breaches of the
peace and abate nuisances; that no branch of the civil government and
no civilian residents shall interfere with the military administration
of a reservation; that the personal property of persons employed in the
military service used by them incident to that service shall be exempt
from taxation; that mining claims shall not be located on military
reservations; that illegal timber cutting on military reservations
shall be punished; that the arrest of an officer, soldier, or civilian
employee on a reservation must be made by a warrant in due form served
upon the commanding officer; and (sec. 8) that all laws or parts of
laws in force in the Philippine Islands, not inconsistent with military
use of any public lands reserved by the President for military purposes,
shall be in full force and effect over said lands.
This act shows, indeed, a definite assertion of jurisdiction by the
island government, but also a scrupulous intention to support the
national rights and aid the reservation purposes. Now Congress has not
disapproved or annulled this act of the Commission under section 86 of
the act of July 1, 1902, which directed that all laws passed by the
Philippine Government should be reported to Congress, and reserved the
power to annul the same. The relation of Congress to all territorial
legislation is similar (e.g., organic act, Oregon, 9 Stat., 323, 326;
Utah, id., 453, 455; New Mexico, id., 446, 449; Washington, 10 Stat.,
172, 175), and thus it may be said that the exercise of local
jurisdiction for ordinary municipal purposes over a reservation in a
territory is valid until and unless disapproved by Congress.
The above enactment of the Commission has been construed by the
attorney-general of the Philippines (opinion of December 2, 1905; Of.
Gaz., vol. 4, No. 50, p. 61). He affirms his previous view that the
Philippine Commission unquestionably has authority to enact general laws
extending over the military and naval reservations in the Philippine
Islands (1 Op.A.G.Phil.Islands, 326; id., 332). One of these opinions
referred to the Mariveles Reservation, respecting which G.O., 145 of
1902, Division of the Philippines, provided that "in order to preserve
to the native and other inhabitants * * * trial by civil courts * * * it
is announced * * * that the courts of first instance * * * still remain,
under the changed status, vested with full power and jurisdiction for
the trial of all cases arising between the inhabitants and other persons
living on these reservations, excepting those connected with the
military service."
The present case is not like that of Guam, where a complete
government has been instituted and conducted by the Navy Department
through an officer of the Navy appointed as governor by the Secretary
and commissioned by the President under an order of President McKinley,
which provides that "the island of Guam, in the Ladrones, is hereby
placed under the control of the Department of the Navy.
The Secretary of the Navy will take such steps as may be necessary to
establish the authority of the United States and to give it the
necessary protection and government."
This order was dated December 23, 1898, and of course was an exercise
of the war power, and the executive government thus established seems to
have survived and continued since the ratification of the treaty, with
the silent acquiescence of Congress, in accordance with the doctrine
that a temporary and provisional government of this nature continues ex
necessitate rei until further action by Congress (Dooley v. United
States, 182 U.S., 222, citing Cross v. Harrison, 16 How, 164). The Guam
government did not grow out of a military reservation, but was a
military government of the entire island in consequences of occupation
and conquest from Spain. Manifestly that instance is not a precedent
here.
Further, section 12 of the act of 1902 simply grants and reserves
property; it does not confer governmental jurisdiction. It deals with
property belonging to the government; but does not grant the power to
exercise the functions of government.
Upon this review, it is my opinion that it was not the intention of
Congress by section 12 of the act of 1902 to confer upon the President
the power to withdraw the reservation completely from the local
jurisdiction and to erect a distinct and independent authority for all
purposes of civil government. I do not think that the arguments ab
inconvenienti which are advanced-- the extent of the territory, the
existence of local municipalities, the necessities of sanitation, the
imperfections of native administration-- can be heard to vary to vary
the rules of construction and enlarge the authority. If the arguments of
convenience are, however, vital and controlling, they should be
addressed to Congress in order to obtain specific addition to the grant
of power.
I have the honor, therefore, to advise you that the jurisdiction of
the Navy Department over the Subig Bay Naval Reservation is not of such
character and extent as to exclude the civil powers of the Philippine
government relating to the imposition of taxes, the management and
disposition of real and personal property,
the running of ordinary civil writs, and, in general, the exercise of
such civil rights as do not interfere with the naval uses of the
reservation, including the provisions of the Philippine law punishing
illegal timber cutting on military reservations, and requiring a warrant
for the arrest of an officer, soldier, or civilian employee on a
reservation to be served on the commanding officer. I do not understand
the exact bearing or scope of the clause in your inquiry as to
"obtaining of wood for domestic purposes;" but you will observe that by
the opinion of the Attorney-General addressed to you dated October 10,
you were advised that the Philippine government can not extend its
forestry laws to the military reservations on those islands, and,
referring especially to section 18 of the Philippine government act of
July 1, 1902, and the proviso thereof that said government may issue
licenses to cut timber on reserved or unreserved public lands in said
islands, that "military and other reservations of the Government of the
United States" are not embraced within the general phrase "reserved or
unreserved public lands."
Very respectfully,
HENRY M. HOYT,
Solicitor-General.
Approved:
W. H. MOODY.
POST-OFFICE BUILDING AT ALBUQUERQUE, N. MEX.; 26 Op.Att'y.Gen. 88,
November 20, 1906
In erecting the public building at Albuquerque, N. Mex., authorized
by the acts of June 6, 1902, section 5 (32 Stat., 310, 320), and June
30, 1906, section 6 (34 Stat., 772, 776), the Secretary of the Treasury
is limited to providing accommodations for the post-office only, and is
not authorized to make provision for other governmental offices.
DEPARTMENT OF JUSTICE,
November 20, 1906.
THE SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge receipt of your letter of
November 14, in which you ask my opinion whether under the provisions of
the public building bills of June 6, 1902, (32 Stat., 310), and June 30,
1906 (34 Stat., 772), you are limited in the erection of the public
building at Albuquerque, N. Mex.,
to providing accommodations for the post-office only, or whether you are
also authorized to make provision for other governmental offices.
The legislation referred to is as follows:
Section 5 of the act of 1902 provides (p. 320):
"That the Secretary of the Treasury be, and he is hereby, authorized
and directed to acquire by purchase, condemnation, or otherwise, a
suitable site for the United States post-office and other governmental
offices in each of the cities enumerated in this section, within its
respective limit of cost hereby fixed:
"United States post-office at Albuquerque, New Mexico, ten thousand
dollars."
Section 6 of the act of 1906 provides (p. 776):
"That the Secretary of the Treasury be, and he is hereby, authorized
to contract for the erection and completion of a suitable building,
including fireproof vaults, heating and ventilating apparatus, and
approaches, complete, for the use and accommodation of the United States
post-office and other governmental offices upon ground now owned by the
United States in each of the following cities, respectively, within its
respective limit of cost hereby fixed:
"United States post-office at Albuquerque, New Mexico, one hundred
thousand dollars."
It is a rule of statutory interpretation that it is to be assumed
that words and phrases are used in their technical meaning, if they have
acquired one, because, if they have a definite meaning, it is to be
supposed that this meaning was understood by the legislative branch of
the Government when the law was enacted. (Endlich on Interpretation of
Statutes, p. 4, and Brocket v. The Ohio and Pennsylvania Railroad, 14
Pa.St.Rep., 241.)
The term "post-office" has a definite technical meaning, which should
not be extended, unless the act under consideration clearly shows that a
broader meaning was intended by Congress.
A perusal of section 5 of the act of 1902 shows that the Secretary of
the Treasury was thereby authorized to acquire sites for public
buildings in a number of cities throughout the country.
In each case the purposes for which the site was to be acquired were
specified, e.g., a "United States post-office and court-house at Pierre,
South Dakota; United States post-office and custom house at Portsmouth,
Virginia; United States post-office and land office at Natchitoches,
Louisiana." For Albuquerque, a United States post-office only is
provided.
True, the second proviso under section 5, of the act of 1902, states
"that in acquiring sites under this section the Secretary of the
Treasury shall take into consideration the present needs of the
Government and the future growth of the cities enumerated, respectively;
and in no case shall the Secretary of the Treasury acquire a site
unless the dimensions thereof are of sufficient size for a building that
will accommodate all the governmental offices now located or likely to
be located in said cities, respectively." There is nothing in this,
however, indicating an intention on the part of Congress to do more than
secure enough land for the erection of a public building which should,
at some future time, accommodate all governmental offices, if the
necessity arose.
Turning to section 6, of the act of 1906, it is apparent that
Congress intended to set forth specifically the purposes for which the
buildings to be erected at the cities named in the bill were to be used,
e.g., "United States post-office, court-house and other governmental
offices at San Juan, Porto Rico; United States post-office and
custom-house at Quincy, Massachusetts; United States post-office and
court-house at Valdosta, Georgia," etc. For the second time, at
Albuquerque, provision is made only for a post-office.
If Congress had intended to provide rooms for court or other
governmental purposes, it would have been clearly indicated, as was done
in the case of buildings to be erected elsewhere.
I am therefore of opinion that in erecting the public building at
Albuquerque, N. Mex., you are authorized under existing legislation only
to provide accommodations for the United States post-office.
Respectfully,
W. H. MOODY.
PANAMA CANAL APPROPRIATIONS-- MARINE BARRACKS AT ANCON; 26 Op.
Att'y. Gen. 81, November 16, 1906
The Isthmian Canal Commission is legally empowered, acting under the
direction of the President, to avail of the Panama Canal appropriations
(acts of December 21, 1905, 34 Stat., 5, and June 30, 1906, 34 Stat.,
697, 761, 762) for the purpose of erecting and maintaining marine
barracks in the vicinity of Ancon, Isthmus of Panama.
The Navy appropriation act of June 29, 1906 (34 Stat., 553, 581),
providing for the renting, leasing, improvement, and erection of
barracks for the Marine Corps at Porto Rico, Hawaii, Guam, etc., "and at
such other places as the public exigencies require," although specific,
is not exclusive.
The rule that a specific appropriation is exclusive, and that another
general appropriation is not available for the same purpose, is a rule
of administration firmly established by the accounting branch of the
Government, and is not a statutory limitation. This rule, while a proper
one, has obvious exceptions and limitations, and must be applied
reasonably.
The relative jurisdictions of the Comptroller of the Treasury and of
the Attorney-General over questions involving the payment of money out
of the Treasury, reviewed, and opinion of December 22, 1904 (25 Op.,
301), approved and followed.
DEPARTMENT OF JUSTICE,
November 16, 1906.
THE SECRETARY OF WAR.
SIR: I have the honor to respond to your note of October 26, 1906,
in which you advise me that "It is proposed to shortly erect in the
vicinity of Ancon, Isthmus of Panama, permanent marine barracks for the
proper housing of the marine force situated within the Canal Zone;"
and that "questions have arisen as to (1) the authority of the Isthmian
Canal Commission to construct these barracks and to provide for their
payment out of the funds appropriated to its use by the Congress, and as
to (2) the duty of the Navy Department, as against the Isthmian Canal
Commission, to assume this obligation."
You ask to be advised "whether there are any funds available for the
construction of marine barracks by either the Isthmian Canal Commission
or the Navy Department; and as to the relative duty and obligation
between these two Departments of Government to assume the cost of
erecting and the charge of maintaining the marine barracks in question."
Although the duty of housing and caring for the Marine Corps
ordinarily appertains to the Navy Department, to which that corps
belongs, yet I should find no difficulty in holding that the wide
discretion and authority conferred upon the President by the Panama
legislation (act of June 28, 1902, 32 Stat., 481) enable him and the
Executive agency, the Isthmian Canal Commission, to avail of the canal
appropriations (id., act of December 31, 1905, 34 Stat., 5; act of June
30, 1906, 34 Stat., 697, 761, 762) for the desired purpose, if other
laws and principles do not prohibit.
But the act of June 29, 1906 (34 Stat., 553, 581), contains the
following provision, which is also found in earlier annual appropriation
acts for the naval service (e.g., act of July 1, 1902, 32 Stat., 662,
688; act of March 3, 1903, id., 1177, 1200; act of April 27, 1904, 33
Stat., 324, 349; act of March 3, 1905, id., 1092, 1115):
"For repairs of barracks, Marine Corps: Repairs and improvements to
(enumerating particular barracks and structures); for the renting,
leasing, improvement, and erection of buildings in Porto Rico, the
Territory of Hawaii, the Philippine Islands, at Guam, and at such other
places as the public exigencies require; * * * "
This appropriation is specific and available whether adequate or not.
For years the rule has been established in the accounting service of
the Government that when an appropriation has been made for a specific
object,
that appropriation is exclusive and another more general appropriation
is not available, on the theory that where Congress appropriates a
specific sum for a specific object for the whole of a particular fiscal
year, it is to be presumed that the sum so specified is all that
Congress intends shall be used for that object for that fiscal year (3
Comp.Dec., 71; 6 id., 124; 7 id., 665; 9 id., 259; 10 id., 655; 12
id., 61). There is no such statutory limitation on the use of
appropriations, but the rule has, perhaps, been recognized tacitly by
Congress, since an act of June 7, 1897 (sec. 11, 30 Stat., 62, 93),
expressly and exclusively gave to the Secretary of the Interior an
authority contrary to the rule, viz., to use any general appropriation
otherwise available where funds appropriated in specific terms for a
particular object are insufficient. But it is to be remarked of this
uniform ruling by Comptrollers, first, that it operates within a narrow
range. That is to say, it has been a question whether some particular
thing should be purchased out of an appropriation to which it was
customarily charged as specific, or out of another in the same
Department for incidental expenses; or whether appropriations for
bureaus or contingent expenses of a Department could be availed of for
preparing the exhibit of that Department at an exposition for which a
specific appropriation was made; or whether when an appropriation for
"packing boxes" eo nomine for the shipment of postal supplies is
exhausted recourse might be had to an appropriation for "stationery,"
etc. See above citations. Second, it is also to be remarked that the
Comptroller recognizes that two appropriations may sometimes be
available-- "cumulative" appropriations, as they are called-- not only
when one is technically a deficiency appropriation professedly supplying
the lack in an earlier one (7 Comp.Dec., 142) but also where there are a
more and a less specific appropriation without reference to a
deficiency. For instance, there was a specific provision with a limited
appropriation in an act of 1897 for animal quarantine stations, and in
the same act a broad and general appropriation of a large sum with
authority to the Secretary of Agriculture to use it in his discretion in
the collection of information concerning live stock and to prevent the
spread of animal diseases,
and it was held that notwithstanding the rule as to the exclusive use of
a specific appropriation, the general appropriation might be used to pay
part of the expense of the quarantine station service.
"While it is a rule that a specific appropriation excludes the use,
for the same objects, of a general appropriation, yet when there are two
appropriations, both applicable to the same object, they are to be
treated as cumulative, and either or both can be used in the discretion
of the head of the Department." (4 Comp.Dec., 121; see also 1 id., 357;
2 id., 59.)
Finally, the Comptroller has noticed certain reasonable limits to the
applicability of the general rule. In 8 Comp.Dec., 685, referring to the
rule that the more applicable appropriation is exclusive, he says that
such rules are general rules of construction, and when confined to their
legitimate functions are useful; but when by refinement of reasoning
and logic they are made to serve the purpose of making an appropriation
the most general in its language inapplicable to a legitimate object of
a particular service, then these rules are being perverted, etc. And in
10 Comp.Dec., 832, considering an analogous matter, viz, the strict
requirement of the statute that all printing should be done at the
Government Printing Office unless otherwise authorized by law, in
juxtaposition with the broad authority conferred by the appropriation to
enforce the Sherman anti-trust law (32 Stat., 903), which might have
been construed as necessarily limited to the payment of the salaries of
special counsel and agents, the Comptroller throws aside that narrow
view as a construction which would make the law utterly inoperative to
accomplish the purposes for which it was enacted, saying: "Considering
this appropriation in the light of the terms and the evident purposes
for which it was made, it should be construed as providing for all the
necessary and proper expenses incurred."
In all the foregoing exceptions to the accounting rule there is no
exact analogy to the present case. For example, this is obviously not a
case of cumulative appropriations within the meaning of the instances
passed upon by the Comptroller.
It does not relate to a close association between different aspects of
the same service in the same Department. It is not really an instance of
a more and a less specific appropriation at all. The contrast is here
sharply drawn between a specific appropriation for a particular object
in one Department, and a broad authority to the Chief Executive without
any precedent whatever, not supplying any deficiency for the specific
object, and not manifesting by the general terms used any definite
knowledge of that object or concern with it or any clear intention to
make a new and cumulative provision to aid that object. On the other
hand, the cases and situations before the Comptroller out of which the
general rule grew, present no exact analogy either. They relate to
technical matters of accounting purely within a narrow field, as I have
said, and there is no instance discoverable where the Comptroller has
passed upon such a case as is now presented and applied the narrow rule
to the defeat, in a particular matter, of the broad purpose and
untrammeled authority of a great legislative policy.
It may safely be said that if any statutes empowering executive
action, with a wide discretion in matters of vital public concern, are
to be construed liberally and should be untrammeled by this rule, and if
a discretion conferred upon a secretary to expend a general
appropriation for important objects of public policy, only generally
defined, is not restricted by a specific appropriation, then the case is
a fortiori here, where the President of the United States is acting for
the accomplishment of the most important project of public works ever
undertaken by this country, and under an authority which was given and
was intended to be given with as wide a use of his personal judgment and
discretion and with as little check and guidance from the legislature as
is possible to conceive under the Constitution and organization of our
Government. There can be no doubt, of course, that the use of military
forces is a necessary part of the protection and government of the Canal
work and Zone, and that many subordinate matters of police are involved
in their employment. It is equally clear that the proper care of these
forces, including their adequate housing without delay in permanent
structures erected with a view to the latitude and climate and to the
demands of the modern science of hygiene,
are matters altogether within the scope of the authority conferred upon
the President and are imperative matters for his judgment and discretion
to act upon.
But there is another matter which must be considered. Is the present
question one which may be passed upon by the Attorney-General, or is it
reserved for the exclusive decision of the Comptroller of the Treasury?
The jurisdiction of the Comptroller has often been considered by my
predecessors with reference to the act of July 31, 1894, sec. 8 (28
Stat., 162, 208), which provides:
"Disbursing officers, or the head of any Executive Department, or
other establishment not under any of the Executive departments, may
apply for and the Comptroller of the Treasury shall render his decision
upon any question involving a payment to be made by them or under them,
which decision, when rendered, shall govern the Auditor and the
Comptroller of the Treasury in passing upon the account containing said
disbursement."
It will be noted that the statute permits but does not require this
reference of any question involving a payment to the Comptroller; and
it is thus suggested that whatever the final action of the Auditor and
Comptroller may be upon the account, the reference of every question to
the Comptroller for decision is not demanded by the law simply because
such a question may ultimately reach the accounting stage.
Mr. Olney, to avoid a conflict of precedents, held that the
Attorney-General should not render opinions upon questions which could
be referred to the Comptroller, except in matters of great importance,
or where the question, "is a general one applicable to all the
Departments," and even as to such questions he hesitated to express an
opinion unless the Comptroller joined in the request (21 Op., 178; id.,
181, 225, 402). Mr. Olney's view was followed by Mr. Griggs in a case
within the rule and not within the exceptions (22 Op., 581, and previous
opinions cited; 23 Op., 431), and by Mr. Knox (id. 468, 586); see also
24 Op., 85, 553; 25 Op., 185, 614; while the question presented in 24
Op., 699, was held to be of sufficient importance to come within the
exception (cf. 25 Op., 271).
In 25 Op., 301, 303, I had occasion to consider the subject anew, and
stated that:
"I am unable, however, to agree to the proposition that the act of
1894 establishes a rule which is universal and without exception under
all circumstances. While I do not challenge the authority of the
Comptroller under that law to determine conclusively the question of the
legality of a payment out of the public Treasury, I am nevertheless of
the opinion that Congress intended to confine the power of the
Comptroller within a relatively narrow range, and did not mean thereby
to curtail the occasions for the rendering of opinions by the
Attorney-General or to diminish their scope and weight. I do not believe
that Congress by that enactment intended to shorten the reach of
sections 354 and 356, Revised Statutes, as construed to give to opinions
of the Attorney-General controlling authority (5 Op., 97; 6 Op., 334;
7 Op., 699; 9 Op., 37; 20 Op., 648), or to repeal pro tanto those
laws.
"If a question is presented to the Attorney-General in accordance
with law-- that is, if it is submitted by the President or the head of a
Department-- if it is a question of law and actually arises in the
administration of a department, and the Attorney-General is of opinion
that the nature of the question is general and important in other
directions than disbursement, and therefore conceives that it is proper
for him to deliver his opinion, I think it is final and authoritative
under the law, and should be so treated by the accounting officers, even
if the question involves a payment to be made."
I have thus reviewed rather minutely the various aspects of the
question presented, because it is most important in itself, because the
relation of the Comptroller of the Treasury to the question is
important, and because the rule that a specific appropriation is
exclusive and the exceptions to that rule were established in his branch
of the Government service. I am aware of no opinion of the
Attorneys-General which distinctly recognizes the rule or has had
occasion heretofore to deal with it.
Summing up, my conclusions are as follows:
1. That the present question is general in its bearings and of great
importance, and that therefore the Attorney-General may properly express
his opinion, notwithstanding the statutory authority of the Comptroller
of the Treasury, and notwithstanding the fact that the question comes to
him in the first instance and not after reference to the Comptroller and
by his request. That is to say, this point falls within the exceptions
and not within the rule laid down by Attorneys-General as to the
jurisdiction of the Comptroller of the Treasury.
2. The rule that a specific appropriation is exclusive is a rule of
administration firmly established in the accounting service, and is not
a mandate of the legislature. It is a proper rule, but it must be
applied reasonably and has obvious exceptions and limitations.
3. The present case is within the exceptions and not within the rule.
Although the navy appropriation of 19/6 for barracks at such places as
the public exigencies require is specific, it is not exclusive. The
Panama Canal appropriations are also available, and the Isthmian Canal
Commission, under the direction of the President, is legally empowered
to avail of those appropriations for the purpose of erecting and
maintaining marine barracks in the vicinity of Ancon, on the Isthmus of
Panama.
Very respectfully,
W. H. MOODY.
GOVERNMENT CLERK-- JUDGMENT DEBTOR-- WITHHOLDING SALARY; 26 Op.
Att'y.Gen. 77, November 7, 1906
Section 1766, Revised Statutes, which provides that no compensation
shall be paid to any person who is an arrears to the United States, does
not apply to a clerk in the Government service (a pension agency) who is
a judgment debtor of the United States.
The expression "until he has accounted for and paid into the Treasury
all sums for which he may be liable," found in section 1766, does not
refer to mere indebtedness, but clearly applies to one who has received
Government moneys to be disbursed or covered into the Treasury.
DEPARTMENT OF JUSTICE,
November 7, 1906.
THE SECRETARY OF THE INTERIOR.
SIR: Your request for an opinion, dated September 13, 1906, presents
the question whether a clerk in the Government service (a pension agency
of the United States), who is a judgment debtor of the United States, is
liable to the provisions of section 1766, Revised Statutes, which
provides:
"No money shall be paid to any person for his compensation who is in
arrears to the United States, until he has accounted for and paid into
the Treasury all sums for which he may be liable. In all cases where the
pay or salary of any person is withheld in pursuance of this section,
the accounting officers of the Treasury, if required to do so by the
party, his agent, or attorney, shall report forthwith to the Solicitor
of the Treasury the balance due; and the Solicitor shall, within sixty
days thereafter, order suit to be commenced against such delinquent and
his sureties."
As there is fairly some doubt regarding the exact meaning of the
controlling expressions in this statute-- "in arrears," "balance due,"
"such delinquent and his sureties"-- we are justified in resorting to
the original statute and others in pari materia.
The act of January 25, 1828 (4 Stat., 246), from which section 1766
was taken, provided "that no money hereafter appropriated shall be paid
to any person, for his compensation, who is in arrears to the United
States, until such person shall have accounted for, and paid into the
Treasury, all sums for which he may be liable," with the proviso that
this should not "be construed to extend to balances arising solely from
the depreciation of Treasury notes received by such person, to be
expended in the Government service," followed by a provision for report
to the Treasury agent (now the Solicitor of the Treasury) and suit
within certain days "against such delinquent and his sureties."
Earlier acts made similar provisions; for example the act of April
30, 1822 (3 Stat., 673), relating to appropriations for the military
service, and the act of May 4 of that year relating to the Navy (Id.,
677). See also the act of May 7, 1822 (Id., 688), the act of March 3,
1823 (Id., 763), and the act of April 2, 1824 (4 Stat., 17).
The general act of 1828 was "An act to prevent defalcations on the
part of disbursing agents of the Government and for other purposes." The
last phrase can hardly be regarded as intending to include other persons
than disbursing agents. "It is true that it is also described as an act
'for other purposes,'
but this part of the description is sufficiently answered by the closing
provision, authorizing the party to demand a suit, and directing the
agent of the Treasury to institute one" (3 Op., 52, 54). Substantially
the only change made by the revisers was to omit from the Revised
Statutes the proviso as to the depreciation of Treasury notes, and
therefore it seems to me clear that section 1766 must be intended to
mean what it signified in 1828 when it was formulated.
It is my view that in all those acts "any person" and "officer" who
are not to receive advances of payments until they shall have accounted
for and paid into the Treasury any sums for which they were liable,
contemplated persons who, as contractors or disbursers, or both, of the
public funds, or contractors or officers receiving advances, were in a
relation of trust as such to the Government and would have in their
hands sums or balances of public funds for which they were bound to
render accounts and to turn the balance of moneys into the Treasury.
These would naturally be in "arrears" and be in a position to have a
"balance due" found by the accounting officers.
It might be argued that any person indebted to the Government whose
debt is due is in arrears, but that is not the natural meaning of the
phrase, which ordinarily implies a delay in accounting for money in
one's hands or in discharging obligations on such account already partly
discharged. The phrase would hardly have been used as equivalent to "in
debt to the United States" or "indebted to the United States," since
Congress must be presumed to have been familiar with the latter phrases
and to know that they were far more apt to express its meaning if it
intended to include any person who owed the Government a debt. The word
"delinquent" looks to the same conclusion like the word "defaulter" in
the act of May 4, 1822 (supra). A defaulter is one who fails to account
for money with which he is intrusted, and a debtor is not a defaulter
nor, indeed, delinquent, except in the general sense of that term.
Further, the clause "until he has accounted for and paid into the
Treasury all sums for which he may be liable" is conclusive to my mind
on the point. This language is not appropriate to mere indebtedness, but
plainly applies to one who has received Government moneys to be
disbursed or covered into the Treasury.
The original language, now omitted, relating to the depreciation of
Treasury notes is a further indication that such persons were in view
rather than any and all debtors whatsoever, and the provision that suit
shall be commenced against the delinquent "and his sureties" indicates
that Congress was not regarding mere debtors but the classes of persons
who had sureties for the performance of contracts or their other duties,
chiefly, of course, the receipt and disbursement of public moneys.
In the debates, it is true, some general language is used about
debtors to the Government, but when precise terms were employed about
the evils sought to be remedied, the language clearly enough specified
persons having public moneys to account for.
Attorney-General Wirt, considering the act of 1824, held that--
"The phrase 'who is in arrears to the United States,' seems to me to
apply naturally and properly only to persons who, having previous
transactions of a pecuniary nature with the Government, are found, upon
a settlement of those transactions, to be in arrears to the Government,
by holding in their hands public moneys which they are bound to refund."
(1 Op., 676.)
Attorney-General Butler, considering the act of 1828, approved and
followed Mr. Wirt's opinion, saying:
"This shows that the cases contemplated by the legislature were those
of persons with whom the Government had accounts composed of pecuniary
items on both sides, and whose debts, consisting of the balances of such
accounts, were usually reported by the accounting officers to the agent
of the Treasury for suit." (3 Op., 54.)
The present provision of the law is substantially like the original
act, and in the absence of strong reasons to the contrary, I am of the
opinion that the construction placed upon a similar act by Mr. Wirt in
1824 and the original act by Mr. Butler in 1836 and respected until the
date of the revision should be controlling, at least to the extent of
preventing its application to an ordinary clerk who is a judgment debtor
of the Government under judgment for a debt growing out of transactions
wholly foreign to his employment and having nothing to do with any
advances of public moneys or any accounting therefor.
I do not undertake to say whether or not the Government has the right
on general principles to do in any case what section 1766 makes
compulsory in certain cases; but I have the honor to advise you that
the section does not apply in the case submitted by you, and that you
are not required to withhold the salary of the clerk in question.
Very respectfully,
W. H. MOODY.
CONTRACT SURGEON-- GOVERNMENT HOSPITAL FOR THE INSANE; 26 Op.Att'y.
Gen. 74, October 27, 1906
A contract surgeon, while serving as such in the Army, is a person
belonging to the Army within the meaning of section 4843, Revised
Statutes, and, if he becomes insane in such service, is entitled under
that section to admission to the Government Hospital for the Insane.
DEPARTMENT OF JUSTICE,
October 27, 1906.
THE SECRETARY OF WAR.
SIR: I have the honor to respond to your note of October 17, 1906,
in which you ask my opinion whether a contract surgeon, becoming insane
while in service, is eligible as such for admission into the Government
Hospital for the Insane.
Section 4843, Revised Statutes, provides for the admission into that
hospital of: (1) "Insane persons belonging to the Army, Navy, Marine
Corps, and Revenue-Cutter Service. (2) Civilians employed in the
Quartermaster's and Subsistence Departments of the Army, who may be or
who may hereafter become insane while in such employment."
By an amendment of February 9, 1900 (31 Stat., 7), this was extended
to the Pay Department.
The answer to your question depends upon the consideration whether a
contract surgeon, while in service as such, is a person "belonging to
the Army." The Army, as now constituted, is a somewhat heterogeneous
body, composed not only of soldiers or fighting men, but also of many
who perform no service that can be called military, except as it is in
connection with the military organization.
What is strictly and technically "the Army," as defined by statute,
includes many of these from the General Staff to chaplains, nurses,
assistant and reserve nurses. So that, in order to belong to the Army,
it is not necessary to be a soldier, or to perform any military service,
except as all service in the Army may be called military service.
"The Army" is defined by the act of February 2, 1901 (31 Stat., 748),
which provides "That from and after the approval of this act, the Army
of the United States, including the existing organizations," shall
consist of the various branches, departments, and officers enumerated,
and then provides (sec. 18): "That the Medical Department shall consist
of one Surgeon-General * * * eight Assistant Surgeons-General * * * ,"
and so on; "the Hospital Corps, as now authorized by law; and the
Nurse Corps * * * ," all of whom belong to the Army. Then follows the
proviso in immediate connection with and continuing the composition of
that Department, "That in emergencies the Surgeon-General of the Army,
with the approval of the Secretary of War, may appoint as many contract
surgeons as may be necessary."
Now it is entirely certain that under this statute all who belong to
this Medical Department, permanently or temporarily, belong to "the
Army," even in the strict sense as defined by this act. And it seems
equally certain that this proviso simply authorized the increase of the
force in that Department by the appointment-- not employment-- of
additional contract surgeons when an emergency required it. The whole
section treats solely of the Medical Department and of those who compose
it. All of the persons enumerated in this section are officers of the
Medical Department and belong to the Army, and their service is in and
for the Army. I do not think that when in emergencies additional persons
are appointed to perform precisely the same service in or for the Army
these are to be treated as not belonging to that organization.
The Army Regulations, paragraphs 1417 to 1421, having the force and
effect of law, provide--
"That contract surgeons * * * are entitled to the same respect and
obedience from enlisted men as commissioned officers."
And that--
"A contract surgeon, though not eligible for detail on court-martial,
may prefer charges against enlisted men and may be detailed on councils
of administration and post treasurer," etc.
Then the act of April 23, 1904 (33 Stat., 262, 266), has this
proviso:
"That when a contract surgeon is in charge of a hospital he shall
have the same authority as a commissioned medical officer."
And I believe that contract surgeons have also a pensionable status.
It will be observed that the Hospital Corps and the Nurse Corps are
specifically enumerated in section 18 as belonging to the Army, and
there are particular provisions for the female portion of the Nurse
Corps, including such reserve nurses as may be needed, in section 19.
The status and service of these two corps are analogous and subordinate
to the medical service, and it does not seem likely that Congress
intended to recognize those corps more completely as a part of the Army
than the medical men who, while only temporarily employed and not in the
Regular permanent organization, nevertheless belong to the organization
in the fullest practical sense when they are employed. In other words,
it does not seem likely that Congress intended to confer any rights upon
reserve nurses which they withheld from contract surgeons employed in
emergencies.
It is true that contract surgeons are not officers in the sense of
having grade or rank, but neither grade nor rank is essential to office
or place. In respect to the place they fill and the service they render,
with the attendant obligations and responsibilities, they are as much
officers in the Medical Department as are assistant surgeons. But
office is not necessary in order to belong to the Army. Officers in the
Army are appointed by the President, but Congress may authorize the
appointment of a contract surgeon in the Army without making him an
officer.
I think that section 18 of the act of February 2, 1901, above quoted,
makes the Medical Department of the Army consist of the persons there
enumerated, and, when serving as such, of the contract surgeons
appointed thereunder, and that the other provisions here referred to
clearly recognize them as belonging to the Army.
Furthermore, section 4843 is remedial in its character and, under a
well-established principle, should receive a liberal instead of a strict
construction.
Without further elaboration it is my opinion that, in construing the
expression "insane persons belonging to the Army," we should adopt a
construction which will extend rather than one while will restrict and
limit the beneficent operation of this section, especially when there is
no apparent reason for the narrower construction. Therefore, answering
your question precisely, I am of opinion of a contract surgeon, while
serving as such in the Army, is a person belonging to the Army within
the meaning of section 4843, Revised Statutes, and, if he becomes insane
in such service is entitled to admission to the Government Hospital for
the Insane under that section.
Respectfully,
HENRY M. HOYT,
Acting Attorney-General.
OFFICIAL BONDS-- SUBSTITUTE BOND-- DISCHARGE OF SURETY; 26 Op.
Att'y. Gen. 70, October 17, 1906
Bonds of officers of the United States given for the faithful
discharge of their duties, which are not in terms limited to a specified
period expressed in dates, remain in full force and effect so long as
such officers continue in office, even though another and different bond
be given by way of renewal.
A provision in an official bond shortening the life of the bond from
the entire period during which the office is held until such time as "a
new official bond shall be accepted by the proper authority and
substituted" therefor, runs counter to the statute and would be without
effect. In its other particulars the bond would be good.
This, however, does not apply to the bonds of postmasters and
collectors of internal revenue, to the sureties on which Congress has
extended a degree of immunity.
DEPARTMENT OF JUSTICE,
October 17, 1906.
THE SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
June 8, 1906, in which you inclose the official bond of Harvey P.
Peairs, superintendent of the Haskell Institute, at Lawrence, Kans., and
special disbursing agent, which contains a clause intended to limit its
duration to the time when a new official bond shall be accepted by the
proper authority. You state that the bond, having been approved by the
Secretary of the Interior and transmitted to the Treasury Department for
file, was referred to the Solicitor of the Treasury, and that, while
that officer has approved the bond as legally sufficient, he has
qualified his approval with the words, "but not as a substitute bond."
You further state that the insertion of the words "until a new official
bond shall be accepted by the proper authority and substituted for this
obligation" in this bond are intended to overcome the embarrassing
effect of existing law, under which renewal bonds do not operate as a
discharge of the bonds theretofore given, and you ask an opinion as to
whether the cumulative effect of renewal bonds may be safely overcome in
the manner specified, and whether the words chosen will best accomplish
the desired result. You also ask whether such course would be wise where
the form of the bond is recited in the statutes, and if legislation is
considered necessary you ask for an expression of my views as to the
appropriateness of the draft of a bill which you inclose.
The unreported case of Simpson v. The Fidelity and Deposit Company
(Supreme Court District of Columbia), which you cite and with which the
Department is familiar, and numerous others, including those cited by
the Comptroller of the Treasury in his opinion of June 17, 1899 (5 Dec.,
918), to which you also call attention, leave no doubt in my mind that
bonds given to the United States for the faithful discharge of their
duties by officers thereof, which are not in terms limited to a
specified period expressed in dates, remain in full force and effect so
long as such officer continues in office, even though another and
different bond by way of renewal may be given. A different view would
obviously violate the terms of those bonds, which plainly contemplate
the entire period of service of the officer, as indicated in the bond
which you inclose by the words "all times and henceforth and during his
holding and remaining in said office." That Congress recognized this
continuing liability may be seen by reference to section 3837, Revised
Statutes, which provides that the surety on the prior bond of
postmasters shall be released, upon the giving of a new bond, from all
responsibility for all acts or defaults of the postmaster which may be
done or committed subsequent to the last day of the quarter in which
such new bond shall be executed and accepted, and in the case of
collectors of internal revenue as provided in section 2 of the act of
March 1, 1879 (20 Stat., 327).
The liability of the surety on the old bonds, as well as that of
those on the bonds given in renewal, thus continuing, the liability of
the officer to his surety for premiums, if there be any, necessarily
follows. I base this conclusion, however, upon the rule of the common
law, not deeming it necessary to construe the second proviso to section
5 of the act of March 2, 1895, referred to in the Comptroller's decision
of June 17, 1889. It is this continuing liability of both surety and
principal which the words inserted in the bond you inclose, i.e., "until
a new official bond shall be accepted by the proper authority and
substituted for this obligation," are designed to overreach.
Whether this can legally be done is a matter requiring careful
consideration.
On September 16, 1886, the Attorney-General rendered an opinion to
the Secretary of the Treasury (18 Op., 458) holding that a departure in
the official bond of Bradley B. Smalley, collector of customs for the
district of Vermont, from the form recited in section 2619, Revised
Statutes, by the omission of the words "in the State of Vermont," did
not impair its validity, and that the bond was a valid one under either
the statute or at common law. This opinion followed the holding of the
Supreme Court of the United States in United States v. Bradley (10 Pet.,
343); Brown v. United States (5 Pet., 372); United States v. Linn (15
Pet., 311); United States v. Tingey (5 Pet., 115); United States v.
Mora (97 U.S., 421); Jessup v. United States (106 U.S., 147). In the
latter case the court, after reviewing the authorities, says (p. 152):
"These authorities show that the United States can, without the
authority of any statute, make a valid contract, and that when the form
of contract is prescribed by the statute, a departure from its
directions will not render the contract invalid. The bond is good at
common law."
In the recent cases of Moses v. United States (166 U.S., 571) and
United States v. Dieckerhoff (202 U.S., 302) this doctrine was affirmed,
and in these two cases the court concluded by laying down the general
rule that if the bond does not run counter to a statute and is neither
malum prohibitum nor malum in se it is binding upon all parties. And
even though it run counter to a statute in one or more of its provisions
the bond is valid as to the others, provided they are properly severable
from those which are invalid. United States v. Mora, supra, and United
States v. Hodson (10 Wall., 395).
The question which confronts us, then, is whether the provision
"until a new official bond shall be accepted by the proper authority and
substituted for this obligation" in the bond which you inclose runs
counter to a statute. The statutes requiring bonds to be given, perhaps
without exception, do not declare any certain period of time during
which they are to run; they contemplate the entire period of service.
Thus, in the bond you submit the words preceding the modification which
you propose are "at all times and henceforth and during his holding and
remaining in said office." A modification shortening the life of a bond
from the entire period during which the office is held to such a time as
a new obligation shall be entered into is so vital that I have no
hesitation in saying that it runs counter to the statute, and applying
the rule as laid down by the Supreme Court, it would seem that such a
modification would be without effect, although, as we have seen, the
bond in its other particulars would be good. Perhaps a different view
might be taken if there were in the law any authority, general or
special, vested in any officer of the Government to set aside existing
law and to surrender the legal rights of the Government in the
performance of those duties intrusted to him. In the very nature of
things the business of the several Departments of the Government could
not be transacted if their heads were dependent upon specific authority
for each and every act necessary to the successful conduct of their
Departments. At the inception of the Government Congress recognized this
fact and wisely gave them much latitude in that behalf, as may be seen
from section 161, Revised Statutes:
"The head of each Department is authorized to prescribe regulations,
not inconsistent with law, for the government of his Department, the
conduct of its officers and clerks, the distribution and performance of
its business, and the custody, use, and preservation of the records,
papers, and property appertaining to it."
It will be observed that the only restriction upon heads of
Departments is that they shall not prescribe regulations for the
performance of the business of their Departments inconsistent with law;
and with this the principle underlying the above-mentioned decisions of
the Supreme Court is in full accord. Such an attempt to surrender the
legal rights of the Government as is here contemplated is clearly within
that restriction, and can not, therefore, be of any legal effect. This,
of course, does not apply to the bonds of postmasters and collectors of
internal revenue, to the sureties on which, as indicated above, Congress
has seen fit to extend some degree of immunity.
There remains the question as to whether the draft of the proposed
amendment to the act of March 2, 1895 (28 Stat., 808), which you
inclose, would, if enacted into law, operate to discharge the sureties
on prior bonds when a renewal bond is given, and in that connection I
have the honor to say that the amendment seems to me to be entirely
appropriate and effective.
Very respectfully,
W. H. MOODY.
EIGHT-HOUR LAW-- RECLAMATION SERVICE; 26 Op.Att'y.Gen. 64, October
11, 1906
There is no conflict between the declaration in section 4 of the
reclamation act of June 17, 1902 (32 Stat., 388), that eight hours shall
constitute a day's work upon the public works therein specified, and the
saving clause in section 1 of the act of August 1, 1892 (27 Stat., 340),
which allows more than eight hours work in one calendar day "in case of
extraordinary emergency."
Irrigation works for the reclamation of arid and semi-arid lands, act
of June 17, 1902 (32 Stat., 388), perfectly and comprehensively fill the
idea of "public works of the United States."
The eight-hour law contemplated by the act of August 1, 1892 (27
Stat., 340), means eight hours of effective labor.
The blasting, cleaning of tracks, repair of machinery, and all other
similar matters incident to the reclamation work, essential to prompt
and continuous service in the regular day, may legally be done before
and after regular hours. The law does not prescribe in what hours of the
day the labor shall be done.
Blacksmiths and their helpers, firemen, and pumpmen are either
mechanics or laborers within the meaning of the eight-hour law.
The status of teamsters, cooks, and flunkies not determined. (See 20
Op., 459.)
It is the duty of the engineers of the Reclamation Service to see
that the eight-hour law is observed by the contractors and to report
violations of that law.
DEPARTMENT OF JUSTICE,
October 11, 1906.
THE SECRETARY OF THE INTERIOR.
SIR: Your letter of September 21 raises the question of the
application of the eight-hour law to the Reclamation Service of the
Geological Survey, and requests my opinion upon the following points:
"(1) Is the proviso to section 4 of the act of June 17, 1902, supra,
which declares in part, 'That in all construction work eight hours shall
constitute a day's work,' to be regarded as in anywise repealing or
modifying that provision of the act of August 1, 1892, which makes it
unlawful to employ or permit laborers to work more than eight hours in
any one calendar day on any public works of the United States 'except in
case of extraordinary emergency.' Differently stated, is the declaration
in the act of June 17, 1902, that eight hours shall constitute a day's
work upon the public works therein specified, in conflict with the
saving clause in the act of August 1, 1892, which allows more than eight
hours' work in one calendar day 'in case of extraordinary emergency?'
"(2) Are blacksmiths and their helpers, teamsters hauling camp
supplies, etc., firemen, pumpmen, cooks, and flunkies to be classed as
'laborers and mechanics' within the meaning of these terms as employed
in the act of August 1, 1892?
"(3) Are the engineers of the Reclamation Service responsible under
the statutes in case the contractors on the works under their
supervision shall require more than eight hours labor from laborers and
mechanics upon these works?"
The letter of the Director of the Geological Survey states that it is
dangerous both to life and property to do blasting during the regular
hours of labor when the men and the steam shovel are at work; and that
it is very necessary to keep the powder men at their posts after the
regular working hours in order to make their final preparations for
shooting the blasts. The letter also states that it is necessary to
clean up the shale thrown down by the blasts upon the tracks before the
regular working hours the following morning, in order that the force on
the cuts and steam shovel shall not then be standing around idle until
the tracks can be cleaned.
The same reason for work before or after the regular hours applies to
the necessary shifting of track, shoeing of horses, repair and cleaning
machinery, and to other labor essential to the promptness and efficiency
of the regular day service of men and machinery. It is also suggested
that if water for domestic use of the camp may not be hauled after
regular working hours by some of the teams on the work, it would be
necessary to keep an extra team for this purpose only, at much greater
cost than "by putting in a little time by extra work;" and that
teamsters hauling supplies, cooks, and "flunkies" (by which I understand
scullions or assistants to cooks are meant) must put in more than eight
hours per day.
The eight-hour law of 1892 (act of August 1, 1892, 27 Stat., 340)
provides (sec. 1):
"That the service and employment of all laborers and mechanics who
are now or may hereafter be employed by the Government of the United
States, by the District of Columbia, or by any contractor or
sub-contractor upon any of the public works of the United States or of
the said District of Columbia, is hereby limited and restricted to eight
hours in any one calendar day, and it shall be unlawful for any officer
of the United States Government or of the District of Columbia or any
such contractor or sub-contractor whose duty it shall be to employ,
direct, or control the services of such laborers or mechanics to require
or permit any such laborer or mechanic to work more than eight hours in
any calendar day except in case of extraordinary emergency.
The reclamation act provides (act of June 17, 1902, sec. 4, 32 Stat.,
388):
"In all construction work eight hours shall constitute a day's work."
There can be no doubt that under the terms of these laws and in the
light of the discussions and opinions relative to the eight-hour law (20
Op., 454, 459; 23 Op., 174; 26 Op., 30, 36) "irrigation works for the
storage, diversion, and development of waters for the reclamation of
arid and semi-arid lands" (sec. 1, Reclamation act) perfectly and
comprehensively fill the idea of "public works of the United States."
This conception is not weakened by the fact that ultimately the
management and operation of such irrigation works is to pass to the
owners of the lands irrigated (sec. 6),
for not only when constructed are all these irrigation works public
works of the United States upon lands of the United States to be
acquired by condemnation if necessary (sec. 7), but section 6 also
provides "that the title to the reservoirs and the works necessary for
their protection and operation shall remain in the Government until
otherwise provided by Congress."
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 tracks, 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 be 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.
I do not wish to enter upon the minima of the case unnecessarily, and
yet, noticing the claim that it would cost more to provide water for the
camp unless it can be hauled on "extra time," I take occasion to observe
that the element of cost makes no difference. The legality of the
proceeding depends upon the consideration whether the men employed on
this service are laborers or mechanics, or whether they give, excluding
this service, eight hours' effective labor.
Your inquiry whether the engineers of the Reclamation Service are
responsible for the action of contractors in requiring more than eight
hours' labor for laborers and mechanics is susceptible of two
constructions. It is certainly my opinion that it is their duty to be
vigilant in their scrutiny and to report violations of law which may
come under their observation. This is not altogether a question of law
for my determination, but rather, perhaps, a question of administration
for you to settle in the light of the general executive policy. But as
the question has been touched upon by my predecessor, Mr. Miller, I may
properly express my view. The case of United States v. Driscoll (96 U.
S., 421) has also been brought to my attention. That decision merely
held that a workman for a contractor could not maintain a claim against
the United States for compensation for labor over eight hours a day;
that there was no privity between him and the United States. There was
no occasion there for any intimation from the court regarding the
administrative duty of the United States in respect to violations of the
law by contractors, and, accordingly, no intimation whatever was given.
There is a current misconception as to the scope of Attorney-General
Miller's opinion (20 Op., 501). Mr. Miller was requested by the
Secretary of the Treasury, at the instance of a contractor, to determine
whether laborers and mechanics engaged by the contractor to carry out a
contract by the Government came within the application of the eight hour
law. Mr. Miller declined to answer the inquiry, on the ground that it
was not a question of law arising in the administration of the Treasury
Department. The inquiry was in reality the inquiry of the contractor,
and with that fact in mind, doubtless, Mr. Miller observed that--
"The duty to employ, direct, or control such laborers or mechanics,
and the penalty of their wrongful employment is with the contractor and
not with the Government or any of its officers or agents."
But Mr. Miller does not by this remark undertake to determine what
the deliberate executive policy on the subject might or should be. My
own view of the matter, as now squarely presented,
is that it is the duty of the engineers of the Reclamation Service under
your direction to see to it that the law is observed by the contractors
and to report any violation of it which comes under their observation. I
understand this to be the sense in which you ask whether they are
responsible-- not in the sense of legal liability to the workmen.
Recurring, then, to your questions, as to the first my answer is that
there is no conflict between the act of August 1, 1892, and the proviso
to section 4 of the act of June 17, 1902. The "extraordinary emergency"
of the former act would apply to the latter. The acts are to be
construed together, and I do not think it was the intention of Congress,
by the proviso in the Reclamation act and the use of the term
"construction work," either to displace the provisions of the act of
August 1, 1892, as to laborers and mechanics not strictly engaged in
"construction work," or to exclude the exception of an "extraordinary
emergency." It is not necessary for me to define generally what an
extraordinary emergency is, and it is clear to me that the facts in this
case do not present an extraordinary emergency as intended by the law.
But, with the qualifications which I have stated, I wish to make it
clear that the eight hour law applies fully to contractors on the
irrigation works constructed by the United States.
Your second question I have answered, as far as the facts before me
permit; but I may add that it seems clear to me that blacksmiths and
their helpers, firemen and pumpmen are either mechanics or laborers. As
to teamsters, cooks, and "flunkies," I leave the inquiry as to their
status where Mr. Miller left a similar query in 20 Op., 459, and add the
remark that the obvious necessity of eight hours' effective labor in any
case seems to dispose of that point as now raised. The answer to the
third question, as already indicated, is that engineers of the
Reclamation Service are responsible to the extent of requiring the law
to be observed and reporting violations of it.
Very respectfully,
W. H. MOODY.
PHILIPPINE GOVERNMENT-- FORESTRY LAWS-- MILITARY RESERVATIONS; 26
Op.Att'y.Gen. 62, October 10, 1906
The Philippine government can not extend its forestry laws to the
military reservations on those islands.
DEPARTMENT OF JUSTICE,
October 10, 1906.
THE SECRETARY OF WAR.
SIR: I have your request for an opinion upon the question whether
the government of the Philippine Islands can subject military
reservations in those islands to the forestry laws thereof. The doubt on
this subject bears chiefly upon section 18 of the act of Congress of
July 1, 1902 (32 Stat., 696), which provides:
"That the forest law and regulations now in force in the Philippine
Islands, with such modifications and amendments as may be made by the
government of said islands, are hereby continued in force, and no timber
lands forming part of the public domain shall be sold, leased, or
entered until the government of said islands, upon the certification of
the forestry bureau that said lands are more valuable for agriculture
than for forest uses, shall declare such lands so certified to be
agricultural in character: Provided, That the said government shall
have the right and is hereby empowered to issue licenses to cut,
harvest, or collect timber or other forest products on reserved or
unreserved public lands in said islands in accordance with the forest
laws and regulations hereinbefore mentioned and under the provisions of
this act, and the said government may lease land to any person or
persons holding such licenses, sufficient for a mill site, not to exceed
four hectares in extent, and may grant rights of way to enable such
person or persons to get access to the lands to which such licenses
apply."
Section 12 places under the Philippine government all lands except
"military and other reservations" made by the President.
Section 13 provides that the government of the Philippine Islands,
subject to the provisions of this act and except as herein provided,
shall classify according to "its" agricultural character and make rules
for the immediate least, sale, or other disposition of the public lands
other than timber or mineral lands.
Section 14 provides for the perfecting of titles "to public lands in
said islands" initiated under the Spanish regime, and for the issuance
of patents. Section 15 authorizes the Philippine government to provide
for "the granting or sale and conveyance to actual occupants and
settlers and other citizens of such islands such parts and portions of
the public domain, other than timber and mineral lands, of the United
States in said islands as it may deem wise," not exceeding a certain
quantity to an individual and another quantity to a corporation.
Section 17 forbids the destruction or appropriation of forest products
on lands leased or demised by the Philippine government under the
provisions of the act, except by permission and under regulation, and
provides for the covering into the insular treasury of all moneys
obtained from the lease or sale of any portion of the public domain or
from licenses to cut timber, to be appropriated only for insular
purposes. Section 19 authorizes the Philippine government to make
reservations of public lands for the protection of the water supply, and
for other public purposes not in conflict with the provisions of the
act, and section 20 reserves from sale public lands valuable for
minerals.
Thus upon the face of the organic law and immediately connected with
section 18 ue find a great variety of lands on which the phrase
"reserved public lands" in section 18 may operate. These are vast
tracts, for the most part, segregated from the mass of public lands, not
intended to be used as sites for government buildings, but to be
withheld from sale, in some cases to be disposed of later and in others
to constitute what we know as "forest reserves."
Section 18, read in connection with the legislative plan, as shown by
sections 12 to 17, can not be regarded as embracing "military and other
reservations of the Government of the United States" merely because of
the generality of the words "reserved or unreserved public lands."
Undoubtedly Congress was legislating with an implied exception intended
to be carried down from section 12. There is as much reason for saying
that the Philippine government was authorized to sell such military and
other Presidential reservations to a corporation under section 15 and
keep the price of the sales under section 17,
because they might be included in "such parts and portions of the public
domain of the United States in said islands as it may deem wise" to sell
to a corporation, as there is for saying that the Philippine government
was intended to lease sawmill sites and grant rights of way upon such
reservations under section 18 and keep the receipts therefor under
section 17. It can not be supposed, without the strongest reason, that
Congress intended in section 18 to authorize the Philippine government
to exploit for its own benefit Federal military and all other Federal
reservations, after expressly excepting them in section 12 from the
lands "placed under the control of the government of said islands to be
administered for the benefit of the inhabitants thereof."
For these reasons I am of the opinion that the Philippine government
can not extend its forestry laws to the military reservations in those
islands.
Respectfully,
W. H. MOODY.
NAVAL OFFICERS-- RETIREMENT-- RANK-- GRADE; 26 Op.Att'y.Gen. 57,
October 5, 1906
A medical director in the Navy who after forty years of service was
retired with the relative rank of commodore, but with the retired pay of
a medical director, did not thereby receive an advance of grade within
the meaning of the proviso to the naval appropriation act of June 29,
1906 (34 Stat., 554), and is therefore entitled to the increase of pay
provided for by that act.
This relative rank of a higher grade sometimes conferred upon
officers on retirement is only an honorary distinction, serving merely
to fix their places, in precedence, with fellow officers. Such officers
do not bear the title of the higher grade, but retain the title actually
held by them on retirement.
DEPARTMENT OF JUSTICE,
October 5, 1906.
THE SECRETARY OF THE NAVY.
SIR: I have the honor to reply to your note of September 23, 1906,
which, with its inclosures, requests my opinion upon the case there
stated, in substance, as follows:
The act making appropriations for the naval service for the fiscal
year ending 1907, approved June 29, 1906, provides:
"That any officer of the Navy not above the grade of captain who
served with credit as an officer or as an enlisted man in the regular or
volunteer forces during the civil war prior to April ninth, eighteen
hundred and sixty-five, otherwise than as a cadet, and whose name is
borne on the official register of the Navy, and who has heretofore been
or may hereafter be, retired on account of wounds or disability incident
to the service or on account of age or forty years' service, may, * * *
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:
Provided, That this act shall not apply to any officer who received an
advance of grade at or since the date of his retirement * * * ."
Medical Director Francis M. Gunnell was commissioned assistant
surgeon in the Navy in 1849, and has been in continuous service, with an
excellent naval record, and is now borne upon the Naval Register as
medical director, in which office he was commissioned in 1875 with the
relative rank of captain. He served creditably through the civil war,
otherwise than as a cadet, and on November 27, 1889, after more than
forty years' service, was placed on the retired list with the relative
rank of commodore, but with the retired pay of a medical director. He
has never borne the title "commodore," but has been uniformly addressed
by the Department and its officers as medical director.
Under the act of June 7, 1900 (31 Stat., 703), he was ordered to
active duty as medical director, and is now performing such duty and is
receiving the pay of medical director.
He now claims that he is entitled to the additional pay provided in the
provision before quoted, and your question is, in substance, whether he
is so entitled.
He was in the grade of captain when retired, and the question upon
which the one submitted depends is whether he then received an advance
of grade within the meaning of the above proviso. If he did, he is by
this proviso excluded from the benefits conferred by this act of 1906,
and also because he is then "above the grade of captain."
By section 1457 Revised Statutes, officers of the Navy are generally
placed on the retired list in the grade to which they belonged at the
time of their retirement.
But by section 1481 Revised Statutes, officers of staff of the Navy,
such as those of the medical, pay, and engineer corps, etc., having the
relative rank of captain, are retired with the relative rank of
commodore, or that of the next higher grade, the language being, "Shall
* * * have the relative rank of commodore." Is this an advancement to
the grade of commodore?
The distinction between rank and grade in both the Army and Navy is
so long and so well understood that we can not suppose Congress ignorant
or unmindful of it in this enactment, or that of the Personnel act, or
the act of 1906. On the contrary, in the absence of anything to indicate
a different meaning, we must take it that Congress used those words in
their well-known and appropriate sense.
In view of this, it is most important to note that in section 1457,
retiring officers generally, the language is, "Shall be placed on the
retired list of officers of the grade to which they belonged
respectively at the time of their retirement," and in section 1487, the
officers shall "have the relative rank of commodore." In the Navy
Personnel act (30 Stat., 1004), section 9, officers "shall be retired
with the rank of * * * the next higher grade," and in section 11 the
language is the same. In the act of 1906, now being considered, the
language is, "with the rank and retired pay of one grade above that
actually held by him at the time of retirement. It is quite safe to say
that, in these carefully prepared enactments, when Congress said "grade"
it meant that, and that when it said "rank," it did not mean grade.
We must, at any rate, assume that Congress meant what it plainly said.
Returning to section 1481 we find, without any apparent intention to
change the actual grade of the officers referred to, the language is
"shall, when retired, have the relative rank of commodore." Had Congress
here intended a change of grade and not of rank merely, it would have
used the word "grade" instead of "rank." But Congress said rank and not
grade, and this leaves the officers there referred to in the same grade
as before, but with the relative rank of the next higher grade.
And this would seem, from other considerations also, to be what
Congress intended. As before said, section 1457 retired officers,
generally, in their then grade and rank, while by section 1481, the
staff officers there referred to were retired with the relative rank of
the next higher grade, thus making a distinction in favor of the latter
class. Then came the Navy Personnel act, which provides that both line
and staff officers thereafter retired shall, when retired, be retired
with the rank and three-fourths the sea pay of the next higher grade.
Here, too, no change of grade, but of rank merely, was intended, but
as the act referred only to subsequent retirements, it left officers
previously retired excluded from its benefits.
Under these circumstances that portion of the act of 1906 we are now
considering was enacted. One manifest purpose of this measure was to do
away with the discrimination against officers previously retired, which
was effected by the Personnel act. This it did by providing that all
officers coming within its purview, whether previously or thereafter
retired, should have the benefits thus conferred, but providing that the
act shall not apply "to any officer who received an advance of grade at
or since the date of his retirement." And as to all these officers alike
this measure changes the pay from three-fourths the sea pay to the
"retired pay of one grade above that actually held by him at the time of
retirement."
It seems certain that this "above the grade actually held by him at
the time of retirement," means something more than "the relative rank"
conferred by section 1481, and equally certain that, had Congress meant
this "relative rank," it would have used that term, as it did in so many
other cases when that was meant.
It is well understood in the Navy and Navy Department that this
"relative rank" of a higher grade, which is sometimes conferred upon
officers on retirement, is but an honorary distinction, serving merely
to fix their place, in precedence, with their fellow officers, and is of
no substantial value. These officers do not bear the title of this
higher grade, and by a ruling of this Department, are not entitled to do
so. They retain the grade and title "actually held by them on
retirement." I can not think that this relative rank is the advancement
to one grade above that "actually held" on retirement, or the
substantial advancement of grade contemplated by the proviso here
considered as sufficient to bar the officer from the benefit of this
provision.
It will be noticed that this proviso excludes from the benefit of the
act officers who at or after their retirement received an advance in
grade, although with no increase of pay, while under the Personnel act
all officers thereafter retired are given the rank and three-fourths the
sea pay of the next higher grade. If this makes an unfair discrimination
against any officer who, before the Personnel act, was retired in an
advanced grade, the remedy is with Congress. That question is not
before me, and I confine myself to the question submitted.
I am therefore of opinion that Medical Director Gunnell is not, by
virtue of his retirement with the relative rank of commodore, above the
grade of captain; that he has not "received an advance of grade at or
since the date of his retirement," within the meaning of the proviso of
the act of June 29, 1906; and that he is entitled to the increased pay
provided for in said act.
Respectfully,
M. D. PURDY,
Acting Attorney-General.
MEAT INSPECTION LAW-- IMPORTED MEATS; 26 Op.Att'y.Gen. 50, September
27, 1906
The prohibition upon transportation contained in the meat inspection
amendment to the agricultural appropriation act of June 30, 1906 (34
Stat., 676), does not apply to meat and meat food products imported from
foreign countries.
DEPARTMENT OF JUSTICE,
September 27, 1906.
THE SECRETARY OF AGRICULTURE.
SIR: In your communication of the 18th instant you ask to be advised
whether the prohibition upon transportation contained in the following
paragraph of what is known as the meat inspection amendment to the
agricultural appropriation act, approved June 30, 1906 (34 Stat., 669,
674, 676), applies to meat and meat food products imported from foreign
countries:
"That on and after October first, nineteen hundred and six, no
person, firm, or corporation shall transport or offer for
transportation, and no carrier of interstate or foreign commerce shall
transport or receive for transportation from one State or Territory or
the District of Columbia to any other State or Territory or the District
of Columbia, or to any place under the jurisdiction of the United
States, or to any foreign country, any carcasses or parts thereof, meat,
or meat food products thereof which have not been inspected, examined,
and marked as 'Inspected and passed,' in accordance with the terms of
this act and with the rules and regulations prescribed by the Secretary
of Agriculture:
Provided, That all meat and meat food products on hand on October first,
nineteen hundred and six, at establishments where inspection has not
been maintained, or which have been inspected under existing law, shall
be examined and labeled under such rules and regulations as the
Secretary of Agriculture shall prescribe, and then shall be allowed to
be sold in interstate or foreign commerce."
This provision, on its face, prohibits the transportation in
interstate commerce and to foreign countries of all carcasses, meat, and
meat food products which have not been inspected, examined, and marked,
as required by the act; and as imported meat and meat food products can
not meet this test (no inspection being provided in the act for such
articles), question you say has been made by importers, railroads, and
others as to whether they are not excluded from transportation in
interstate commerce. Exclusion from transportation in interstate
commerce would amount to a restriction upon importation, since trade in
such articles would be confined to the State wherein the port of entry
is situated.
In determining the meaning of the provision in question reference
must be had to the amendment in its entirety and the circumstances which
gave rise to this legislation. Considering the amendment as a whole in
the light of such circumstances, I fail to perceive any support whatever
for the suggestion that Congress intended thereby to prohibit the
interstate or foreign transportation of meat and meat food products
imported from foreign countries.
It is well known that the legislation in question was enacted by
Congress immediately in response to the message of the President of June
4, 1906, transmitting the report of Messrs. Reynolds and Neill, who had
been appointed by him to investigate the conditions in the Chicago stock
yards and packing houses. (40 Cong.Rec., 7800). In that message the
President said:
"The report shows that the stock yards and packing houses are not
kept even reasonably clean, and that the method of handling and
preparing food products is uncleanly and dangerous to health. Under
existing law the National Government has no power to enforce inspection
of the many forms of prepared meat food products that are daily going
from the packing houses into interstate commerce.
Owing to an inadequate appropriation the Department of Agriculture is
not even able to place inspectors in all establishments desiring them.
The present law prohibits the shipment of uninspected meat to foreign
countries, but there is no provision forbidding the shipment of
uninspected meats in interstate commerce, and thus the avenues of
interstate commerce are left open to traffic is diseased or spoiled
meats. If, as has been alleged on seemingly good authority, further
evils exist, such as the improper use of chemicals and dyes, the
Government lacks power to remedy them. A law is needed which will enable
the inspectors of the General Government to inspect and supervise from
the hoof to the can the preparation of the meat food product. The evil
seems to be much less in the sale of dressed carcasses than in the sale
of canned and other prepared products, and very much less as regards
products sent abroad than as regards those used at home.
"I urge the immediate enactment into law of provisions which will
enable the Department of Agriculture adequately to inspect the meat and
meat food products entering into interstate commerce and to supervise
the methods of preparing the same, and to prescribe the sanitary
conditions under which the work shall be performed. I therefore commend
to your favorable consideration and urge the enactment of substantially
the provisions known as Senate amendment No. 29 to the act making
appropriations for the Department of Agriculture for the fiscal year
ending June 30, 1907, as passed by the Senate, this amendment being
commonly known as the 'Beveridge amendment.'"
The Beveridge amendment had been adopted by the Senate on May 25,
1906. (40 Cong.Rec., 7420.) On June 19, 1906, the House substituted for
it an amendment recommended by the Committee on Agriculture (id., 8720),
which subsequently became the law.
Both the Beveridge amendment and the House substitute had the same
general object in view, namely, the inspection "from the hoof to the
can" of all meats prepared in the slaughtering and packing
establishments of this country for shipment in interstate or foreign
commerce.
In other words, it was the domestic product and not the foreign article
that Congress had in mind.
The first paragraph of the amendment finally adopted provides--
"That for the purpose of preventing the use in interstate or foreign
commerce, as hereinafter provided, of meat and meat food products which
are unsound, unhealthful, unwholesome, or otherwise unfit for human
food, the Secretary of Agriculture, at his discretion, may cause to be
made, by inspectors appointed for that purpose, an examination and
inspection of all cattle, sheep, swine, and goats before they shall be
allowed to enter into any slaughtering, packing, meat-canning,
rendering, or similar establishment, in which they are to be
slaughtered, and the meat and meat food products thereof are to be used
in interstate or foreign commerce." * * *
Having thus provided for an ante-mortem examination, Congress, in the
next paragraph, provided that, "for the purposes hereinbefore set
forth," the Secretary of Agriculture should cause to be made, by
inspectors appointed for the purpose, "a post-mortem examination and
inspection of the carcasses and parts thereof of all cattle, sheep,
swine, and goats to be prepared for human consumption at any
slaughtering, meat-canning, salting, packing, rendering, or similar
establishment in any State, Territory, or the District of Columbia for
transportation or sale as articles of interstate or foreign commerce,"
thus in terms indicating that domestic establishments, and hence the
domestic product, were alone in view.
Provision is also made for the examination and inspection of all
meat-food products prepared for interstate or foreign commerce in said
establishments, and the marking thereof as "Inspected and passed," or
"Inspected and condemned," as circumstances may require.
It is further provided that "the Secretary of Agriculture shall cause
an examination and inspection of all cattle, sheep, swine, and goats,
and the food products thereof, slaughtered and prepared in the
establishments hereinbefore described for the purposes of interstate or
foreign commerce to be made during the nighttime as well as during the
daytime when the slaughtering of said cattle, sheep, swine, and goats,
or the preparation of said food products is conducted during the
nighttime."
Then follows the paragraph in question, forbidding, on and after
October 1, 1906, the transportation in interstate commerce or to foreign
countries of carcasses, meat or meat food products which have not been
inspected, examined, and marked as "Inspected and passed," in accordance
with the terms of the act and the rules and regulations prescribed by
the Secretary of Agriculture.
As the act provides only for the inspection of cattle and meat
slaughtered or prepared in domestic establishments, this provision
manifestly can have no application to cattle or meats slaughtered or
prepared abroad and imported into this country.
The scope of the act is also indicated by this paragraph of the
amendment, which occurs further on (p. 8721):
"No person, firm, or corporation engaged in the interstate commerce
of meat or meat food products shall transport or offer for
transportation, sell or offer to sell any such meat or meat food
products in any State or Territory, or in the District of Columbia, or
any place under the jurisdiction of the United States other than in the
State or Territory or in the District of Columbia or any place under the
jurisdiction of the United States in which the slaughtering, packing,
canning, rendering, or other similar establishment owned, leased,
operated by said firm, person, or corporation is located unless and
until said person, firm, or corporation shall have complied with all the
provisions of this act."
It is significant that this provision, which emphasizes the fact that
domestic establishments, and hence the domestic product, were alone in
the contemplation of Congress, immediately followed the provision under
discussion in the Beveridge amendment. It was shifted about in the House
substitute, which was based on the Beveridge amendment, but apparently
without any intention of altering its meaning.
The House also added to the provision in question the proviso as to
meat and meat food products on hand on October 1, 1906, at
establishments where inspection was not maintained or which were
inspected under existing law, which clearly has reference only to
domestic establishments and their products.
The amendment also makes provision for the inspection of cattle,
sheep, swine, and goats, and the carcasses and parts thereof, which, or
the meat products of which, are intended or offered for export to
foreign countries. But there is not in the entire amendment any
reference to meat or meat products imported from foreign countries.
It is manifest, therefore, that Congress in this legislation was
dealing entirely with domestic slaughtering and meat-packing
establishments and their products. The subject of imported meat food
products was, however, under consideration by it at the same time in
another connection. I refer to the pure-food law, also approved June 30,
3906 (34 Stat., 768). That act forbids "the introduction into any State
or Territory or the District of Columbia from any other State or
Territory or the District of Columbia, or from any foreign country (it
will be observed that the provision of the meat-inspection amendment in
question only refers to transportation to any foreign country), or
shipment to any foreign country of any article of food or drugs which is
adulterated or misbranded within the meaning of this act." Section 7
provides that for the purposes of the act an article shall be deemed to
be adulterated (p. 770)--
"In the case of food:
"First. If any substance has been mixed and packed with it so as to
reduce or lower or injuriously affect its quality or strength.
"Second. If any substance has been substituted wholly or in part for
the article.
"Third. If any valuable constituent of the article has been wholly or
in part abstracted.
"Fourth. If it be mixed, colored, powdered, coated, or stained in a
manner whereby damage or inferiority is concealed.
"Fifth. If it contain any added poisonous or other added deleterious
ingredient which may render such article injurious to health:
Provided, That when in the preparation of food products for shipment
they are preserved by any external application applied in such manner
that the preservative is necessarily removed mechanically, or by
maceration in water, or otherwise, and directions for the removal of
said preservative shall be printed on the covering or the package, the
provisions of this act shall be construed as applying only when said
products are ready for consumption.
"Sixth. If it consists in whole or in part of a filthy, decomposed,
or putrid animal or vegetable substance, or any portion of an animal
unfit for food, whether manufactured or not, or if it is the product of
a diseased animal, or one that has died otherwise than by slaughter."
The act further provides (p. 772):
"SEC. 11. The Secretary of the Treasury shall deliver to the
Secretary of Agriculture, upon his request, from time to time, samples
of foods and drugs which are being imported into the United States or
offered for import, giving notice thereof to the owner or consignee, who
may appear before the Secretary of Agriculture and have the right to
introduce testimony, and if it appear from the examination of such
samples that any article of food or drug offered to be imported into the
United States is adulterated or misbranded within the meaning of this
act, or is otherwise dangerous to the health of the people of the United
States, or is of a kind forbidden entry into, or forbidden to be sold or
restricted in sale in the country in which it is made or from which it
is exported, or is otherwise falsely labeled in any respect, the said
article shall be refused admission, and the Secretary of the Treasury
shall refuse delivery to the consignee and shall cause the destruction
of any goods refused delivery which shall not be exported by the
consignee within three months from the date of notice of such refusal
under such regulations as the Secretary of the Treasury may prescribe."
* * *
For several years past the agricultural appropriation acts have
contained provisions similar to those of section 11.
If the meat inspection amendment were held to forbid the interstate
transportation of imported meat and meat food products it would conflict
with the intention of Congress as manifested in the pure food law, which
plainly contemplates the importation, transportation, and delivery of
such articles if pure and wholesome and not adulterated or misbranded
within the meaning of the act.
It is inconceivable that Congress, in two acts passed at the same time,
should intend such diametrically opposed results. The exclusion of such
articles from transportation, with the resulting restriction upon their
importation, would also produce a considerable loss in the revenue.
Imported meat products are dutiable under paragraphs 273-279 of the
tariff of 1897, and you state that "immense quantities of imported
sausage, gelatin, meat extract, and other meat food products come into
the country every year and are handled by jobbers and distributed from
the ports of entry throughout the United States."
It is clear therefore that the provision of the meat inspection
amendment in question can not be held to apply to the transportation of
imported meat and meat food products. As has been aptly said, "A thing
may be within a statute but not within its letter, or within the letter
and yet not within the statute. The intent of the lawmaker is the law."
(Jones v. Guaranty and Indemnity Co., 101 U.S., 622, 626.) A case well
illustrating this principle is that of Church of the Holy Trinity v.
United States (143 U.S., 457, 458), where it was held that the alien
contract labor law did not apply to a contract for the services of a
foreign clergyman, although such contract came within the letter of the
statute.
Respectfully,
W. H. MOODY.
REDUCED RAILWAY RATES-- RECLAMATION SERVICE EMPLOYEES; 26 Op.Att'y.
Gen. 47, September 8, 1906
There is no provision in the act to regulate commerce (act of
February 3, 1887, 24 Stat., 379), or in its various amendments, which
justifies the granting of reduced rates by railroads to employees of the
Reclamation Service and dependent members of their families and servants
accompanying them, and laborers destined for work in that service.
If railroads accord these reduced rates, they will be obliged to
grant the same rates to the public in general in order to avoid a
violation of section 2 of the act of June 29, 1906 (34 Stat., 584, 587).
DEPARTMENT OF JUSTICE,
September 8, 1906.
THE SECRETARY OF THE INTERIOR.
SIR: I beg to answer hereby the following inquiries of your letter
of August 25, which arise upon an existing arrangement between the
Reclamation Service of the Geological Survey and certain railroads west
of Chicago:
"First. Is it legal to classify the employees of the Reclamation
Service, dependent members of their families, and servants accompanying
them, when traveling at their own expense, and accord them less rates
than the public?
"Second. Is it legal to classify the laborers in parties of five or
more on one ticket and accord less rates for them than for the public?
"Third. If the railroads accord these reduced rates, will they have
to grant the same rates to the public generally?"
It seems that under the arrangement in question special rates are
granted for the transportation of the employees of the Reclamation
Service, dependent members of their families, and servants accompanying
them, when traveling at their own expense, and for laborers moving from
labor centers to work on irrigation projects.
The interstate-commerce act, as amended by the act of June 29, 1906,
provides (section 2, amending section 6 of the previous act of March 2,
1889,) that every common carrier subject to the act shall file with the
Interstate Commerce Commission and print and keep open to public
inspection schedules of all rates, fares, and charges for
transportation: That no change shall be made in the schedules thus
filed and published and in force except after thirty days' notice to the
Commission and to the public:
"Nor shall any carrier charge or demand or collect or receive a
greater or less or different compensation for such transportation of
passengers or property, or for any service in connection therewith,
between the points named in such tariffs than the rates, fares, and
charges which are specified in the tariff filed and in effect at the
time; nor shall any carrier refund or remit in any manner or by any
device any portion of the rates, fares, and charges so specified, nor
extend to any shipper or person any privileges or facilities in the
transportation of passengers or property, except such as are specified
in such tariffs."
In time of actual or threatened war preference and precedence shall
be given to the transportation of troops and material of war.
Section 22 of the original interstate-commerce act (February 3, 1887,
24 Stat., 379), as amended by section 9 of the act of March 2, 1889 (25
Stat., 855), and the act of February 8, 1895 (28 Stat., 643), which was
not amended by the rate act of June 29, 1906, creates the following
exceptions to the carriage of passengers and freight without preference,
viz:
"That nothing in this act shall prevent the carriage, storage, or
handling of property free or at reduced rates for the United States,
State, or municipal governments, or for charitable purposes, or to or
from fairs and expositions for exhibition thereat, or the free carriage
of destitute and homeless persons transported by charitable societies,
and the necessary agents employed in such transportation, or the
issuance of mileage, excursion, or commutation passenger tickets."
Nothing in the act is to be construed to prohibit reduced rates for
ministers of religion, or to municipal governments for the
transportation of indigent persons, or to inmates of national or State
soldiers' and sailors' homes.
That section and section 1 of the rate act of 1906 provide for free
carriage to railroad officers and employees and to certain other
persons, being generally the same classes as are excepted by the
provisions for reduced rates. But the act mentions no other persons who
may receive reduced rates, and the only exceptions in favor of the
Government are those above specified relating to the transportation of
troops and materials of war and of property for the United States
Government.
An opinion of the Attorney-General of April 25, 1905 (25 Op., 408),
held that materials and machinery used for work upon irrigation systems
in the West, being property which entered into the construction of a
public work of the United States, were entitled to reduced rates as
agreed upon between the railroad companies concerned and the Government
so long as the Government received the whole benefit of the concession.
An opinion of Mr. Cooley, Chairman of the Interstate Commerce
Commission, dated April 18, 1887 (1 I.C.C., 15), held that the
transportation of supplies for the Indian service was the carriage of
property "for the United States" within the meaning of section 22 and
was not subject to the regular published rates.
In view of the foregoing, I have the honor to advise you that there
does not appear to be any provision in the act to regulate commerce and
its various amendments which would justify the existing arrangement for
reduced rates to employees, etc., of the Reclamation Service and
laborers destined for work in that Service;
and if these concessions are made, it appears clear that, in order to
avoid violation of the law, the railroads in question would have to
grant the same rates to the public in general.
Respectfully,
HENRY M. HOYT,
Solicitor-General.
Approved:
W. H. MOODY.
CONTRACT LABOR-- RAILROAD TRACK LABORERS; 26 Op.Att'y.Gen. 42,
August 16, 1906
Ordinary laborers, commonly employed in the construction and
maintenance of the tracks of railroads, are not "skilled" laborers
within the meaning of section 2 of the act of March 3, 1903 (32 Stat.,
1214), and may not be imported into this country under contract in any
event.
DEPARTMENT OF JUSTICE,
August 16, 1906.
THE SECRETARY OF COMMERCE AND LABOR.
SIR: In your letter of the 14th instant you state that the following
questions have arisen in your Department in connection with the
administration of the alien contract labor laws and ask for an
expression of my opinion thereon.
"1. Are ordinary hands, commonly employed in the construction and
maintenance of the tracks of railroads, "skilled" laborers within the
meaning of the term as used in section 2 of the immigration act of March
3, 1903?
"2. If they are not skilled laborers, can such laborers be imported
into this country under contract in any event?"
Prior to 1885 the practice was quite general for contractors, either
directly or through agents, to import into this country large numbers of
aliens under contract to perform labor or service here. The immigrants
thus brought to our shores were, as a rule, greatly inferior to those
who voluntarily came here, and the result was the displacement of our
more intelligent American laborers with aliens who were willing to live
under far less favorable conditions and to accept a less wage. Congress
was appealed to and, after a very thorough discussion, the contract
labor law, so-called, of 1885 was enacted.
(23 Stat., 332.) The applicable portions of sections 1 and 5 of that act
are as follows:
"SECTION 1. That from and after the passage of this act it shall be
unlawful for any person, company, partnership, or corporation, in any
manner whatsoever, to prepay the transportation, or in any way assist or
encourage the importation or migration of any alien or aliens, any
foreigner or foreigners, into the United States, its Territories, or the
District of Columbia, under contract or agreement, parol or special,
express or implied, made previous to the importation or migration of
such alien or aliens, foreigner or foreigners, to perform labor or
service of any kind in the United States, its Territories, or the
District of Columbia.
"SEC. 5. * * * nor shall this act be so construed as to prevent any
person, or persons, partnership, or corporation from engaging, under
contract or agreement, skilled workmen in foreign countries to perform
labor in the United States in or upon any new industry not at present
established in the United States: Provided, That skilled labor for that
purpose can not be otherwise obtained."
Mr. Foran, a member of the Committee on Labor in charge of the bill,
in a discussion on the floor of the House, in defining the objects of
the bill, said:
"Its object is to restrict and prohibit the importation of foreigners
to this country under contract to perform labor here. That is, its
object is to prevent and prohibit men whose love of self is above their
love of country and humanity from importing into this country large
bodies of foreign laborers to take the places of and crowd out American
laborers. It also prohibits the importation of skilled workmen to take
the place of American skilled artisans." (Cong. Rec., vol. 15, p.
5349.)
In the Senate the exception in section 5 of the act in favor of
skilled laborers for new industries received careful consideration.
During the discussion of a motion to strike out the exception Senator
Blair said:
"The Senate and Senator perhaps will observe that the proposition
which he moves to strike out is one which reserves to the country, to
capital and to labor alike, the opportunity for the establishment of
such industries, if there are any, as do not already exist in our
country, and leaves open the power to American capital and enterprise
and to American labor to secure from foreign countries the necessary
skilled workmen to establish a new industry and to instruct the American
laborer in the secrets and mysteries of the art.
It has no application where the industry is already established in this
country. It does not reach the iron industry nor the glass industry, nor
any other industry which now flourishes upon American soil. It simply
gives us the opportunity to establish new industries if there should be
any occasion to do so, and thus affords the opportunity for additional
investment of American capital and the employment of American labor."
(Cong. Rec., vol. 16, part 2, p. 1622.)
It was not questioned in either House that the law was designed to
exclude and did exclude skilled as well as unskilled contract laborers.
A careful analysis of the act and an examination of the debates and
reports in Congress relative thereto lead to the conclusion that it was
intended to draw a distinction between common unskilled labor and
skilled labor. Did the language used in the act effectuate the intent of
Congress? And if not, has subsequent legislation removed any doubt that
may have been entertained as to the meaning of the original act?
The Supreme Court evidently thought the act divided labor into two
classes, for the court intimated in the Holy Trinity Church case (143
U.S., 457) and in the Laws case (163 U.S., 258) that the act was
intended to apply only to "unskilled labor." That question, however, was
not before the court in either case.
In the Trinity Church case the question decided was that Congress, in
the enactment of this law, did not have in mind "any purpose of staying
the coming into this country of ministers of the gospel, or indeed of
any class whose toil is that of the brain." And in the Laws case the
decision of the court was that an alien chemist belonged to a recognized
profession, and therefore was specifically exempt from the operation of
the statute.
Subsequently the subject again engaged the attention of Congress, and
the act of March 3, 1903 (32 Stat., 1213) resulted.
Section 2 of that act provides, inter alia, that skilled labor may be
imported if labor of like kind unemployed can not be found in this
country.
Section 4 provides:
"That it shall be unlawful for any person, company, partnership, or
corporation, in any manner whatsoever, to prepay the transportation or
in any way to assist or encourage the importation or migration of any
alien into the United States, in pursuance of any offer, solicitation,
promise, or agreement, parol or special, express or implied, made
previous to the importation of such alien to perform labor or service of
any kind, skilled or unskilled, in the United States."
The words "skilled or unskilled," it will be seen, do not appear in
the corresponding section of the original act. Their insertion,
especially after the language used by the court in the two cases above
referred to, is significant and controlling as to the intent of
Congress.
The Century Dictionary defines skilled and unskilled labor as
follows:
"Skilled labor is that employed in arts and handicrafts which have to
be learned by apprenticeship or study and practice. Unskilled labor is
that requiring no preparatory training."
The Standard Dictionary (Twentieth Century edition) defines skilled
as "having or demanding skill, especially that obtained by long
practical experience; expert; proficient; as, skilled workmen;
skilled labor."
It is not difficult to perceive why Congress originally should have
excepted from the operation of the law alien skilled laborers whose
services were required on new industries and whose coming did not in any
way disturb American labor. The skilled laborer is, as a rule, far more
intelligent and independent than the unskilled laborer. It would be
practically impossible for contractors and foreign agents to get
together and control a large number of intelligent, skilled artisans,
while no difficulty would be experienced in contracting abroad for large
numbers of ignorant and servile unskilled laborers. It is probable
experience demonstrated that very few skilled laborers were brought to
this country under the provisions of section 5 of the act of 1885.
For this reason when the law came to be amended in 1903 it was not
deemed necessary to limit the exception to its operation to new
industries, as was the case in the original act. In other words,
Congress, recognizing the vast difference between skilled and unskilled
labor, concluded that it might with perfect safety permit skilled labor
to be imported in all cases where "labor of like kind unemployed could
not be found in this country." But no such exception was made in favor
of the importation of unskilled labor. Indeed, to rule otherwise would,
in effect, nullify the whole law.
The act was designed and intended for the protection and security of
the American laborer, whose welfare every patriotic citizen is bound to
promote. Laws designed for his benefit should, if possible, be so
construed as to effectuate rather than retard the objects for which they
were enacted.
The legislation with which we are now concerned has been on the
statute books in substantially its present form for more than twenty
years. As previously pointed out, the original act divided labor into
two classes-- skilled and unskilled. It first denounced the bringing in
of either class under contract. For reasons of public policy Congress
then excepted from the operation of the law skilled labor on new
industries. The courts having intimated that the law was designed to
apply to unskilled labor only, Congress took occasion to make clear its
intent. The act of 1903 contains the unequivocal provision that the act
shall apply to skilled as well as unskilled labor. In this act, which is
now in force, the distinction between the two classes of labor is still
maintained. It is therein provided that neither class shall be brought
in under contract. No exception whatever is contained in the act in
respect to unskilled labor, but it is provided that skilled labor may be
imported under certain conditions. That there is a difference in fact
and in law between skilled and unskilled labor is too plain to admit of
argument.
It must also be presumed that Congress was mindful of this difference
in the enactment of this law. It is certainly not for the executive
department of the Government to nullify the will of Congress by
declining or failing to give the words of the act their natural and
logical import.
Especially is this true in a case involving the welfare of such a very
large number of our own citizens. Moreover, it does not appear that
since the enactment of this law in 1885 it has ever before been
contended that unskilled alien contract labor could legally be imported.
The determination of the question as to what is skilled and what
unskilled labor within the meaning of the law rests largely with you. I
entertain no doubt, however, that "ordinary hands, commonly employed in
the construction and maintenance of the tracks of railroads," are not
skilled laborers within the meaning of the immigration act of March 3,
1903. Having reached the conclusion that they are not skilled laborers,
it follows from what I have previously said that such laborers may not
"be imported into this country under contract in any event."
Very respectfully,
CHARLES H. ROBB,
Acting Attorney-General.
COMMISSARY STORES-- ANNUAL REPORTS OF SALES; 26 Op.Att'y.Gen. 38,
August 8, 1906
Section 5 of the act of June 30, 1906 (34 Stat., 763), requiring the
heads of Executive Departments or other Government establishments to
furnish the Secretary of the Treasury annually a statement of all money
received by them during the previous fiscal year, arising from proceeds
of public property, applies to sales, and purchases from the proceeds of
sales, of commissary stores, under section 3618, Revised Statutes, and
the act of March 3, 1875 (18 Stat., 410).
DEPARTMENT OF JUSTICE,
August 8, 1906.
THE SECRETARY OF WAR.
SIR: I have received your request for an opinion as follows:
"By section 5 of the act of Congress, approved June 30, 1906 (34
Stat., 763), it is provided as follows:
"'Hereafter the Secretary of the Treasury shall require, and it shall
be the duty of the head of each Executive Department or other Government
establishment to furnish him, within thirty days after the close of each
fiscal year a statement of all money arising from proceeds of public
property of any kind or from any source other than the postal service,
received by said head of Department or other Government establishment
during the previous fiscal year for or on account of the public service,
or in any other manner in the discharge of his official duties other
than as salary or compensation, which was not paid into the General
Treasury of the United States, together with a detailed account of all
payments, if any, made from such funds during such year.
All such statements, together with a similar statement applying to the
Treasury Department, shall be transmitted by the Secretary of the
Treasury Congress at the beginning of each regular session.'
"Under section 3618 of the Revised Statutes, as amended, the proceeds
of the sales of commissary stores are exempt from being covered into the
Treasury.
"Under the act of March 3, 1875 (18 Stat., 410), authority of law is
given for the use of funds appropriated for the subsistence of the Army,
for the purchase of stores for sale to officers and enlisted men, and
under the same act it is provided that the proceeds of the sales of
subsistence supplies shall hereafter be exempt from being covered into
the Treasury and shall be immediately available for the purchase of
fresh supplies. Under the workings of this law, stores for sale are
purchased and when sold an additional amount bought from the proceeds of
such sales. In other words, purchases are made several times from the
original amounts derived from the appropriation, the proceeds of sale of
which when returned are placed to the credit of disbursing officers, but
do not revert to the Treasury, and thus by the return of the money and
repurchase of other stores and the resale of these new stores an
erroneous impression is given that a very large sum of money is used in
the purchase of sale stores. The report of the Commissary-General for
the fiscal year ending June 30, 1905, shows that the amount received
from sales of stores during the fiscal year and taken up for immediate
disbursement amounted to $2,501,437.44, which is a sum arrived at by
counting the gross amount of sales made. The amount originally expended
for these stores was probably from one-fifth to one-tenth of the amount
received from the sale of same, but was reexpended from five to ten
times, and the stores sold the same number of times, making this
aggregate. These sales take place at posts in all quarters wherever a
garrison of United States troops is stationed.
It will appear therefore that a report is made of the amount received
from sales of stores during the fiscal year and taken up for immediate
disbursement. The section above quoted requires a report to be made
within thirty days after the close of the fiscal year. To comply with
same it would be necessary to receive the reports from all the widely
scattered posts over the world, which reports from many of the posts it
would be impossible to receive within thirty days after the close of the
fiscal year. So that if this feature of the law is to be complied with
it will be necessary to have the reports from Porto Rico, Alaska,
Hawaiian Islands, and the Philippine Islands cabled from each post
immediately after the 30th of June, and such cable would practically
have to be an entire transcript of the monthly reports forwarded from
the posts, and the expense of such cabling would be enormous.
"The law requires detailed accounts of all payments made from funds
which are the proceeds of sales. As above stated, such funds lose their
identity when they are placed to the credit of various disbursing
officers, becoming absorbed on the books of the sub-treasuries and
United States depositaries with the funds which have been advanced to
those officers from the Treasury Department or other sources, and to
comply with the law would require as many separate accounts current as
there are separate origins from which the funds are obtained, and it
would appear that the objects of section 3618 and the act of March 3,
1875, would be frustrated.
"To illustrate further how this matter applies at posts all over the
country: The post commissary has to pay for the fresh beef and fresh
vegetables delivered at the post, and we may estimate that such payments
would require the sum of $700. His records show that he may expect to
make sales of about $300 a month; and that he would have to pay about
$100 as commutation of rations to enlisted men traveling under orders,
men on furlough, sick in hospital, and hospital nurses; all of which
objects are provided for in the appropriation bill. He would, therefore,
need $500 to meet his obligations at the end of the month, which amount
he requests to be placed to his credit in a designated depositary by the
chief commissary of the Department;
which amount is so placed, being funds which had been advanced to the
chief commissary, either directly through the Treasury or received by
him from a purchasing commissary; which funds had either been advanced
to the purchasing commissary directly from the Treasury or consist, in
part, of some funds which have been turned in to him from proceeds of
sales. At the end of the month the post commissary draws his check for
the $500, pays the voucher for the beef and the balance in cash from
funds received from sales. In case there is any balance of these funds
received from sales, he deposits this in a depositary to his credit, and
later on, if that balance is not required, it is invoiced to the chief
commissary, who, in turn, later may invoice it to a purchasing
commissary, by whom it is used for the purchase of new supplies under
the authority of the section above quoted.
"In view of those apparently insuperable difficulties under the
present method of accountability, and in view also of the provisions of
section 3618 of the Revised Statutes and the act of March 3, 1875 (18
Stat., 410), I have the honor to request that you will advise this
Department as to whether section 5 of the act of June 30, 1906, above
quoted, applies to sales and purchases from the proceeds of such sales
of commissary stores under section 3618, Revised Statutes, and said act
of March 3, 1875."
I recognize the difficulties you speak of and the somewhat unusual
nature of the dealings with the funds in question, but I see no
impossibility in the way of complying with the act of Congress,
supposing it intended to apply to such funds as these, nor do I see any
reason to believe that it was not so intended. So far as the returns
from distant places are concerned, the law should be complied with as
nearly as reasonably may be in the matter of time and the returns sent
by mail. They will be received in ample time for the report to Congress
at the beginning of the session in December. It may, and doubtless will,
be necessary to alter some of the methods of proceeding you speak of.
Congress has made no exceptions and we can not make any. It desires
to know how wisely or unwisely the money not covered into the Treasury
is expended and to know this in detail;
also to know how much of it there is and what needs are supplied by the
use of it.
I am of opinion, therefore, that section 5 of the act of June 30,
1906, does apply to sales and purchases from the proceeds of sales of
commissary stores under Revised Statutes 3618 and the act of March 3,
1875.
Respectfully,
CHARLES W. RUSSELL,
Acting Attorney-General.
EIGHT-HOUR LAW-- CONTRACTORS FURNISHING QUARTERMASTER'S SUPPLIES; 26
Op.Att'y.Gen. 36, August 4, 1906
The act of August 1, 1892 (27 Stat., 340), known as the eight-hour
law, does not apply to contractors furnishing the Quartermaster's
Department with supplies.
DEPARTMENT OF JUSTICE,
August 4, 1906.
THE SECRETARY OF WAR.
SIR: Your letter of July 25 asks the question, Whether the
eight-hour law of August 1, 1892 (27 Stat., 340), should be construed as
applying to contractors furnishing the Quartermaster's Department with
supplies.
I have the honor to answer your question as follows: The act
provides--
'That the service and employment of all laborers and mechanics who
are now or may hereafter be employed by the Government of the United
States, by the District of Columbia, or by any contractor or
sub-contractor upon any of the public works of the United States or of
the said District of Columbia is hereby limited and restricted to eight
hours in any one calendar day * * * ."
In 20 Op., 459, Attorney-General Miller held that the law applies
generally to laborers and mechanics in the direct employment of the
Government and the District, and that the limitation to public works
applies only to such persons in the employ of contractors (opinion of
August 27, 1892).
In 20 Op., 454 (August 24, 1892), there was a contract to furnish
certain supplies for various public buildings. Mr. Miller held that the
law did not apply to such contracts. The question put to him was:
"Whether or not a contract for the supply of the above-named articles
would be embraced within the provisions of the so-called eight-hour law
(approved August 1, 1892) under the designation of 'public works.'" Mr.
Miller said:
"From your statement of facts it does not appear that the persons who
furnish the lock boxes, lock drawers, etc., are to do any work upon the
public buildings. So far as appears, they simply contract to deliver to
the Government, at the freight depot at the various points of
destination, the goods in question. In other words, their contract is a
contract for the furnishing of materials to be used in public buildings
and not for the service and employment of laborers or mechanics to be
employed upon such buildings. To hold that in purchasing materials to be
used in the erection and fitting up of public buildings the requirement
that such materials shall only have been manufactured by persons working
eight hours a day would render this law impossible of execution. If the
law is applicable to the goods you name, it is not seen why it would not
be equally applicable to a purchase of spikes, nails, lumber, brick,
etc., entering into the construction of Government buildings."
In an opinion which I have just rendered to the Secretary of the Navy
(ante, p. 30), regarding the application of this law to the construction
of vessels for the Navy under contract with private establishments, it
is held that the law is not applicable to such a contract, and also that
the furnishing of equipment and material for such vessels-- as, for
instance, armor, guns, etc.-- under special contract is not embraced
within the law.
The case presented by you appears to me to be clearer even than the
foregoing cases, for, presumably, quartermaster's supplies for the use
of the Army are such as, generally speaking, are consumed sooner or
later in the using. In the opinion to the Secretary of the Navy just
cited I followed Mr. Miller's opinion of August 24, 1892 (ut sup.). I
again approve that opinion, and therefore have the honor to answer your
question in the negative.
Very respectfully,
HENRY M. HOYT,
Acting Attorney-General.
EIGHT-HOUR LAW-- CONSTRUCTION OF NAVAL VESSELS UNDER CONTRACT; 26
Op.Att'y.Gen. 30, August 3, 1906
The act of August 1, 1892 (27 Stat., 340), limiting the hours of
service of laborers and mechanics employed on the public works of the
United States, does not apply to vessels under construction for the Navy
by contract with builders at private establishments.
Materials for such vessels, such as armor, guns, and other articles
obtained under special contracts, are a fortiori, not within the
statute.
Suggested, however, that the words "public works" can not be
restricted to the conception of fixed things, such as land and
structures thereon. The expression is used in river and harbor acts
which provide for repairs to breakwaters and for improving rivers
according to projects submitted, including, probably, dredging and
deepening of channels, the interest of the United States therein being
akin in permanence and completeness to title to real estate and
ownership of fixed structures.
Suggested, also, that there is a difference between "public work" and
"public works," the former being the broader term and including the
progress or activity, and the latter the product or completed thing.
Opinion of August 24, 1892 (20 Op., 454), approved and affirmed.
DEPARTMENT OF JUSTICE,
August 3, 1906.
THE SECRETARY OF THE NAVY.
SIR: Your letter of July 23 submits the question whether the act of
August 1, 1892, entitled "An act relating to the limitation of the hours
of daily service of laborers and mechanics employed upon the public
works of the United States and of the District of Columbia" (27 Stat.,
340), applies to labor under contract for the construction of naval
vessels.
The act provides:
"That the service and employment of all laborers and mechanics who
are now or may hereafter be employed by the Government of the United
States, by the District of Columbia, or by any contractor or
sub-contractor upon any of the public works of the United States or of
the said District of Columbia is hereby limited and restricted to eight
hours in any one calendar day, and it shall be unlawful for any officer
of the United States Government or of the District of Columbia, or any
such contractor or sub-contractor whose duty it shall be to employ,
direct or control the services of such laborers or mechanics, to require
or permit any such laborer or mechanic to work more than eight hours in
any calendar day except in case of an extraordinary emergency."
Section 2 of the act provides a penalty for violation by an officer
or contractor, and section 3 excepts from the operation of the act
contracts entered into prior to its passage.
The question therefore is, in effect, whether the phrase "public
works of the United States," as used in the act of August 1, 1892,
comprehends vessels under construction for the Navy by contract with
builders at private establishments over which the Government has no
executive control or supervision. It seems that various vessels are
under construction in accordance with the requirements of the act of
August 3, 1886 (24 Stat., 215), and as authorized by different annual
appropriation acts under the heading "Increase of the Navy;" and
contracts in the usual form, postponing acceptance of the vessel and
complete title in the Government until final delivery, have accordingly
been made for the construction of a number of such vessels in private
establishments of shipbuilders.
It was held by Attorney-General Miller (20 Op., 454) that the act of
1892 does not apply to the case of a contract for furnishing certain
materials to the Government for use in the construction and equipment of
public buildings. In another opinion (id., 463) Mr. Miller considers the
case of laborers and mechanics employed by the Quartermaster's
Department of the Army upon public works, and also of all other laborers
and mechanics employed in the Quarter's Department performing the usual
and ordinary service of the character.
He held that the law applies generally and without limitation to "public
works" as to laborers and mechanics in the direct employment of the
Government and of the District of Columbia, and that the limitation as
to public works applies only to such persons as are in the employ of
contractors and sub-contractors. That case, however, did not at all
involve employment under contractors or sub-contractors.
Mr. Griggs, construing the act of August 13, 1893 (28 Stat., 278),
"for the protection of persons furnishing material and labor for the
construction of public works," held that that act does not refer to
contracts for the construction of naval vessels. He said (23 Op., 175):
"The object of the act was to afford a better method for enforcing
against the contractor the claims of laborers and material men who had
done work or furnished material upon property actually belonging to the
United States, such as public buildings which could only be created upon
land to which the United States had acquired a complete title--
fortifications, river and harbor improvements, and such other things as
are commonly understood under the designation of "public works." * * *
The statute of 1894 intended, in a measure, to remedy the defect in the
means of collection at the disposal of laborers and material men against
contractors upon such works. No such reason applies to cases of the
construction of a specific article not attached to soil the title of
which is in the United States, but which is a mere movable article the
whole title to which remains in the contractor until its completion and
acceptance by the Government."
A similar construction has recently been given to the act of 1894 by
the Supreme Court of New York in the case of Bell v. Empire State Surety
Company, not yet reported, where the court, citing Mr. Griggs' opinion,
says:
"The materials furnished by the plaintiffs under their sub-contract
do not come within the purview of the act in question. Neither the
plaintiffs nor the company were engaged in the construction of any
public building or the prosecution or completion of any public work
within the meaning of the law.
The plaintiffs were furnishing materials to a private corporation, to be
used in the construction of boats which afterwards might, or might not,
become the property of the United States Government. * * * The object of
the act is fully subserved by construing it to relate to the
construction of public buildings and the prosecution and completion of
public works, in the sense that they belong to and are the property of
the public, and to repairs thereof."
Undoubtedly "public works" is a phrase of rather wide signification,
and it has not been precisely and fully defined. As shown, Mr. Miller
and Mr. Griggs applied it to public buildings, and Mr. Griggs to river
and harbor improvements. (Cf. United States v. Jefferson, 60 Fed.Rep.,
736.)
In 20 Op., 445, a timber dry dock was characterized as "a valuable
and permanent improvement of real estate belonging to the United
States," and it was held that, being solely for the use and benefit of
the United States, it was "to be regarded as one of the 'public works of
the United States' under this eight-hour law."
"The term 'public works' is defined as all fixed works contracted for
public use, as railways, docks, canals, waterworks, roads, etc. (citing
Century Dictionary)." (Ellis v. Grand Rapids, 82 N.W., 244; 123 Mich.,
567.)
(See also Winters v. Duluth, 82 Minn., 127.)
The titles of statutes and sub-headings thereof are not controlling,
but they are often significant and persuasive. Besides other instances
which might be given in this matter, consider the naval appropriation
act of 1905 (act March 3, 1905, 33 Stat., 1092, 1101, 1104, 1105, 1116),
where there are various specific appropriations for "public works" under
the Secretary, under the different bureaus, and under the Marine Corps,
while new construction of vessels by contract or in navy-yards is
authorized under the heading "Increase of the Navy." The act immediately
following is the river and harbor act of that year (33 Stat., 1117), and
is technically entitled "An act making appropriations for the
construction, repair, and preservation of certain public works on rivers
and harbors, and for other purposes."
By this it is suggested that the term "public works" can not be
restricted to the conception of a fixed thing, land and structures
thereon, for river and harbor acts not only provide for "repairs to
breakwater," for example, but also "for improving said river in
accordance with the project submitted, etc., which might include
dredging alone, substantially, and the mere deepening of a channel. In
such a case the paramount control by the United States over the marine
belt, harbor areas, and navigable waters is akin, in the interest
created and in its permanence and completeness, to a title to real
estate and ownership of fixed structures. But it is also true that
ordinarily habor and channel improvements by dredging and deepening
involve tributary and permanent "works" like retaining walls, riprap,
mattresses, etc.
Without, however, attempting authoritatively to delimit this subject
and say what things are embraced in the term "public works," I am very
certain that vessels under construction for the navy establishment are
not, either in common acceptation or within legal intendments. Mr.
Griggs, in the opinion cited above, points out the bearing upon the
inquiry of the ordinary contracts for construction which have been
substantially uniform for a long period, the title to the vessel
remaining in the contractor until its completion and acceptance by the
Government.
The contracts affected by the present inquiry provide for a
Government lien, as payments on account are made for various preliminary
trials and preliminary and conditional acceptance, for final trial and
acceptance, and for forfeiture in a certain contingency and the vesting
of title in the Government thereupon, all showing that complete title
does not rest in the Government until the conditions and covenants
specified are fulfilled.
In a case involving a similar point (Clarkson v. Stevens, 106 U.S.,
505, 515-517) the Supreme Court has held that--
"Accordingly, we are of opinion that the fact that advances were made
out of the purchase money, according to the contract, for the cost of
the work as it progressed and that the Government was authorized to
require the presence of an agent to join in certifying to the accounts,
are not conclusive evidence of an intent that the property in the ship
should vest in the United States prior to final delivery.
Indeed, in reference to the latter circumstance, it is noticeable as
indicating a contrary intention that the authority of the inspecting
officer was expressly limited, so that it should not extend to a right
to judge of the quality and fitness of the materials or workmanship,
such matters and all others concerning the performance of the contract
being reserved for determination after the completion of the work as a
condition of acceptance and final payment. * * *
"It is thus apparent, as we think, from these stipulations that the
vessel was in all respects to be at the risk of the builder until, upon
its completion, the United States should accept it upon final
examination and certificate as conforming in every particular with the
requirements of the contract, and answering the description and warranty
of an efficient steam battery for harbor defense, shot and shell proof."
That opinion quotes the rule laid down in Williams v. Jackman, 16
Gray, 514, viz:
"Under a contract for supplying labor and materials and making a
chattel no property passes to the vendee till the chattel is completed
and delivered or ready to be delivered. This is a general rule of law.
It must prevail in all cases unless a contrary intent is expressed or
clearly implied from the terms of the contract."
(See also United States v. Ollinger, 55 Fed.Rep., 959.)
Further, the uniform construction of the Navy Department appears to
have been that neither the act of 1892 nor the act of 1894 (supra)
applies to contracts for the construction of vessels for the Navy. And,
finally, it seems that various bills have been introduced in Congress
since 1892 to extend the eight-hour limitation of the work of laborers
and mechanics to the performance of all contracts entered into by the
Government, but no such measure has been enacted into law. If that is
the proper policy of the Government and ought to be the law, it is for
Congress in the exercise of its judgment and discretion so to provide.
A distinction is manifest under certain State statutes and decisions
between "public work" (in the singular) and "public works," suggesting
generally the difference between the process or activity and the product
or completed thing.
"Public work," therefore, may be a broader conception than "public
works." But it is not necessary to pursue that analysis for the purposes
of the present question, because "public works" is the phrase used in
all Federal statutes on the subject, so far as I can discover, and it
the phrase used in the act of 1892.
My conclusion, therefore, is that the act of August 1, 1892, limiting
the hours of service of laborers and mechanics employed on the public
works of the United States and of the District of Columbia does not
apply to vessels under construction for the Navy by contract with
builders at private establishments. The case of material for such
vessels, as, for instance, armor, guns, and other articles obtained
under special contracts, is a fortiori; and, besides, rests fully on
the ruling of Attorney-General Miller in 20 Op., 454, as above cited,
which is hereby expressly approved and affirmed.
Very respectfully,
HENRY M. HOYT,
Solicitor-General.
Approved:
W. H. MOODY.
FEDERAL BUILDING AT SARATOGA SPRINGS, N.Y.-- APPROPRIATIONS; 26 Op.
Att'y.Gen. 20, August 2, 1906
Various acts of Congress appropriating money for the purchase of a
site and the erection thereon of a Federal building at Saratoga Springs,
N.Y., considered, and held, that the act of June 30, 1906 (34 Stat.,
773), which increased the cost theretofore fixed by Congress by $35,000,
and authorized the Secretary of the Treasury to enter into contracts for
the completion of the building within the limit of cost, including site,
authorizes that officer to acquire the site and erect the building at a
total cost of $125,000. The intent of that act was to ignore the
previous division between the cost of the site and the cost of the
building and substitute a lump-sum limit or measure for both building
and site.
The Secretary is therefore not limited as to the cost of the site,
but a sufficient amount of the appropriation should be reserved to
properly erect the building.
DEPARTMENT OF JUSTICE,
August 2, 1906.
THE SECRETARY OF THE TREASURY.
SIR: I have received your communication dated July 27, 1906,
requesting an opinion, as follows:
"Certain legislation has been enacted from time to time during a
period of four years with respect to the acquisition of a site and the
erection thereon of a Federal building at Saratoga Springs, N.Y., under
which the Department has endeavored to act, and desires further to act,
within the limit of its authority, and I have the honor to invite your
attention to such legislation and request to be advised as to its
effect: Section 5 of the omnibus public building bill, approved June 6,
1902 (32 Stat., 310), provides, in part, as follows:
"'That the Secretary of the Treasury be, and he is hereby, authorized
and directed to acquire, by purchase, condemnation, or otherwise, a
suitable site for a United States post-office and other governmental
offices in each of the cities enumerated in this section, within its
respective limit of cost hereby fixed: * * * Saratoga Springs, New
York, fifteen thousand dollars.'
"It is provided in the same section that, upon the failure of the
Secretary of the Treasury to acquire a suitable site in any city
mentioned in said act within the limit of cost herein set forth, and
within two years after the passage of said act, then so much of the act
as applies to the city or cities where such failure occurs shall be null
and void. The Department was unable to secure a suitable site at
Saratoga Springs, N.Y., within the limit of cost fixed therefor, and the
following legislation was enacted in the omnibus public building bill
approved March 3, 1903, and will be found under section 3 (32 Stat.,
1207):
"'That to enable the Secretary of the Treasury to give effect to and
execute the provisions of existing legislation authorizing the purchase
of sites in the several cities hereinafter enumerated, the limit of cost
heretofore fixed by Congress therefor be, and the same is hereby,
increased, respectively, as follows: * * * United States post-office at
Saratoga Springs, New York, from fifteen thousand dollars to twenty
thousand dollars: Provided, That the Secretary of the Treasury is
hereby authorized, in his discretion, to contract for the erection and
completion of a suitable building, including fireproof vaults, heating
and ventilating apparatus and approaches, complete, for the use and
accommodation of the United States post-office and other governmental
offices, upon a site secured, or to be secured, within the limit of cost
herein provided at Albert Lea, Minnesota, and Saratoga Springs, New
York, the limit of cost of building at Albert Lea, Minnesota, to be
thirty thousand dollars, and the limit of cost of building at Saratoga
Springs, New York, to be seventy thousand dollars.'
"It will be observed that the limit of cost of site and building at
Saratoga Springs, N.Y., is separately and specifically fixed in the
paragraph just quoted.
"A further effort was made under the provisions of the legislation
last quoted to secure a Federal building site at Saratoga Springs, N.
Y., within the limit of $20,000 fixed therefor, but without success.
"In the meantime the following legislation was enacted and will be
found in the sundry civil act approved April 28, 1904 (33 Stat., 457):
"'Zanesville, Ohio, post-office: For continuation of building under
present limit, twenty-five thousand dollars: Provided, That the
limitation of two years fixed in the proviso to section five of the act
to increase the limit of cost of certain public buildings, to authorize
the purchase of sites for public buildings, to authorize the erection
and completion of public buildings, and for other purposes, approved
June 6, 1902, in which to acquire a suitable site in any city mentioned
in said act, is hereby extended for one year, to June 6, 1905.'
"No site for a public building at Saratoga Springs has yet been
acquired by the Government because the limit of cost fixed therefor was
insufficient for the purpose. Upon these conditions becoming known to
the Committee on Public Buildings and Grounds there was included in
section 1 of the omnibus public building bill, approved June 30, 1906
(34 Stat., 773), the following item:
"'That to enable the Secretary of the Treasury of the United States
to give effect to and execute the provisions of existing legislation
authorizing the purchase of sites and the erection thereon of public
buildings in the several cities hereinafter enumerated, the limit of
cost heretofore fixed by Congress therefor be and the same is hereby
increased, respectively, as follows, and the Secretary of the Treasury
is hereby authorized to enter into contracts for the completion of each
of said buildings within its respective limit of cost, including site *
* * United States post-office at Saratoga Springs, New York, thirty-five
thousand dollars.'
"The fact that Congress has enacted additional legislation since the
expiration of the time limited for the acquisition of sites mentioned in
the act of June 6, 1902, above referred to, would seem to this
Department to indicate that the legislative intent was to give the
Secretary of the Treasury authority to acquire a site and construct a
public building at Saratoga Springs, N.Y., and thereby to repeal pro
tanto the limitation contained in the proviso in section 5 of the act of
June 6, 1902, relating to the time within which sites were to be
acquired in all cities mentioned in said act, and to revive the previous
authorizations respecting the acquisition of a site and the erection
thereon of a public building at Saratoga Springs, N.Y.
"The Department is not certain whether the effect of the legislation
above referred to is to fix the limit of cost for site and building at
Saratoga Springs, N.Y., at $105,000 or $125,000, and therefore has the
honor to request an expression of your opinion upon this feature and
upon the further feature as to whether the effect of said legislation is
such that in acquiring a site at Saratoga Springs, the Department is
limited to any particular amount so long as the balance of the limit of
cost remaining for the purchase of a site will be sufficient to enable
the Department to construct on the site a suitable building of the
character contemplated by said legislation."
In addition to the statutes quoted in your letter there are four
appropriations, one dated April 28, 1904, reading: "Saratoga Springs
Post-Office, N.Y. For commencement of building under present limit,
$20,000;" another dated March 3, 1905, reading: "Saratoga Springs
Post-Office, N.Y. For continuation of building, $20,000." The total
appropriations are $60,000.
There is no other legislation, and has been no other, so far as I am
advised, concerning the site or building at Saratoga Springs, N.Y.
When, therefore, Congress in the act of June 30, 1906, speaks of
"enabling the Secretary of the Treasury to give effect to and execute
the provisions of existing legislation authorizing the purchase of sites
and erections of buildings," the legislature must have had in mind all
or some of that above quoted, so far as the post-office at Saratoga
Springs is concerned.
And it doubtless did have in mind only the provisions of the act of
1902, expressly authorizing the purchase of the site for $15,000, or the
act of March 3, 1903, increasing the cost of the site to $20,000 and
expressly authorizing the erection of the building at a cost stated, or
both of these acts, because it is only these that purport to be
"legislation authorizing the purchase," etc.
The former had become null and void as to Saratoga Springs, owing to
the failure to purchase the site within the time limit of three years.
The latter was "existing legislation," unless it became null and void,
because altogether dependent for life upon the former-- that is to say,
unless the failure to procure a site within the time limit ended all
authority to procure a site. Of course no building was intended to be,
or could be, erected without first providing a site.
In view of the fact that the time limit was still running when the
act of 1903 was passed it is at least doubtful whether that law was
still, in 1906, existing and effective legislation.
And an intention to revive "legislation authorizing the purchase,"
etc., can not well be recognized in the act of 1906, since Congress
could not have meant to revive what it regarded as already existing.
If this was a mistake, the legislature's mistaken assumption as to
the law does not, as a general proposition, revive or alter the law. In
Town of Ottawa v. Perkins, 94 U.S., 260, the Supreme Court says:
"But it is urged that the reference to the act of 1857 is such a
recognition of that act as to give it validity, if it had none before.
This was certainly not the purpose of the act of 1869, nor do we think
that such was its effect. The legislature could not thus, in 1869, give
validity to a void act as an act passed in 1857, which was not
constitutionally passed in that year, for that would be an evasion of
the Constitution. It could at most give it vitality as a new act from
the date of the act of 1869. But this it does not profess to do; it
only adopts its provisions for the purpose of the act then passed. And
if the legislature of 1869 could have validated all proceedings had
under the supposed act of 1857, it did not do so. It did not profess to
do it. No such purpose is indicated in it. The most that can be said is
that, in referring to the act of 1857, the legislature inadvertently
supposed that it had been regularly passed. Whether such inadvertence
was the result of a false suggestion by interested parties, or
otherwise, is of no consequence. No intent to validate and establish the
act of 1857, as a law, can be gathered from the terms of the act of
March 27, 1869.
To give such a reference in a subsequent act, as is here relied on, the
effect of validating or reviving or vitalizing a void or repealed
statute, when no such intention is expressed, would be dangerous and
would lay the foundation for evil practices. The legislature might in
this way be entrapped into the enactment or reenactment of laws when it
had no intention, or even suspicion, that it was doing so."
But it seems to me that, even supposing neither the act of 1902 nor
that of 1903 in force, and that Congress was therefore mistaken in
assuming that there was any "existing legislation" authorizing the
purchase of a site and erection of a building, it does not follow that
no such authority exists.
The legislation we are considering involves no vested or private
rights. It is merely directory to officers of the Government. It deals
with the Government's own funds, and is designed to create public
buildings of an ordinary and necessary kind. It can not be supposed that
the unprecedented time limit referred to, whatever its object, signified
that no such building was at an early time to be erected at Saratoga
Springs, or was such an important matter that Congress would not lightly
disregard it in future legislation.
These things being so, let us see whether Congress has not
sufficiently legislated in 1906 to authorize the purchase of this site
and erection of this building at a specified limit of cost. The language
is:
"That to enable the Secretary of the Treasury of the United States to
give effect to and execute the provisions of existing legislation
authorizing the purchase of sites and erection thereon of public
buildings in the several cities hereinafter enumerated, the limit of
cost heretofore fixed by Congress therefor be, and the same is hereby,
increased, respectively, as follows and the Secretary of the Treasury is
hereby authorized to enter into contracts for the completion of each
building within its respective limit of cost, including site. * * *
United States post-office at Saratoga Springs, New York, thirty-five
thousand dollars."
First, is there anything uncertain as to the cost limit?
In nearly all the other items in the law, providing for increases at
other cities, the amount stated is a quantity to be added to a lump sum
for site and building, or, as above expressed, for "the building
including site."
I think this is a sufficient indication that the $35,000 is to be
added to the prior cost limit of both site and building. It is "the
limit of cost heretofore fixed by Congress therefor" (for purchase of
site and erection of building) that is "hereby increased * * * $35,000."
But it may be said, if the act of 1903 is not operative and the act
of 1902 is absolutely null and void there is nothing to increase by
$35,000. To think this is to ignore the nature of what is to be
increased. It is not a sum appropriated. It is a measure; and as though
Congress had said the height of the building as heretofore fixed should
be increased 20 feet. As there is no other "limit of cost therefor" that
Congress could have intended to increase than the limit stated in the
act of 1903, to say that that limit is increased by $35,000 gives us a
definite limit, fixed by the act of 1906, whether the act of 1903 is
operative or not. Congress could have said the limit shall be
ascertained by adding $35,000 to a limit stated in a certain newspaper
instead of referring to a prior law.
The limit of cost being definitely given by the act of 1906 and in no
way dependent upon the vitality of other legislation, can we say that
that act also authorizes in the same independent way the purchase of the
site and erection of the building?
The language following the fixing of the limit of cost for sites and
buildings in the various cities, is, "and the Secretary of the Treasury
is hereby authorized to enter into contracts for the completion of each
of said buildings within its respective limit of cost, including site."
To unqualifiedly authorize the completion of a building the site of
which has not yet been purchased and say what the limit of cost for site
and building shall be, is impliedly to authorize the purchase of the
site, since the building can not be completed until the site is first
purchased.
It may be said the completion of the building is not unqualifiedly
authorized, since there is a reference to existing legislation as having
already authorized it, and this last authorization would not have been
made if the failure of the former one had been known.
In the nature of things as already suggested, there is no reason to
believe that Congress would, in 1906, refuse to carry out the project it
started in 1902 and approved by six or seven pieces of legislation,
including appropriation laws, because the site was not purchased prior
to a certain date in 1905. But, more important than these
considerations, is this: Congress can not be presumed, in the face of
its positive recital, to know that there was no existing legislation
authorizing the purchase, etc., but it can and is to be presumed to know
what time limit the act of 1902 provided, and is further to be presumed
to know such things concerning the object it is legislating about as
that the site had not been purchased within that limit. Nevertheless,
it authorized the completion of the building and fixed the limit of cost
for site and building.
But we need not rely upon the presumption that it knew the site had
not been purchased when it passed the law of 1906, since we have
evidence that this fact was brought to the attention of the proper
committee; and we need not ignore the prevailing and unavoidable method
of legislating about matters of business detail largely by committee
rather than by the full Congress. On February 2, 1906, the Secretary of
the Treasury, upon request, made a report addressed to the chairman of
the Committee on Public Buildings and Grounds of the House of
Representatives, upon H.R. 3040, introduced December 5, 1905, providing
a lump sum of $150,000 for the purchase of the site and erection of the
building at Saratoga Springs, N.Y., and said:
"From computation made in this Department it appears that a one-story
building of 6,000 square feet ground area, with basement and attic, is
sufficient, and that a fireproof building of the dimensions indicated,
including fireproof vaults, heating and ventilating apparatus, and
approaches, complete, will cost $90,000. It is estimated that a suitable
site can be secured for $35,000."
It may be remarked in passing that $90,000 is $20,000 plus $70,000,
the limits of cost given in the act of 1903 for the site and building.
Congress having, in 1906, knowing that the time limit of the act of
1902 had expired, and that no site had been purchased within the limit,
used language of present authorization, express as to the completion of
the building and implying authorization as to the site, and having at
the same time fixed definitely the limit of cost for site and building,
it seems to me we should treat that language as sufficient, without aid
from the supposed "existing legislation."
In Postmaster-General v. Early (12 Wheat., 146), the Supreme Court
says:
"The jurisdiction of the district courts then over suits brought by
the Postmaster-General for debts and balances due the general
post-office is unquestionable. Has the circuit court jurisdiction? The
language of the act is that the district court shall have cognizance,
concurrent with the courts and magistrates of the several States and the
circuit courts of the United States, of all suits, etc. What is the
meaning and purport of the words "concurrent with" the circuit courts of
the United States? Are they entirely senseless? Are they to be
excluded from the clause in which the legislature has inserted them, or
are they to be taken into view, and allowed the effect of which they are
capable? The words are certainly not senseless. They have a plain and
obvious meaning. And it is, we think, a rule that words which have a
meaning are not to be entirely disregarded in construing a statute. We
can not understand this clause as if these words were excluded from it.
They, perhaps, manifest the opinion of the legislature that the
jurisdiction was in the circuit courts; but ought, we think, to be
construed to give it, if it did not previously exist.
"The phrase may imply that power was previously given to the other,
but if, in fact, it had not been given, the words are capable of
imparting it. If they are susceptible of this construction, they ought
to receive it, because they will otherwise be totally inoperative, or
will contradict the other parts of the sentence, which shows plainly the
intention, that the district court shall have cognizance of the subject,
and shall take it to the same extent with the circuit courts.
"It has been said, and perhaps truly, that this section was not
framed with the intention of vesting jurisdiction in the circuit courts.
The title of the act, and the language of the sentence, are supposed to
concur in sustaining this proposition. The title speaks only of State
and district courts. But it is well settled that the title can not
restrain the enacting clause. It is true that the language of the
section indicates the opinion that jurisdiction existed in the circuit
courts rather than an intention to give it, and a mistaken opinion of
the legislature concerning the law does not make law. But if this
mistake be manifested in words competent to make the law in future, we
know of no principle which can deny them this effect. The legislature
may pass a declaratory act, which, though inoperative on the past, may
act in future. This law expresses the sense of the legislature on the
existing law as plainly as a declaratory act, and expresses it in terms
capable of conferring the jurisdiction. We think, therefore, that in a
case plainly within the judicial power of the Federal courts as
prescribed in the Constitution, and plainly within the general policy of
the legislature, the words ought to receive this construction."
I am of opinion that you are authorized by the act of 1906 to acquire
the site and erect the building, at a total cost of $125,000. You also
desire to know whether you are limited to any particular amount in
purchasing the site, provided you leave enough to properly erect the
building.
You undoubtedly have in mind the division made in the act of 1903
between site and building-- $20,000 for site and $70,000 for building.
The three amounts are to be added together to make a limit of cost
"therefor"-- for site and building. The act of 1906 alone, or in
conjunction with the prior legislation, whether in force or not,
furnishes no rule by which the $35,000 part of the measure should be
divided between the site and building. For this reason, and in view of
the language concerning the limit of cost of site and building and
concerning "the building, including site," in view also of the fact that
this language contemplated the usual case, of which many instances
follow, of a limit for both together, I think the intent was to ignore
the previous division and substitute a lump sum limit or measure for
both site and building.
In my opinion, therefore, you are not limited as to the cost of the
site, except, as you suggest, that enough should be reserved to properly
erect the building.
Respectfully,
CHARLES W. RUSSELL,
Acting Attorney-General.
OFFICERS OF THE MARINE CORPS AND OF THE NAVY-- RELATIVE RANK; 26 Op.
Att'y.Gen. 16, July 20, 1906
Section 1466, Revised Statutes, fixes the relative rank of officers
of the Army and of the Navy.
The expression "lineal rank being considered," in that section, means
simply that it is not necessary to specify and fix relative staff rank,
since staff officers in both services possess assimilated lineal rank.
There is no statutory provision expressly regulating the relative
rank and precedence of officers of the Marine Corps and officers of the
several staff corps of the Navy, but there are provisions which, with
the long-established and settled usage and practice of the Army and
Navy, regulate it with the same certainty as if by enactment in terms.
Whatever will be the relative rank of an officer of the Army to
either line or staff officers of the Navy, that would also be the
relative rank as to them as officers of the Marine Corps.
The opinion of October 7, 1905 (25 Op., 517), with the additional
holding that sections 1466 and 1603, Revised Statutes, apply also to
officers of the staff corps of the Navy, furnishes a complete guide to
the provisions of law which regulate the relative rank and precedence of
officers of the Marine Corps and of the several staff corps of the Navy.
The Navy Department would not have the authority (with the approval
of the President) to amend the Navy Regulations so as to do away with
the practice as to the relative rank of officers of the Marine Corps and
line officers of the Navy, established in accordance with the opinion of
the Attorney-General of October 7, 1905 (25 Op., 517).
The relation as to rank which officers of the Marine Corps hold to
other officers is prescribed by section 1603, Revised Statutes, and
could not be changed by any act of the President or of the Navy
Department.
DEPARTMENT OF JUSTICE,
July 20, 1906.
THE SECRETARY OF THE NAVY.
SIR:
I have the honor to respond to your note of July 13, 1906, in which you
request an answer to the following questions:
"1. What provision of law regulates the relative rank and precedence
of officers of the Marine Corps and officers of the several staff corps
of the Navy?"
"2. Are the provisions of section 1466 of the U.S. Revised Statutes
applicable to line officers of the Navy only, or do they determine the
relative rank and precedence of staff officers of the Navy toward
officers of the Army also?"
"3. Would the Department have authority to amend (with the approval
of the President) the Naval Regulations, as suggested in the memorandum
of the Bureau of Navigation, inclosed with the papers herewith
submitted, the effect of such proposed amendment being to do away with
the practice as to the relative rank of officers of the Marine Corps and
the line officers of the Navy, established in accordance with your
letter of October 7, 1905?"
Answering first your second question: Section 1466, Revised
Statutes, fixes the relative rank of officers of the Army and officers
of the Navy. Thus, vice-admirals rank with lieutenant-generals,
commodores with brigadier-generals, captains with colonels, and so on
through the list.
This section is general, with no exception or limitation, and
therefore it applies equally to all officers of the Navy of the grades
there mentioned, whether of the line or staff. That section contains the
clause "lineal rank only being considered," but that simply means that
it is not necessary to specify and fix relative staff rank, since staff
officers in both services possess assimilated lineal rank.
Your first question asks, "What provision of law regulates the
relative rank and precedence of officers of the Marine Corps and
officers of the several staff corps of the Navy?" There is no statutory
provision expressly regulating this, but there are such provisions
which, with the long established and settled usage and practice of the
Army and Navy, regulate it with the same certainty as if by enactment in
terms.
A similar question as to the relative rank and precedence of officers
of the Marine Corps and officers of the line in the Navy was carefully
considered in an opinion to your Department on October 7, 1905. That
opinion fully answers your present question, if it is applicable to
officers of the staff corps also, as well as to officers of the line of
the Navy.
Section 1605, Revised Statutes, provides that--
"The officers of the Marine Corps shall be, in relation to rank, on
the same footing as officers of similar grades in the Army."
Here, too, the section is general in its terms, with no exception or
limitation as to application. It does not restrict this similarity of
rank to officers of the Army, but provides that "officers of the Marine
Corps shall be, in relation to rank, on the same footing as officers of
similar grades in the Army." That is to say, whatever relation as to
rank one army officer may hold as to another officer, that is the
relation which an officer of the Marine Corps of similar grade holds.
And as to rank and its resulting precedence, the relation of an officer
of the Marine Corps to an officer in the Navy, line or staff, is
precisely that which an army officer of similar grade would hold to such
naval officer. In no other way can these officers be on the same
footing, as to rank, as this section requires. This is as applicable to
officers of the staff corps of the Navy as to officers of the line.
In determining this relative rank of officers in similar grades,
Congress has, as a rule, adopted the criterion of seniority of
commission, though in a few instances length of service is made to
govern. The latter is the case with reference to staff officers in their
several corps and grades, and in relation to officers of the line of the
Navy, with whom they hold relative rank, as provided in sections
1485-1486, Revised Statutes. That is to say, in the Army the test of
rank in any grade is date of commission, and the period of actual
service as an officer of the United States is not taken into account
except in cases where the date of appointment and of commission is the
same (sec. 1219, R.S.; see also arts. 9, 10, Army Regulations, 1904).
The Navy rule is similar (sec. 1467, R.S.): "Line officers shall take
rank in each grade according to the dates of their commissions." That is
the general rule, and it is the established rule as between the two
services, because line title and rank alone are considered in fixing
relative rank between officers of the Army and of the Navy. In other
words, the necessary inference from these various provisions of law, and
immemorial usage and comity between the Army and Navy, is that the line
rule of date of commission applies. This is all entirely consistent with
the special rule in the Navy and within any particular grade that, as
between line and staff officers in that grade, length of service shall
determine the precedence (secs. 1485, 1486, ut sup.).
However this may be, it is certain that under any criterion, whatever
will be the relative rank of an officer of the Army to either line or
staff officers of the Navy, that would also be the relative rank as to
them of an officer of the Marine Corps.
With the addition of the above holding that sections 1466 and 1603
apply also to officers of the staff corps of the Navy, my former opinion
of October 7, 1905, furnishes a full answer to your first question, as
the same legal provisions and settled practice of the Army and Navy
there referred to as regulating the rank and precedence of officers of
the Marine Corps and officers of the line of the Navy regulate the rank
and precedence of such marine officers with officers of the staff corps
of the Navy.
Replying to your third question, I would say that whatever rules or
regulations, or amendments thereof, the President or the Secretary may
make for the government of the Navy, they must be always with the
limitation that they are not inconsistent with existing law.
The relation as to rank which officers of the Marine Corps hold as to
other officers is prescribed by act of Congress, viz, section 1603,
Revised Statutes, and could not be changed by any act of the President
or of your Department.
This question is answered in the negative.
Respectfully,
HENRY M. HOYT,
Acting Attorney-General.
NAVAL HOSPITAL, YOKOHAMA-- TITLE TO LAND; 26 Op.Att'y.Gen. 12, July
18, 1906
The money appropriated by the act of June 29, 1906 (34 Stat., 568),
for the purchase for the naval hospital at Yokohama, Japan, of land
adjoining its grounds, may properly be expended for the purchase of a
lease in perpetuity to said land subject to an annual rental to the
Japanese Government, that being the tenure by which the land is now held
and the only title that can be obtained, and the Imperial Government
having indicated that it has no objection to the transfer for the
purpose named.
The purchase of the leasehold with the consent of the Japanese
Government would, for all practical purposes, be equivalent to a
purchase of the land itself.
Laws should be given a reasonable construction and application to
further the object of the lawmaker.
The word "State," as used in section 355, Revised Statutes, regarding
the acquisition of land for the erection thereon of any armory, arsenal,
etc., or any other public building of any kind whatsoever, signifies a
State of the Union.
DEPARTMENT OF JUSTICE,
July 18, 1906.
THE SECRETARY OF THE NAVY.
SIR: I have received, with its inclosures, your communication of the
12th instant, reading as follows:
"The act making appropriations for the naval service, approved June
29, 1906, under the heading 'Public Works, Bureau of Medicine and
Surgery' (34 Stat., 568), contains the following clause:
"'Naval hospital, Yokohama, Japan: For purchase of land adjoining
present hospital grounds, five thousand dollars.'
"The Department has available for the improvement of the Yokohama
hospital the sum of $25,000, heretofore appropriated (act of March 3,
1903, 32 Stat., 1190). Our minister to Japan, Mr. Lloyd C. Griscom,
November 25, 1905, reports that the tract of land desired to be
purchased for the use of the naval hospital at Yokohama is held by
lease, in perpetuity, by R. Lindan, a German subject, and that, should
the lease be transferred to the United States Government by him, the
Imperial Japanese Government would have no objection to the employment
of the land to improve the facilities of the naval hospital. It appears,
however, that, in response to an inquiry on the subject made by Mr.
Griscom, Baron Komura, the minister for foreign affairs of Japan, makes
this statement:
"'It is, however, to be added that such transfer will be of the same
value as transfer of property between private individuals, and hence it
will not produce any privileges or immunities other than those attached
to such leases in general.'
"With respect to the description and present status of the property,
Mr. Griscom further reports:
"'Mr. Lindan, who holds the property, is absent from Japan, but his
agents, Messrs. Ahrens & Co., state that bluff lot No. 98 can be
purchased for yen 6,000, that the lot is said to measure 440 tsubos
equals 36 square feet), and that the annual ground rent payable to the
Japanese Government is at the rate of $12 Mexican for 100 tsubos.'
"Being impressed with the importance of enlarging the facilities of
the naval hospital at Yokohama without unnecessary delay, have the honor
to request your advice upon the following points:
"1. Whether, in view of the assent of the Imperial Japanese
Government, as expressed in Baron Komura's letter of November 21, 1903,
section 355 of the Revised Statutes, respecting cession of jurisdiction,
has any application to this case;
and whether any further cession of sovereignty or national jurisdiction
is necessary in order that this Department may carry out the purpose of
Congress in making the appropriations above mentioned.
"2. Whether payment in the form mentioned by Mr. Griscom of 'annual
ground rent * * * to the Japanese Government' constitutes a payment of
taxes or is an obstacle to the conclusion of the transaction."
Referring to your first question, section 355 of the Revised Statutes
forbids the expenditure of money upon any site or land purchased by the
United States for the purpose of erecting thereon any armory, arsenal,
etc., or any other public building of any kind whatever, until the
consent of the legislature of the State in which the land or site may
be, to such purchase, has been given. The section says nothing about a
cession of jurisdiction. But it is clear that the section was drafted
with a view to the language of section 8, Article 1, of the Constitution
giving Congress power "to exercise exclusive legislation in all cases
whatsoever * * * all places purchased by the consent of the legislature
of the State in which the same shall be, for the erection of forts,
magazines, arsenals, dock-yards, and other needful buildings."
It can not be supposed that the makers of the Constitution would
undertake, by their mere fiat, to confer upon Congress exclusive
legislative power over a portion of a foreign country, nor is it
probable that they were contemplating the erection of permanent forts
and arsenals in foreign countries. Accordingly, the word State, in
section 355, Revised Statutes, signifies, as it often does, a State of
the Union.
As to the necessity for a "further cession of jurisdiction," I do not
find in prior laws appropriating for the establishment or improvement of
the naval hospital any condition imposed by Congress concerning the
acquisition or exercise of sovereignty or national jurisdiction, and
there is nothing in the language of the appropriation now under
consideration to indicate that that appropriation is so conditioned. We
formerly exercised exterritoriality in Japan, but the treaty abolishing
that did not reserve or confer jurisdiction over the naval hospital; if
it had, yet it would not follow that this last appropriation was
conditioned upon the acquisition of like jurisdiction over the strip of
land now in question.
As to the annual ground rent, it seems that the land is held under
the Japanese Government, subject to the payment of about $50 per year to
the treasury. It is treated as purchasable by one individual from
another.
Congress made the last appropriation of $5,000 for the purchase of
"land adjoining present hospital grounds," and undoubtedly had in view
the particular land in question.
Referring to the correspondence you inclosed, dated in 1903, and
including the letter from Baron Komura, I think it may be assumed that
Congress had some information concerning even the title of the property.
It is presumed to understand the subject upon which it legislates and
was evidently legislating here concerning a particular contemplated
purchase of a particular tract of land held under perpetual lease. In
the case of ordinary American ground rents there is an individual
ownership distinct from the leasehold; but here there is merely a tie
between the individual leaseholder and the Government. Accordingly, for
all practical purposes, a purchase of the leasehold with that
Government's consent would be equivalent to a purchase of the land
itself. The original purchase of 1867-1871 was of land held under ground
rent in just the same way.
I find that the hospital was built upon "bluff land No. 99,"
containing 1,715 tsubos; that the ground rent thereof amounted to
$205.80, and that on July 15, 1872, Rear-Admiral Jenkins wrote the
Secretary of the Navy as follows:
"Herewith is transmitted for the files of the Department a copy of
the title deed given by the Japanese Government to the United States of
lot No. 99 at Yokohama, Japan, upon which the naval hospital is built.
"This deed was returned by Rear-Admiral Rodgers to our minister, Mr.
Long, with the request that he would endeavor to have the conditions of
the lease, so far as they related to penalties imposed in case of
neglect to fulfill the prescribed terms, modified, it being thought that
those penalties were unusual and too severe.
"It was ascertained, however, that in all leases of lots at Yokohama
the conditions are the same, and the minister was not able to obtain any
modification of them in this case."
In my opinion the laws should be given a reasonable construction and
application to further the object of the lawmaker, and I think it would
be unreasonable to hold the purchase in question, specifically
appropriated for long after all the correspondence above referred to,
illegal upon any theory suggested in your letter.
I observe that the price asked is 6,000 yen. I am informed by the
Mint Bureau of the Treasury Department that a yen is worth 49 8/10
cents, consequently 6,000 yen are well within the appropriation of
$5,000.
Respectfully,
CHARLES W. RUSSELL,
Acting Attorney-General.
MUSTERING REGULATIONS; 26 Op.Att'y.Gen. 6, July 17, 1906
The promulgation of a regulation by the Secretary of War, after the
President shall have issued a proclamation calling for volunteers,
requiring that there shall be established in the States and Territories
rendezvous which shall be in charge of United States officers; that all
volunteers desiring to enter the United States service must join for
duty and be enrolled at one of these rendezvous; and that the United
States officers on duty at such rendezvous shall have supervision and
control of the enrollment and joining for duty of State volunteers, is
neither authorized nor permitted by existing legislation.
Such a regulation would be valid only in so far as State and local
authorities acquiesced in its observance. In so far as the regulations
undertook to invalidate action which it is now competent for State and
local authorities to take, and to exclude the States from any
participation in the initial process of bringing volunteers into the
service, they would be nugatory and might be disregarded.
The power of the Secretary of War, under the President, to establish
rules for the government of the Army is necessarily limited, and does
not extend to the repeal or contradiction of existing statutes, nor to
the making of provisions of a legislative nature.
DEPARTMENT OF JUSTICE,
July 17, 1906.
THE SECRETARY OF WAR.
SIR: By your letter of June 26 you submit a memorandum of The
Military Secretary in which a general plan is proposed as a basis for
the preparation of mustering regulations, rolls, returns, and other
forms, so as to have them ready for immediate issue to volunteer troops
whenever such troops shall be called for under the provisions of the act
of Congress approved April 22, 1898, and you ask my opinion as to
whether there is any legal objection to the adoption of this plan, or,
more specifically, "whether under existing law it will be competent for
the Secretary of War, after the President shall have issued a
proclamation calling for volunteers, to prescribe regulations requiring
that there shall be established in the States and Territories rendezvous
which shall be in charge of United States officers; that all volunteers
desiring to enter the United States service must join for duty and be
enrolled at one of these rendezvous; and that United States officers on
duty at these rendezvous shall have supervision and control of the
enrollment and joining for duty of the State volunteers presenting
themselves there."
The purpose of the plan in question is to provide for the making and
preservation of an accurate record of the date and place of enrollment
and joining for duty of volunteers received into the service of the
United States, where these steps have taken place prior to actual
acceptance into the service. This information is rendered necessary to
pay and accounting officers by the terms of the act of Congress approved
July 7, 1898, which provides that the pay and allowance of all officers
and enlisted men of the volunteers received into the service under the
act of April 22, 1898, shall be deemed to commence, not merely from the
date of their muster in, or acceptance into the service, but "from the
day on which they had their names enrolled for service in the Volunteer
Army of the United States and joined for duty therein after having been
called for by the governor on the authority of the President."
The plan proposed to meet this situation contemplates on the one hand
the assumption by the United States of full control, supervision, and
management in connection with the enrollment and joining for duty of
volunteers, and the performance by officers of the United States of all
the necessary duties involved, and, on the other hand, the total
exclusion of State authorities or other agencies from any participation
in the process by denying recognition to enrollment and joining for duty
conducted under such auspices. The plan in question has nothing to do
with the calling forth of the militia, and requires no consideration of
the respective powers of the National and State governments over forces
of this character. By constitutional grant Congress is given the power
to raise and support armies and the power to make rules for the
government of the land and naval forces.
While these powers, when exercised in making temporary additions to the
Regular Army, have apparently always been used hitherto in conjunction
with the power to call forth the militia, whereby the militia idea has
been preserved even in the creation of strictly volunteer organizations,
they are undoubtedly broad enough to vest in Congress the right to take
over the whole task of raising a volunteer army (not made up of militia
forces) in all its stages, from first to last, and quite independently
of State action. The question, then, is not whether Congress has power
in the premises, but whether such an assumption of exclusive control as
above described is actually authorized, expressly or impliedly, or is at
least permitted by existing legislation.
The volunteers to whom the plan in question is intended to apply are
those mentioned in the act of April 22, 1898. (30 Stat., 361.) This act,
among other provisions, declares who shall constitute the national
forces and be liable to perform military duty, designates the Regular
Army and the Volunteer Army of the United States as the two branches of
the Army in time of war, defines "the Regular Army," and enacts that the
Volunteer Army shall be raised and organized "as in this act provided;"
and it further provides:
"SEC. 5. That when it becomes necessary to raise a volunteer army the
President shall issue his proclamation stating the number of men
desired, within such limits as may be fixed by law, and the Secretary of
War shall prescribe such rules and regulations, not inconsistent with
the terms of this act, as may in his judgment be necessary for the
purpose of examining, organizing, and receiving into service the men
called for: Provided, That all men received into service in the
Volunteer Army shall, as far as practicable, be taken from the several
States and Territories and the District of Columbia and the Indian
Territory in proportion to their population. And any company, troop,
battalion, or regiment from the Indian Territory shall be formed and
organized under such rules and regulations as shall be prescribed by the
Secretary of War.
"SEC. 6. That the Volunteer Army and the militia of the States when
called into the service of the United States shall be organized under
and shall be subject to the laws, orders, and regulations governing the
Regular Army:
Provided, That each regiment of the Volunteer Army shall have one
surgeon, two assistant surgeons, and one chaplain, and that all the
regimental and company officers shall be appointed by the governors of
the States in which their respective organizations are raised. * * * "
It will be noted that the fifth section of this act authorizes the
Secretary of War "to prescribe such rules and regulations, not
inconsistent with the terms of this act, as may in his judgment be
necessary for the purpose of examining, organizing, and receiving into
the service the men called for." At first blush it might be supposed
that this provision furnished ample authority to justify the Secretary
of War in requiring that enrollment and joining for duty of volunteers
shall take place only before officers of the United States. But can such
a regulation be regarded as "not inconsistent with the terms of this
act?" The same section containing this provision also provides that men
received into the service shall be taken from the several States and
Territories in proportion to their population and that, in the specific
case of Indian Territory, any company, troop, battalion, or regiment
"shall be formed and organized under such rules and regulations as shall
be prescribed by the Secretary of War." This singling out of the Indian
Territory from all the other States and Territories, according to a
well-known rule of interpretation, implies that in the latter,
companies, troops, battalions, and regiments may be formed otherwise
than under rules and regulations prescribed by the Secretary of War.
Neither in the clause giving the Secretary of War general authority to
prescribe rules and regulations, nor in the clause giving him specific
authority to regulate the raising of volunteer forces in the Indian
Territory, are the phrases "enrolled for service" and "joined for duty"
employed, and only the latter clause can fairly be said to comprehend
these processes. The regulations referred to in the former provision are
for the purpose of "examining, organizing, and receiving into the
service" the men called for, and, for anything that appears to the
contrary, may be intended to apply only when the matter of enrollment
and joining for duty shall have been concluded, or when this matter may
have been neglected by State authorities.
The latter provision, on the other hand, requires that volunteer bodies
in the Indian Territory "shall be formed and organized under"
regulations prescribed by the Secretary of War. A further provision of
some significance, as tending to show that Congress must have
contemplated that enrollment and joining for duty of volunteers might
take place under State auspices, is that contained in the sixth section
above quoted, by which it is enacted that in the case of each regiment
of the Volunteer Army "all regimental and company officers shall be
appointed by the governors of the States in which their respective
organizations are raised." It may be conceded that this power of
appointment could be exercised although the work of assembling and
enrolling volunteers was performed wholly by officers of the United
States; but in view of what appears to have been the general practice
hitherto, it is more reasonable to regard this provision as affording a
distinct sanction to the previous practice.
The subsequent legislation, supplementary in character, to meet the
requirements of which the present plan was devised, fully confirms the
views already expressed. During the organization of volunteer forces in
the war with Spain it was found that a period of substantial duration
intervened between the time of enrollment and the time of muster in,
thus giving rise to an equitable claim for compensation on the part of
volunteers subsequently accepted for service, which was not recognized
by the original act of April 22, 1898, the pay of volunteers under this
act not beginning until service had actually begun (23 Op., 409).
Accordingly, by the act of May 26, 1898 (30 Stat., 420), entitled "An
act providing for the payment and maintenance of volunteers during the
interval between their enrollment and muster into the United States
service, and for other purposes," it was provided that the pay and
allowance of volunteers should "be deemed to commence from the day on
which they joined for duty and are enrolled at the battalion,
regimental, or State rendezvous. As pointed out by The Military
Secretary, however, it was then discovered that "in some instances this
discriminated against those in the rural districts who joined their
company organizations at an earlier date."
It was therefore provided, by act of July 7, 1898 (30 Stat., 721), that
the pay and allowance of volunteers should "be deemed to commence from
the day on which they had their names enrolled for service in the
Volunteer Army of the United States, and joined for duty therein after
having been called for by the governor on the authority of the
President." In view of the circumstances under which the initial steps
toward raising volunteer forces had in fact been taken prior to the
enactment of this legislation, in view of the sanction inferentially
given to this procedure by the original act of April 22, 1898, and in
view of the occasion and the purpose of the subsequent acts of May 26
and July 7, 1898, there can be no doubt as to either the interpretation
or the application which the latter acts should receive. The
supplementary acts in terms deal with a period or an interval prior to
the acceptance of volunteers into the service of the United States and
prior to the time when officers of the United States have any
jurisdiction over them. It follows, therefore, that the enrollment and
joining for duty which mark the beginning of this period refer to
matters and details which may be legally attended to by persons entirely
outside the military establishment of the United States and independent
of its authority-- by the persons, in other words, who have usually
attended to these matters-- the appropriate authorities in the several
States. If enrollment and joining for duty can legally take place under
State auspices, and if enrollment and joining for duty under such
circumstances, by force of the statute, give rise to certain legal
rights, the regulations of an executive or administrative officer can
not, of course, deprive such acts of their legal quality or avoid the
legal consequences which ensue upon their performance. The power of the
Secretary of War, under the President, to establish rules for the
government of the Army is necessarily limited, "and does not extend to
the repeal or contradiction of existing statutes, nor to the making of
provisions of a legislative nature" (10 Op., 10). The most that can be
said, therefore, in support of regulations adopted in pursuance of the
plan in question is that they would be "not inconsistent" with the terms
of the statute, and therefore valid, only in so far as State and local
authorities acquiesced in their observance and abandoned to United
States officers entire control of all preliminary measures involved in
the raising of volunteer forces. In so far, however, as such regulations
undertook to invalidate actions which, as has been seen, State and local
authorities are competent to take, and to exclude the States from any
participation in the initial process of bringing volunteers into the
service, contrary to the clear intention of Congress, they would be
simply nugatory and might be wholly disregarded.
For the reasons given, therefore, I am of opinion that the proposed
plan is neither authorized nor permitted by existing legislation.
Respectfully,
HENRY M. HOYT,
Acting Attorney-General.
ALASKA-- REMOVAL OF SEAT OF GOVERNMENT TO JUNEAU; 26 Op.Att'y.Gen.
3, July 17, 1906
The provision in the act of June 22, 1906 (34 Stat., 416),
appropriating $5,000 for clerk hire, rent of office and quarters at
Juneau, etc., supersedes the legislation embraced in the act of June 6,
1900 (31 Stat., 321), to the extent that the Secretary of the Interior
is authorized to direct the removal of the seat of government of Alaska
from Sitka to Juneau.
DEPARTMENT OF JUSTICE,
July 17, 1906.
THE SECRETARY OF THE INTERIOR.
SIR: I have received your communication of the 13th instant, in
which you say:
"The act of June 6, 1900, entitled 'An act making further provision
for a civil government for the District of Alaska, and for other
purposes' (31 Stat., 321), provides, among other things, as follows:
"'SEC. 1. That the territory ceded to the United States by Russia by
the treaty of March 30, 1867, and known as Alaska, shall constitute a
civil and judicial district, the government of which shall be organized
and administered as hereinafter provided. The temporary seat of
government of said district is hereby established at Juneau: Provided,
That the seat of government shall remain at Sitka until suitable grounds
and buildings thereon shall be obtained by purchase or otherwise at
Juneau.'
"In order to facilitate the administration of affairs of the district
it appears desirable upon the appointment of the new governor of Alaska
that the seat of government of the district should be transferred to
Juneau at an early date as practicable.
"Accordingly, Governor Hoggatt secured the assignment by the judge of
the first district of Alaska of two rooms in the United States
court-house of Juneau, to be used as offices for the governor and the
surveyor-general, the latter being ex officio secretary of the district.
Thereafter, on March 19, 1906, the matter was brought to your attention,
with the request for an expression of your views as to whether the
assignment of rooms in the public buildings at Juneau as offices for the
executive of the district of Alaska would constitute a sufficient
compliance with the proviso of the act of Congress above referred to, to
authorize the Secretary of the Interior to direct the removal of the
seat of government from Sitka to Juneau; and under date of May 31,
1906, you decided the question in the negative.
"Subsequently, in the legislative, executive, and judicial act
approved June 22, 1906, appropriation for the government of the district
of Alaska was made in the following terms, ti wit:
"'District of Alaska: For governor, five thousand dollars; three
judges, at five thousand dollars each; three attorneys, at three
thousand dollars each; three marshals, at four thousand dollars each;
three clerks, at three thousand five hundred dollars each; in all,
fifty-one thousand five hundred dollars.
"'For incidental and contingent expenses, clerk hire not to exceed
two thousand dollars, rent of office and quarters in Juneau, stationery,
lights, and fuel, to be expended under the direction of the governor,
five thousand dollars.'"
You ask whether the last paragraph providing for certain offices at
Juneau for the governor can be regarded as superseding the legislation
embraced in the act of June 6, 1900, in such sense as to authorize you
to direct the removal of the seat of government from Sitka to Juneau.
I find that in previous years the paragraph in the same legislative,
executive, and judicial act reads as follows:
"For incidental and contingent expenses, clerk hire, stationery,
lights, and fuel, to be expended under the direction of the governor,
two thousand dollars."
In your last estimates for appropriation the same language last
quoted was used; and the change was made in the law, it seems, by one
of the committees of Congress.
The former appropriation of $2,000, as I learn from the Auditor for
the State and other Departments, has been applied to expenses connected
with the office of the governor, such as the hiring of a clerk for him;
and there seems to be no doubt of the correctness of your assumption
that the words inserted, "rent of offices and quarters in Juneau," and
the additional $3,000 appropriated, were intended to provide, among
other things, for an office and quarters for the government in Juneau
during the fiscal year for which the appropriation law was passed.
The act expressly repeals all inconsistent laws or part of laws.
Without such express provision, it would have the effect of modifying
the language above quoted from the act of June 6, 1900.
While Congress contemplated in passing that act that the Government
would obtain "suitable grounds and buildings thereon" by purchase or
otherwise at Juneau, before the seat of government should go from Sitka,
still it can not be supposed that Congress desires to have an office and
quarters in Juneau for the governor during the fiscal year if he is not
to reside in Juneau; or that, while the governor is to have his offices
there, the place is not to be the seat of government.
I therefore answer your question in the affirmative.
Respectfully,
CHARLES W. RUSSELL,
Acting Attorney-General.
CONTRACT LABORERS FOR PANAMA CANAL-- HOURS OF LABOR; 26 Op.Att'y.
Gen. 1, July 12, 1906
The Canal Commission has authority to enter into an agreement with
the International Contracting Company, of Maine, whereby the latter
agrees to supply male Chinamen for work upon the Panama Canal, and to
feed, clothe, and transport them back to China at the expiration of
their respective contracts of employment, notwithstanding said agreement
contains a provision that ten hours shall constitute a day's labor.
The contract labor laws do not extend to the Canal Zone. The act of
March 3, 1903 (32 Stat., 1213), extended those laws to "any water,
territory, or other place now subject to the jurisdiction" of the United
States, but the treaty with the Republic of Panama giving the United
States jurisdiction of the Zone was of a later date.
DEPARTMENT OF JUSTICE,
July 12, 1906.
THE SECRETARY OF WAR.
SIR: I have received your communication of the 8th instant, reading
as follows:
"I forward to you herewith the draft of an agreement prepared by Mr.
Charlton and approved by Messrs. Stevens and Shonts, and request your
opinion as to whether the agreement is within the authority of the
Commission and according to law."
The draft of agreement is one providing for the furnishing of a
number of Chinese laborers to be brought from China and employed upon
the work of the Panama Canal.
It is a proposed agreement between the Canal Commission and the
International Contracting Company, organized under the laws of Maine.
By it the company will agree to supply male Chinamen, to defray the
expenses of feeding and clothing them, and transport them back to China
at the expiration of their respective contracts of employment; to take
measures to identify each individual Chinaman; to file with the
American consul and in the office of the company in the Canal Zone,
where it will be open to inspection, a copy of the contract with each
individual Chinaman, the form of which is to be approved by the
Secretary of War before being signed, no different contract to be made;
to provide foremen for gangs of the Chinese, through whom orders are to
be given them, and physicians to attend them, and to deport to the
original ports of embarkation in China all Chinese who shall for any
cause cease working for the company, with the proviso that the
Commission will furnish the company quarters in which such Chinese shall
be detained until the total number shall have reached 250, or until one
of the company's steamships shall be departing for China, or the company
is able, in the opinion of the Commission, to arrange with any steamship
line for the transportation.
The draft of agreement contains the following:
"It is agreed that ten hours, at any time during the day or night,
shall constitute a day's labor, and all work in excess of ten hours in
any twenty-four hour period and all work on holidays shall be considered
as emergency work or overtime and paid for as such."
On the 30th ultimo Congress passed an act declaring that the act of
Congress relating to "limitations of the hours of daily service of
laborers and mechanics employed upon the public works of the United
States" shall not apply to unskilled alien laborers and to the foremen
and superintendents of such laborers employed in the construction of the
Isthmian Canal within the Canal Zone.
The contract labor laws do not extend to the Canal Zone. Congress
extended them on March 3, 1903, to "any waters, territory, or other
place now subject to the jurisdiction" of the United States. The treaty
with the Republic of Panama giving us jurisdiction is of a later date
than March 3, 1903.
There is, accordingly, no objection to the proposed agreement arising
out of the fact that the hours of the labor will be more than eight or
the fact of contracting to import laborers.
Every country has a right, in the absence of a treaty provision to
the contrary, to exclude and to deport aliens, and therefore, there
being no such treaty provision, there is no objection to the proposed
agreement on account of the bond to be given to the Republic of Panama,
conditioned upon the deportation of the Chinese at the end of their
service, and further conditioned not to permit any of them to enter into
or remain within the Republic of Panama, except during transit; nor (in
view of the President's governing authority as to the Canal Zone) on
account of the agreement of the company to deport them from it at the
conclusion of their service.
I have carefully examined each and every part of the proposed
agreement, particularly with reference to Article XIII of the
Constitution, as construed and explained in the Attorney-General's
opinion of June 5, 1905 (25 Op., 474), and in my opinion it is within
the "authority of the Commission and according to law."
Respectfully,
CHARLES W. RUSSELL,
Acting Attorney-General.
ASSISTANT TREASURER-- HOLDING OVER-- QUALIFICATION OF SUCCESSOR; 25
Op.Att'y.Gen. 636, June 27, 1906
An Assistant Treasurer of the United States may lawfully continue to
perform the duties of his office after the expiration of his term of
four years, and until the qualification of his successor, Congress
having expressly provided in the acts of March 2, 1895 (28 Stat., 808,
844), for the continuance in office of all officers of the Treasury
Department under similar conditions.
The sureties on the bond of an assistant treasurer continue liable
for his acts while continuing in office after the expiration of his term
and until the qualification of his successor.
The Secretary of the Treasury may defer the qualification of an
assistant treasurer until a proper count can be made of the funds in the
sub-treasury under a predecessor, in accordance with the custom of the
Treasury Department.
DEPARTMENT OF JUSTICE,
June 27, 1906.
The SECRETARY OF THE TREASURY.
SIR: The questions which you ask me by your letter of June 23 are
briefly these: (1) May the assistant treasurer of the United States at
San Francisco, who was recently reappointed but has not yet qualified,
continue to perform the duties of his office after the expiration of his
term of four years and until he has qualified; (2) are the sureties on
his bond, given under his former commission, liable for his acts while
so continuing in office and until the qualification of his successor;
(3) is the Secretary of the Treasury authorized to defer the
qualification of the assistant treasurer under his new commission until
a proper count can be made of the funds in his possession, according to
the custom of the Treasury Department.
It appears that Julius Jacobs, the assistant treasurer in question,
was appointed on May 28, 1902, for a term of four years from that date;
that he was reappointed on May 9, 1906, for a "term of four years from
the date of oath;" and that he has not yet taken the oath under his new
commission. You state that it is desirable that his qualification under
his new appointment be deferred until a count can be made of the moneys
in his custody, for the purpose of fixing the liability of the sureties
under the old and new bonds, and that this can not be done at the
present time, owing to the inaccessibility of some of the vaults of the
subtreasury at San Francisco due to the recent earthquake and fire.
You refer to my opinion of January 11, 1905 (25 Opin., 332), which
held that an Interstate Commerce Commissioner can not lawfully continue
to act as Commissioner after his term of office as fixed by law has
expired. In support of this view I quoted from certain opinions of my
predecessors (14 Opin., 259; 17 Opin., 648), holding, respectively,
that a surveyor of customs and a bureau chief in the Navy Department
could not lawfully hold over after the expiration of the terms for which
they were appointed. It is to be noticed that in none of these cases was
there any provision by Congress for holding over, and the conclusions
reached were based on the general rule that where Congress has not
authorized an officer to hold over until his successor is appointed and
has qualified his incumbency must be deemed to cease at the end of his
term.
Here the case is different. Congress has expressly provided in the
acts of March 2, 1895 (28 Stat., 808, 844), for the continuance in
office of all officers under the Treasury Department after the date of
the expiration of their terms of office and before the appointment and
qualification of their successors, and also for the waiving of the
requirement of a new bond during that period in the discretion of the
officer whose duty it is to take and approve such bonds. The provisions
referred to are as follows:
"That the Secretary of the Treasury be, and he is hereby, authorized
and directed to pay to all officers under the Treasury Department whose
terms of office have expired or shall expire before the appointment and
qualification of their successors, and who have been performing or shall
perform the duties of their respective offices after the date of such
expiration, the salary, compensation, fees, or emoluments authorized or
provided by law in each case for the respective incumbents of the
offices: Provided, That no such payment shall be made for any services
rendered by any such officer wrongfully holding after the appointment
and qualification of his successor. (28 Stat., 844.)
"In the discretion of such officer the requirement of a new bond may
be waived for the period of service of a bonded officer after the
expiration of a four-year term of service pending the appointment and
qualification of his successor: * * * Provided further, That the
liability of the principal and sureties on all official bonds shall
continue and cover the period of service ensuing until the appointment
and qualification of the successor of the principal." * * * (28 Stat.,
808.)
In view of these clear and express enactments, I have no hesitation
in advising you that the assistant treasurer at San Francisco may
lawfully continue to act as such under his former commission and bond
until his successor (who is himself) has qualified, and that the
sureties on the bond given under his commission of May 28, 1902, are
liable for his acts while thus continuing in office.
As to your question whether you are authorized to defer Mr. Jacobs's
qualification until the funds in his possession can be properly counted,
I think this matter rests largely in your discretion. I may say,
however, that, in view of the impossibility of a count being made at the
present time, owing to the condition of the treasury vaults due to the
recent San Francisco disaster, and of the desirability of making the
count before Mr. Jacobs qualifies, in order to fix the liability of the
sureties on the bonds, and it not being apparent that the delay will
work any hardship either to Mr. Jacobs or to his sureties, I see no
reason why you may not properly defer his qualification until access can
be had to all the subtreasury vaults and the count finally made.
Accordingly, I have the honor to answer all of your questions in the
affirmative.
Very respectfully,
W. H. MOODY.
RAILROAD LAND GRANTS-- APPLICATION OF CASE OF SJOLI v. DRESCHEL; 25
Op.Att'y.Gen. 632, June 19, 1906
The Secretary of the Interior, in the administration of the several
land grants in railroads, is not bound to follow the broad principles
quoted in the decision of the Supreme Court in the case of Sjoli v.
Dreschel (199 U.S., 564), but may confine what is said therein to a
state of facts similar to those then before the court.
No title passes to lieu lands before approval by the Secretary of the
Interior of the company's list of selections; and, when so approved,
the lands are to be considered as fully selected as of the date of the
listing, so as to give to the company superiority over the right of
homestead or preemption claimants settling after the listing by the
company.
DEPARTMENT OF JUSTICE,
June 19, 1906.
The SECRETARY OF THE INTERIOR.
SIR: I have received your request for an opinion, in which you say:
"In a decision of the Supreme Court of the United States announced
December 18, 1905, in the case of Peter O. Sjoli v. Charles Dreschel
(199 U.S., 564), involving title to a tract of land within the first
indemnity limits of the grant of public lands made by the act of
Congress of July 2, 1864 (13 Stat., 365), to the Northern Pacific
Railroad Company, it was held, among other things, upon propositions
deduced 'from numerous cases' in that court relating to said act:
"1. That no rights to lands within indemnity limits will attach in
favor of the railroad company until after selections made by it with the
approval of the Secretary of the Interior.
"2. That up to the time such approval is given, lands within
indemnity limits, although embraced by the company's lists of
selections, are subject to be disposed of by the United States, or to be
settled upon and occupied under the preemption and homestead laws of the
United States.
"3. That the Secretary of the Interior has no authority to withdraw
from sale or settlement lands that are within indemnity limits which
have not been previously selected, with his approval, to supply
deficiencies within the place limits of the company's road.
"The cases which it is said justify these deductions are cited in a
foot-note at the bottom of page 2 of the decision."
You point out that in the case under consideration the facts were
that prior to the time when, in pursuance of the regulations of the
Department, the railroad company filed its list of selections of
indemnity lands, Sjoli settled upon the land, the settlement being in
1884 and the listing by the company in 1885; that your Department has
been holding that the listing of the lands by a company segregates the
land until final action by the Secretary in approving or disapproving
the selections; and that the decision by the Supreme Court, followed
literally, invites settlement and entry while selections await approval,
and may result in defeating all pending indemnity selections. You say
that you are not inclined to give such broad effect to the decision if
it can be avoided, and submit the question whether the Land Department,
in the administration of the several grants, is bound to follow the
broad principles quoted from this decision, or whether the same should
be construed with due regard to the particular facts set forth in the
case before the court and limited accordingly.
You say you do not recall any decision of the Supreme Court to the
effect that an inchoate right is not secured upon the filing of the
company's list of selections.
The language in the case referred to, in my opinion, does not seem to
be intended to cover all land grants, but that to the Northern Pacific
Railroad Company which contains, in section 6, certain special language
applying the homestead and preemption laws to lands along the line of
the railroad. It is for this reason that the court referred, first of
all, to Hewitt v. Schultz (180 U.S., 139), and refers to so many other
cases concerning the Northern Pacific Railroad grant.
There is, accordingly, less reason for following the principles as
stated by the court in questions arising under other grants than in
questions arising in the adjustment of the Northern Pacific grant.
Undoubtedly the Supreme Court has said, and repeatedly said, that no
title passes to lieu lands before approval by the Secretary of the
company's list of selections; and the court has stated, as to the
Northern Pacific grant especially, that the Secretary has no authority
to withdraw lands from sale or settlement which have not been previously
selected with his approval.
But in a case which has not been referred to either by you or by the
court in Sjoli v. Dreschel, namely, Oregon and California Railroad
Company v. United States (189 U.S., 112), the court uses the following
language:
"Now, it has long been settled that while a railroad company, after
its definite location, acquires an interest in the odd-numbered sections
within its place or granted limits, which interest relates back to the
date of the granting act, the rule is otherwise as to lands within
indemnity limits. As to lands of the latter class, the company acquires
no interest in any specific sections until a selection is made with the
approval of the Land Department: and then its right relates to the date
of the selection."
This seems to mean, and in fact no other meaning can be made out of
it, that when the Secretary approves the lists of the lands, the lands
are to be considered as fully selected as of the date of listing. This
appears to be the real question as to which you are concerned-- that is
to say whether, when there is an approval by the Secretary, the
selection of the railroad company relates back to the date of the
listing, so as to give it superiority over the right of the homestead or
preemption claimant settling after the listing by the company.
What you desire me to decide is, as I understand, whether the
language in the Sjoli case requires you to give no effect to the
company's list, if afterwards approved by you, or before you for
approval, as against homestead or preemption claimants settling after
the company files its list.
The court seems careful to avoid so deciding in Sjoli v. Dreschel,
because it takes pains to point out that there never was any approval of
the lists in that case, and repeatedly alludes to the fact of the
settling of Sjoli before the listing by the company. In Hewitt v.
Schultz also, it points out that the settlement was prior to the listing
and to any attempt at selection on the part of the company.
I have been unable to find a case in which the court has had before
it for consideration a preemption or homestead claim originating after
the listing by the company and has held that the listing would not give
the superior right to the company either by relation of its title from
approval by the Secretary to the date of the filing of its list of
selections or by the mere operation of priority of action in favor of
one of two claimants equally entitled to take the land.
In Cohens v. Virginia (6 Wheat., 399), the Supreme Court, by Chief
Justice Marshall, says:
"The counsel for the defendant in error urge, in opposition to this
rule of construction, some dicta of the court, in the case of Marbury v.
Madison.
"It is a maxim not to be disregarded that general expressions, in
every opinion, are to be taken in connection with the case in which
those expressions are used. If they go beyond the case, they may be
respected, but ought not to control the judgment in a subsequent suit
when the very point is presented for decision. The reason of this maxim
is obvious. The question actually before the court is investigated with
care, and considered in its full extent. The principles which may serve
to illustrate it are considered in their relation to the case decided,
but their possible bearing on all other cases is seldom completely
investigated.
"In the case of Marbury v. Madison, the single question before the
court, so far as that case can be applied to this, was whether the
legislature could give this court original jurisdiction in a case in
which the Consitution had clearly not given it, and in which no doubt
respecting the construction of the article could possibly be raised.
The court decided, and we think very properly, that the legislature
could not give original jurisdiction in such a case."
In my opinion the language of Chief Justice Marshall applies to the
question you submit to me, and you are not bound to follow the broad
language in Sjoli v. Dreschel, but may confine what is said in that case
to a state of facts similar to the one before the court, which involved
a settlement by the preemptor prior to the listing by the company, the
patenting of the land to the preemptor, and no approval at any time of
the list of selections filed by the company.
Respectfully,
CHARLES W. RUSSELL,
Assistant Attorney-General.
Approved:
W. H. MOODY.
SWAMP LAND GRANT, MINNESOTA-- FOREST RESERVE; 25 Op.Att'y.Gen. 626,
June 15, 1906
The act of March 12, 1860 (12 Stat., 3), granting to the State of
Minnesota all swamp and overflowed lands unfit for cultivation within
its limits, was a grant in praesenti, the intention of Congress being to
give the beneficial title immediately to the State of all the lands
thereby granted, as against claimants attempting to initiate rights
afterwards, except under laws theretofore enacted.
The requirement of the second section of that act (partly contained
in section 2490, Revised Statutes), that the selection of surveyed lands
should be made within two years from the adjournment of the legislature
of the State at its next session after the date of the act, and as to
all unsurveyed lands within two years after such adjournment after
notice by the Secretary of the Interior to the governor of the State
that the surveys have been completed and confirmed, was not a condition
or limitation of the grant, but merely a direction to the Secretary of
the Interior.
By section 2490, Revised Statutes, selections are to be made under
section 2480 (the act of September 28, 1850), and not as provided by the
act of March 12, 1860, and the act of March 2, 1849, relating to swamp
lands in Louisiana.
The authority conferred by the act of June 27, 1902 (32 Stat., 400,
402), upon the Forester of the Department of Agriculture to select lands
from certain Indian reservations to constitute a forest reserve, did not
authorize him to reserve the swamp lands conveyed to the State of
Minnesota by the act of March 12, 1860.
The creation, subsequent to the passage of the act of March 12, 1860,
of an Indian reservation upon the lands which were free public lands at
the date of the passage of that act, did not give the Indians such title
to swamp lands embraced within the limits of the reservation as will
prevent the fulfillment of the Government's grant of lands to Minnesota.
DEPARTMENT OF JUSTICE,
June 15, 1906.
The SECRETARY OF THE INTERIOR.
SIR: I have received your letter stating that, "upon the initiative
of the Department of Agriculture and at the request of the Secretary
thereof," you transmit for my consideration a communication from him
"wherein certain suggestions are made and criticism offered of the
administration" by your "Department of the act of March 12, 1860 (12
Stat., 3), which makes a grant of swamp and overflowed lands to the
States of Minnesota and Oregon."
The Secretary of Agriculture, in a letter inclosed by you, says
that--
"The State of Minnesota has filed in the Department of the Interior
lists of selection under the act of March 12, 1860 (12 Stat., 3), for
17,000 acres of claimed swamp lands in the Chippewa Indian Reservation
in Minnesota, reserved by Executive order of May 26, 1874, the treaties
of May 7, 1864 (13 Stat., 693), and March 19, 1867 (16 Stat., 719), and
Executive order of November 4, 1873.
These lists are pending in your Department, and embrace 6,296 acres
within the Minnesota National Forest Reserve which was classified as
timber land by your Department and selected by the Forester of this
Department under the act of June 27, 1902 (32 Stat., 400), and more than
1,800 acres of land for which payment to the Indians was provided by the
act of August 19, 1890 (26 Stat., 357)."
Therefore you request my opinion upon questions stated by you, as
follows:
"First. Does the act of March 12, 1860, supra, make a grant in
praesenti to the State of Minnesota of all swamp and overflowed lands
thereby rendered unfit for cultivation within said State.
"Second. If said act makes a present grant of lands to be thereafter
identified, do the provisions of the second section create a condition
subsequent annexed to an estate in fee, or do such provisions merely
confer a right or privilege of selection upon the State not found in the
swamp-land act of September 28, 1850.
"Third. If you should conclude that said second section imposes any
limitation whatever upon the grant, either as a condition precedent or
as condition subsequent, did the acceptance by the State of the plan of
adjustment proposed by the land department with reference to the field
notes of the Government surveys as a basis of identification amount to a
selection by the State within the meaning of said section. (See Copp's
Land Laws, vol. 2, p. 1081.)
"Fourth. If the provisions of the second section create a condition
subsequent, do the acts of Congress referred to by the Secretary of
Agriculture amount, in the exercise of a right of forfeiture, to a
legislative assertion of ownership of the property on account of a
breach of the condition."
The act of March 12, 1860, is as follows:
"That the provisions of the act of Congress entitled 'An act to
enable the State of Arkansas and other States to reclaim the swamp lands
within their limits,' approved September twenty-eight, eighteen hundred
and fifty, be, and the same are hereby, extended to the States of
Minnesota and Oregon: Provided, That the grant hereby made shall not
include any lands which the Government of the United States may have
reserved, sold, or disposed of (in pursuance of any law heretofore
enacted) prior to the confirmation of title to be made under the
authority of the said act.
"SEC. 2. That the selection to be made from lands already surveyed in
each of the States, including Minnesota and Oregon, under the authority
of the act aforesaid, and of the act to aid the State of Louisiana in
draining the swamp lands therein, approved March second, one thousand
eight hundred and forty-nine, shall be made within two years from the
adjournment of the legislature of each State at its next session after
the date of this act; and, as to all lands hereafter to be surveyed,
within two years from such adjournment at the next session, after notice
by the Secretary of the Interior to the Governor of the State that the
surveys have been completed and confirmed."
And the act of September 28, 1850 (9 Stat., 519), provides that:
"To enable the State of Arkansas to construct the necessary levees
and drains to reclaim the swamp and overflowed lands therein, the whole
of those swamp and overflowed lands, made unfit thereby for cultivation,
which shall remain unsold at the passage of this act, shall be, and the
same are hereby, granted to said State.
"SEC. 2. It shall be the duty of the Secretary of the Interior, as
soon as may be practicable after the passage of this act, to make out an
accurate list and plats of the lands described as aforesaid, and
transmit the same to the governor of the State of Arkansas, and, at the
request of said governor, cause a patent to be issued, to the State
therefor; and on that patent, the fee simple to said lands shall vest
in the said State of Arkansas, subject to the disposal of the
legislature thereof."
Your first question is whether the swamp land grant is a grant in
praesenti to the State of Minnesota of all the swamp lands therein, to
be afterwards identified.
I shall not dwell upon this question, because your Department and the
courts have frequently held that it is such a grant.
It has been held that the legal title does not pass until patent, and
that when it does pass it relates to the date of the granting act.
(Rogers Locomotive Works v. Emigrant Company, 164 U.S., 559, 570;
Michigan Land and Lumber Company v. Rust, 168 U.S., 589, 591.)
Aside from the decisions, it seems clear that the intention of
Congress was to give the beneficial title immediately to the State of
all swamp lands in it, as against claimants attempting to initiate
rights afterwards, except under laws theretofore enacted.
Thus, section 1 of the act of 1860 makes the exception that the grant
should not include any lands which the Government may have "reserved,
sold, or disposed of (in pursuance of any law heretofore enacted) prior
to the confirmation of title to be made under the authority of the said
act" (the said act being that of September 28, 1850, above referred to).
The confirmation of title under that act would be the patenting. And an
act in pari materia, that of March 2, 1855, for the relief of purchasers
and locators of overflowed and swamp lands, provides that where the
States have sold before patent and lands have been taken up by
preemptors, etc., the Federal Government should pay over to the State
the price received, thus recognizing the beneficial ownership to be in
the State before patent to it. See also Wright v. Roseberry (121 U.S.,
488), holding, in effect, that the patent is little more than a muniment
of title to lands already belonging to the State.
You next ask whether the provisions of section 2 of the act of March
12, 1860 (12 Stat., 3), contain a condition precedent or condition
subsequent, and you follow this up by questions as to compliance or
non-compliance with the supposed condition precedent and forfeiture and
entry under the supposed condition subsequent.
The condition precedent or subsequent supposed to exist is that there
must be a selection of the land within two years from the adjournment of
the legislature of the State, after notice by the Secretary of the
Interior to the governor that surveys have been completed and confirmed.
The original object of this notice seems to have been to enable the
legislature to provide funds to pay for a selection by the secretary and
surveyor-general.
(See sec. 2 of the act of 1860 above referred to, and the act of Mar.
2, 1849, it refers to, relating to swamp lands in Louisiana.) However,
one of the courts and the land office seem to have regarded the act of
1849, as embraced in that of 1860, as requiring a selection by the
State. It was one at the expense of the State.
Section 2 of the act of 1860 is no longer in force, portions of the
act being embraced in the Revised Statutes (secs. 2490, 5596).
Section 2490 of the Revised Statutes omits from that second section
the reference to the act of March 2, 1849, concerning swamp lands in
Louisiana, and section 2480 of the Revised Statutes takes us back from
section 2 of the act of 1860 to the act of September 28, 1850, in the
matter of selecting or identifying the swamp lands. By section 2490
selections are made under the act of 1850 (embodied in Rev. Stat. sec.
2480), and not as provided in the act of 1860 and the act relating to
Louisiana. Under the act of 1850, as held by Secretary Schurz (Copp's
Pub. Land Laws, vol. 2, p. 1091), and Pengra v. Munz (29 Fed.Rep., 830),
the selection was to be made by the Secretary of the Interior and not by
the State.
The provision of the act of 1850, as embodied in Revised Statutes,
section 2480, is as follows:
"It shall be the duty of the Secretary of the Interior to make
accurate lists and plats of all such lands, and transmit the same to the
governors of the several States in which such lands may lie, and at the
request of the governor of any State in which said swamp and overflowed
lands may be, to cause patents to be issued to said State therefor,
conveying to said State the fee simple of said land."
If the selection or identification of the land is to be made, not by
the State grantee, but by the grantor's officer, then the requirement of
Revised Statutes, section 2490, that it should be made within two years,
can hardly have been intended as a condition or limitation of the grant.
It is a direction to the Secretary of the Interior merely.
Treating it as merely directory, it still might be urged that, if not
yet complied with, the rights of a third party coming in ought to be
protected.
Without saying that this principle should not in some cases be
applied, as it was by the Secretary of the Interior in 23 L.D.,p. 305,
it seems to me there are not at present intervening rights which should
stand in the way of the fulfillment of this grant to the State.
Obviously the forestry reservation referred to by the Secretary of
Agriculture does not constitute an obstacle of the kind referred to,
because forestry reservations do not belong to third parties, but to the
Government.
The rights of the Indians in or to the reservation established after
1860 upon free public lands seem now to have been reduced by the act of
January 14, 1889, to a right to receive the proceeds in money of the
lands instead of keeping the lands themselves-- that is to say,
supposing the subsequent creation of the Indian reservation upon lands
which were free public lands at the date of the swamp land grant gave
the Indians any title to swamp lands.
I do not think any such supposed rights of the Indians to money
should now stand in the way of the fulfillment of the Government's grant
of the lands to the State. Equivalent money could be paid to the Indians
if any is due for swamp lands in the former reservation.
Treating the matter, then, as wholly one between the Government and
the State, I do not think that the creation of a forestry reserve, under
a general law authorizing the forestry officer to select lands for such
reserve and not by a direct act of Congress specifying the lands to be
included in such reserve, should be held to authorize the forestry
officer to include these swamp lands.
Respectfully,
CHARLES W. RUSSELL,
Assistant Attorney-General.
Approved:
W. H. MOODY.
NAVAL OFFICER-- PRIVATE REPRIMAND NO BAR TO COURT-MARTIAL; 25 Op.
Att'y.Gen. 623, June 15, 1906
A private reprimand, administered by the commander in chief of a
fleet to a naval officer in accordance with the recommendation of a
court of inquiry, as a punishment for an offense, such as neglect of
duty, is no bar to a subsequent trial of such officer by general
court-martial for the same offense.
The proceedings of a board of inquest or of a court of inquiry are in
no sense a trial of an issue or of an accused person. These boards
perform no real judicial function, but are convened only for the purpose
of informing the Department in a preliminary way as to the facts
involved in the inquiry.
The jeopardy of the law means real peril, originally of life or limb,
and always of substantial punishment or penalty. There must be a trial
upon an indictment for an offense, or upon some equivalent charge and
presentment, as by court-martial, submitting a definite issue and
involving conviction or acquittal.
DEPARTMENT OF JUSTICE,
June 15, 1906.
The SECRETARY OF THE NAVY.
SIR: The facts submitted in your letter of May 25 are these: On
January 31, 1906, Robert B. Rowland, seaman, United States Navy, while
in the U.S.S. Rainbow's steam launch, lying off the U.S.S. Cincinnati at
Cavite, P.I., during gun practice on the latter vessel, was struck in
the head and killed by a bullet. A board of inquest convened the same
day found that the responsibility for the death was due to the faulty
system of target practice on board the Cincinnati.
A court of inquiry, ordered by the commander-in-chief of the fleet to
inquire into the death of Rowland, found that the commander of the
Cincinnati was guilty of an error and that the ordnance officer failed
in his duty in that bullet catchers were not used on the guns, and
recommended that no further proceedings be had, but that the commander
and the ordnance officer should be admonished for their neglect. The
commander-in-chief addressed private letters of reprimand to the two
officers, stating that he did not consider that merely to admonish them
was treating the matter with the serious importance it deserved.
It appears that the President has now addressed a letter to you,
asking whether a heavier punishment may not be administered to the two
officers in question; whereupon you ask me whether, in my opinion, "a
private reprimand, administered by the commander-in-chief of a fleet as
a punishment for such an offense as neglect of duty, is a bar to
subsequent trial by general court-martial for the same offense." That is
to say, the inquiry here is whether the principle of jeopardy is
applicable and bars trial by court-martial.
The jeopardy of the law means a real peril, originally of life or
limb, and always of substantial punishment or penalty. The provision of
the Constitution is (Fifth Amendment): "Nor shall any person be subject
for the same offense to be twice put in jeopardy of life or limb."
Another fundamental idea is that there must be a trial upon an
indictment for an offense, or upon some equivalent charge and
presentment, as by court-martial, submitting a definite issue and
involving conviction or acquittal. The person must be in danger of
condemnation; a mere inquiry or other informal proceeding (informal in
a judicial sense), ending in a reprimand, does not satisfy either
element of the principle of second jeopardy. Of course, if there is a
trial in some form, which might result in conviction and punishment, the
jeopardy is none the less complete and valid as a bar to another trial
because, in fact, it issues in a simple rebuke; for absolute acquittal,
if the peril is real, is equally a bar. These views indicate the logic
underlying the old common-law pleas of autrefois convict and autrefois
acquit.
Applying these doctrines to the case before us, we find that, first,
there was a board of inquest-- an inquiry, that is-- to learn how the
deceased came to his death (Navy Regulations, art. 1775-1777). Then
there was a court of inquiry (Articles for the Government of the Navy,
55-60) to investigate the facts more minutely, to fix the cause of and
responsibility for the death, and make findings in the matter for the
information and action of the Executive. Neither of these boards
performed any real judicial function, although the court of inquiry
rendered an "opinion," recommending that the two officers should be
admonished. Both boards were convened for the purpose of informing the
Department in a preliminary way as to the facts, to lead to further
action-- that is, to trial-- if that should be deemed necessary or
advisable. But neither proceeding was a "trial," in any sense, of an
issue or of an accused person. Indeed, no accusation or charge,
technically, has yet been made, and the only result so far of the
Department inquiries is a private reprimand, not even entered on the
ship's log. In other words, there was no trial, and no peril of
punishment and no real punishment: simply the admonition of a
reprimand.
I do not think that this view of the matter is materially affected by
the fact that article 24, sec. 1624, R.S., pro forma, recognizes a
private reprimand as a "punishment."
Under these circumstances I am of opinion that the officers in
question may be subjected to trial by court-martial, and I have the
honor to advise you accordingly.
Very respectfully,
W. H. MOODY.
CIVIL SERVICE-- WAR DEPARTMENT-- REINSTATEMENT OF FORMER CLERK; 25
Op.Att'y.Gen. 618, June 13, 1906
A soldier's widow, formerly employed in the War Department under an
appropriation for emergency clerical work made necessary by the war with
Spain, who resigned from her position on December 31, 1900, which
position was covered into the classified service by section 3 of the act
of April 28, 1902 (32 Stat., 171), is eligible, under Rule 9 of the
Civil Service Regulations, to reinstatement in that Department.
Rule 9, as amended, which provides for the reinstatement of a person
separated, without delinquency or misconduct, from a "competitive
position," means the separation from a position "competitive" at the
time of the request for reinstatement, and not that the position must
have been competitive at the time of such separation.
Opinions of June 23 and August 27, 1902 (p4 Opin., 81, 103),
approved.
DEPARTMENT OF JUSTICE,
June 13, 1906.
The PRESIDENT.
SIR: I have the honor to respond to the request contained in the
note of Secretary Loeb that I send you a report in the case of Mrs.
Florence M. Stout, who claims to be eligible to reinstatement in the War
Department under the civil service rules. Accompanying the note of
Secretary Loeb is a letter addressed to the Civil Service Commission by
Mrs. Stout, and the reply thereto of the Commission rejecting her
application for reinstatement.
Mrs. Stout was employed in the War Department under a lump
appropriation placed at the disposal of the Secretary of War for
emergency clerical work made necessary by the late war with Spain.
She resigned from that service on December 31, 1900, since which time
she has not been in the Government service. On July 6, 1905, she applied
for reinstatement to her former position. Simultaneously the Secretary
of War requested the Civil Service Commission to issue a certificate for
her reinstatement, and was advised by the Civil Service Commission that
Mrs. Stout was not eligible. This decision of the Civil Service
Commission was based upon two opinions of the Attorney-General dated
June 23, 1902 (24 Opin., 81), and August 27, 1902 (24 Opin., 103). The
opinion of June 23, 1902, was in reply to a request of the Secretary of
the Treasury for an opinion as to the construction of section 3 of the
act approved April 28, 1902 (32 Stat., 171). That section reads as
follows:
"That the additional clerks on the temporary rolls and other
employees rendered necessary because of increased work incident to the
war with Spain, and under the act of June thirteenth, eighteen hundred
and ninety-eight, providing for war expenditures and for other purposes,
heretofore appointed and who are now employed in the several Departments
of the Government, are hereby transferred to the classified service as
of their present grade or rate of compensation, respectively, and shall
be continued in the several departments where now employed, without
further examination, subject, however, to transfer, promotion, or
removal, the same as other clerks and employees in the classified
service. And the several appropriations herein made for such clerks and
employees under the several departments and offices shall be available
for payment of the salaries of all clerks and employees transferred to
the classified service under this provision. And the appropriations
made for such temporary clerks and employees for the fiscal year
nineteen hundred and two shall also be available for payment of the
salaries of all such clerks and other employees herein transferred for
the balance of the current fiscal year."
In the communication of the Secretary of the Treasury asking for this
opinion he stated that there was a doubt "as to whether the
classification effected by said section 3 relates merely to persons who
were on the roll at the date of the approval of the act, or to both the
persons and the places which they then filled."
The opinion holds that the latter view was the intention of Congress.
In other words, that all of the positions referred to were transferred
to the classified service and that all persons filling such positions
were so transferred, and that exemption from competitive examination was
extended to them. It was further held that any vacancy occurring in any
of said positions subsequent to the date of the act "must be filled in
accordance with the laws and regulations governing appointments to the
civil service." This opinion, then, held merely that persons then
occupying such positions, as well as the positions themselves, were
transferred to the classified service.
The opinion of August 27, 1902, was one rendered to the President in
the case of Mrs. Marian K. Rogers, who was an applicant for
reinstatement in the War Department under exactly the same state of
facts as applies to the case of Mrs. Stout. That opinion held that Mrs.
Rogers could not, by virtue of section 3 of the act of April 28, 1902,
be reinstated without examination in the service in which she was
formerly employed and which, by force of said act, was transferred to
the classified service; and as the facts in Mrs. Stout's case are
exactly the same as those in Mrs. Roger's case, it seems beyond question
that Mrs. Stout is not entitled to any exemption afforded by that act.
The statute is plain and the opinion of August 27, 1902, is equally so.
That opinion distinctly holds that under rule 9 of the Civil Service
Regulations then in force Mrs. Rogers was eligible to be reinstated
without examination if the position for which the Secretary of War had
made a requisition was in the classified service at the date of such
requisition. Upon that point there seems to have been some doubt.
From the foregoing it may be said that the act of April 28, 1902, is
material in the consideration of this case only so far as it fixes the
status of the position to which Mrs. Stout seeks reinstatement. That
status being fixed and such position being one of the "subsequent
vacancies" referred to in the opinion of June 23, 1902, it only remains
to apply the "laws and regulations governing appointments to the civil
service."
At the time the act of April 28, 1902, was passed and the opinion of
August 27, 1902, was rendered, rule 9 of the Civil Service Regulations
was as follows:
"A vacancy in any position which has been, or may hereafter be,
classified under the civil service act, may, upon requisition of the
proper officer and the certificate of the Commission be filled by the
reinstatement, without examination, of any person who, within one year
next preceding the date of requisition, has, through no delinquency or
misconduct, been separated from a position included within the
classified service at the date of the requisition and in that department
or office and that branch of the service in which said vacancy exists."
Upon the basis of the rule as it then stood there can be no doubt as
to Mrs. Stout's eligibility for reinstatement to one of the positions
transferred to the classified service by the act of April 28, 1902. It
is a vacancy thereafter "classified under civil-service act;" the proper
officer, namely, the Secretary of War, has made requisition upon the
Commission for a certificate; Mrs. Stout, through no delinquency or
misconduct, was separated from a position which was, at the date of said
requisition, and is now, in the classified service, and is "in that
Department or office, and that branch of the service in which said
vacancy exists." The limitation of one year next preceding the date of
requisition, it is admitted, has no application to Mrs. Stout's case by
reason of the fact that she is a soldier's widow.
But rule 9 was subsequently amended. The rule reads now, as it read
at the date of Mrs. Stout's application of July 6, 1905, as follows:
"A person separated without delinquency or misconduct from a
competitive position, or from a position which he entered by transfer or
promotion from a competitive position, may be reinstated in the
department or office in which he formerly served, upon certificate of
the Commission, subject to the following limitations:
"(a) The separation must have occurred within one year next preceding
the date of the requisition of the nominating or appointing officer for
such certificate; but this limitation shall not apply to a person who
served in the civil war or the war with Spain and was honorably
discharged, or his widow, or any army nurse of either war.
"(b) No person may be reinstated to a position requiring an
examination different from that required for the position from which he
was separated, without passing an appropriate examination."
The crucial question, then, is whether rule 9 was so narrowed by
amendment as to exclude Mrs. Stout from its benefits. And the doubt
arises from the fact that the old rule permitted reinstatement if the
position from which the applicant had been separated was in the
classified service at the date of the requisition, while the new rule
reads, "a person separated, without delinquency or misconduct, from a
competitive position." It is conceded that the position to which Mrs.
Stout seeks reinstatement is now both classified and competitive, and
the real question in the case is the construction of rule 9 as it now
stands. Does it mean that in order to enjoy its benefits the applicant
for reinstatement must have been separated from a position which was
competitive at the time of such separation, or does it mean separation
from a position which is now competitive irrespective of its character
at the time of separation? If the latter, Mrs. Stout is clearly within
the rule and entitled to its benefits. It is not necessary for this
Department to construe the rule in view of the fact that, upon that
point, the Civil Service Commission itself has done so. In the
twenty-second report of the Civil Service Commission, commencing at page
42, will be found "Civil service rules promulgated by the President,
with notes by the Commission." Rule 9 appears at page 54, and the fourth
note of the Commission thereunder reads as follows:
"The fact that a position was unclassified, or classified and
excepted, at the time of the separation therefrom is immaterial if it is
competitive at the time of the request for reinstatement."
At the time Mrs. Stout resigned her position it was unclassified and
therefore non-competitive. But at the time of her request for
reinstatement, July 6, 1905, the position had been covered into the
classified service and made competitive by the act of April 28, 1902,
and it is, therefore, specifically covered by the construction of the
Commission above quoted.
It should be borne in mind, however, as was said in the opinion of
August 27, 1902, supra, that "the question of reinstatement is one of
administrative discretion, and not to be granted except when consistent
with the interests of the public service."
Respectfully,
W. H. MOODY.
UNITED STATES PENSION AGENTS-- FREE REGISTRATION OF OFFICIAL MAIL
MATTER; 25 Op.Att'y.Gen. 617, June 13, 1906
United States pension agents are entitled to free registration of
their official mail matter.
DEPARTMENT OF JUSTICE,
June 13, 1906.
The POSTMASTER-GENERAL.
SIR: I have the honor to respond to your letter of the 2d instant,
in which you ask for an expression of my opinion whether United States
pension agents are entitled to free registration of their official mail
matter. You call attention to a decision of the Comptroller of the
Treasury, rendered to the Secretary of the Interior April 17, 1906, a
copy of which you inclose, holding that the privilege of free
registration was extended to pension agents by the act of July 2, 1886
(24 Stat., 122), the applicable portion of which provides:
" * * * and hereafter the provisions of section three of the act
approved July fifth, eighteen hundred and eighty-four, * * * are hereby
extended and made applicable to all official mail matter of agents for
the payment of pensions."
One of the provisions of said section 3 (23 Stat., 158) hereby
expressly extended to pension agents, and the only provision that need
be here noticed, reads as follows:
" * * * That any letter or packet to be registered by either of the
Executive Departments or Bureaus thereof, or by the Agricultural
Department, or by the Public Printer, may be registered without the
payment of any registry fee."
It is clear, therefore, that the conclusion reached by the
Comptroller that pension agents are entitled to free registration of
their official mail matter is correct.
In your letter, however, you state that the opinion of the
Attorney-General, dated November 12, 1900 (23 Opin., 316), "seemed to
quote with approval a statement in a former opinion (15 Opin., 262) to
the effect that the office of pension agent is not a departmental
office, and that therefore a pension agent is not entitled to free
registration" of his official mail matter.
When it is recalled that the specific question before the
Attorney-General in the opinion of November 12, 1900, was whether
certain field agents of the Department of Agriculture were entitled to
free registration of their official mail matter, and that the opinion is
to be considered only as determinative of that question, it will be at
once apparent that there is no conflict between that opinion and the
ruling of the Comptroller.
It is equally apparent that the attention of the Attorney-General was
not directed to said act of July 2, 1886.
Respectfully,
W. H. MOODY.
ATTORNEY-GENERAL-- OPINION-- RENT OF LETTER BOX; 25 Op.Att'y.Gen.
614, May 31, 1906
The Attorney-General declines to express an opinion upon the question
whether the rent of a letter box in a post-office by an officer of the
Army can, under section 3648, Revised Statutes, be paid in advance, for
the reason that the precise question, which involves a payment of money
from the Treasury, has been passed upon by the Comptroller of the
Treasury; and as the question is not one of importance in other
directions than disbursements, the decision of the Comptroller will be
regarded as conclusive.
DEPARTMENT OF JUSTICE,
May 31, 1906.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge the receipt of your letter of
the 1st instant, calling attention to a decision of the Comptroller of
the Treasury to the effect that the rent of a letter box in a
post-office by the commanding officer of the Watervliet Arsenal can not
be paid in advance, and to a ruling of the Postmaster-General that such
boxes can not be rented to officers of the Government unless payment is
made before they are used.
You therefore state that "under the decision and ruling of the
Comptroller of the Treasury and the Postmaster-General, an officer of
the Government is deprived of the use of a letter box in a post-office
for official purposes," and ask for an expression of my opinion in the
premises.
Section 3648 of the Revised Statutes provides inter alia:
" * * * No advance of public money shall be made in any case
whatever. And in all cases of contracts for the performance of any
service or the delivery of articles of any description for the use of
the United States, payment shall not exceed the value of the service
rendered or of the articles delivered previously to such payment. * * *
"
Section 3901 contains the following provision:
" * * * No box at any post-office shall be assigned to the use of any
person until the rent therefor has been paid for at least one quarter in
advance, for which the postmaster shall give a receipt. * * * "
And section 4051 provides as follows:
" * * * All postages, box rents, and other receipts at post-offices
shall be accounted for as part of the postal revenues; and each
postmaster shall be charged with and held accountable for any part of
the same accruing at his office, which he has neglected to collect, the
same as if he had collected it."
The Comptroller, after holding that section 3648 (supra), "prohibits
a disbursing officer from using public money for paying rent for a box
in a post-office for Government use in advance of the service rendered,"
said:
"The obvious purpose that Congress had in mind in enacting section
3901, supra, was to secure the Government from loss by providing that
'no box at any post-office shall be assigned to the use of any person
until the rent thereof has been paid for at least one quarter in
advance, for which the postmaster shall give receipt.' This section
deals with a particular subject, and it was obviously designed to
protect the postal revenues from loss of box rent in post-offices, by
requiring such rent to be paid for at least a quarter in advance of any
service rendered and before such box could be assigned to the use of any
person; but I do not think it was intended by Congress that the word
'person,' as used in said section, should be extended to include the
Government itself; and, therefore, I am of opinion that this section
has no application to the case presented, and that pre-payment of rent
for a post-office box by an officer of the Government for official use
in advance of service rendered is not required, and that the same may be
paid at the end of each quarter or fractional part thereof."
The act of July 31, 1894 (28 Stat., 208), provides that--
"The head of any Executive Department * * * may apply for, and the
Comptroller of Treasury shall render his decision upon any question
involving a payment to be made by them or under them, which decision,
when rendered, shall govern the Auditor and the Comptroller of the
Treasury in passing upon the account containing the disbursement."
Numerous decisions of my predecessors announce the conclusion that a
decision by the Comptroller of the Treasury under such circumstances is
final and binding "as to all executive officers." (21 Opin., 530; 22
id., 581; 23 id., 468.)
Of course, if the Attorney-General considers the question presented
one of great importance in other directions than disbursements, and
especially when the Comptroller suggests an examination of the matter by
him, an opinion on his part will be proper and the decision final and
authoritative. (21 Opin., 178; 25 id., 301.)
In the present case, however, the Comptroller, in pursuance of
statutory authority which declares his decision conclusive, has passed
upon the precise question submitted by you. He does not request any
review of that decision, nor does a review seem necessary. Moreover, the
matter, in my judgment, is not one of sufficient importance to bring it
within the class of cases, which, while concerning disbursements of
money, nevertheless, by reason of their grave importance or general
character, have been held to warrant an expression of opinion by the
Attorney-General.
I am, therefore, under the necessity of declining to furnish you the
advice requested.
Respectfully,
W. H. MOODY.
ALASKA-- REMOVAL OF SEAT OF GOVERNMENT TO JUNEAU; 25 Op.Att'y.Gen.
613, May 31, 1906
The ownership and occupation by the United States of a court-house at
Juneau, Alaska, by court officials, and the granting of permission by
the judge of the first Alaskan judicial district to the governor and
surveyor-general of Alaska to use two rooms of such building for
offices, does not constitute such a compliance with the proviso in the
act of Congress of June 6, 1900 (31 Stat., 321), as will authorize the
Secretary of the Interior to order the removal of the seat of government
of Alaska from Sitka to Juneau.
DEPARTMENT OF JUSTICE,
May 31, 1906.
The SECRETARY OF THE INTERIOR.
SIR: I have your request of the 19th instant for my opinion as to
whether ownership and occupation by the United States of a court-house
at Juneau by the court officials, and permission, granted by the judge
of the first Alaskan judicial district, to use two rooms of said
building for offices of the governor and surveyor-general of Alaska,
constitutes a sufficient compliance with the proviso of the act of
Congress, authorizing the Secretary of the Interior to order the removal
of the seat of government of Alaska from Sitka to Juneau. Said proviso
is section 1 of the act of June 6, 1900 (31 Stat., 321), and is as
follows:
"That the territory ceded to the United States by Russia by the
treaty of March thirtieth, eighteen hundred and sixty-seven, and known
as Alaska, shall constitute a civil and judicial district, the
government of which shall be organized and administered as hereinafter
provided. The temporary seat of government of said district is hereby
established at Juneau: Provided, That the seat of government shall
remain at Sitka until suitable grounds and buildings thereon shall be
obtained by purchase or otherwise at Juneau."
The court building above referred to was provided for by Congress and
built for a court-house and jail exclusively. It is now occupied and
controlled exclusively by the officers of the Department of Justice and
the court, and if there are any rooms in the building not now in use, it
will be but a short time before such rooms will be needed by this
Department or the court. This building had already been provided for by
Congress at the time of the passage of the proviso above quoted (act of
July 7, 1898) and was mentioned in the debates in Congress upon said
proviso.
In my opinion, getting permission from the judge of the first Alaska
district to use two rooms in that building, even supposing the judge had
authority to give such permission, would not be obtaining by purchase or
otherwise "suitable grounds and buildings thereon" for a seat of
government or capitol.
Respectfully,
CHARLES W. RUSSELL,
Assistant Attorney-General.
Approved:
W. H. MOODY.
SUPPLIES FOR DEPARTMENTS-- ADVERTISEMENTS-- CONTRACTS; 25 Op.Att'y.
Gen. 607, May 28, 1906
In advertising for supplies for the various Departments of the
Government as provided in section 3709, Revised Statutes, as amended by
the act of January 27, 1894 (28 Stat., 33), the advertisement may be
issued in the name of all the Departments, for supplies common to all,
provided the advertisement contains the quantity of supplies required by
each Department; but contracts for supplies can only be entered into by
the appropriate officer of each Department.
DEPARTMENT OF JUSTICE,
May 28, 1906.
The PRESIDENT.
SIR: I have the honor to reply to your request for my opinion
whether certain changes in the manner of purchasing supplies for the
several Executive Departments can be made under existing law.
These proposed changes and the questions arising thereon are stated
by the Chairman of the Committee on Department Methods in his letter to
you as follows:
"In order to carry out your instructions to this committee that means
be found by which Government supplies be standardized and purchased
through a central purchasing office, and also to secure uniform and
reasonable prices among the different Departments, it has been
determined that the first step should be the adoption of a schedule of
supplies common to all Departments; for example, that Item No. 1 in the
schedule of any Department shall be Item No. 1 in all other Departments,
and shall represent the same article; and that the total quantity of
each article needed for the entire Government service shall be covered
by one advertisement and that each bidder shall be invited to submit a
single proposal for each article in the quantity specified as required
for all Departments.
"The first question is, Can such an advertisement be lawfully issued;
and if so, by whom? Again, if all articles used by the Government
service can be advertised for in bulk under a common schedule, can any
one Department or officer enter into a contract that shall be available
to the whole service in the same way as if each branch thereof had
advertised and made separate contracts?"
Section 3709 of the Revised Statutes as amended by the act of January
27, 1894 (28 Stat., 33), provides:
"All purchases and contracts for supplies or services, in any of the
Departments of the Government, except for personal services, shall be
made by advertising a sufficient time previously for proposals
respecting the same, when the public exigencies do not require the
immediate delivery of the articles, or performance of the service. When
immediate delivery or performance is required by the public exigency,
the articles or service required may be procured by open purchase or
contract, at the places and in the manner in which such articles are
usually bought and sold, or such services engaged, between individuals.
And the advertisement for such proposals shall be made by all the
Executive Departments, including the Department of Labor, the United
States Fish Commission, the Interstate Commerce Commission, the
Smithsonian Institution, the Government Printing Office, the Government
of the District of Columbia, and the superintendent of the State, War,
and Navy building, except for paper and materials for use of the
Government Printing Office, and materials used in the work of the Bureau
of Engraving and Printing, which shall continue to be advertised for and
purchased as now provided by law, on the same days and shall each
designate two o'clock post meridian of such days for the opening of all
such proposals in each Department and other Government establishment in
the city of Washington;
and the Secretary of the Treasury shall designate the day or days in
each year for the opening of such proposals and give due notice thereof
to the other Departments and Government establishments. Such proposals
shall be opened in the usual way and schedules thereof duly prepared
and, together with the statement of the proposed action of each
Department and Government establishment thereon, shall be submitted to a
board, consisting of one of the Assistant Secretaries of the Treasury
and Interior Departments and one of the Assistant Postmasters-General,
who shall be designated by the heads of said Departments and the
Postmaster-General respectively, at a meeting to be called by the
official of the Treasury Department, who shall be chairman thereof, and
said board shall carefully examine and compare all the proposals so
submitted and recommend the acceptance or rejection of any or all of
said proposals. And if any or all of such proposals shall be rejected,
advertisements for proposals shall again be invited and proceeded with
in the same manner."
In reporting the amendment of 1894 (which consisted of all after the
second sentence), the House Committee said (H.R. Report 152, October 30,
1893):
"The purpose of the bill is to fix uniform dates for inviting
proposals for fuel, ice, stationery, and other miscellaneous supplies
for all of the Executive Departments and other offices in Washington,
and to provide for a board to compare all of the bids received, and to
recommend acceptance or rejection of any or all of them before contracts
thereunder are made by the several Departments and offices.
"Under the operation of the proposed law, if it is enacted,
advertisements for the supplies named for all the Departments and other
offices in Washington will appear at one time, thus affording each
person desiring to submit proposals for the same an opportunity of
knowing how much of a given article is wanted, not only by one
Department or office, but all of them, and the chance, if he so desires,
to submit bids to supply what is wanted by one or more or all of them;
according to his ability to furnish, and at uniform figures likely to be
lower than they would be where bids are made for each Department at
different times.
"The bids when submitted to the several Departments advertising
therefor it is proposed shall be scheduled and referred to a board
consisting of the chief of clerks of the Treasury, Interior, and Post
Office Departments, or such other official representative of each of
said Departments as the heads thereof may designate, for comparison and
recommendation as to acceptance or rejection of any or all of them.
Such a comparison of and action upon all of the proposals submitted to
the several Departments before contracts are made it is believed will
result in procuring supplies for all of said Departments alike at the
lowest market prices, and not at such widely varying prices as at
present obtain."
The act of April 21, 1894 (28 Stat., 62), further amended section
3709, Revised Statutes, by limiting its provisions to "advertisements
for proposals for fuel, ice, stationery, and other miscellaneous
supplies to be purchased at Washington for the use of the Executive
Departments and other Government establishments therein named."
Prior to the enactment of this law I understand the practice was for
each Department to act independently in advertising and awarding
contracts for supplies, the contracts being executed on behalf of the
United States by the head of the Department for which the supplies
enumerated in the contract were to be furnished. The italicized words in
the above-quoted law and report clearly indicate an intention to
authorize a continuance of this practice in respect to awarding
contracts. Cooperation and uniformity of action are sought by requiring
the advertisements to be inserted by all Departments on the same days,
the opening of bids at the same time, and a reference of all bids to a
committee for comparison and recommendation.
It will be noticed that the head of each Department is given discretion
to adopt this recommendation, or reject it and award the contract to any
other bidder.
Section 3714, Revised Statutes, as amended provides that--
"All purchases and contracts for supplies or services for the
military and naval service shall be made by or under the direction of
the chief officers of the Departments of War and of the Navy,
respectively." Of course this provision authorizes each Department to
act independently of the other. This is made still clearer by other
sections of the statute, and subsequent enactments. Under the act of
April 10, 1878 (20 Stat., 36), the Secretary of War is given authority
to prescribe rules and regulations governing the opening of bids for
contracts under the War Department. Section 3718, Revised Statutes, as
amended directs that "when time will admit" the Secretary of the Navy
shall advertise and let to the lowest bidder contracts for "all
provisions, clothing, hemp, and other materials of every name and nature
for the use of the Navy."
The act of August 15, 1894 (28 Stat., 312), authorizes the
Commissioner of Indian Affairs "to advertise in the spring of each year
for bids, and enter into contracts, subject to the approval of the
Secretary of the Interior, for goods and supplies for the Indian
service," etc.
The intent of Congress is also clearly indicated in section 3 of the
act of April 28, 1904 (33 Stat., 440), which creates the office of
Purchasing Agent for the Post-Office Department, and provides inter alia
that he shall-- "under such regulations, not inconsistent with existing
law, as the Postmaster-General shall prescribe, and subject to his
direction and control, have supervision of the purchase of all supplies
for the postal service.
"The Purchasing Agent, in making purchases for supplies necessary for
the Post-office Department, shall advertise, as now provided by law, and
award contracts for such supplies to the lowest responsible bidder in
pursuance of existing law.
* * * All purchases, advertisements, and contracts for supplies for the
Post-Office Department shall be made by the Purchasing Agent in the name
of the Postmaster-General subject to his approval."
Attorney-General Olney had before him the question whether section 96
of the act of January 12, 1895, was so inconsistent with sections 3709
and 3710 of the Revised Statutes as to require other Departments to make
requisition upon the Postmaster-General for envelopes in case public
exigencies required their immediate delivery (21 Opin., 184). Section
96 of said act of January 12, 1895 (28 Stat., 624), reads:
"The Postmaster-General shall contract for all envelopes, stamped or
otherwise, designed for sale to the public, or for use by his own or
other Departments, and may contract for them to be plain or with such
printed matter as may be prescribed by the Department making requisition
therefor: Provided, That no envelope furnished by the Government shall
contain any business address or advertisement."
The Attorney-General held that envelopes could be purchased by each
Department in case public exigencies required immediate delivery. He
said in part (page 184):
"By this provision the several Executive Departments are deprived
partially or entirely, according to the construction that may be given
to the act, of all power to contract for envelopes, and this authority
is transferred to the Postmaster-General."
It is important to note that Congress deemed it necessary to
expressly authorize the purchase of envelopes by one Department for all
other Departments. It is also significant that all appropriations for
supplies for the different Departments are made for each Department
separately.
An examination of all legislation applicable to the question leads to
the conclusion that each Department is charged with the responsibility
of contracting for its own supplies. The intent of Congress in this
respect is so free from doubt that an extended discussion of the reasons
underlying such a policy is unnecessary.
I see no reason, however, why an advertisement may not lawfully be
issued in the name of all the Departments for supplies common to all,
providing the advertisement contains the quantity required by each.
Such an advertisement, if properly prepared, would meet the substantial
requirements of the statute, and probably result in supplies being
obtained at uniform prices.
Respectfully,
W. H. MOODY.
COMMISSIONER OF INTERNAL REVENUE-- RECONSIDERATION OF CLAIM FOR TAXES
AFTER JUDGMENT; 25 Op.Att'y.Gen. 605, May 7, 1906
The Commissioner of Internal-Revenue has no power, under section
3220, Revised Statutes, to reopen and allow the claim of the New York
and Cuba Mail Steamship Company for taxes voluntarily paid under a
mutual mistake of law, as the judgment of the Supreme Court (200 U.S.,
488), in sustaining the ruling of the Commissioner that the company had
no legal claim against the Government, deprived the Commissioner of
jurisdiction to again entertain the claim.
The Commissioner may, however, allow similar claims where no legal
protest has been made; but such cases must arise under a
misapprehension of fact and not of law.
DEPARTMENT OF JUSTICE,
May 7, 1906.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
the 17th ultimo, inclosing a letter of the Commissioner of
Internal-Revenue in which an expression of my opinion is requested on
the following questions:
First. Has he the power under section 3220 of the Revised Statutes to
reopen the claim of the New York and Cuba Mail Steamship Company and
allow the same notwithstanding that the judgment of the Supreme Court of
the United States has barred that company from legal recovery of the
tax?
Second. Has he like authority to allow similar claims in which there
is no showing of legal protest made and in which such showing may not be
possible?
The first question must be answered in the negative.
In the argument of the case in the Supreme Court (U.S. v. New York &
Cuba Mail Steamship Co., 200 U.S., 488) the Government did not attempt
to sustain the constitutionality of the law owing to the decision of the
court in the Fairbank case (181 U.S., 283); but the contention was
confidently pressed that the claim was without merit because the tax was
voluntarily paid under a mutual mistake of law. The court sustained this
contention of the Government and upheld the original decision of the
Commissioner disallowing the claim. It necessarily follows that the
decision of the court sustaining the ruling of the Commissioner on the
ground that the company had no legal claim against the Government,
deprived the Commissioner of jurisdiction to again entertain the claim.
The court fully considered, as the opinion discloses, both section
3220, Revised Statutes, and the act of May 12, 1900, upon which
petitioner for this refund relies.
The court said, page 495:
"The argument is that by this provision 'the question of duress or
compulsion is taken out of the case,' because in most of the instances
enumerated 'it is inconceivable that there should be any protest or
duress.' And it is further alleged that the act of 1900 was not
considered in the Chesebrough case. It certainly does not follow that
because in some instances protests or duress can not exist, that they
can not exist in other cases, nor that the statute intended to destroy
the difference between voluntary and involuntary payment of taxes. In
the Chesebrough case section 3220 of the Revised Statutes of the United
States was considered. It authorized the Commissioner of
Internal-Revenue 'to remit, refund, and pay back all taxes * * * that
appear to be unjustly assessed or excessive in amount, or in any manner
wrongfully collected.' The words in italics are identical with those in
the act of May 12, which are relied on by defendant in error.
Commenting on section 3220, the court said, in the Chesebrough case:
'It is argued that the provisions of section 3220, for the repayment of
judgments against the collector, rendered protest or notice unnecessary
for his protection, but it was clearly demanded for the protection of
the Government in conducting the extensive business of dealing in
stamps, which were sold and delivered in quantities, and without it
there would not be the slightest vestige of involuntary payment in
transactions like that under consideration.
And we find no right of recovery, expressly or by necessary implication,
conferred by statute in such circumstances.'
"We, therefore, think that this case is governed by the Chesebrough
case, and on its authority judgment is reversed and case remanded with
directions to sustain the demurrer."
In answer to the second question, undoubtedly there are cases where a
showing of protest need not be made to warrant the Commissioner in
assuming jurisdiction and granting the refund, but such cases arise
under a misapprehension of fact and not of law. For instance, the use by
mistake of a ten dollar stamp when a five dollar stamp only was intended
and required. But in all cases falling within the ruling of the court in
the New York and Cuba Mail Steamship Company case protest, or what
amounts to the same thing, payment under duress, is necessary to entitle
the petitioners to a refund.
Respectfully,
W. H. MOODY.
CONSTRUCTION OF BRIDGE ACROSS HUDSON RIVER-- CONSENT OF CONGRESS; 25
Op.Att'y.Gen. 601, April 30, 1906
The Hudson Highland Bridge and Railway Company, a corporation created
by the legislature of the State of New York, with authority to construct
a bridge across the Hudson River between two points in the State of New
York can not lawfully build such bridge without first obtaining the
consent of Congress, as required by section 9 of the act of Congress of
March 3, 1899 (30 Stat., 1155).
DEPARTMENT OF JUSTICE,
April 30, 1906.
The SECRETARY OF WAR.
SIR: I have the honor to respond to your request of March 22d, last,
for my opinion whether the Hudson Highland Bridge and Railway Company, a
corporation created by the legislature of the State of New York, with
authority to construct a bridge across the Hudson River between two
points within the State, may lawfully build such bridge without first
obtaining the consent of Congress, as required by section 9 of the act
of March 3, 1899.
The material facts are as follows:
This corporation was originally organized under the act of April 27,
1868, of the legislature of the State of New York, which provided that
the bridge should be completed for use on or before July 4, 1871. The
time for the completion of the bridge has been extended by various acts
of the legislature, the last being the act of March 22, 1905, which
extends the time within which the bridge may be built from July 4, 1905,
to July 4, 1915.
The brief of the Chief of Engineers, Brigadier-General Mackenzie,
which accompanied your letter requesting this opinion, contains the
following:
"Plans for the bridge have never been approved by the War Department,
and so far as the records show have never been presented to the
Department for approval. The structure has not been built, but it is
alleged by the present owners of the franchise that some expenditures
were made twenty or twenty-five years ago in acquiring land on which to
locate one of the shore abutments and in partially constructing this
abutment. Since this time it appears from the papers that nothing has
been done on account of lack of capital."
Under the provisions of section 7 of the act of September 19, 1890
(26 Stat., 454), the Secretary of War was authorized to approve the
location and plans of bridges over navigable waters wholly within the
limits of any State. The act contained the provision "that this section
shall not apply to any bridge, bridge draw, bridge piers and abutments
the construction of which has heretofore been duly authorized by law, or
be so construed as to authorize the construction of any bridge,
drawbridge, bridge piers and abutments, or other works, under an act of
the legislature of any State, over or in any stream, port, roadstead,
haven, or harbor, or other navigable water not wholly within the limits
of such State."
Attorney-General Olney, in 21 Opin., 43, after stating that the
provisions of this section were "infelicitously not to say clumsily
drawn," said:
" * * * In the first place, to protect public and private interests
in bridges, piers, etc., which were already accomplished facts, the
statute is made to declare that it shall not apply to them at all. In
the second place, to treat State grants and licenses for structures
already conferred but not acted upon with respect, and at the same time
not lose all control over the subject, the statute is made to declare
that construction is not to begin under such grants or licenses until
the location and plan of each structure is approved by the Secretary of
War."
Evidently to remove all doubt as to the intent of Congress the act of
March 3, 1899 (30 Stat., 1121-1151) was passed. Section 9 of that act
provides:
"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: Provided, That such structures may be
built under the authority of the legislature of a State across rivers
and other waterways the navigable portions of which lie wholly within
the limits of a single State, provided the location and plans thereof
are submitted to and approved by the Chief of Engineers and by the
Secretary of War before construction is commenced: And provided
further, That when plans for any bridge or other structure have been
approved by the Chief of Engineers and by the Secretary of War, it shall
not be lawful to deviate from such plans either before or after
completion of the structure unless the modification of said plans has
been previously submitted to and received the approval of the Chief of
Engineers and of the Secretary of War."
It will be observed that this act specifically provides that the
consent of Congress must be obtained to the construction of any bridge
over a navigable river of the United States not lying wholly within the
limits of a single State, and omits the provision in the act of 1890
that section 7 of that act should not apply to any bridge, the
construction of which had been theretofore authorized by law.
It is conceded that the Hudson River is a part of the navigable
waters of the United States not lying wholly within the limits of a
single State. The case, therefore, falls within the provisions of
section 9 of the act of 1899, above quoted, unless the grant of the
legislature of the State of New York relieves the company from the
requirements of this section.
The paramount authority of Congress over the subject of bridges
across navigable streams is beyond question.
Mr. Justice Waite, in Bridge Company v. United States (105 U.S.,
479), said:
" * * * But the power of Congress in respect to legislation for the
preservation of interstate commerce is just as free from State
interference as any other subject within the sphere of its legislative
authority. The action of Congress is supreme, and overrides all that the
States may do. When, therefore, Congress in a proper way declares a
bridge across a navigable river of the United States to be an unlawful
structure, no legislation of a State can make it lawful. Those who act
on State authority alone necessarily assume all the risks of legitimate
Congressional interference."
In Willamette Iron Bridge Company v. Hatch (125 U.S., 12), the court
through Mr. Justice Bradley said:
" * * * And although until Congress acts, the States have the plenary
power supposed, yet, when Congress chooses to act, it is not concluded
by anything that the States, or that individuals by its authority or
acquiescence, have done, from assuming entire control of the matter, and
abating any erections that may have been made, and preventing any others
from being made, except in conformity with such regulations as it may
impose. It is for this reason, namely, the ultimate (though yet
unexerted) power of Congress over the whole subject-matter, that the
consent of Congress is so frequently asked to the erection of bridges
over navigable streams."
Any question, therefore, of the right of the company to construct a
bridge without the express authority of Congress which may have existed
prior to the passage of the act of 1899, has been conclusively settled
by that act.
The failure of Congress to except from the specific provisions of the
act cases like this, which it had been held were excepted from the act
of 1890, is controlling as to the intent of Congress.
I therefore advise you that you are not "authorized in acting upon
the application of petitioner for permission to proceed with the
construction of the bridge," until the consent of Congress to the
building of the bridge is first obtained.
Respectfully,
W. H. MOODY.
SURETY COMPANY-- OKLAHOMA-- PROCESS AGENTS; 25 Op.Att'y.Gen. 598,
April 26, 1906
A surety company authorized by the act of August 13, 1894 (28 Stat.,
279), to transact a surety business, which has appointed an agent at
Guthrie, Okla., upon whom all lawful process issued against it may be
served, and has filed copies of such appointment at all places in that
Territory where court is held, thereby consents to accept service upon
such agent of a summons issued from any county in that Territory, and
effectuates the purpose of section 2 of that act.
Section 5 of that act does not so qualify section 2 thereof as to
make the appointment of a process agent in the district only where the
bond is returnable or filed, a compliance with the statute. The purpose
is also to require the appointment of an agent in the district where the
contract is to be performed.
The Government can enforce a contract between it and a surety company
in Oklahoma, although the company has not made the deposit required by
the Territorial act of Oklahoma of March 15, 1905.
DEPARTMENT OF JUSTICE,
April 26, 1906.
The SECRETARY OF THE INTERIOR.
SIR: Your communication of the 17th of February last raises the
following questions:
"First. Does Oklahoma constitute a single judicial district within
the meaning of section 2 of the act of August 13, 1894 (28 Stat., 279),
so as to require the appointment of only one process agent for the whole
Territory?
"Second. Is the last sentence of section 5 of the said act to be
construed as defining the words 'wherein such suretyship is undertaken'
in section 2, so that the conditions of section 2 will be satisfied by
the appointment of a process agent in the district where a bond is
returnable or filed?
"Third. Can a company, authorized to transact a surety business under
said act, which has appointed a process agent in accordance with section
2, properly be accepted by the Government upon bonds, although the
company has not made the deposit with the Territorial Treasurer as
required by the Territorial act of March 15, 1905?"
Sections 2 and 5 of the act of August 13, 1894 (supra), read as
follows:
"Sec. 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 the
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. If any such agent shall be
removed, resign, or die, become insane, or otherwise incapable of
acting, it shall be the duty of such company to appoint another agent in
his place as hereinbefore prescribed, and until such appointment shall
have been made, or during the absence of any agent of such company from
such district, service of process may be upon the clerk of the court
wherein such suit is brought, with like effect as upon an agent appoint
by the company. The officer executing such process upon such clerk shall
immediately transmit a copy thereof by mail to the company, and state
such fact in his return. A judgment, decree, or order of a court entered
or made after service of process as aforesaid shall be as valid and
binding on such company as if served with process in said district.
SEC. 5. That any surety company doing business under the provisions
of this Act may be sued in respect thereof in any court of the United
States which has now or hereafter may have jurisdiction of actions or
suits upon such recognizance, stipulation, bond, or undertaking, in the
district in which such recognizance, stipulation, bond, or undertaking
was made or guaranteed, or in the district in which the principal office
of such company is located. And for the purposes of this Act such
recognizance, stipulation, bond, or undertaking shall be treated as made
or guaranteed in the district in which it is filed, or in the district
in which the principal in such recognizance, stipulation, bond, or
undertaking resided when it was made or guaranteed.
The fact that by the act of May 2, 1902 (32 Stat., 184), Oklahoma is
divided into seven judicial divisions or districts, each composed of
several counties, gives rise to your first question. Under the laws of
Oklahoma (article 6, chapter 66), a summons or process in a civil cause
runs only throughout the county in which it is issued, but summons may
issue to as many counties as there may be defendants to be served, if
they reside in different counties.
The obvious purpose of section 2 is to bring surety companies within
the jurisdiction of the court in the district where the contract is to
be performed. The surety company mentioned in your letter has appointed
an agent at Guthrie in the first judicial division or district of
Oklahoma, and has filed copies of his appointment at all places in the
Territory where the court is held. It thus consents to accept service
upon this agent of summons issued from any county in the Territory. I
think this effectuates the purpose of the statute.
The contention that section 5 qualifies section 2 so as to make the
appointment of a process agent only in the district where the bond is
returnable or filed, a compliance with the statute, is contrary to its
clear purpose to require the appointment of a process agent in the
district where the contract is to be performed.
Section 5 gives the Government the option of suing in three
districts, viz, (1) the district in which the principal office of the
company is located; (2) the district in which the office is located
where the bond is returnable or filed; and (3) the district in which
the principal resided when the bond was executed. Unless the company is
required to appoint an agent upon whom process can be served in the
district where the principal resides, the third option would be
destroyed.
The act of February 24, 1905 (33 Stat., 812), adds cogency to this
construction. It provides that persons supplying contractors on public
works of the United States with labor or materials may sue on the bond
executed in favor of the United States in its name in the circuit court
in the district where the contract was to be performed and not
elsewhere.
It was evidently the intention of Congress that corporate sureties
should, before doing business in foreign States, establish (practically)
a residence in each judicial district therein, in order that the rights
of all parties might be protected. To hold otherwise, and to require
local labor and material men to follow a surety and sue in a judicial
district other than that in which the contract was being carried out,
might be to deprive them of a remedy or to impose a hardship which the
laws of August 13, 1894, and February 24, 1905 (supra), were intended to
avoid.
In answer to your third question, I advise that if the Government
enters into a contract with a surety company which has not complied with
the condition of deposit of the Oklahoma law, the contract can be
enforced by the Government. Section 213, article 15, chapter 18, of the
Wilson's Revised and Annotated Statutes of Oklahoma (1903), provides
that failure to make such deposit "shall not affect the validity of any
contract entered into by such company."
It is unnecessary for me to decide whether the company can, without
subjecting itself to the penalty prescribed for doing business without
complying with the Oklahoma statute, make such a contract with the
Government.
Respectfully,
W. H. MOODY.
SECOND-CLASS POSTAGE-- SUNDAY MAGAZINE SECTIONS; 25 Op.Att'y.Gen.
594, April 25, 1906
A magazine which is issued with a newspaper, but which is a separate
and distinct periodical having no connection whatever with the
newspaper, either in its physical form or in the nature of its contents,
is not an integral part of the paper and can not be considered a
supplement within the meaning of section 16 of the act of March 3, 1879
(20 Stat., 358-361).
Such newspaper and magazine are, however, entitled to second-class
rates of postage under section 14 of that act, as being a publication
"issued at started intervals, and as frequently as four times a year."
The fact that the magazine part of the publication is edited and
printed in one place, and the newspaper in another, is not material if
they are both issued from the same place.
DEPARTMENT OF JUSTICE,
April 25, 1906.
The POSTMASTER-GENERAL.
SIR: I have the honor to respond to your request for my opinion
whether so-called magazine sections may lawfully be mailed at
second-class rates of postage as parts of newspapers.
The facts in the presented case are these:
Eight newspaper companies, which have been granted second-class
postage rates for Sunday newspapers, have combined to publish and issue
with their respective papers every Sunday a so-called magazine section.
This section is in form, substance, and name, a magazine. It is actually
printed in New York, and all copies are identical except that each
company has printed on the cover the name of its respective paper.
The material provisions of the law are found in the Post-Office
Department appropriation act of March 3, 1879 (20 Stat., 358-361), and
are as follows:
"SEC. 7. That mailable matter shall be divided into four classes:
"First, written matter;
"Second, periodical publications;
"Third, miscellaneous printed matter;
"Fourth, merchandise.
"SEC. 10. That mailable matter of the second class shall embrace all
newspapers and other periodical publications which are issued at stated
intervals, and as frequently as four times a year and are within the
conditions named in sections twelve and fourteen.
"SEC. 14. That the conditions upon which a publication shall be
admitted to the second class are as follows:
"First. It must regularly be issued at stated intervals, as
frequently as four times a year, and bear a date of issue, and be
numbered consecutively.
"Second. It must be issued from a known office of publication.
"Third. It must be formed of printed paper sheets, without board,
cloth, leather, or other substantial binding, such as distinguish
printed books for preservation from periodical publications.
"Fourth. It must be originated and published for the dissemination of
information of a public character, or devoted to literature, the
sciences, arts, or some special industry, and having a legitimate list
of subscribers: Provided, however, That nothing herein contained shall
be so construed as to admit to the second class rate regular
publications designed primarily for advertising purposes, or for free
circulation, or for circulation at nominal rates.
"SEC. 16. That publishers of matter of the second class may, without
subjecting it to extra postage, fold within their regular issue a
supplement: but in all cases the added matter must be germane to the
publication which it supplements, that is to say, matter supplied in
order to complete that to which it is added or supplemented, but omitted
from the regular issue for want of space, time, or greater convenience,
which supplement must in every case be issued with the publication.
"SEC. 25. That publications of the second class, one copy to each
actual subscriber residing in the county where the same are printed, in
whole or in part, and published, shall go free through the mails; but
the same shall not be delivered at letter carrier offices, or
distributed by carriers, unless postage is paid thereon at the rate
prescribed in section thirteen of this act: Provided, That the rate of
postage on newspapers, excepting weeklies, and periodicals not exceeding
two ounces in weight, when the same are deposited in a letter-carrier
office for delivery by its carriers, shall be uniform at one cent each;
periodicals weighing more than two ounces shall be subject, when
delivered by such carriers, to a postage of two cents each, and these
rates shall be prepaid by stamps affixed."
Counsel for these newspaper companies advance two propositions: (1)
"That in all cases the magazine is advertised and treated as a section
of the newspaper itself;" and (2) "if the magazine was printed as a
supplement to the newspaper, we would contend most earnestly that it
could thus be treated, or as such it could be transmitted through the
mails in connection with the newspaper as one publication of
second-class matter."
I am unable to give my unqualified assent to either proposition.
It is inconceivable that this magazine, a separate and distinct
periodical, having no connection whatever with the newspaper, either in
physical form or in the nature of its contents, can be considered and
accepted as an integral part of the newspaper. Neither is this magazine
a supplement to the newspaper within the meaning of section 16 (supra),
for the reason that the newspaper is complete without it. It bears the
same relation, and no other, to the newspaper which it is alleged to
supplement, that one magazine bears to another. If the somewhat doubtful
point is conceded that the magazine is germane within the meaning of the
statute, we are confronted with the further requirement of the statute
that it must be "matter supplied in order to complete that to which it
is added or supplemented, but omitted from the regular issue for want of
space, time, or greater convenience." Since each is complete in itself,
it can not be said that one is a supplement to the other within the
meaning of the statute. Neither can it be said that a magazine which is
issued with the newspaper and which, as we have seen, is not necessary
to complete it, is a supplement thereto, omitted for "greater
convenience."
But such a publication consisting of a newspaper and magazine is
clearly entitled to second-class rates of postage, for it is "issued at
stated intervals, and as frequently as four times a year." It is also in
each case issued from a known office of publication. The fact that the
magazine part of the publication is edited and printed in one place, and
the newspaper in another, is not material since they are both issued
from the same place, which conforms to the requirement of the statute.
I am, therefore, of the opinion that you may, under appropriate and
reasonable regulations, permit such a publication to be mailed at second
class rates of postage.
Respectfully,
CHARLES H. ROBB,
Assistant Attorney-General.
Approved:
W. H. MOODY.
INSPECTOR-GENERAL'S DEPARTMENT-- PROMOTION; 25 Op.Att'y.Gen. 591,
April 19, 1906
Where a right to an appointment or promotion in the
Inspector-General's Department existed on a certain date but the
appointment was not actually made until a later date, the office can not
be held to have vested until the appointment was actually made.
The fact that such officer is allowed pay for the higher grade from
the date of the vacancy to the date of commission does not alter the
situation.
Rank and office are not identical. The former is an incident of
office and is used as a designation or distinction conferred upon an
officer in order to fix his relative position with reference to other
officers, or to determine his pay and emoluments.
Such practice in the War Department rests upon the immemorial custom
of that Department and not upon statutory authority.
A complicated chain of events considered and held that under the act
of February 2, 1901 (31 Stat., 748), the office of lieutenant-colonel in
the Inspector-General's Department vested in Major Chamberlain on March
11, 1901, and that he was not entitled to be appointed to the office
left vacant by the retirement of Colonel Knox on April 13, 1903.
DEPARTMENT OF JUSTICE,
April 19, 1906.
The SECRETARY OF WAR.
SIR: Your letter of April 11, in which you ask my opinion relative
to the case of Colonel Chamberlain, sets forth the following facts:
Section 14 of the act of February 2, 1901 (31 Stat., 751), provides:
"That the Inspector-General's Department shall consist of one
Inspector-General with the rank of brigadier general; four
inspectors-general with the rank of colonel; four inspectors-general
with the rank of major: Provided, That all vacancies created or caused
by this section shall be filled, as far as possible, by promotion
according to seniority of officers of the Inspector-General's
Department."
Promotions were duly made and the Inspector-General's office
organized in accordance with the provisions of the section quoted,
Colonel Chamberlain being appointed inspector-general with the rank of
major, and the remaining seven vacancies in that grade filled by detail.
The army appropriation act of March 2, 1901 (31 Stat., 895, 899),
provides as follows:
"That upon the occurrence of a vacancy in the grade of colonel in the
Inspector-General's Department after the present lieutenant-colonels
therein shall have been promoted or retired, such vacancy shall not be
filled, and thereafter the number of officers authorized for that
department shall be as follows: One inspector-general with the rank of
brigadier-general; three inspectors-general with the rank of colonel;
four inspectors-general with the rank of lieutenant-colonel, and nine
inspectors-general with the rank of major."
On various dates between and including March 1, 1901, and April 12,
1903, the four colonels in the Inspector-General's Department were
promoted, and the four lieutenant-colonels were advanced to the grade of
colonel to fill the vacancies thus made. On April 13, 1903, a vacancy in
the grade of colonel occurred by the resignation of Col. T. T. Knox,
which was not filled, and the reduction in that grade contemplated by
the act of March 2, 1901, was thus effected.
It is to be noted that by the language of the act such reduction in
the number of colonels in the Inspector-General's Department was to be
made "after the present lieutenant-colonels therein shall have been
promoted or retired." It seems that on March 1, 1901, Lieut. Col. E. A.
Garlington was advanced to the grade of colonel, thus creating a vacancy
to which Major Chamberlain was entitled. He was not, however, promoted
until March 11, 1901, when his recess appointment as lieutenant-colonel
was signed by the President. Colonel Chamberlain claims that, inasmuch
as the vacancy to which he was appointed existed at the time of the
passage of the act of March 2, 1901, his right to the office was vested
at that date, and he must be regarded as one of the four
lieutenant-colonels who were to be disposed of by promotion or
retirement before the reduction in the number of colonels was made, and
that on the retirement of Colonel Knox he should have been appointed to
the vacancy.
It seems that the next vacancy in the grade of colonel occurred on
November 21, 1904, and Lieut. Col. Chamberlain was advanced to the
vacancy on that date.
Upon these facts you ask my advice as to the date when the office of
lieutenant-colonel in the Inspector-General's Department vested in Major
Chamberlain, and whether it would be lawful to appoint him to the office
of colonel in that department on April 13, 1903, vice Knox, retired.
Under section 14 of the act of February 2, 1901, already cited,
vacancies in the Inspector-General's Department were required to be
filled by promotion according to seniority of officers in that
department. Major Chamberlain, being the senior officer of that grade,
was therefore of right entitled to be promoted to the vacancy occurring
in the next highest grade on March 1, 1901. But I think the right can
not be held to have vested and become complete until his actual
appointment on March 11, 1901. The law did not operate of itself to make
him a lieutenant-colonel on the day he became entitled to the
advancement; it was necessary that there should be an exercise of the
appointing power to confer the office upon him, and until his commission
was signed by the President the office did not vest. A similar view has
always been taken by my predecessors. In 13 Opin., 13, the
Attorney-General held, respecting certain acts and army regulations
requiring vacancies in established regiments and corps to the rank of
colonel to be filled by promotion according to seniority, that these
laws and regulations prescribed only the mode in which vacancies should
be filled; "they do not confer upon the officer next in the order of
succession any right to the vacant place. This he can acquire only by
virtue of a new commission." And in 13 Opin., 44, it was held that the
right to an office in the army is not a vested one until the commission
is signed by the President.
(See, also, 4 Opin., 217; 6 id., 87; 9 id., 297; Marbury v. Madison,
1 Cr., 137, 157.)
The fact that Major Chamberlain's appointment of March 11, 1901,
conferred rank as lieutenant-colonel from March 1, 1901, and that he was
allowed pay for the higher grade from the date of vacancy to the date of
commission does not affect this view. Rank and office are not identical.
The former is merely an incident of office and is used as a designation
or distinction conferred upon an officer in order to fix his relative
position with reference to other officers or to determine his pay and
emoluments. (Wood v. United States, 15 C.Cls., 151, 159-160.) The
allowance of pay to Lieutenant-Colonel Chamberlain from the date of
vacancy appears to have been made in accordance with an immemorial
custom of the Department which has been followed by the accounting
officers, although it rests on no statutory authorization. (7
Comp.Dec., 506, 511.)
I have the honor, therefore, to advise you that the office of
lieutenant-colonel vested in Major Chamberlain on March 11, 1901, and
that he was not legally entitled to be appointed to that office left
vacant by the retirement of Colonel Knox on April 13, 1903.
Very respectfully,
W. H. MOODY.
SECRETARY OF THE NAVY-- BATTLE-SHIP CONTRACTS-- ALLOWANCE FOR CHANGE
OF PLANS; 25 Op.Att'y.Gen. 588, April 17, 1906
The Secretary of the Navy is authorized to embody in the contracts
for building battle ships Nos. 26 and 27 a provision to the effect that
the contract time for the completion of the vessels shall cover changes
ordered by the Government, not exceeding an increased cost of 5 per cent
of the contract price; and that should the increased cost occasioned by
such changes exceed 5 per cent of the contract price, the Secretary may
allow the contractors such reasonable sums for each ship delayed beyond
the time of completion as shall be caused by such additional changes,
the allowances in no case to exceed the amount of the penalties for
delay due to the contractor as prescribed by the contract.
The explicit recognition in the act of March 3, 1893 (27 Stat., 731),
of similar authority in regard to former speed premiums and penalties
affected by speed, is not to be regarded as applicable to those
particular contracts alone, but is the recognition of an authority
inherent in the Secretary's discretion respecting all naval
constructions.
DEPARTMENT OF JUSTICE,
April 17, 1906.
The SECRETARY OF THE NAVY.
SIR: The question referred for my opinion by your letter of April 10
is whether a provision for reimbursing contractors' expenses incurred on
account of delays resulting from authorized changes in plans and
specifications, which it is proposed to embody in the form of contract
for building battle ships Nos. 26 and 27, will be in accordance with
law.
The form of contract provides that the construction of the vessel
shall conform strictly to the plans; that the plans may be changed, and
such alterations in the contract as are not contrary to law may be made
by the Government upon the written order of the Secretary of the Navy,
if the cost exceeds $500; the cost and damage, if any, to the
contractors shall be determined by a board of naval officers appointed
by the Secretary; and the contractors shall be bound by the
determination of the board as to the increased or diminished
compensation they shall be entitled to receive.
The contract also provides for the time of completion of the vessels,
and prescribes penalties for delay due to causes within the control of
the contractors; and any question concerning deductions from the
contract price because of delay shall be submitted to the Secretary and
his decision shall be conclusive and binding. The proposal now is to add
to these provisions a paragraph or proviso to the effect that the
contract time for the completion of the vessel shall cover changes
ordered by the Government not exceeding an increased cost, as determined
by the board, of 5 per cent of the contract price. "Should the changes
involving increased cost exceed 5 per cent of the contract price, it
shall be discretionary with the Secretary of the Navy to allow the
contractors such reasonable sums for each day's delay beyond the
contract time of completion as he shall determine has been caused to the
contractor in the progress of the work by reason of such additional
changes in addition to the awards of the board on changes"-- with the
second proviso that such allowances shall in no case exceed the amount
of the penalties for delay due to the contractor as prescribed by the
contract.
The act authorizing construction of these battle ships (March 3,
1905; 33 Stat., 1092, 1116) provides that they shall be constructed by
contract or in navy-yards; that a contract for construction shall be
awarded by the Secretary to the lowest best responsible bidder; that
the act of August 3, 1886 (24 Stat., 215, 216), shall be followed in
respect to the contracts, notice of proposals, materials, and plans. In
this, as in other laws for the increase of the Navy, it is manifest that
a wide discretion and large control are intended to be committed to the
Secretary respecting the plans, place, and methods of construction, form
of contracts and specifications, under explicit restrictions as to the
limit of cost and the requirement that the materials used shall be of
domestic manufacture, etc.
In the act of 1893 (March 3, 1893, 27 Stat., 715, 731) it was
provided, as to certain other vessels, that the same provisions of the
act of 1886 should be observed and followed, and it was also expressly
provided that "the contract for the construction of either of said
gunboats shall contain such provisions as to speed and premiums and
penalties affected by speed as may, in the judgment of the Secretary of
the Navy, be deemed proper and fitting." It may be noted that speed
premiums earned previous to January 1, 1894, were paid, and thereafter
were expressly forbidden (act July 26, 1894, 28 Stat., 123, 140; act
March 2, 1895, 28 Stat., 825, 841).
The act of August 3, 1886, "to increase the naval establishment" (24
Stat., 215, 216), provided (section 7) for the approval of drawings and
specifications before the contracts for construction or completion of
the vessels should be made, and prescribed the rules regulating the form
of contracts as to changes and the cost of damage thereof, the function
of the board of changes, the time limit for the completion of the work
under penalty, with other requirements as to proposals, the
responsibility and resources of bidders, the necessity of strict
conformity to contracts, and the right of the Secretary to reject bids.
It is the provisions of this section which are incorporated in the
second and ninth clauses of the contract in question, as referred to
above.
In the light of these enactments, and in view of the well established
and general power of the Secretary under the whole series of recent acts
for increasing the naval establishment to control the matter of making
and letting contracts within the limitations expressly defined, I am of
the opinion that the proposed addition or insertion in the current form
of contract is within your authority to adopt and prescribe. I think the
explicit recognition of similar authority as to the former speed
premiums and penalties affected by speed (which still exist) in the act
of 1893 is not to be viewed as something expressly and exclusively
granted with relation to those particular contracts, but should be
regarded as the recognition of an authority inherent in the Secretary's
discretion respecting all naval constructions.
Since the right so to frame a contract is not denied and the purpose and
effect of this provision are manifestly fair and proper, it seems to me
to fall within the general control over contracts committed to the
Secretary in this field. Accordingly I have the honor to advise you that
the provision which you enclose may legally be embodied in the form of
contract now in preparation for building battle ships Nos. 26 and 27.
Very respectfully,
W. H. MOODY.
NAVAL ACADEMY-- RESIGNATION OF MIDSHIPMAN-- REAPPOINTMENT; 25 Op.
Att'y.Gen. 585, April 9, 1906
A midshipman at the Naval Academy who, being found deficient in
studies, presented his resignation, which was accepted, can not be
reappointed to fill the vacancy thus created if he is more than twenty
years of age.
The construction of a statute in Departmental practice is entitled to
great weight in its interpretation, if that construction is fairly
settled and uniform.
DEPARTMENT OF JUSTICE,
April 9, 1906.
The SECRETARY OF THE NAVY.
SIR: Your letter of April 3 propounds the question whether a
midshipman at the Naval Academy who, being found deficient in studies,
presented his resignation, which was accepted, may be reappointed to
fill the vacancy thus created if he is more than 20 years of age.
The authority to appoint is conferred and the method of appointment
prescribed by section 1514, Revised Statutes, as amended by the act of
July 26, 1894 (28 Stat., 123, 136), and revised by the act of March 3,
1903 (32 Stat., 1177, 1197, 1198). The latter act at the page last cited
also provides:
"That after January first, nineteen hundred and four, all candidates
for admission to the Naval Academy at the time of their examination must
be between the ages of sixteen and twenty years."
Section 1515, Revised Statutes, provides that "all candidates for
admission into the Academy shall be examined according to such
regulations and at such stated times as the Secretary of the Navy may
prescribe;" and the regulations of 1905 for admission to the Naval
Academy provide for two mental examinations for admission to be held in
April and June of each year, and for a physical examination by a board
of medical officers for those qualifying mentally; and that "all
candidates must at the time of their examination for admission be
between the ages of 16 and 20 years. A candidate is eligible for
appointment on the day he becomes 16 and is ineligible on the day he
becomes 20 years of age." (Regulations, p. 4.)
It seems clear, then, that the law does not permit you to appoint or
reappoint the midshipman in question. An appointee is none the less a
"candidate for admission," subject to examination under sections 1515
and 1516, Revised Statutes, and the regulations, because he has already
been a member or inmate of the Academy.
But it is suggested that the purpose of the statutes and regulations
respecting examination is merely to test the qualifications of a
candidate for admission, and this test would manifestly not be necessary
in the case of a candidate reentering the Academy and not entering for
the first time. The theory is that if he has already been an inmate and
passed the mental and physical tests for any period subsequent to
entrance, he must be fit to reenter without further examination, mental
physical. From this theory the consequence is deduced that since the law
only contemplates examination between the ages of 16 and 20 years, and a
passed candidate may actually enter and be sworn in after the age of 20,
a candidate situated like the one in question may legally be appointed.
This view requires me to examine the precedents which have arisen in
the administration of the Navy Department. It is an established rule
that the construction of a statute in Departmental practice is entitled
to great weight in its interpretation if that construction is fairly
settled and uniform. Considering the precedents in this matter, it
appears that the action of the Navy Department has been pretty uniform
for a period of years sufficient to establish a ruling and practice.
The precedents cited to me cover the period of the past six years, but
the inference seems justified that previous to that time the Department
practice on the subject was about the same.
It appears that in some cases the candidate was recommended or
nominated and examined before, although sworn in after, he was 20; or
that under a rule recognized until 1903, but not since, except in one
instance, a candidate who had passed the mental examination before he
was 20 and was then renominated was admitted although he did not pass
the physical examination until after he was 20; or that a candidate who
fell seriously ill just before his examination and twentieth birthday
was allowed to being the mental examination pro forma just before and
then to complete both examinations and be sworn in just after he became
20; or that a rejection for physical defect developed at an examination
before the twentieth birthday was rescinded and the candidate admitted
on the recommendation of the medical board immediately after; or that a
midshipman duly admitted and subsequently rejected on account of
physical defect could be readmitted after he was 20 under an order of
the President, in view of the fact that the rejection was due to a
greater strictness in the rules governing physical examinations than
prevailed at the time of admission.
But none of these cases includes the present case, where the
candidate did not resign until after he was 20 years of age, and
therefore could neither be appointed, examined, nor sworn in until after
that date. In many cases exactly similar to this the Secretary of the
Navy has declined to appoint.
For the foregoing reasons I have the honor to advise you that, because
of his age, the candidate may not legally be reappointed to the Academy,
even if mentally and physically qualified.
Very respectfully,
HENRY M. HOYT,
Solicitor-General.
Approved:
W. H. MOODY.
ATTORNEY-GENERAL-- OPINION; 25 Op.Att'y.Gen. 584, April 7, 1906
The Attorney-General declines to express an opinion upon the question
propounded by the Secretary of the Interior as to whether the
preliminary draft of Title LXVIII, "Railway and Telegraph Companies,"
submitted to him by the Commission to Revise and Codify the Laws of the
United States, correctly embodies the provisions of existing law upon
the subject, for the reason that the inquiry does not present a question
of law arising in the administration of his Department.
In authorizing the Commission to Revise and Codify the Laws of the
United States of a permanent and general nature in force at the time
when the same shall be reported, Congress invested the Commission with
the discretion not only to codify and revise, but also to determine what
existing laws are of a permanent and general nature.
DEPARTMENT OF JUSTICE,
April 7, 1906.
The SECRETARY OF THE INTERIOR.
SIR: I have the honor to acknowledge the receipt of your
communication of March 28, with which you transmit a letter from the
chairman of the Commission to Revise the Laws of the United States,
submitting to you a preliminary draft of Title LXVIII, "Railway and
Telegraph Companies," and asking whether it embodies correctly the
provisions of existing law as construed and administered by the Interior
Department.
In this connection you ask me the following questions, in substance:
Whether, since the discontinuance of the office of commissioner of
railroads, the duties of which formerly devolved upon the Secretary of
the Interior, any duties of that office now survive which the Secretary
of the Interior is required to perform, and whether, if any such duties
remain, the Secretary is obliged to discharge them in default of any
appropriation by Congress for the expenses incident thereto; whether
the draft of laws referred to embodies correctly the provisions of
existing law upon the subject; and whether such provisions have not
ceased to be permanent laws of the United States within the meaning of
the act of March 3, 1901 (31 Stat., 1133, 1181).
I am unable to perceive that any of your inquiries present a question
of law arising in the administration of your Department such as the
Attorney-General is required to answer under section 356, R.S. As to
your questions relating to the duties of the commissioner of railroads,
you show, by reference to various acts of Congress and Executive orders,
that the duties of that office, as defined by the act of June 19, 1878
(20 Stat., 169), and subsequent amendments, have either naturally
terminated or have been transferred to other branches of the Government;
and you do not state that there is any matter now pending in your
Department requiring a determination of your questions on the subject.
This is also true as to your inquiries relating to the proposed draft of
laws. The chairman of the Commission has asked you whether that portion
of the revision embodies correctly the provisions of existing law upon
that subject. But that is a question essentially arising in the
Commission, which, under the language of the act of Congress creating
it, is the sole judge of such a matter. In authorizing the Commission to
revise and codify "all laws of the United States of a permanent and
general nature in force at the time when the same shall be reported"
Congress invested the Commission with discretion not only to codify and
revise, but also to determine what existing laws are of this permanent
and general nature. The question, therefore, is not one properly arising
in your Department upon which it is your duty or province to act.
For the foregoing reasons I must respectfully decline to comply with
your request.
Very respectfully,
W. H. MOODY.
PHILIPPINE COMMISSION-- POWER TO TAX IMPORTS; 25 Op.Att'y.Gen. 582,
April 4, 1906
The Philippine government has no power, under section 139 of the
internal-revenue law of 1904 enacted by the Philippine Commission, to
impose a tax upon meat brought into the Philippine Islands from
Australia and delivered to the United States on board its vessels in the
harbor of Manila.
A tax upon such a sale would be equivalent to a tax on imports, which
the Philippine Commission, under the present law, have not the power to
impose.
DEPARTMENT OF JUSTICE,
April 4, 1906.
The SECRETARY OF WAR.
SIR: I have the honor to reply to your request for my opinion
whether the Philippine government can impose a tax under section 139 of
the internal-revenue law of 1904, enacted by the Philippine Commission,
upon meat delivered by the Queensland Meat Export and Agency Company
(Limited) to the United States Government in ship's tackle at ship's
side in the harbor of Manila, in accordance with a contract, payment
being made to the agent of the company after receipt, inspection, and
weighing at Manila. According to the contract the company has all
responsibility for the meat prior to its lowering from the ship's side,
after which the responsibility rests with the Government, the purchaser.
The meat company is a corporation organized under the laws of the State
of Queensland, Australia. The meat is shipped to the Philippines from a
foreign country.
The above-mentioned section 139 imposes a tax upon merchants and
manufacturers of one-third of 1 per cent of the gross receipts derived
from merchandise sold for consumption in the Phillipines.
In an opinion rendered you February 13, 1906 (ante, p. 563), it was
decided that because of the act of March 3, 1905 (33 Stat., 928), the
Philippine Commission can not, under existing law, tax imports and
exports.
Therefore, if the meat before its delivery to the Government does not
lose its character as an import, so as to become mixed with the general
mass of property in the Philippines, the tax can not be sustained. (May
v. New Orleans, 178 U.S., 496.) A tax upon the seller of goods is a tax
upon the goods themselves. (Kehrer v. Stewart, 197 U. S., 60.)
An analogous case is found in the constitutional prohibition upon
States taxing interstate commerce, and the rule that only when goods
sent from one State to another become part of the general mass of
property in the latter, they are liable to be taxed in the same manner
as other property of a similar character. (Robbins v. Shelby Taxing
District, 120 U.S., 489.) In that case a Tennessee statute imposing a
license fee upon "drummers" was held to be a tax upon interstate
commerce in so far as it applied to persons soliciting the sale of goods
to be delivered to purchasers in Tennessee from another State. This
decision has been followed in many subsequent cases. (Caldwell v. North
Carolina, 187 U.S., 622, and cases therein cited.)
So, a tax for a license to sell goods is in effect a tax on the goods
authorized to be sold. (Welton v. Missouri, 91 U.S., 275.)
These cases are determinative of the question you ask. The importer,
in accordance with a previously executed contract, sends the meat from a
foreign country direct to the purchaser. It is delivered upon its
arrival in the harbor of Manila from the vessel bringing it and in the
form in which it arrives. In view of all this, there can be no question
that the meat retains its character as an import until it is delivered.
A tax upon such a sale would therefore be equivalent to a tax on
imports, which the Philippine Commission, under present law, have not
the power to impose.
Respectfully,
CHARLES W. RUSSELL,
Assistant Attorney-General.
Approved:
W. H. MOODY.
NAVAL ACADEMY-- REINSTATEMENT OF MIDSHIPMAN DISMISSED FOR MISCONDUCT;
25 Op.Att'y.Gen. 579, April 2, 1906
The Secretary of the Navy has no authority to reinstate to the Naval
Academy a midshipman whose appointment has been revoked because of
accumulated demerits and the revocation thereof duly promulgated.
A midshipman is an officer.
An officer who has resigned or been dismissed can not be restored to
the office formerly held by him except by reappointment.
Opinion of Attorney-General Miller of July 8, 1889 (19 Opin., 351),
holding that the resignation of a naval cadet could not be recalled
except by reappointment, confirmed and extended to the case of a
dismissal for misconduct.
DEPARTMENT OF JUSTICE,
April 2, 1906.
The SECRETARY OF THE NAVY.
SIR: Your verbal inquiry and the papers transmitted relating to the
case of John Paul Bean, late midshipman at the Naval Academy, raise the
question whether he may be reinstated. His appointment was revoked by
you because of accumulated demerits, and the revocation duly
promulgated. Dismissal for accumulated demerits has always been treated
by the Navy Department as dismissal for misconduct. The question, then,
relates to the power of the Secretary of the Navy to appoint, to
dismiss, and to reinstate.
It seems to me clear that the power of appointment is vested in the
Secretary. Under sections 1513, 1514, and 1515, Revised Statutes, and
the act of July 26, 1894, sec. 1 (28 Stat., 136), the Member of or
Delegate to Congress "recommends" or the President "selects," but the
Secretary of the Navy "appoints," in pursuance of the power of Congress
to vest the appointment of inferior officers as they think proper within
the limits defined by the Constitution.
(Art II, sec. 2; 19 Opin., 351.) Accordingly, it is not to be doubted
that a midshipman is an officer, and this has been authoritatively
decided respecting undergraduates at the Naval Academy under various
laws for the benefit of "officers of the Navy." (United States v.
Baker, 125 U.S., 646; United States v. Cook, 128 U.S., 254;
Fitzpatrick v. United States, 37 C.Cls., 332; Jasper v. United States,
38 id., 202.) The same view has been stated or assumed in cases relating
to compulsory retirement (United States v. Redgrave, 116 U.S., 474;
United States v. Perkins, id., 483; Crenshaw v. United States, 134
U.S., 99); and in a case of summary dismissal for misconduct in the
Military Academy the status of a cadet as an officer is granted
(Hartigan v. United States, 196 U.S., 169).
In the cases of Redgrave and Perkins it was held that "cadet
engineers" could not be dismissed under the summary discharge provisions
of the act of 1882 (Aug. 5; 22 Stat., 284, 285), because they were
"graduates" before the law took effect, nor under any authority inherent
in the Secretary if they were not deficient in scholarship or guilty of
misconduct. In the Crenshaw case, however, it was held that after the
act of 1882 took effect, summary discharge of surplus graduates
thereunder (cadet midshipmen) was a valid regulation of removal
prescribed by Congress and not violative of any constitutional right;
and in the Hartigan case the right summarily to dismiss a cadet from the
Military Academy for misconduct was established, notwithstanding section
1229, Revised Statutes (" * * * no officer in the military or naval
service shall in time of peace be dismissed from service except * * * in
pursuance of the sentence of a court-martial * * * ").
The controlling statutes on the subject relative to the Military
Academy are not practically the same as those affecting the Naval
Academy, but are essentially analogous and equivalent. As to both
academies it may, therefore, be said that the laws relating to
courts-martial (R.S. 1229, 1326, act March 2, 1901, 31 Stat., 911; act
June 23, 1874, 18 Stat. 203; act March 2, 1895, 28 Stat., 838) do not
prevent dismissal for deficiency in studies or for misconduct (cf. R.S.
1325, 1519).
The power which solely appoints, dismisses at will, unless restrained by
law, and in this case the only regulation is found in those statutes
which imply rather than prescribe that a cause must be found in the
ordinary ground of summary academic discipline, viz, deficiency in
studies or conduct.
The authorities are overwhelming to the effect that an officer who
has resigned or been dismissed can not be restored to the service except
by reappointment. There are certain exceptions founded in legal
disability where a resignation has not actually or conclusively taken
effect, but they do not touch the present case, which is one of
dismissal for cause and not resignation, wherein there was no disability
and nothing inconclusive. (Mimmack v. United States, 97 U. S., 426; 12
Opin., 555, citing and distinguishing 6 Opin., 456; 10 Opin., 229;
United States v. Corson, 114 U.S., 619; 4 Opin., 274; id., 306; cf.
unpublished opinion of January 13, 1876, holding that a pardon by the
President could not operate to reinstate a dismissed cadet; opinion
recalled for reasons stated in 15 Opin., 80.)
In accordance with this line of authorities, it was held by
Attorney-General Miller in the opinion which I first cited (19 Opin.,
351) that the resignation of a "naval cadet" could not be recalled
except by reappointment. On the same grounds I am constrained to hold
that the power of the Secretary of the Navy to appoint and dismiss a
midshipman does not embrace the authority to reinstate, and the opinion
of Attorney-General Miller is therefore affirmed and extended to the
case of dismissal for misconduct.
Very respectfully,
HENRY M. HOYT,
Solicitor-General.
Approved:
W. H. MOODY.
OFFICERS OF THE MARINE CORPS-- EXAMINATIONS FOR PROMOTION; 25 Op.
Att'y.Gen. 568, March 24, 1906
Examinations for promotion of officers in the Marine Corps should be
held anterior to the date upon which a vacancy is expected to occur.
Where an officer entitled to promotion upon examination is required
to be absent from any place where an examining board can be convened, as
provided by section 32 of the act of February 2, 1901 (31 Stat., 756),
the President may promote the officer subject to future examination.
Should such officer upon examination be found disqualified, he should
be treated in the same manner as if he had been examined prior to
promotion.
An officer who fails to pass his examination should be suspended from
promotion for one year from the date of the approval of the proceedings
of the examining board by the Secretary of the Navy, during which period
he is ineligible for re-examination.
If, however, a vacancy occurs during such period of suspension for
which, owing to death, resignation, or other cause, there should be no
senior officer eligible, then the suspended officer must, of necessity,
take the vacancy.
The Secretary of the Navy may make the date of such suspension
coincident with the date of the vacancy, by delaying the approval until
the vacancy occurs.
Where an examination is held before the vacancy occurs, and the
officer fails in such examination for other than physical cause, he can
not be re-examined until one year from the date of the approval of the
proceedings of the examining board.
Should the examination be held after the date of the vacancy, and the
officer fail in such examination, he should be suspended from promotion
for one year from the date of the vacancy to which he was promoted by
the President subject to examination.
The period of "loss of date" is not necessarily contemporaneous with
the period of suspension, but it should correspond in length of time
with the period of suspension.
While the period of suspension from promotion begins to run from the
date of the approval of the examining board, the period of "loss of
date" begins to run from the date of the vacancy to which the suspended
officer would have been promoted had he passed his examination.
Several questions concerning suspensions from promotion, appointment,
and rank of certain designated officers of the Marine Corps, involving a
complicated chain of circumstances, considered in the light of the above
rulings and decided:
The suspension from promotion for one year of Captain Catlin of the
Marine Corps should date from September 16, 1904, as provided in the
order of suspension.
Captain Moses should be appointed a major to fill the vacancy
occurring March 6, 1904, and to take rank from that date.
Captain Neville should be appointed a major to fill the vacancy
occurring June 4, 1904, and to take rank from that date.
Captain Treadwell should be appointed a major to fill the vacancy
occurring December 9, 1904, and to take rank from that date.
Captain Williams should be appointed a major to fill the vacancy
occurring February 28, 1905, and to take rank from that date.
Captain Lowndes should be appointed a major to fill the vacancy
occurring March 11, 1905, and to take rank from that date.
DEPARTMENT OF JUSTICE,
March 24, 1906.
The SECRETARY OF THE NAVY.
SIR: I have the honor to acknowledge the receipt of your letter of
March 2, 1906, supplementary to your letter of December 13, 1905, to the
President, relative to the dates of commissions of certain officers of
the United States Marine Corps. The facts in the case are substantially
as follows:
On March 6, 1904, the relative rank of certain captains in the United
States Marine Corps was as follows: Robert McM. Dutton, Edward R.
Lowndes, Albertus W. Catlin, Lawrence H. Moses, Wendell C. Neville,
Thomas C. Treadwell, Dion Williams, John T. Myers, William N. McKelvy.
Since that time vacancies have occurred in the list of majors in the
Marine Corps upon the following dates: March 6, 1904; June 4, 1904;
December 9, 1904; February 28, 1905; March 11, 1905; April 1, 1905;
February 1, 1906.
Captain Dutton was twice examined for promotion to the rank of major,
and failed professionally each time. The recommendations and findings of
the examining board were approved by the Navy Department on May 28,
1904, and on June 24, 1905, respectively, but the action of May 28,
1904, was revoked on August 10, 1904, by the Secretary of the Navy. The
order of the Acting Secretary of the Navy of June 24, 1905, approving
the findings of the examining board, contains this provision:
"Captain Robert McM. Dutton, United States Marine Corps, is suspended
from promotion for one year from this date, subject to reexamination
upon the expiration of such period, with loss of numbers occasioned by
the advancement over him during the period of one year from March 6,
1904, the date from which he would have been advanced had he qualified
therefor, of his juniors on the list of captains who successfully
qualify for promotion."
During all this time the vacancy of March 6, 1904, was held open for
Captain Dutton, but when he failed the vacancy became at once available
for the next captain on the list. Captain Dutton's period of suspension
from promotion will not expire until June 24, 1906, at which time he
will be eligible for reexamination.
On July 25, 1904, Captain Lowndes lost five numbers in his grade
under and pursuant to a sentence of a general court-martial "to take
rank next after Captain Dion Williams, United States Marine Corps."
On the 16th of September, 1904, Captain Catlin having been examined
for promotion and found by the examining board to be professionally
disqualified, the Secretary of the Navy, in approving the findings,
ordered that he be "suspended from promotion for one year from this
date, subject to reexamination upon the expiration of such period, with
loss of numbers occasioned by the advancement over him during the period
of one year from June 4, 1904, the date from which he would have been
advanced had he qualified therefor, of his juniors on the list of
captains who may be eligible and successfully qualify for promotion."
Captain Catlin's period of suspension from promotion therefore
expired on September 16, 1905, after which he was again examined and
passed, his second examination being approved by the Secretary of the
Navy on the 22d day of September, 1905.
The next four captains on the list in the order of seniority were
Moses, Neville, Treadwell, and Williams, each of whom was examined for
promotion and passed, the findings of the examining board being approved
as follow: Moses, January 5, 1905; Neville, January 20, 1905;
Treadwell, May 16, 1905; Williams, February 25, 1905.
Captain Lowndes having been sentenced to lose five numbers can next
on the list after Captain Williams, and was examined and passed on June
20, 1905. It will be observed that Moses, Neville, Treadwell, Williams,
and Lowndes each successfully passed his examination before Captain
Dutton was examined and failed on June 24, 1905. Commissions have been
issued to the officers named below, as follows: (TABLE OMITTED)
You request my opinion upon the following questions:
1. Should the Department redate Catlin's year of suspension so as to
make it begin with March 6, 1904, instead of June 4, 1904?
2. Should Moses and Neville be reappointed and reconfirmed as majors
to rank, respectively, from March 6, 1904, and June 4, 1904?
3. What is the relative rank of the officers named in the list on
page 1 above?
4. What, caeteris paribus, will be the relative rank of Catlin upon
his promotion to the rank of major?
5. At what time, relative to a vacancy or to the right to promotion,
should examination for promotion in the Marine Corps be held?
6. When a marine officer fails in his examination for promotion for
other than physical cause, what time should elapse before he should be
reexamined?
(a) When the examination was held before the vacancy occurred, and
(b) When the examination was held after the vacancy occurred?
It is apparent that your Department, in holding the examinations in
question, has failed to observe a very important provision contained in
the act of October 1, 1890 (26 Stat., 562), which directs that
examinations be conducted at such times anterior to the accruing of the
right to promotion as may be best for the interests of the service,
which provision is made to apply to the examination for promotion of
commissioned officers in the Marine Corps below the grade of commandant
by the act of July 28, 1892 (27 Stat., 321). I am therefore compelled to
consider the case, so far as the question of the relative rank of these
officers is concerned, to a very great extent, at least, upon equitable
grounds.
When I come to consider your fifth and sixth questions, I shall point
out the proper practice to be followed in the future with respect to
holding these examinations for promotion in the Marine Corps.
In answering questions one, two, three, and four, I am of the opinion
that we should be guided by the principles laid down in an opinion
rendered to the Secretary of the Navy by Attorney-General Devens on
December 10, 1880 (16 Opin., 587). It was there held that the period of
suspension from promotion begins to run from the date of the approval of
the findings of the examining board, and that during such period the
suspended officer is ineligible for reexamination, and that if he should
qualify upon his reexamination, he could not be promoted to a vacancy
occurring during his period of suspension. To this I would add this
qualification: Except in a case where a vacancy occurred during such
period for which, owing to death, resignation, failure, or other cause,
there was no senior officer eligible. In such a case the suspended
officer not only could, but of necessity must, take a vacancy which
occurred during his period of suspension.
Attorney-General Devens also laid down the rule with respect to
"corresponding loss of date," which is sometimes referred to as "loss of
numbers."
He held that the period of "loss of date" is not necessarily
contemporaneous with the period of suspension, but that the "loss of
date" should correspond in length of time with the period of suspension.
While the period of suspension from promotion begins to run from the
date of the approval of the examining board, the period of "loss of
date" begins to run from the date of the vacancy to which the suspended
officer would have been promoted had he passed his examination. Your
Department evidently has recognized these principals in the cases here
under consideration. It only remains to properly apply them to the facts
stated, in order to solve the questions propounded, concerning the
relative rank of these officers.
1. Your first question is, whether the Department should redate
Catlin's year of suspension so as to make it begin with March 6, 1904,
instead of June 4, 1904. In reply to this question, it is only necessary
to point out that the order of the Secretary of the Navy, suspending
Catlin from promotion for one year expressly provides that such
suspension from promotion shall date from September 16, 1904, not from
June 4, as you have assumed. The question is evidently based upon an
erroneous assumption of fact. The order as to the suspension of Captain
Catlin should stand as orginally entered.
2. Your second, third, and fourth questions may be considered
together. Assuming that the Secretary of the Navy had authority to hold
the vacancy of March 6, 1904, open for Captain Dutton until June 24,
1905, when he was examined and failed, it is manifest that such vacancy
thereupon immediately became available for the next on the list in order
of seniority. Captain Lowndes was next on the list until July 25, 1904,
when he lost five numbers by reason of a sentence of court-martial.
Captain Catlin, who followed Captain Lowndes on the list in order of
seniority, failed in his examination on September 16, 1904, and was
suspended for one year. On the 24th day of June, 1905, therefore, the
vacancy of March 6th being thrown open by reason of the failure of
Dutton, the following officers were entitled to be appointed to, and to
be ranked from, the dates set opposite their names: (TABLE OMITTED)
This arrangement left the vacancy which occurred on April 1, 1905,
still open on June 24, 1905. Captain Dutton, manifestly, could not take
this vacancy for the reason that he was suspended from promotion for one
year from June 24; nor was Captain Catlin eligible for promotion to
this vacancy of April 1, for the reason that his period of suspension
from promotion had not then expired and would not expire until the 16th
day of September. The vacancy of April 1, therefore, should then have
gone to the next captain on the list, to wit, John T. Myers, who, as I
understand it, has not yet been examined for promotion. Captain Myers
is, therefore, now entitled to be examined for promotion to that
vacancy, and in case of his failure to pass the examination, Capt.
William N. McKelvey, being next on the list, would be entitled to it
should he qualify.
On September 16, 1905, Captain Catlin's period of suspension expired,
and on the 22d day of September, 1905, he was reexamined and passed. At
the time of his reexamination he was, of course, first upon the list,
but with this disqualification that he was not entitled to any vacancy
which occurred during his period of suspension. It therefore follows
that Captain Catlin should be promoted to the first vacancy occurring
since the 16th day of September, 1905, to wit, that of February 1, 1906.
But there is another quite important matter to be considered in
connection with Captain Catlin's case, to wit, his loss of numbers. The
order of the Navy Department of September 16, 1904, suspending Captain
Catlin from promotion, provided that he should lose numbers "occasioned
by the advancement over him during the period of one year from June 4,
1904, the date from which he would have been advanced had he qualified
therefor."
When Captain Catlin is promoted to fill the vacancy of February 1, 1906,
his commission should read "to fill the vacancy occurring February 1,
1906, and to take rank from June 4, 1905."
Answering your second and third questions, it is my opinion that
these several officers should be appointed as follows:
L. H. Moses, "to fill the vacancy occurring March 6, 1904, and to
take rank from March 6, 1904."
W. C. Neville, "to fill the vacancy occurring June 4, 1904, and to
take rank from June 4, 1904."
T. C. Treadwell, "to fill the vacancy occurring December 9, 1904, and
to take rank from December 9, 1904."
Dion Williams, "to fill the vacancy occurring February 28, 1905, and
to take rank from February 28, 1905."
E. R. Lowndes, "to fill the vacancy occurring March 11, 1905, and to
take rank from March 11, 1905."
John T. Myers, "to fill the vacancy occurring April 1, 1905 (in case
he qualifies), and to take rank from April 1, 1905."
A. W. Catlin, "to fill the vacancy occurring February 1, 1906, and to
take rank from June 4, 1905."
Should Capt. John T. Myers qualify for the vacancy of April 1, 1905,
he should be appointed to fill that vacancy, and would, of course, take
rank from that date. Capt. William N. McKelvey will then stand at the
head of the list of captains and will be entitled to the next vacancy,
provided such vacancy occurs before the 24th day of June, 1906. On the
24th day of next June, Captain Dutton's period of suspension will have
expired, and he will then go back at the head of the list of captains in
the Marine Corps and be entitled, should he pass his second examination,
to promotion to the first vacancy occurring after the period of his
suspension shall have expired, but he will be entitled to take rank from
the 6th day of March, 1905.
3. Questions numbered five and six relate to the time when
examinations should be held for promotion in the Marine Corps. The act
of July 28, 1892 (27 Stat., 321), provides as follows: "That hereafter
promotions to every grade of commissioned officers in the Marine Corps
below the grade of Commandant shall be made in the same manner and under
the same conditions as now are or may hereafter be prescribed, in
pursuance of law, for commissioned officers of the Army."
The act of October 1, 1890 (26 Stat., 562), provides for the
examination for promotion of officers in the Army and contains, among
other things, the following provisions:
"That the President be, and he is hereby, authorized to prescribe a
system of examination of all officers of the Army below the rank of
major to determine their fitness for promotion, such an examination to
be conducted at such times anterior to the accruing of the right to
promotion as may be best for the interests of the service. * * * And
provided, that should the officer fail in his physical examination and
be found incapacitated for service by reason of physical disability
contracted in line of duty he shall be retired with the rank to which
his seniority entitled him to be promoted; but if he should fail for
any other reason he shall be suspended from promotion for one year, when
he shall be reexamined, and in case of failure on such reexamination he
shall be honorably discharged, with one year's pay, from the Army."
(Sec. 3.)
Examinations for promotion of officers in the Marine Corps should be
held anterior to the date upon which the vacancy is expected to occur.
There is, however, an exception to this rule, which will be discussed
later on in this opinion. If the examinations which we have here been
considering had been held in conformity with this law, I dare say that
much of the confusion which has arisen would have been avoided. The
Judge-Advocate-General of the Army has the following to say with respect
to the operation of this law in conducting examinations for promotion in
the Army:
"No serious difficulties have been encountered by the Department
(War) in the execution of the act of October 1, 1890. It has even
endured successfully the severe tests which have been imposed upon it in
connection with the war with Spain, and the employment of officers in
our insular possessions, and elsewhere, at great distances from the seat
of government. In a limited number of cases where the officer was unable
to appear before the board, by reason of absence or sickness, his
examination has been deferred, and, when it took place, was made to
relate back to the date when he became entitled to promotion-- that is,
the date when his right to advancement had accrued."
Congress has also recognized the difficulties which may not
infrequently be encountered in holding the examinations of officers
entitled to promotion anterior to the date on which the vacancy occurs.
In section 32 of the act of February 2, 1901 (31 Stat., 756), is the
following provision:
"When the exigencies of the service of any officer who would be
entitled to promotion upon examination require him to remain absent from
any place where an examining board could be convened, the President is
hereby authorized to promote such officer, subject to examination, and
the examination shall take place as soon thereafter as practicable. If
upon examination the officer be found disqualified for promotion, he
shall, upon the approval of the proceedings by the Secretary of War, be
treated in the same manner as if he had been examined prior to
promotion."
By the act of July 28, 1892, this provision of the act of February 2,
1901, is undoubtedly made applicable to examinations for promotion of
officers in the Marine Corps.
Answering, therefore, your fifth and sixth questions specifically, it
is my opinion that within a reasonable time before a vacancy occurs a
number of the senior officers of the proper grade should be ordered up
for examination. Should the first officer upon the list fail to pass his
examination, he should be suspended from promotion for one year from the
date of the approval of the findings of the examining board by the
Secretary of the Navy. It would, of course, be within your power to make
the date of such suspension coincident with the date of the vacancy by
delaying the approval until the vacancy occurs. There is no objection,
however, to an immediate approval of such finding; in fact, such action
is rather to be desired, for the reason that the period of suspension
from promotion will be sooner terminated.
The period of suspension from promotion referred to in the act of
1890 clearly contemplates that the suspended officer shall not be
reexamined during such period.
The law reads:
"He shall be suspended from promotion for one year, when he shall be
reexamined, and in case of failure on such a reexamination, he shall be
honorably discharged with one year's pay from the Army."
This is apparently the construction which the officers of your
Department have heretofore placed upon this law, as each of the orders
suspending Catlin and Dutton contains this language: "Suspended from
promotion for one year from this date, subject to reexamination upon the
expiration of such period."
When an examination therefore is held before the vacancy occurs, and
the officer fails in his examination for promotion for other than
physical cause, he can not be reexamined until one year from the date of
the approval of the examining board, provided, of course, such approval
be before or coincident with the date of the vacancy.
Should the examination be held after the date of the vacancy, as is
permitted in exceptional cases under the act of February 2, 1901, the
President is authorized to promote the officer who may be entitled to
promotion, subject to examination. That law, however, requires that the
examination shall take place as soon thereafter as practicable, and if
upon examination the officer be found disqualified for promotion he
shall, upon the approval of the proceedings by the Secretary of War, be
treated in the same manner as if he had been examined prior to
promotion. That is to say, he shall be suspended from promotion for one
year from the date of the vacancy to which he was promoted by the
President subject to examination. We are forced to accept that date as
the beginning of his period of suspension for the simple reason that in
such a case it would be impossible to determine when the findings of the
examining board would have been approved had the examination been held
anterior to the date of the vacancy. Such approval might very properly
have been made coincident with the date of the vacancy. We therefore
accept that date as the one from which the period of suspension should
run.
It is very easy to conceive of a case in which injustice might be
done to an officer thus promoted, should his examination be deferred a
year or more from the date of the vacancy. In such a case he would be
eligible for reexamination at any time after his failure, and might be
ordered up for another examination without having had an opportunity to
prepare himself for such reexamination. Being fully advised as to the
requirements of the law, it is not presumed that such a case will arise
in the future.
Respectfully,
W. H. MOODY.
SECRETARY OF COMMERCE AND LABOR-- AUTHORITY TO SELL WINDMILL; 25 Op.
Att'y.Gen. 567, February 16, 1906
The Secretary of Commerce and Labor has authority to sell a windmill
formerly used for pumping water at the oyster claire, Lynnhaven, Va.,
but which is no longer needed or used for that purpose.
DEPARTMENT OF JUSTICE,
February 16, 1906.
The SECRETARY OF COMMERCE AND LABOR.
SIR: The question submitted in your note of January 8, is as to your
authority to sell a windmill, formerly used by the Bureau of Fisheries
at the oyster claire at Lynnhaven, Va., for pumping water, but which, by
reason of a change in the mode of operating the claire, is no longer
needed or used, and is rapidly falling into decay, and which you now
have an opportunity to sell.
A similar question was considered by one of my predecessors
respecting the disposition of certain materials, supplies, and
equipments purchased and used by the Isthmian Canal Commission, and it
was held that the Commission had undoubted authority to sell the
property in such manner as would produce the best results, the opinion
citing section 3692, Revised Statutes, as showing that the sale of such
property was contemplated by Congress. (23 Opin., 163.) It is true, that
provision, which relates to the sale of materials, stores, or supplies
to exploring or surveying expeditions authorized by law, is not
applicable here; but I may add that the practice of making sale of
public property of the United States which is no longer needed or used
by the Government is expressly recognized by sections 197, 3618, and
3672, Revised Statutes, which provide, respectively, for the keeping of
accounts of sale of public property, for the disposition of the proceeds
of such sales, and for the inclusion of detailed statements thereof in
the Book of Estimates.
I have the honor, therefore, to advise you that the sale of the
windmill in question, under the circumstances stated, is within your
province and may be lawfully made.
Very respectfully,
W. H. MOODY.
PHILIPPINE COMMISSION-- POWER TO TAX GROSS RECEIPTS OF COMMERCIAL
PACIFIC CABLE COMPANY; 25 Op.Att'y.Gen. 563, February 13, 1906
Act No. 1189 of the Philippine Commission does not confer upon the
Philippine government the power to impose a tax upon the gross receipts
of the Commercial Pacific Cable Company, nor has Congress conferred upon
that Commission the authority to enact a law imposing such a tax upon
that company.
DEPARTMENT OF JUSTICE,
February 13, 1906.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge the receipt of your letter of
October 27, 1905, in which you request my opinion as to whether the
Philippine government, under sections 138, 139, 141, and 143 of the
Philippine act, No. 1189, has the power to impose a tax on the gross
receipts of the Commercial Pacific Cable Company, and if not, whether
sufficient authority has been conferred upon that government by Congress
to enact a law taxing the gross receipts of said company. The answer to
the first question involves simply the interpretation of act No. 1189 of
the Philippine Commission, while the solution of the second question
presents the inquiry as to the nature and scope of the taxing power
which Congress has granted to the Philippine Commission.
On the 31st of March, 1905, the attorney-general of the Philippine
Islands rendered an opinion to the Secretary of finance and justice of
said islands, in which he held that the act of the Philippine Commission
above referred to did not authorize the imposition of a tax upon the
gross receipts of the Commercial Pacific Cable Company, and that under
existing law the Commission had no authority to impose such a tax upon
that company.
The facts in the case are stated by the attorney-general for the
Philippine Islands as follows:
"The Commercial Pacific Cable Company is a corporation organized
under the laws of the State of New York. It is operating a cable line
between San Francisco and Manila by virtue of authority granted it by
the President of the United States. The company has no domestic lines in
the Philippine Islands. The collector of internal-revenue is undertaking
to impose the tax provided for in sections 138, 139, and 141 of the
internal-revenue law (act No. 1189) upon the gross receipts of said
company, and the Commercial Pacific Cable Company is contesting the
imposition of this tax."
I shall not attempt to review the various reasons assigned in the
opinion of the attorney-general of the Philippine Islands as to the
proper interpretation of the Philippine act No. 1189. It is sufficient
to say that, in my opinion, that law was not intended by the Philippine
Commission to apply to the business of this company, and that the
reasons which impel me to this conclusion are those which the
attorney-general for the Philippine Islands has given in his opinion.
In determining whether or not the Philippine Commission has the power
to enact a law imposing a tax on the business of this company, in whole
or in part, it is necessary to examine the character and extent of the
taxing power which has been conferred upon said Commission by Congress.
The President's instructions to the Commission of April 7, 1900,
contain, among other things, the following provision concerning
taxation:
"Exercise of this legislative authority will include the making of
rules and orders having the effect of law for the raising of revenue by
taxes, customs duties, and imposts."
It will be observed that this delegation of authority to tax
included, not only the power to raise revenue by taxing imports and
exports, but also the general power to lay and collect taxes in the
Philippine Islands upon those articles and things which the various
States are ordinarily accustomed to tax.
This general grant of authority from the President to the Philippine
Commission was subsequently ratified by Congress (act of Congress of
March 2, 1901, 31 Stat., 895, 910; and act of July 1, 1902, 32 Stat.,
691), and ever since this authority was granted, the Philippine
Commission has continued to exercise such taxing powers, subject only to
such limitations and modifications as have been made from time to time
by Congress.
Whether the Philippine Commission had the power to tax the business
of this cable company in the form of tariff duties on imports and
exports need not be decided, but we may concede for the purpose of the
argument that between April 7, 1900, and March 3, 1905, the Philippine
Commission may have taxed the business of this company under its general
power to lay and collect customs duties and imposts.
On March 3, 1905, however, Congress passed an act revising and
amending the tariff laws of the Philippine Islands (33 Stat., 928),
which law apparently covers the whole field of customs duties, declaring
specifically the tariffs to be thereafter imposed on both imports and
exports, and repealing all existing decrees, laws, regulations, or
orders so far as the same are inconsistent with the provisions of that
act. Such legislation, in my judgment, evinces a purpose on the part of
Congress to withdraw from the Philippine Commission the taxing power
which it had theretofore exercised with respect to customs duties and
imposts. It therefore follows that the Philippine Commission has no
authority to enact a law imposing a tax upon cable messages between San
Francisco and Manila, under the grant of power originally conferred upon
said Commission to tax imports and exports. The only taxing power which
at present remains in the Philippine Commission is the general power to
tax conferred by the President's order of April 7, 1900, and
subsequently ratified by Congress.
We are thus brought in the last analysis to a consideration of this
general taxing power and must determine its precise character and scope.
This pertinent question is at once suggested: Did the President, in
conferring such general taxing power, or the Congress when it ratified
such grant of authority, intend that the Philippine Commission should be
empowered to tax commerce between the Philippine Islands and the United
States, or was it simply the purpose to confer upon the Philippine
Commission authority to tax similar to that which the States ordinarily
exercise?
If the former, the Philippine Commission, under the guise of its general
taxing power, is in a position to regulate, if not to prohibit, commerce
between the United States and the Philippine Islands. If the latter,
then the Commission can not tax the business of this company.
It has frequently been held by the Supreme Court that the power to
tax is the power to destroy, and if the Philippine Commission now has
the power to tax this cable company on its business of transmitting
messages between Manila and San Francisco, it has the power to impose a
tax which would practically destroy its business. No one would contend
for a moment that a State has the power to impose a tax of this
character. The case of Leloup v. The Port of Mobile (127 U.S., 640) is
almost identical with the one here under consideration. In that case the
Western Union Telegraph Company had established an office in the city of
Mobile, Ala., and was required by a city ordinance to pay a certain
license tax. The court held that a general license tax on telegraph
companies affects its entire business, interstate as well as domestic or
internal, and is therefore unconstitutional. (See also Coe v. Erroll,
116 U.S., 517; Diamond Match Company v. Ontonagon, 188 U. S., 82;
Caldwell v. North Carolina, 187 U.S., 622; Kehrer v. Stewart, 197 U.S.,
60.)
The Supreme Court said in the Laloup case (supra) that telegraph
communications are commerce, and if carried on between different States
are interstate commerce, and therefore within the sole power of
regulation conferred upon Congress, free from control of State
regulation, and that the States are not authorized under the guise of
their taxing power to regulate such interstate business. I can not
believe, in the absence of express authority, that Congress intended to
leave reposing in the Philippine Commission the power to regulate
commerce between the Philippine Islands and other portions of the United
States from the mere fact that it has left unimpaired the Commission's
general authority to tax.
If this general authority to tax be construed as confined to occupations
and businesses carried on and conducted in the Philippine Islands, I am
satisfied that every purpose of the law will have been fully subserved.
I therefore hold that under existing law the Philippine Commission
has no authority to pass an act imposing a tax upon the business of the
Commercial Pacific Cable Company, which business consists exclusively in
the transmission of cable communications between Manila and San
Francisco.
Respectfully,
W. H. MOODY.
PANAMA CANAL-- AUTHORITY OF PRESIDENT TO MAKE CONTRACTS; 25 Op.
Att'y.Gen. 557, January 25, 1906
The President is authorized under existing law to make contracts for
the construction and completion of the Panama Canal in excess of the
appropriation at present available, so long as such contracts do not
involve the Government in the ultimate expenditure of moneys for its
construction and completion in excess of the amount designated in
section 5 of the act of June 28, 1902 (32 Stat., 483), limiting the
total cost of the canal.
The authority thus granted by the act of June 28, 1902, remains
unaffected and unimpaired by the provision in the act of December 21,
1905 (34 Stat., 5), prohibiting the expenditure of any money for the
construction of such canal "except in accordance with appropriations
made by Congress."
The phrase "no money shall be expended except in accordance with
appropriations made by Congress," as used in the act of 1905, means
nothing more than that no money shall be expended in excess of
appropriations made by Congress.
DEPARTMENT OF JUSTICE,
January 25, 1906.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge the receipt of your letter of
January 19, 1906, in which you request my opinion as to whether section
3 of the act of Congress approved December 21, 1905, in any manner
affects the power of the President to cause contracts to be entered into
for the proper excavation, construction, and completion of the Isthmian
Canal, as provided for in section 5 of the act of June 28, 1902 (32
Stat., 483), commonly known as the "Spooner Act."
Section 3 of the act of December 21, 1905, contains the following
provision:
"And no money shall be expended for any of the purposes of
constructing and maintaining said Isthmian Canal, or for any expenses
incident thereto, except in accordance with appropriations made by
Congress."
Under section 5 of the Spooner Act the President is expressly
authorized to cause to be entered into such contracts as shall be deemed
necessary for the construction and completion of said canal; and it was
further provided that appropriations therefor should be made by Congress
from time to time, not to exceed in the aggregate the additional sum of
$135,000,000 should the Panama route be adopted, or $180,000,000 should
the Nicaragua route be adopted.
The sum of $10,000,000 was appropriated by that act, which became
available at once for the prosecution of such undertaking. Under this
section of the Spooner Act the administrative officers of the Government
in charge of this improvement took the position that the President was
authorized to cause contracts to be entered into for the prosecution and
completion of this work in any amount which did not exceed the total
cost of said Isthmian Canal, as provided for in said act. With this
interpretation of the Spooner Act I fully agree.
The question is now presented as to whether such power of the
President with respect to making contracts under section 5 of the
Spooner Act is in any manner modified or restricted by the concluding
sentence of section 3 of the act of December 21, 1905, above quoted.
When the act of December 21, 1905, was before the United States
Senate, the provision which we have here under consideration was amended
by inserting the phrase "or for any expenses incident thereto." (Cong.
Rec., 59th Congress, 1st session, p. 357.) In the discussion which
followed, Senator Allison, in reply to a question from Senator Culberson
as to whether it was the intention of the committee that this provision
should limit the operation of section 5 of what was known as the Spooner
Act, said:
"I do not know what the precise purpose of the Senator from Rhode
Island (Mr. Aldrich) may be; but, as I understand it, the amendment
does not in the slightest degree effect section 5 of the Spooner Act."
(Cong. Rec., 59th Congress, 1st sess., p. 358.)
And further on, during the progress of that debate, Senator Aldrich
said, with reference to the purpose of this provision:
"My amendment and the amendment of the committee were not intended to
stop the power of contract which is given by the fifth section of the
Spooner Act. That question is not dealt with at all. The amendment is
intended to provide that expenditures must cease whenever the amount of
money appropriated by Congress is expended." (Ib., p. 359.)
And again, Senator Allison said:
"The method, as respects rivers and harbors and public improvements
of every kind, is that a contract can be made for the completion of the
work. That enables the contractor, of course, to acquire sufficient
plant, etc., to go on with the whole work. He knows he has that
contract, but as to the rapidity with which the work is to be done or
paid for, depends upon appropriations made by Congress. Now, it
certainly would not be the part of wisdom for us to have a contract here
covering many millions of dollars without knowing from time to time the
appropriations that will be made for that purpose. That is all that is
provided for here." (Ib., p. 360.)
From these debates in the Senate, I think it is perfectly clear that
this provision of section 3 of the act of December 21, 1905, can not be
considered as in any manner affecting the power of the President to make
contracts for the construction and completion of the Isthmian Canal
under section 5 of the Spooner Act. As Senator Aldrich observed, the
question of the power of the President to make contracts is not dealt
with at all.
Not only was it asserted in the Senate debates upon this bill that it
was not the purpose of the law to in any manner affect the power of the
President to make contracts under section 5 of the Spooner Act; but the
attention of the Senate was expressly directed to the language contained
in section 3679 of the Revised Statutes (Cong. Rec., 59th Congress, 1st
sess., p. 359), which is in fact as follows:
"Nor involve the Government in any contract or obligation in excess
of the appropriations made by Congress."
Had it been the purpose of Congress to curtail or modify in any
manner the authority of the President "to make contracts," as he was
authorized to do under the Spooner Act, it is difficult to understand
why Congress did not use in the present law some such clear and
expressive language as we have above quoted from section 3679 of the
Revised Statutes. The mere fact that the Senate rejected such a
suggestion affords additional proof that it was not the purpose of this
law to prohibit the President from involving the Government in contracts
or obligations in excess of the appropriation of $11,000,000 provided
for by the second section of the act of December 21, 1905.
What, then, it may be asked, was the purpose of this provision, which
declares that "no moneys shall be expended for any of the purposes of
constructing and maintaining said isthmian canal, or for any expenses
incident thereto, except in accordance with appropriations made by
Congress?" The language is, "no money shall be expended," etc., "except
in accordance with appropriations made by Congress." In the first place,
it is very clear that it is the expenditure of money which is
prohibited. If it had been the purpose of Congress to declare that the
President should not involve the Government in any contract for the
future payment of money it is only fair to presume that Congress would
have said so, especially when we consider, as we have before observed,
that during the progress of the debate this precise question was called
to the attention of Congress by Senators who participated in the debate.
It will, of course, be conceded that the phrase "And no money shall be
expended, etc., except in accordance with appropriations made by
Congress," prohibits the expenditure of money in excess of the
appropriation; but I am inclined to think that one of the principal
purposes of this law was to advise the officers in charge of the
construction of this canal that with respect to future appropriations
the moneys were to be expended in accordance with the specific
provisions to be thereafter inserted in the appropriation acts. In many
prior acts of Congress, when it was the purpose to confine expenditures
within the appropriations made, the phrase "in excess of" was used, but
in this act we find Congress using, in lieu of that phrase, the phrase
"in accordance with," which is, of course, more comprehensive. This view
becomes more patent upon a consideration of the whole act.
Section 3 of the act of December 21, 1905, first provides that the
President shall annually cause to be made, by persons appointed and
employed by him in charge of the Government of the said Canal Zone and
the construction of the said isthmian canal, estimates of expenditures
and appropriations, in detail as far as practicable, and requires that
such estimates shall be submitted to Congress in the manner provided for
in section 5 of the act entitled "An act making appropriations for
legislative, executive, and judicial expenses of the Government for the
fiscal year ending June 30, 1902, and for other purposes," which section
is as follows:
"SEC. 3. That hereafter it shall be the duty of the heads of the
several Executive Departments, and of other officers authorized or
required to make estimates, to furnish to the Secretary of the Treasury,
on or before the fifteenth day of October of each year, their annual
estimates for the public service, to be included in the Book of
Estimates prepared by law under his direction; and in case of failure
to furnish estimates as herein required it shall be the duty of the
Secretary of the Treasury to cause to be prepared in the Treasury
Department, on or before the first day of November of each year,
estimates for such appropriations as in his judgment shall be requisite
in every such case, which estimates shall be included in the Book of
Estimates prepared by law under his direction for the consideration of
Congress."
From this language it would seem that it was the evident intention of
Congress in making future appropriations for the construction of the
Isthmian canal to abandon the practice which has thus far obtained of
making appropriations in a lump sum or at least to be in possession of
such information as will enable Congress to make appropriations in the
future of this canal, should it desire to do so, with that particularity
which it has observed in making appropriations for the various
Departments of the Government.
Section 2 of the act of December 21, 1905, appropriates a lump sum of
$11,000,000 to continue the construction of the Isthmian canal, to be
expended under the direction of the President, in accordance with the
"act to provide for the construction of a canal connecting the waters of
the Atlantic and Pacific oceans," approved June 28, 1902-- that is, the
Spooner Act-- and said sum is to continue available until expended. This
is a positive declaration on the part of Congress that the $11,000,000
thus appropriated shall be expended under the direction of the
President, in accordance with the Spooner Act, presumably in
substantially the same manner in which the $10,000,000 appropriated by
the Spooner Act has been heretofore expended under the direction of the
President.
With respect to this appropriation, it is manifest that the phrase found
in section 3 of the act, "No money shall be expended, etc., except in
accordance with appropriations made by Congress," means nothing more
than that no money shall be expended "in excess" of this appropriation.
It has been suggested that section 4 of the act of March 3, 1905,
entitled "An act making appropriations to supply deficiencies in the
appropriations for the fiscal year ending June thirtieth, nineteen
hundred and five, and for prior years, and for other purposes" (33
Stat., 1214, 1257), may have some possible bearing upon the legislation
which Congress has adopted with respect to the Isthmian Canal. This
section is a re-enactment of section 3679 of the Revised Statutes, which
provides that "no Department of the Government shall expend, in any one
fiscal year, any sum in excess of appropriations made by Congress for
that fiscal year, or involve the Government in any contract or
obligation for the future payment of money in excess of such
appropriations," with this phrase added: "Unless such contract or
obligation is authorized by law." Sections 3732 and 3733 of the Revised
Statutes contain substantially similar provisions, and, as has been
frequently held by my predecessors, the three sections should be
construed together. It is perfectly obvious that these sections of the
Revised Statutes have no application to the legislation which Congress
has adopted with respect to the construction of the Isthmian Canal, for
the reason to be entered into under section 5 of the Spooner Act are
contracts expressly authorized by law. (15 Opin., 235, 239; Shipman v.
United States, 18 Ct.Cl., 138, 146.)
I am therefore of the opinion that the authority of the President to
cause contracts to be entered into for the construction and completion
of the Isthmian Canal, under section 5 of the Spooner Act, remains
unaffected and unimpaired by the subsequent legislation of Congress
herein referred to. Of course no moneys can be expended "in excess" of
the appropriations. Whether the work must be suspended under any
particular contract which the President may cause to be entered into
when the appropriation is exhausted I am not called upon to decide, nor
am I requested to give an opinion as to the liability of the Government
for work done or materials furnished under such a contract after the
appropriation available has been exhausted.
The only point here decided is that under existing law the President is
authorized to make contracts in excess of the appropriation at present
available, so long as such contract or contracts do not involve the
Government in the ultimate expenditure of moneys for the construction
and completion of this canal in excess of the amounts designated in
section 5 of the Spooner Act, limiting the total cost of this
improvement.
Respectfully,
W. H. MOODY.
ADULTERATED OR MISBRANDED SEEDS-- PUBLICATION OF NAMES OF VENDORS;
25 Op.Att'y.Gen. 553, January 12, 1906
The provision in the act of Congress of March 3, 1905 (33 Stat.,
869), directing the Secretary of Agriculture to obtain in the open
market seeds of grass, clover, or alfalfa, test the same, and if found
to be adulterated or misbranded to publish the result of the tests, with
the names of the persons by whom the seeds were offered for sale, is a
valid law.
That provision cannot properly be regarded as an attempt to regulate
the sale, shipment, and transportation of seeds; it provides merely for
the dissemination of information regarding seeds.
The fact that the effect of the publication of the information may be
to lessen the sale of misbranded or adulterated seed is not sufficient
to transform a measure intended for the education of the public into a
regulation of commerce or police.
DEPARTMENT OF JUSTICE,
January 12, 1906.
The SECRETARY OF AGRICULTURE.
SIR: The agricultural appropriation act of March 3, 1905, under the
sub-head "Botanical investigations and experiments," provides (33 Stat.,
861, 869):
"The Secretary is hereby directed to obtain in the open market
samples of seeds of grass, clover, or alfalfa, test the same, and if any
such seeds are found to be adulterated or misbranded, or any seeds of
Canada blue grass (Poa compressa) are obtained under any other name than
Canada blue grass or Poa compressa, to publish the results of the tests,
together with the names of the persons by whom the seeds were offered
for sale."
In your letter of December 2, 1905, you say that in pursuance of the
above provision you have purchased samples of the various seeds
mentioned, tested the same, found a number of the samples to be
adulterated, and intend-- subject to my opinion as to the legality
thereof-- to publish the results of the tests, together with the names
of the persons by whom the seeds were offered for sale.
You say, however, that "it has been suggested that Congress did not
have the power to authorize the Secretary of Agriculture to go into the
open market and purchase samples of seeds, to test the same, and to
publish the names of the persons by whom the seeds were offered for
sale, regardless of the fact that the seeds may have been sold in the
State in which they were raised, and were never, at any time, shipped
from one State or Territory to another."
If the provision in question were a regulation of commerce or police,
there would be some force in this suggestion. But the statute cannot, I
think, properly be regarded as a commercial or police regulation. It
does not prohibit or restrict the sale of misbranded or adulterated
seeds. It simply provides for the dissemination of information in regard
to those matters. It is true, the effect of the information so imparted
may be to lessen the sale of misbranded or adulterated seeds, but that
is not sufficient to transform a measure intended for the education and
enlightenment of the public into a regulation of commerce or police.
Such a view would prevent the Government from publishing any information
whatever upon the subjects of agriculture, manufacture, and commerce,
because the tendency of all such information is to promote or restrict
those pursuits.
So far as the statute in question is concerned, the sale, shipment,
and transportation of the seeds mentioned remains entirely untrammeled.
It is yet for Congress, in the exercise of its power over interstate and
foreign commerce, and for the States, in the exercise of their police
powers, to regulate and control this matter within their respective
jurisdictions. A bill was introduced at the second session of the
Fifty-eighth Congress (H.R. 9669) and reintroduced at the present
session of the Fifty-ninth Congress (H.R. 4480), which in terms
prohibits the introduction into this country and the interstate shipment
of adulterated and misbranded seeds, and their sale in the District of
Columbia and the Territories of the United States, and makes a violation
of the act a misdemeanor, punishable by fine and imprisonment.
Here, of course, is regulation, and for that reason it is confined to
subjects within the jurisdiction of Congress. But the provision in
question in no wise regulates; it simply educates and enlightens the
general public as to the fraud and deception that is being practice upon
them.
The Department of Agriculture was established "to 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." (Act May 15, 1862; 12 Stat., 387; sec.
520, Rev. Stat.) In pursuance of the general policy thus indicated,
Congress has, from time to time, authorized the Secretary of Agriculture
to make investigations and experiments and publish information in regard
to the various branches of agriculture, to purchase and distribute
valuable seeds, to publish statistics concerning the cotton crop, to
investigate the various diseases of animals and report as to the means
for their prevention and cure, to investigate meteorological conditions
and distribute weather forecasts, to investigate the adulteration and
false labeling of foods, drugs, beverages, and condiments, and report
the result in bulletins of the Department, etc.
It is now too late to question the authority of Congress to establish
the Department of Agriculture and authorize such investigations,
experiments, and publications. If not expressly granted, it must be
taken to be an implied power-- one inherent in the sovereignty of the
nation. Its exercise in no way conflicts with the reserved powers of the
States, but tends to facilitate their action upon such matters, and is
necessary to the due execution of the powers expressly granted to the
General Government. It would be a narrow view that would prohibit
Congress from disseminating useful information.
The investigations, experiments, and publications so authorized are
not limited to the domain of interstate and foreign commerce. But, it
will be observed, when Congress proceeds to regulate and control the
sale, shipment, or transportation of any such articles, it confines its
legislation to the interstate or foreign field, or to places under its
exclusive jurisdiction.
In the present case, Congress has not, as already pointed out,
attempted to regulate the sale, shipment, or transportation of
adulterated or misbranded seeds. It has simply directed the Secretary of
Agriculture to do what any individual may do. A leading magazine is at
the present time engaged in exposing the fraud and deception practiced
upon the people in the sale of certain patent medicines. No one would
think of suggesting that such exposure amounts to a regulation of
commerce or police by the magazine, because it does not possess
governmental powers. But the fact that Congress does possess
governmental powers and may make regulations of commerce or police in
regard to matters within its jurisdiction, can not transform a measure
for the dissemination of knowledge into such a regulation.
Doubtless but for the fact that Congress has directed the name of the
seller of the misbranded or adulterated article to be published no
question would have arisen in respect to this legislation. But that fact
in no way alters the character of the legislation. It still remains a
measure for the dissemination of useful information in regard to seeds,
the publication of the name of the seller being only an incidental
matter. It is true the seller may in some cases be innocent of any
intentional deception. Still he has sold misbranded seed, and the
publication goes no further than to state that mere fact. Besides, the
question as to what information shall be published about these
investigations and experiments is entirely for the determination of
Congress.
I see no constitutional objection, therefore, to your carrying out
the mandate of the law.
Respectfully,
W. H. MOODY.
AMERICAN REGISTRY-- STEAMSHIP ATHOS; 25 Op.Att'y.Gen. 551, January
10, 1906
The non-action of the American owners of the steamship Athos in
failing to avail of the privilege of registry conferred upon that vessel
by the act of Congress of January 16, 1895 (28 Stat., 625), and the
subsequent transfer of the vessel to foreign owners who for several
years sailed her under foreign flags must be taken as a waiver of the
privilege conferred by Congress, and she is not now entitled to American
registry although at present owned by American citizens.
DEPARTMENT OF JUSTICE,
January 10, 1906.
The SECRETARY OF COMMERCE AND LABOR.
SIR: I have the honor to respond to your request of the 29th ultimo
to be advised as to the correctness of the decision of the Commissioner
of Navigation in refusing American registry to the steamship Athos.
The facts as stated in your letter and in the decision of the
Commissioner of Navigation are as follows:
The Athos was built in 1879 by Messrs. C. Connell & Co., of Glasgow,
and was subsequently purchased by the Raritan Transportation Company, a
corporation created under the laws of the State of New Jersey.
On November 6, 1882, she was wrecked in the West Indies, salved, and
towed to Philadelphia, Pa., and there repaired. A bill was then
introduced in Congress authorizing and directing the Commissioner of
Navigation to register the Athos as an American vessel. The commissioner
of Navigation was so authorized and directed by the act of January 16,
1895 (28 Stat., 625), the material part of the act being in the
following words:
"The Commissioner of Navigation is hereby authorized and directed to
cause the foreign-built steamers Claribel and Athos, purchased and owned
by a corporation created under the laws of New Jersey, and repaired in
American ports, to be registered as vessels of the United States."
The vessel passed out of the control of the Raritan Transportation
Company and into the possession of foreign owners without being
registered as an American vessel, and down to 1902 sailed under the
British flag. From 1902 to 1905 she sailed under the German flag and
then for a time under the Italian flag, after which she was acquired by
the Donald Steamship Company of New York, her present owners.
Without entering into an extended discussion of this case it is
sufficient to say that Congress, in authorizing the Commissioner of
Navigation to register the Athos as an American vessel, was impelled to
that action by the fact that she was then owned by Americans who had
caused her to be repaired in an American port. Congress under such
conditions desired to extend to her the privilege of American registry.
Her transference to foreign owners and the non-action with respect to
the privilege conferred by Congress during all the years intervening
between the passage of the act referred to and the time of the
retransfer of the vessel to an American firm, must be taken as a waiver
of the privilege originally conferred.
Moreover, at that time, under section 4165, Revised Statutes, no
vessel having American registry, which by sale became the property of a
foreigner was "entitled to or capable of receiving a new register,
notwithstanding such vessel should afterwards become American property,"
etc., but all such vessels were to be taken and considered, to all
intents and purposes, as foreign vessels.
Neither can it be said that the Athos falls within the meaning of the
amendment of March 3, 1897 (29 Stat., 689), to said section 4165
providing that--
"A vessel registered pursuant to law, which by sale has become the
property of a foreigner, shall be entitled to a new register upon
afterwards becoming American property, unless it has been enlarged or
undergone change in build outside of the United States."
Respectfully,
W. H. MOODY.
PANAMA RAILROAD-- POWER OF PRESIDENT TO REDEEM CERTAIN BONDS; 25 Op.
Att'y.Gen. 550, December 27, 1905
The President has the power under section 5 of the Act of June 28,
1902 (32 Stat., 483), providing for the construction of a canal
connecting the waters of the Atlantic and Pacific oceans, to turn over
to the Panama Railroad Company money sufficient to redeem certain bonds
of that company, recently sold to raise money to pay for necessary
improvements to the railroad.
DEPARTMENT OF JUSTICE,
December 27, 1905.
The SECRETARY OF WAR.
SIR: In reply to your request for an opinion upon the question
whether the President has authority to turn over to the Panama Railroad
Company money sufficient to redeem 628 $1,000 bonds of that company, I
have to say:
The facts appear to be that these bonds are a part of an issue
authorized in 1897, primarily to take up a mortgage indebtedness
maturing, and partly to pay for improvements to the property.
Two million dollars were expended in taking up the old indebtedness;
some other amounts were applied before the purchase of the property by
the United States to securing improvements, and the bonds now in
question remained untouched in the company's treasury.
Last November the directors of the company authorized these bonds to
be sold to raise money to pay for necessary improvements, and it is now
desired to secure their return to the company's treasury and pay for the
improvements, etc., otherwise than with the proceeds of such bonds.
The Panama Railroad now belongs to the United States and its
operation is necessary for the construction of the canal.
The company has incurred various obligations, now maturing, for
essential improvements. The power of the President under section 5 of
the so-called Spooner Act (32 Stat., 483) seems to me very broad. He is
authorized, as I read that section, to enter into any contracts he may
deem necessary to accomplish the proper excavation, construction,
completion, and defense of the canal. I do not understand that he is
confined to making contracts to defend, complete, construct, or
excavate. He is to make such contracts of any kind as he deems necessary
to accomplish certain ends. If he deems it necessary to accomplishment
of any of those ends to enter into a transaction of the kind now
proposed, in my opinion he would not exceed his authority.
Respectfully.
M. D. PURDY,
Acting Attorney-General.
DIAMOND SHOAL LIGHT-HOUSE-- APPROVAL OF PLANS; 25 Op.Att'y.Gen.
548, December 20, 1905
The approval by the Secretary of Commerce and Labor of the plans and
specifications submitted for the construction of a light-house and fog
signal at Diamond Shoal, upon the condition that they are to be changed
to meet the objections raised by the Light-House Board, will constitute
an acceptance within the provisions of the act of March 3, 1905 (33
Stat., 1266), providing for the construction of such light-house and fog
signal.
The conditions upon which the approval of the plans and
specifications for such light-house and fog signal is given should be
recited in the approval itself.
DEPARTMENT OF JUSTICE,
December 20, 1905.
The SECRETARY OF COMMERCE AND LABOR.
SIR: The act of March 3, 1905 (33 Stat., 1266), amending an act
providing for the construction of a light-house and fog signal at
Diamond Shoal, on the coast of North Carolina, to which you call
attention in your letter of the 19th instant, authorizes Albert F.
Eells and his associates to construct, in the manner and on the
conditions therein specified, the light-house and fog signal for which
provision is thus made. The act requires Eells and his associates,
within six months from the date of its approval, to file with your
Department for your approval a written acceptance of all its provisions,
and detailed drawings and specifications of the structure in all its
parts, and provides that unless such plans are approved by you prior to
January 1, 1906, and the construction of the proposed structure in good
faith commenced within six months thereafter the authority granted by
the act shall cease.
You state that in accordance with the terms of the act, Eells and his
associates filed with your Department their written acceptance of its
provisions and detailed drawings and specifications of the proposed
structure; that these were submitted to the Light-House Board for
consideration and were returned with a recommendation that a number of
changes be made in the plans submitted; that Eells and his associates
have consented to the changes suggested, but state that it is impossible
for them to so modify their detailed drawings and specifications within
the time prescribed by the act.
You therefore request my opinion upon the questions:
1. Whether your approval of the plans and specifications submitted,
upon the condition that they will be changed to conform to the
modifications recommended by the Light-House Board, will constitute such
an acceptance as will come within the provisions of the act; and
2. If my answer to your first question shall be in the affirmative,
whether the conditions upon which the approval is given should be
recited in the approval itself.
The act in question, which is an amendment of an earlier act,
provides that the structure shall conform in certain respects to
specifications already prepared, requires the submission for your
approval of the detailed drawings and specifications, and provides that
"Any changes or modifications in design or construction, which may
hereafter appear to be necessary by either the Light-House Board or the
said Eells, may be made by consent of both parties."
Eells and his associates having consented to the changes and
modifications suggested by the Light-House Board, such changes and
modifications have, by the act of the parties, been made a part of the
plans and specifications submitted, the working out of the details of
which is not necessary to their present acceptance.
I therefore advise you that your approval of the plans and
specifications submitted, upon the condition that they are to be changed
to conform to the changes and modifications of the Light-House Board,
will constitute such an acceptance as will come within the provisions of
the act of March 3, 1905, and that the conditions upon which your
approval of the plans and specifications is given should be recited in
the approval itself.
Respectfully,
CHARLES W. RUSSELL,
Acting Attorney-General.
Approved:
W. H. MOODY.
HAZING-- SUMMARY DISMISSAL OF CADET-- SECRETARY OF THE NAVY; 25 Op.
Att'y.Gen. 543, December 20, 1905
The statutes on the subject of hazing do not confer upon the
Superintendent of the Naval Academy, or the Secretary of the Navy, or
upon both conjointly, the power summarily to dismiss from the academy,
without trial by court-martial, a midshipman guilty of that offense.
The Attorney-General declines to express an opinion upon the question
whether proceedings by court-martial would bar proceedings in the civil
courts for an assault or other crime involved in the offense of hazing,
for the reason that it would be of no assistance to those officers in
the proper discharge of their duties, and should such action be taken,
the matter would peculiarly be one for the consideration of his
Department.
DEPARTMENT OF JUSTICE,
December 20, 1905.
The SECRETARY OF THE NAVY.
SIR: I have the honor to acknowledge the receipt of your letter of
the 14th instant, in which you request my opinion upon the following
questions of law:
"1. Do the statutes on the subject confer upon the Superintendent of
the Naval Academy, or the Secretary of the Navy, or upon both
conjointly, the power summarily to dismiss from the academy, without
trial by court-martial, a midshipman guilty of the offense of hazing?
"2. Would such action, if taken, prove a bar to proceedings in the
civil courts for assault or other criminal elements involved in the
offense?"
The law upon the subject of hazing at the Naval Academy is contained
in two acts of Congress, the first of which was passed on the 23d day of
June, 1874 (18 Stat., 203), entitled "An act to prevent hazing at the
Naval Academy," and reads as follows:
"In all cases when it shall come to the knowledge of the
Superintendent of the Naval Academy, at Annapolis, that any
cadet-midshipman or cadet-engineer has been guilty of the offense
commonly known as hazing, it shall be the duty of said superintendent to
order a court-martial, composed of not less than three commissioned
officers, who shall minutely examine into all the facts and
circumstances of the case and make a finding thereon; and any
cadet-midshipman or cadet-engineer found guilty of said offense by said
court shall, upon recommendation of said court, be dismissed; and such
finding, when approved by said superintendent, shall be final; and the
cadet so dismissed from said Naval Academy shall be forever ineligible
to reappointment to said Naval Academy."
The more recent law upon this subject is contained in the act of
March 3, 1903 (32 Stat., 1198), entitled "An act making appropriations
for the naval service for the fiscal year ending June thirtieth,
nineteen hundred and four, and for other purposes," and is as follows:
"The Superintendent of the Naval Academy shall make such rules, to be
approved by the Secretary of the Navy, as will effectually prevent the
practice of hazing; and any cadet found guilty of participating in or
encouraging or countenancing such practice shall be summarily expelled
from the academy, and shall not thereafter be reappointed to the Corps
of Cadets or be eligible for appointment as a commissioned officer in
the Army or Navy or Marine Corps until two years after the graduation of
the class of which he was a member."
Under the law of June 23, 1874, a cadet-midshipman or cadet-engineer
could not lawfully be dismissed from the academy for the offense of
hazing, except upon conviction by a court-martial, convened by order of
the Superintendent of the Naval Academy, composed of not less than three
commissioned officers.
That law provides specifically that if a cadet-midshipman shall be found
guilty of the offense of hazing, he shall, upon the recommendation of
the court-martial, be dismissed, and that such finding, when approved by
the superintendent, shall be final. In addition to the punishment of
dismissal from the Naval Academy, the act of 1874 rendered such
midshipman forever ineligible for reappointment to the Naval Academy.
In 1903 the law of 1874 was materially modified by Congress by
inserting the provision above quoted in the naval appropriation bill of
March 3, 1903. The question is now suggested by you whether the more
recent provision with respect to hazing at the Naval Academy has so
modified the law of 1874, as to authorize the summary expulsion from the
Naval Academy of a midshipman found guilty of participating in or
encouraging or countenancing hazing, without a conviction by
court-martial.
In examining this question, we must assume that the Congress in 1903,
when it again legislated upon this subject had before it the law of
1874. In my opinion, there is nothing in the act of 1903 showing a
purpose upon the part of Congress to dispense with the formality of
requiring a court-martial for the trial of a midshipman upon the charge
of hazing.
The first clause in the act of 1903 authorizes the Superintendent of
the Naval Academy to make such rules, to be approved by the Secretary of
the Navy, as will effectually prevent the practice of hazing. There is
certainly nothing in this language indicating a purpose upon the part of
Congress to repeal the provision contained in the act of 1874 with
reference to courts-martial. The next sentence in the act is as follows:
"And any cadet found guilty of participating in or encouraging or
countenancing such practice shall be summarily expelled from the
academy." It is with reference to this language that the suggestion is
made that expulsion is perhaps authorized by the Superintendent of the
Naval Academy or the Secretary of the Navy, or both conjointly, without
the midshipman being first convicted before a court-martial.
The phrase "found guilty," when considered in connection with the act of
1874, has, in my judgment, a technical and well-defined meaning, and
should not be construed as authorizing the expulsion of a midshipman
upon the finding of the superintendent or a board of officers appointed
by him that the midshipman is guilty of the offense of hazing. This
latter act makes it an offense not only for a midshipman at the Naval
Academy to participate in the practice of hazing, but also if he
encourages or countenances such practice, and, in this respect, is much
broader than the act of 1874. It also provides that he shall be
summarily expelled, whereas the act of 1874 provides that he shall be
dismissed upon the recommendation of the court, and that such finding,
when approved by the superintendent, shall be final. Such summary
expulsion, however, by the plain wording of the law, should not take
place until he has been "found guilty," and in view of the specific
provision for a trial by court-martial, contained in the act of 1874, it
would be going very far to hold that the Superintendent of the Naval
Academy, or a board of officers other than a court-martial, would have
the power by implication to make a finding of "guilty" of the offense of
hazing within the meaning of these statutes. The remaining portion of
the act of 1903 has to do exclusively with the eligibility to
reappointment of the cadet who may have been summarily expelled from the
academy for the offense of hazing.
Were it at all necessary, other provisions of law could be pointed
out and reasons assigned confirming the conclusion which I have
expressed; but, in my judgment, the purpose and meaning of these
statutes is so unmistakably clear as to leave little or no room for
doubt with reference to the particular point suggested. The assignment
of further reasons would be but cummulative. Your first question,
therefore, is answered in the negative.
I do not wish to be understood as holding that a midshipman may not,
under certain circumstances, be summarily dismissed from the Naval
Academy without first being tried and convicted before a court-martial.
It is unnecessary to decide such question in the present case, and this
opinion should not be applied to cases other than hazing.
The second question submitted for my consideration is, whether a
conviction or an acquittal of these midshipmen before a court-martial
could be successfully pleaded in bar of a criminal prosecution
instituted in the civil courts for an assault or other crime involved in
the offense of hazing. It is difficult for me to perceive in what
possible manner a determination of this question will aid you or the
Superintendent of the Naval Academy in the administration or execution
of the law in the case under consideration. The commands of the law of
1874, which I hold to be applicable to this case, are imperative, and
require that in all cases where it shall come to the knowledge of the
Superintendent of the Naval Academy at Annapolis that any midshipman is
guilty of the offense commonly known as hazing, "it shall be the duty of
said superintendent to order a court-martial." Under these
circumstances, I am unable to see how such superintendent has the right
to exercise a discretion as to whether he shall order a court-martial
for the trial of these midshipmen. He has already made a preliminary
examination through a board of officers, and, as you state in your
letter, it has come to his knowledge that these midshipmen are guilty of
the offense of hazing. It therefore only remains for him to order a
court-martial for the purpose of trying them, and should they be either
convicted or acquitted by such court-martial, the responsibility resting
upon the Superintendent of the Naval Academy, under the law, will have
been fully discharged.
It has been the uniform practice of this Department, established by
an unbroken line of opinions by my predecessors, to decline to give an
opinion upon a question of law which will be of no assistance to the
head of a department or the officers under him in the proper and
complete performance of their duties. The necessity for such a practice
is at once apparent, and, unless it be rigorously adhered to, the
Attorney-General will frequently find himself placed in the embarrassing
situation of being called upon to render opinions upon mere moot
questions of law.
While the duty of the Superintendent of the Naval Academy to order a
court-martial for the trial of these midshipmen upon the charge of
hazing is mandatory, I do not wish to be understood as intimating that,
after such duty has been performed, there would be the least
impropriety, either upon your part or upon the part of the
Superintendent of the Academy, in bringing all the facts in this case to
the attention of the United States attorney for the district of
Maryland; and in the event such action is taken, the second question
which you have submitted will become a question peculiarly for the
consideration of this Department.
Respectfully,
W. H. MOODY.
SECRETARY OF THE TREASURY-- APPOINTMENT OF SPECIAL DISBURSING AGENTS;
25 Op.Att'y.Gen. 536, December 16, 1905
The Secretary of the Treasury is given authority, by Section 3658,
Revised Statutes, to appoint agents for the disbursement of moneys
appropriated for the construction of public buildings where there is no
collector of customs at the place of the location of such buildings.
The words "the place of location of any public work," as used in that
section, mean some place, city, or town within a collection district,
and not the whole district.
Great weight should be given to a long and consistent construction
given by an executive department to a statute which it was in province
to administer.
The doctrine announced by the Supreme Court of the United States in
the case of Bartlett v. United States (197 U.S., 230) should not be
extended beyond the particular facts in that case.
Sections 255, 3654, 3657, and 3658, Revised Statutes, and the acts of
March 3, 1875 (18 Stat., 415), and of August 7, 1882 (22 Stat., 306),
relating to the appointment of disbursing agents for the payment of
moneys appropriated for the construction of public buildings, are not
inconsistent, and, except as one modifies another, may all stand
together.
DEPARTMENT OF JUSTICE,
December 16, 1905.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to reply to your note of the 2d inst., with
its inclosure, in which you ask my opinion as to the application of a
recent decision of the Supreme Court to certain disbursing agents of
your Department. The case is this:
Section 3657, Revised Statutes (act of June 12, 1858), provides:
"The collectors of customs in the several collection districts are
required to act as disbursing agents for the payment of all moneys that
are or may hereafter be appropriated for the construction of
custom-houses, court-houses, post-offices, and marine hospitals; with
such compensation, not exceeding one quarter of one per centum, as the
Secretary of the Treasury may deem equitable and just."
The public buildings contemplated in this section might be, and
sometimes are, located a thousand miles or more from the office of any
collector of customs, and much delay and inconvenience have resulted to
contractors; and complaints were made that even for much shorter
distances exchange had to be paid in order to get the money at the place
where needed.
Besides this, in some of the collection districts-- for example, New
York or New Orleans-- the duties otherwise imposed upon collectors were
of such magnitude, variety, and complexity that the imposition of this
further duty might well be deemed inexpedient and detrimental to the
service.
For these or other reasons Congress, on July 28, 1866, enacted what
is now section 3658, immediately following in the revision the section
above quoted, as follows:
"Where there is no collector at the place of location of any public
work specified in the preceding section, the Secretary of the Treasury
may appoint a disbursing agent for the payment of all moneys
appropriated for the construction of any such public work, with such
compensation as he may deem equitable and just."
Then, on March 3, 1869, Congress enacted what is now section 255,
Revised Statutes, as follows:
"The Secretary of the Treasury may designate any officer of the
United States, who has given bonds for the faithful performance of his
duties, to be disbursing agent for the payment of all moneys
appropriated for the construction of public building authorized by law
within the district of such officer."
On the same day was approved what is section 3654 of the revision as
follows:
"No extra compensation exceeding one-eighth of one per centum shall
in any case be allowed or paid to any officer, person, or corporation
for disbursing moneys appropriated to the construction of any public
building."
The act of March 3, 1875 (18 Stat., 415), provides:
"That the provisions contained in the act approved March third,
eighteen hundred and sixty-nine, * * * limiting the compensation to be
allowed for the disbursement of moneys appropriated for the construction
of any public building was intended and shall be deemed and held to
limit the compensation to be allowed to any disbursing officer who
disburses moneys appropriated for and expended in the construction of
any public building as aforesaid to three-eighths of one per centum for
said services."
The act of August 7, 1882 (22 Stat., 306), provides:
" * * * And any disbursing agent who has been or may be appointed to
disburse any appropriation for any United States court-house and
post-office, or other building or grounds, not located within the city
of Washington, shall be entitled to the compensation allowed by law to
collectors of customs for such amounts as have been or may be
disbursed."
Except as one of these sections modifies another, I do not think that
there is inconsistency between them; and I am of opinion that, as
modified, they may all stand together. (See 19 Opin., 393.)
It seems that there are over one hundred special disbursing agents
appointed under the foregoing provisions.
On March 13, 1905, the Supreme Court, in Bartlett v. United States,
197 U.S., 230, held, among other things, in substance, that the words,
"the place of location of any public work," as used in section 3658,
means the collection district in which the building is being erected;
and that, as there is a collector there, the Secretary of the Treasury
is not authorized to appoint a disbursing agent:
Your question, therefore, is whether this doctrine applies to all
these disbursing agents so as to require you to close their accounts and
dispense with their services.
In the case above referred to, Bartlett was already a disbursing
clerk in the Treasury Department, and, while such, received from the
Secretary a letter informing him that he was appointed disbursing agent
for the funds appropriated for the Washington post-office. He gave no
new bond and took no oath of office as disbursing agent; and the court
held that this action of the Secretary did not appoint Bartlett to any
new office or place, but merely imposed upon him in the office already
held additional duties and responsibilities, for the performance of
which he was not, under existing laws, entitled to additional pay.
But the court rejected his claim for compensation upon the ground
also that, as Washington was in the collection district of Georgetown,
there was a collector "at the place of location" of the public work, and
therefore the Secretary of the Treasury was without authority to appoint
another disbursing agent.
While at the time of this appointment (1891) there was in law a
distinction and an imaginary line between the cities of Washington and
Georgetown, they were, in every other respect, one and the same city;
so that, with the collector at Georgetown and the post-office at
Washington, it might well be said that there was a collector at the
place of location of the post-office.
The question here presented is whether what was thus said in the
Bartlett case, as applicable to the facts in that case, would apply to
the hundred and more disbursing agents for public buildings, many of
which are being erected at such great distances from any collector of
customs as to make a real distinction between a collection district and
"the place of the location" of such building, if that distinction be
legally possible.
Some reasons may be pointed out why a portion of what is said in the
Bartlett case should not be carried beyond the facts in that case. With
entire deference to court, it may properly be pointed out that the
decision would have been correct without any reference to that portion
of the opinion defining the phrase "place of location," which was not
necessary to the decision, and was but an additional reason for it.
Ever since the enactment of what is now this section 3658, in 1866,
the Treasury Department has uniformly acted upon the idea that its
words, "the place of the location" of the public building, as used in
that section, meant some place, city, or town within a collection
district and not the whole district. And the Supreme Court has more than
once said that great weight would be given to a long and consistent
construction given by an Executive Department to a statute which it was
its province to administer.
If the Department has been wrong in all these years, many millions
have been improperly disbursed, and the practice should be discontinued,
and the accounts of all these disbursing agents should be closed and
their further service dispensed with.
With deference to the decision in the Bartlett case, and in the
belief that a portion of what is there said would not be carried beyond
the facts in that case, we may consider some of the reasons why it
should not be.
Assuming that, on the enactment of section 3658, Congress was aware
that many of the collection districts were very large, embracing an
entire State and more, and that several public buildings might be in
process of erection in one district at the same time, and at a great
distance from the office of the collector; that in several of these
districts, at least, the duties already imposed upon the collectors were
as much as were compatible with the good of the service, it is easy to
see that by the expression in an amendatory law of "where there is no
collector at the place of location of any public work" Congress might
well mean the particular place within the district where such public
work was, instead of some place entirely outside of any collection
district. As there is a collector in every district, any place "where
there is no collector" must be some place outside any such district. Had
Congress meant the latter, it would seem that it would have said so
instead of using the equivocal, uncertain expression, "the place of
location of any public work," which, in itself, no more means a
collection district than it does a State, country, city, or other
political subdivision.
Did Congress, in this section, intend to provide merely for cases
outside any collection district? Or did it intend to provide for all
cases, and to declare that, whenever, in the judgment of the Secretary,
it was necessary, he might impose this duty of disbursement on some
agent other than the collector, in cases where a public building was
being erected in a place distant from the headquarters of the collector?
This latter view has the additional force of conducing to the best
interests of the service. To illustrate:
While Wheeling, W. Va., is some 1,500 miles distant from New Orleans,
it is yet within the customs collection district of New Orleans, and
there are now in that district some 35 public buildings in process of
erection, for which disbursements must be made. Is it imperative that
this important, additional, and somewhat inconsistent duty be imposed
upon the already greatly burdened collector at New Orleans? Or was
section 3658 intended to obviate this? An affirmative answer to the
latter question has added force when we consider that, under the act of
June 27, 1874, that official can receive no compensation for this
disbursement, as that act gives him and the collectors of the most
important ports in the United States, including New York, an annual
salary, which is in "lieu of moieties, perquisites of every name and
nature, and commissions on disbursements."
Was this change to a fixed salary in part because Congress considered
that, under the sections above referred to, the most of these
disbursements would be made by others who could be compensated?
Is it likely that Congress, while cutting off the fees theretofore
allowed the collectors for these disbursements, intended to leave them
to perform this particular duty, as before?
Again, if the expression "at the place of location of any public
work," as used in section 3658, be held to mean the whole collection
district in which such work is located, then this section will thereby
be rendered nugatory, as there is no place to which it can apply.
In the letter to you of the Supervising Architect of the Treasury,
transmitted with your note, it is said, "There is no part of the United
States which is not embraced within some customs collecting district,"
and such would seem to be the case from the statutes, as far as I have
examined them. If this be so, and if "the place of location" means the
whole collection district, then there can never be a place "where there
is no collector at the place of location of any public work," for there
is a collector in every collection district.
Neither the Court of Claims nor the Supreme Court appears to have
considered this point. On the contrary, the Supreme Court enters into an
argument to show that collection districts extend inland beyond what
would ordinarily be the shores of navigable waters, or the limits of the
places which are made ports of entry. This, of course, would not have
been done, had it been brought out in the Bartlett case that the various
collection districts were altogether coextensive with the United States.
In view of this, and of the fact that the expression "the place of
location of any public work" is at least equally susceptible of a
meaning indicating some particular place within a collection district,
where the work is located, and where there is no collector, and
considering also that this construction will greatly subserve the
interests of that service which these sections were intended to promote,
I am constrained to think that the court would not extend this portion
of what was said in the Bartlett case beyond the particular facts.
I assume that these disbursing agents, of whom you speak, were duly
appointed as such, and that they are not cases where you are merely
imposing additional duties upon an officer already appointed. If they
are thus duly appointed as disbursing agents, I have to advise you that
their retention in the service is legal and within your administrative
power.
Yet, considering the general language of the opinion in the Bartlett
case, which might be regarded as intending to apply that rule without
limitation or distinction, I deem it proper to suggest that it will be
well to secure legislation on the subject in order to clear up all
doubts.
Respectfully,
HENRY M. HOYT,
Solicitor-General.
Approved:
W. H. MOODY.
TREASURY DEPARTMENT-- REMISSION OF FINES, PENALTIES, AND FORFEITURES;
25 Op.Att'y.Gen. 535, December 15, 1905
The Treasury Department has jurisdiction of the remission of fines,
penalties, and forfeitures imposed by section 2809, Revised Statutes,
and of the issuing of instructions relating to the execution of sections
2779 to 2784, inclusive.
DEPARTMENT OF JUSTICE,
December 15, 1905.
The SECRETARY OF COMMERCE AND LABOR.
SIR: I have the honor to acknowledge the receipt of your letters of
October 21 and 26, last, in which you ask my opinion as to whether your
Department or the Treasury Department has jurisdiction of the remission
of fines, penalties, and forfeitures imposed by section 2809, Revised
Statutes, and if you have jurisdiction to issue the instructions
submitted relating to the execution of sections 2779 to 2784, Revised
Statutes, inclusive.
Section 2809, Revised Statutes, imposes penalties upon masters of
vessels not having a manifest correctly showing the merchandise
imported, and the other statutes authorize and regulate the manner in
which vessels carrying imported merchandise may proceed from port to
port and pay duties only at the port of destination of merchandise.
They were originally enacted in the law of March 2, 1799, entitled "An
act to regulate the collection of duties on imports and tonnage." (1
Stat., 646, 652-654.)
In an opinion of this Department dated August 3, 1903 (25 Opin., 29),
wherein the division of powers between your Department and the Treasury
Department was considered, it was said:
"The general line of cleavage established by the act creating your
Department between it and the Treasury Department leaves "navigation"
with you, and little with the Treasury Department which does not concern
the collection, keeping, minting, and disbursing of the public
treasure."
It is conceded that all matters relative to the collection of customs
remain in the jurisdiction of the Treasury Department. The issue,
therefore, is whether the statutes referred to pertain to navigation or
to the collection of customs.
An examination of these statutes clearly discloses the purpose of
their enactment. Section 2809 was obviously enacted to aid customs
officers, and to prevent merchandise escaping the payment of duties.
When imported merchandise is discovered which is not included in the
manifest on board the vessel in which such merchandise is found, the
question arises whether such merchandise shall be added to the manifest,
list, or report, or be seized and forfeited and a fine imposed.
The object of sections 2779 to 2784, inclusive, is equally clear.
Congress in these sections intended to make it possible for the master
of any vessel, in which merchandise is imported, to land a part of his
cargo at one port and continue on from port to port in different
districts in the same way by giving bond "with one or more sureties to
the satisfaction of the collector of the district within which the
vessel first arrives, in a sum equal to the amount of the duties on the
residue of the merchandise, according to such estimate as the collector
shall form thereof, with condition that the residue of such merchandise
shall be duly entered and delivered in another district for which the
same has been reported to be destined." (Sec. 2782.)
Section 2783 in effect provides that this bond may be canceled upon
satisfactory evidence being given that the merchandise named therein has
been, in fact, entered and the duty thereon paid according to the terms
of the bond. All these sections were enacted for the protection of and
to facilitate the collection of customs duties.
I therefore advise you that their execution is within the
jurisdiction of the Treasury Department.
Respectfully,
W. H. MOODY
APPROVAL OF SALE OF INHERITED INDIAN ALLOTMENTS BY THE SECRETARY OF
THE INTERIOR; 25 Op.Att'y.Gen. 532, December 4, 1905
The courts for the northern district of Indian Territory have no
jurisdiction or power to decree partition and sale of an inherited
Indian allotment covered by a patent without the approval of the
Secretary of the Interior, whose authority to approve or disapprove such
sales is not disturbed by section 2 of the act of April 28, 1904 (33
Stat., 573).
The difference between a Quapaw allotment and others is that title is
not given to the United States in trust in the case of the Quapaws.
DEPARTMENT OF JUSTICE,
December 4, 1905.
The SECRETARY OF THE INTERIOR.
SIR: I have received your letter of the eleventh ultimo asking my
opinion upon the following questions:
"(1) Have the courts of the northern district of Indian Territory
jurisdiction and power to decree partition and sale of inherited Indian
allotments covered by patents 'such as are herein described' prior to
the act of April 28, 1904 (33 Stat., 573, sec. 2), and subsequent to
that date?
"(2) If such power exists, can partition and sale be made without
notice of service on the trustee named in all patents save in the case
of Quapaws?
"(3) What power has the Secretary of the Interior in such cases?"
Your letter and accompanying papers state that the allotment of a
deceased Quapaw Indian was sold to Charles Bell on March 8, 1904, and
the deed made recited that the sale was by order of the United States
court for the northern district of Indian Territory in the suit for
partition between the heirs.
From your letter and its inclosures I understand that the principal
question you desire to have answered, and one which is under the
administration of your Department, is whether such a sale as that to
Charles Bell does or does not require your approval.
The difference between a Quapaw allotment and others is that title is
not given to the United States in trust in the case of the Quapaws. As
to all allotments, the restriction upon alienation during twenty-five
years is qualified by the following section of the act of May 27, 1902
(32 Stat., 275):
"That the adult heirs of any deceased Indian to whom a trust or other
patent containing restrictions upon alienation has been or shall be
issued for lands allotted to him may in case of minor heirs their
interests shall be sold only by a guardian duly appointed by the proper
court upon the order of such court, made upon petition filed by the
guardian, but all such conveyances shall be subject to the approval of
the Secretary of the Interior, and when so approved shall convey a full
title to the purchaser, the same as if a final patent without
restriction upon the alienation had been issued to the allottee. All
allottee. All allotted land so alienated by the heirs of an Indian
allottee and all land so patented to a white allottee shall thereupon be
subject to taxation under the laws of the State or Territory where the
same is situate: Provided, That the sale herein provided for shall not
apply to the homestead during the life of the father, mother, or the
minority of any child or children."
The act of April 28, 1904 (Sec. 2), to which you refer, contains the
following:
"All the laws of Arkansas heretofore put in force in the Indian
Territory are hereby continued and extended in their operation, so as to
embrace all persons and estates in said Territory, whether Indian,
freedmen, or otherwise, and full and complete jurisdiction is hereby
conferred upon the district courts in said Territory in the settlements
of all estates of decedents, the guardianships of minors and
incompetents, whether Indians, freedmen, or otherwise."
Under this and prior laws the courts have exercised jurisdiction to
determine the claims of descent in the cases of allotments, and I do not
understand that you intend to raise any doubt of their jurisdiction
except as to their right to order a sale without your approval, and
concerning the necessity for notice to the United States of the proposed
proceeding in court leading up to the sale.
It is my opinion that the laws giving the courts jurisdiction,
including that of April 28, 1904, do not disturb the authority of the
Secretary to approve or disapprove the sales. If the act of 1904 should
be regarded as taking away the power of the Secretary, the result would
be that the lands could not be sold at all, since the only authority to
do away with the twenty-five years inalienability is the act of 1902,
authorizing sale to be made with the Secretary's approval; but I am
convinced that there was no intention to interfere with your authority
in that regard.
Having answered this principal question, it seems unnecessary to
enlarge upon the minor one as to notice to the United States of the
court proceeding. I find no provision of law requiring such notice, nor
does anything occur to me that the United States could do if served with
such notice.
Respectfully,
CHARLES W. RUSSELL,
Assistant Attorney-General.
Approved:
W. H. MOODY.
MEDALS OF HONOR-- SURRENDER OF OLD MEDALS; 25 Op.Att'y.Gen. 529,
November 3, 1905
It is not within the authority of the Secretary of War, in replacing
the medals issued to officers and privates for gallantry in action,
under the joint resolution of July 12, 1863 (12 Stat., 623) and section
6 of the act of March 3, 1863 (12 Stat., 751), as provided in the act of
April 23, 1904 (33 Stat., 274), to allow a particular grantee, who is
entitled to a new medal, to receive it and at the same time retain the
old medal in his possession.
The word "replace," as used in the act of 1904, implies the loss,
destruction, or surrender of the old medal.
It is optional with the holder of a medal whether he shall surrender
his old medal for the new.
DEPARTMENT OF JUSTICE,
November 3, 1905.
The SECRETARY OF WAR.
SIR: Your letter of the 20th ultimo requests my opinion upon a
question arising as follows:
The Army appropriation act of April 23, 1904 (33 Stat., 274),
provides:
"For three thousand medals of honor to be prepared, with suitable
emblematic devices, upon the design of the medal of honor heretofore
issued, or upon an improved design, together with appropriate rosettes
or other insignia to be worn in lieu of the medal, and to be presented
by direction of the President, and in the name of Congress, to such
officers, non-commissioned officers, and privates as have most
distinguished, or may hereafter most distinguish, themselves by their
gallantry in action, twelve thousand dollars:
Provided, That the Secretary of War be, and he is hereby, authorized and
directed to use so many of the medals and rosettes or other insignia
provided for by this act as may be necessary to replace the medals that
have been issued under the joint resolution of Congress approved July
twelfth, eighteen hundred and sixty-two, and section six of the act of
Congress approved March third, eighteen hundred and sixty-three: * * *
"
It appears that under the authority conferred by this statute medals
of a new design have been prepared and are now being distributed as
indicated in the following circular of your Department, dated August 22,
1904:
"The act of Congress approved April 23, 1904 (Army appropriation act)
having authorized the issue of medals of honor of a new design, together
with appropriate rosettes to be worn in lieu of the medals, all persons
to whom such medals have been issued under the provisions of the joint
resolution of Congress approved July 12, 1862, and section 6 of the act
of Congress approved March 3, 1863, should forward the medals and the
bowknots authorized to be worn in lieu thereof by registered mail to the
Military Secretary of the Army, with a view to their being replaced by
medals and rosettes of the new design.
"All medals of honor that may hereafter be awarded as well as those
that may be issued by the Military Secretary's office, upon due proof of
the identity of the persons in whose behalf the medals are applied for,
and the fact of such issue will be recorded in that office in each case.
"Medals and bowknots of the old design will be destroyed as soon as
medals and rosettes of the new design shall have been issued to replace
them."
You state, however, that an officer of the civil war, who has been
granted a medal under the prior legislation, has applied for a medal of
the new design without surrendering the old one; and you submit the
question whether it is "within the authority of the Secretary of War, in
replacing the medals of the old design with those of the new pattern, to
allow a particular grantee, who is entitled to a new medal, in the
operation of the act of April 23, 1904, to receive it and at the same
time to retain the old medal in his possession."
I am also advised that while several thousand medals were prepared
under the legislation of 1862 and 1863, only about two thousand were
actually bestowed, so that it would be possible to replace all such
medals, if desired by the grantees, with the new medals authorized by
the act of April 23, 1904.
In my opinion, the word "replace," as used in the act of 1904,
implies the loss, destruction, or surrender of the old medal. To replace
presupposes a vacancy, and a vacancy can not exist so long as the
original remains in its place. To bestow the new medal without the old
medal having been in some manner displaced, would not be to replace the
old medal but to give the new medal outright, and that you are not
authorized to do. That would be "placing," not "replacing." It is true
nothing is expressly said as to the disposition of the old medal, but,
as stated, the direction to use so many of the new medals as may be
necessary to replace the old necessarily implies the loss, destruction,
or surrender of the old medals. You are the person authorized to
replace, and hence the one to ascertain, in each case, whether the old
medal has been lost or destroyed, and if not, to require its surrender.
This view is in harmony with the policy of Congress in bestowing
these medals. They are granted for gallant and distinguished services.
No individual is entitled to two for the same service, which would be
the result of allowing him to retain the old upon receiving the new.
The number of medals would thus be unwarrantably increased, with the
consequent danger of their falling into unworthy hands, and their value
as emblems of distinction in so far impaired.
It is, of course, optional with the holder whether he shall surrender
his old medal for the new. The old medal may, for many reasons, be very
dear to him and possess a value by reason of its age and the
associations connected with it that the new one would lack.
Under such circumstances he would probably not be willing to part with
it, and it was not the intention of Congress to compel him to do so,
even if it had the power.
But where, for any cause, the holder of an old medal prefers the new,
no such reasons justify his retention of the old. If he is dissatisfied
with the old medal, he should be willing to relinquish it for one that
will please him better. There is no reason why he, more than any other
individual, should have two medals representing the same service. At any
rate, that is not the purpose of the present statute. Your order
requiring the surrender of the old medal by applicants for the new is
therefore in complete accordance with its spirit. Of course, if in any
case the old medal has been lost or destroyed, and its surrender
therefore impossible, you would be authorized, upon satisfactory proof
of the fact, to replace it.
Respectfully,
W. H. MOODY.
SHOSHONE INDIAN LANDS-- BOYSEN'S RIGHT OF SELECTION; 25 Op.Att'y.
Gen. 524, November 3, 1905
The act of March 3, 1905 (33 Stat., 1016), which amends and ratifies
an agreement with the Shoshone Indians for the cession of lands, does
not, by Article II thereof (p. 1020), confer upon Asmus Boysen the right
to make a selection of the 640 acres of land therein referred to, within
the unceded or diminished reserved lands of those Indians.
That act does not confer upon Boysen the right to make examinations
and selections within the ceded portion of the reservation outside the
tract covered by the lease formerly held by him.
The act confers upon Boysen the right to prospect for and to locate
lands bearing minerals other than coal.
The Attorney-General declines to express an opinion upon the question
of the propriety of the Secretary of the Interior permitting Boysen to
go upon the reservation and make examinations prior to the completion
and approval of the surveys of the ceded portion, it not being within
his province to pass upon the propriety of the exercise by the Secretary
of the Interior of his official discretion.
DEPARTMENT OF JUSTICE,
November 3, 1905.
The SECRETARY OF THE INTERIOR.
SIR: The act of March 3, 1905 (33 Stat., 1016), amending and
ratifying an agreement with the Indians of the Shoshone or Wind River
Indian Reservation in Wyoming for the cession of lands, provided (art.
2 of the agreement as amended, p. 1020):
"That nothing herein contained shall impair the rights under the
lease to Asmus Boysen, which has been approved by the Secretary of the
Interior; but said lessee shall have for thirty days from the date of
the approval of the surveys of said land a preferential right to locate,
following the government surveys, not to exceed six hundred and forty
acres in the form of a square, of mineral or coal lands in said
reservation; that said Boysen at the time of entry of such lands shall
pay cash therefor at the rate of ten dollars per acre and surrender said
lease and the same shall be canceled."
It seems that the lease referred to, although provisionally approved
October 4, 1899, was canceled by the Interior Department on March 5,
1904, because of failure on Boysen's part to comply with certain
conditions accepted by himself and his sureties. The act, however,
plainly proceeds on the assumption that the lease is in force, or at
least that certain rights thereunder still exist.
The precise history of this right, from its inception to its
recognition in this act of Congress, appears to be as follows:
On July 1, 1899, Boysen executed a lease with the Shoshone and
Arapahoe Indians, subject to the approval of the Secretary of the
Interior, under which he was given the right for two years to prospect
and locate deposits of coal upon certain lands described in the lease,
consisting of about 178,000 acres. It was distinctly stipulated that the
mining privileges granted should include only coal and should not extend
to any other minerals. The term of the lease was for ten years from the
date of approval. At the expiration of the two-years' prospecting
period, the lease was to apply only to such lands as should be covered
by maps of definite location filed in the Department of the Interior and
approved by the Secretary. Under the provisions of the lease Boysen was
required to file with the Secretary of the Interior, within a reasonable
time, a map definitely showing the lands to which the lease was intended
to apply, and also maps showing all discoveries of coal, within three
months after the discoveries were made. Upon the approval of such maps
Boysen was required to develop and work the coal deposits therein
described with diligence and to the fullest practicable extent.
The lease also contained the provision that in the event of the
extinguishment of the Indian title to the lands specified, the lease and
all rights thereunder should terminate.
The Interior Department approved the lease on October 4, 1899.
Boysen, however, failed to comply with any of its conditions, and, after
previous warning, he was notified on June 9, 1902, that the lease had
become inoperative by its own provisions. On March 5, 1904, the lease
was formally canceled by the Interior Department.
While this act was pending before Congress, it was urged on Boysen's
behalf that, notwithstanding his failure to comply with the obligations
of the lease, the fact that he had expended large sums for attorneys'
fees in Washington, preliminary surveys, and other expenses independent
of any mining operations and development, entitled him to some special
privileges in the pending bill. A strong protest against the inclusion
of the provision relating to Boysen was made by the minority of the
Committee on Indian Affairs (H. Rept. 3700, pt. 2, 58th Cong., 1st
sess.) on the ground that his rights terminated upon his failure to
comply with the conditions of the lease, and the subsequent cancellation
thereof, and that, even if some rights still existed, they were
completely extinguished, under the provisions of section 13 of the
lease, upon the enactment of the bill ratifying the agreement with the
Indians. It was stated by the majority, in support of their action in
recommending the Boysen amendment, that under the arrangement proposed
thereby the Indians would obtain the highest price for their lands under
the circumstances, "and all claims under a lease which might possibly
cloud the title to a very large acreage is thereby proposed to be
extinguished."
It is insisted on the part of Mr. Boysen that he should be permitted
to go upon any part of the reservation and make examinations preliminary
to selection and location of the land he is entitled to take under the
provisions of the amended agreement.
Upon these facts you ask the four following questions:
"1. Has Boysen the right to demand that he shall be allowed to go
upon said reservation to make examinations prior to the completion and
approval of the surveys of the ceded portion thereof?
"2. Has he a right to make selection within the unceded or diminished
reserve lands and the consequent right to make examinations preliminary
to such selection?
"3. Has he a right to make examinations and selections within the
ceded portion of said reservation outside the tract covered by the lease
formerly held by him?
"4. Has Boysen the right to prospect for and to locate lands bearing
minerals other than coal, under the provisions of said agreement?"
As to the first question, that seems to be a matter within your
discretion. The act gives Boysen the right, for thirty days after the
approval of the surveys, to locate on the land, but says nothing on the
subject of allowing him to make any preliminary examinations before the
surveys are completed. It might be said that impliedly he has no such
right under the act, because he may locate only following the Government
surveys, and if that requirement is to be complied with, it would seem
necessary that the land should be surveyed before making examination
with a view to selecting the desired tract. Otherwise it might happen
that after the surveys were completed the land so selected did not
follow the surveys or was outside the ceded portion and therefore (as I
conclude just below) not entitled to entry.
As to your second question, it is clear that Boysen has no right to
make selection or examination within the unceded or diminished reserve
lands. The words "following the Government surveys" plainly show that
Congress intended to limit his right to the ceded lands, for only the
public lands owned absolutely by the United States are subject to
survey, and the act does not provide for the surveying of the diminished
reserve beyond the marking of the out-boundaries (sec. 3, p. 1022).
Upon all the considerations in the case, it would seem that a
negative answer is required to your third question. The rights conferred
upon Boysen are based upon his claims under the lease formerly held by
him, and he should accordingly be confined, in his selection, to the
lands described in that lease. It was through failure on Boysen's part
to comply with the required conditions that his former lease was
canceled, and in view of that fact and the rule that grants by the
Government should be construed in favor of the grantor (Leavenworth R.R.
Co. v. United States, 92 U.S., 733, 740; Slidell v. Grandjean, 111
U.S., 412, 437; United States v. Oregon, &c., R.R., 164 U.S., 526,
539), it is not perceived why the language and meaning of the act should
be stretched so as to enlarge the rights of this grantee flowing from
his original lease, or why its provisions should not be construed
strictly against his contention that he should be allowed to locate
outside the limits of the lease.
I therefore answer your third question in the negative.
But as to the fourth question, I think the determination must be in
the affirmative, because the expression of the law is positive and
clear-- "mineral or coal lands." Congress, generally intending only to
continue or renew Boysen's rights under his lease, such as they were,
must be held to have meant by these words to enlarge these rights so
far. And it appears that there are persuasive reasons aliunde for
thinking that this was the precise intention of Congress on the
particular point.
It is true, as has been suggested, that if the Secretary of the
Interior saw fit to exercise his discretion respecting a preliminary
exploration favorably to Mr. Boysen, and then Mr. Boysen should present
to him for entry lands to which, on the executive construction of the
law, he was not entitled, the Secretary could refuse to enter, and
thereupon the question could be thrown into the courts by the endeavor
on Mr. Boysen's part to compel entry, and the controversy here would
thus become a judicial question. That would be a possible course, and
might be a proper course for the Secretary to take, if in his own
judgment his discretion should be so far moved favorably. But that
constitutes no compelling reason why the executive should decline
jurisdiction on the merits. The executive has the right to determine the
legal question here, if it does not see fit to let it go to the courts.
And, further, this proposal or suggestion constitutes no reason why the
Attorney-General should consider the question judicial in the technical
sense which sometimes leads him to decline to take jurisdiction on the
ground that the point is already sub judice (20 Opin., 618; 23 Opin.,
221; id., 585; 24 Opin., 59). In this case the question has been
referred to this Department by the Secretary of the Interior for a
formal legal opinion on the merits, on the initiative of the President
himself.
Finally, it is not within my province to construe the reasons
affecting his administrative judgment and discretion, which might impel
the head of a Department to take any action one way or the other in a
matter pending before him for decision. That matter lies outside the
record and the confines of the legal questions before me; I am without
official information on the subject; and I am neither empowered nor
required to pass upon the propriety of the exercise by the Secretary of
the Interior of his official discretion.
Very respectfully,
HENRY M.HOYT,
Solicitor-General.
Approved:
W. H. MOODY.
HAWAII-- SALE OF STEAM TUG "ELEU"; 25 Op.Att'y.Gen. 522, October 23,
1905
The sale of the steam tug Eleu by the superintendent of public works
of Hawaii, which vessel became the property of the United States upon
the annexation of the Hawaiian Islands in 1898, not having been
authorized by Congress as provided in section 91 of the act of April 30,
1900 (31 Stat., 159), is void.
DEPARTMENT OF JUSTICE,
October 23, 1905.
The SECRETARY OF COMMERCE AND LABOR.
SIR: I have the honor to acknowledge the receipt of your letter of
July 27th, last, with inclosures, setting forth that--
"The steam tug Eleu was purchased by the Hawaiian Government from
John D. Spreckels & Company, of San Francisco, about the year 1885, and,
with the other property of the Hawaiian Government, passed into the
possession of the United States upon the annexation of the Hawaiian
Islands in 1898. It is understood that this vessel was used by the
Hawaiian Government as a towing steamer up to the time of the
annexation, and that since then it continued to be so used by the United
States, and subsequently by the Territorial Government of Hawaii, until
on or about the first day of January, 1901. This Department is without
definite information as to what, if any, use has been made of the vessel
since the last-named date.
"Under date of May 20, 1905, the collector of customs at the port of
Honolulu reports 'that a bill of sale has been filed by the
superintendent of public works of the Territory of Hawaii, transferring
the above-named vessel to Louis Marks, of this city,' and Mr. Marks
makes application to the Bureau of Navigation of this Department for the
documenting of this vessel as his property. The superintendent of public
works cites as authority for thus disposing of this vessel section 252
of the Revised Laws of Hawaii, which he quotes as follows:
"'SEC. 252. GENERAL POWER TO DISPOSE.-- The commissioner of public
lands or superintendent of public works, as the case may be, by and with
the authority of the governor, shall have power to lease, sell or
otherwise dispose of the public lands, and other property, in such
manner as he may deem best for the protection of agriculture, and the
general welfare of the Territory, subject however, to such restrictions
as may, from time to time, be expressly provided by law. (C.C., 1859, s.
42; Cp. L., s. 42; C.L., s. 169.'")
Upon this statement of fact you propound the following questions for
my opinion:
1. Whether the sale of the steam tug Eleu by the superintendent of
public works of Hawaii, as cited, was legal; and,
2. If such sale was legal, whether the proceeds thereof should be
turned into the Treasury of the United States or of the Territory of
Hawaii.
Without entering into a consideration of the extent of the power
exercised by the superintendent of public works of Hawaii prior to the
annexation of the islands to the United States, it is sufficient to say
that such power subsequent to annexation must be regarded as subject to
the limitations and restrictions contained in the act of April 30, 1900
(31 Stat., 141), entitled "An act to provide a government for the
Territory of Hawaii."
Section 91 of that act relates specifically to the control to be
exercised over the property passing to the United States at the time of
annexation, and reads as follows:
"SEC. 91. That the public property ceded and transferred to the
United States by the Republic of Hawaii under the joint resolution of
annexation, approved July seventh, eighteen hundred and ninety-eight,
shall be and remain in the possession, use, and control of the
government of the Territory of Hawaii, and shall be maintained, managed,
and cared for by it, at its own expense, until otherwise provided for by
Congress, or taken for the uses and purposes of the United States by
direction of the President or of the governor of Hawaii."
Beyond providing that the public property thus placed under the
control of the government of Hawaii may be taken for the uses and
purposes of the United States, the section just quoted confers no power
upon the superintendent of public works of that Territory to dispose of
such property by sale. As Congress has not since authorized such
disposition, it appears that the action of that officer in transferring
by sale to one Louis Marks the steam tug Eleu, which, according to the
correspondence submitted with your request, formed a part of the public
property ceded to the United States at the time of annexation, was
without authority of law.
I have the honor to advise you accordingly.
My response to your first question renders it unnecessary to consider
the second.
Respectfully,
CHARLES H. ROBB,
Assistant Attorney-General.
Approved:
W. H. MOODY.
OFFICERS OF NAVY AND MARINE CORPS-- RELATIVE RANK; 25 Op.Att'y.Gen.
517, October 7, 1905
There is no express provision of law which fixes the relative rank
and precedence of officers of the Marine Corps and officers of the line
of the Navy.
By an unwritten law of the Army and Navy, officers of the Army and
officers of the Navy take relative rank, as respects the two classes,
according to their respective grades; and if of similar grade, then
according to dates of commission.
Officers of the Marine Corps, who are "in relation to rank on the
same footing as officers of similar grades in the Army," take rank and
precedence relatively to line officers in the Navy according to grade;
and if of similar grade, then according to dates of commission.
There is no law making any distinction as to relative rank and
precedence between the officers of the Marine Corps who are, and those
who are not, graduates of the United States Naval Academy, either as
respects themselves, or officers of the line of the Navy.
DEPARTMENT OF JUSTICE,
October 7, 1905.
The SECRETARY OF THE NAVY.
SIR: I have the honor to respond to your note of September 22, 1905,
in which you request my official opinion as to the relative rank and
precedence of officers of the Marine Corps, the specific questions being
these:
"1. What provision, if any, of the law regulates the relative rank
and precedence of officers of the line of the Navy and officers of the
Marine Corps?
"2. What provision, if any, of the law regulates the relative rank
and precedence of officers of the Marine Corps who are, and of such
officers as are not, graduates of the United States Naval Academy, with
respect to each other, and also with respect to officers of the line of
the Navy?"
Considering first your second question, I am of opinion that there is
no law making any distinction as to relative rank and precedence between
officers of the Marine Corps, who are, and those who are not, graduates
of the United States Naval Academy, either as respects themselves, or
officers of the line of the Navy. Whatever may be the relative rank and
precedence of officers of the Marine Corps, of one of these classes,
that is equally the rank and precedence of those of the other class.
Recurring to your first question, I know of no express provision of
the law which fixes the relative rank and precedence of officers of the
Marine Corps and officer of the line of the Navy. But there are
provisions which seem necessarily to determine the matter.
Thus section 1603, Revised Statutes, provides that: "The officers of
the Marine Corps shall be, in relation to rank, on the same footing as
officers of similar grades in the Army." That is, whatever is the rank
(with its resulting precedence) of an officer of the Army, that is the
rank (with its resulting precedence) of an officer of the same grade in
the Marine Corps. In no other way can these officers be on the same
footing as to rank, as this section requires.
It is contended that section 1603 refers to the Marine Corps only
when, in whole or in part, detached and serving with the Army, as is
provided in section 1621, it is subject to the Articles of War. I have
no hesitation in thinking this contention untenable. That section is
part of chapter 9, Title XV, of the Revised Statutes, which provides for
the constitution, regulation, and government of the Marine Corps. The
section is general in its terms, with no limitation of time or place as
to its application, and therefore applies generally and always unless
otherwise restricted. It is not ambiguous, but in its terms plainly and
certainly applies upon all occasions.
No reason is perceived why its application should be restricted to those
comparatively few and temporary occasions when the Marine Corps is
detached and serving as part of the Army. The necessity for fixing the
relative rank of officers exists as well when in its normal condition as
a branch or corps of the Navy, as when serving with the Army. The
necessity may be more urgent in one case than in the other, but it
exists in both. And it is morally certain that, had Congress intended to
fix this relative rank only when the corps was serving with the Army, it
would have said so; just as, in section 1621, it did say that, at such
times, the corps should be subject to the Articles of War for the
government of the Army.
While section 1467, Revised Statutes, provides as to the Navy that
"line officers shall take rank in each grade according to the dates of
their commission," there is no corresponding provision as to officers of
the Army. But paragraph 3 of article 9 of the Army Regulations, which
have the force and effect of law, provides that "in each grade, date of
commission, appointment, or warrant determines the order of precedence."
I am informed by the Judge-Advocate-General of the Army, and the fact
is well known, that from the earliest days of the Army the established
and uniform rule and practice have been that officers of the same grade
take rank with each other according to the dates of their commissions.
This is the status of army officers as to relative rank, with reference
to which officers of the Marine Corps are upon the same footing. This,
however, fixes only the relative status of officers of the Army and of
officers of the Marine Corps, as respects themselves, and it remains to
consider what is the status, as to relative rank and precedence, of
officers of the Army and officers of the line of the Navy in equivalent
grades; for it is apparent from the foregoing that whatever is the
relative rank of officers of the Army and officers of the Navy of equal
grade, that must also be the relation as between the Marine Corps and
the line of the Navy.
While there is no express provision in the statutes or the army or
navy regulations fixing the relative rank of officers of the Army and
officers of the Navy line in the corresponding grade, yet this status
and relative rank are as certainly established and well understood as if
expressed in statute or army or navy regulations.
Section 1466, Revised Statutes, fixes the relative rank, by grade
only, of line officers of the Navy and of the Army. Thus, a vice-admiral
ranks with the lieutenant-general, rear-admirals with major-generals,
commodores with brigadier-generals, captains with colonels, commanders
with lieutenant-colonels, lieutenant-commanders with majors, lieutenants
with captains, masters with first lieutenants, ensigns with second
lieutenants.
But this merely tells what grades in each service, designated by
their titles, shall be of corresponding grade. This is left
undetermined, so far as express statute or regulation is concerned. But
the unwritten law of the Army and Navy-- a rule of action governing in
both branches of the service-- derived from long-established and uniform
practice, has settled this.
From the earliest days of the Army and Navy it has been the rule and
practice that officers in the same grade in the Army and Navy have
relative rank and precedence between themselves according to the dates,
respectively, of their commissions; the senior in commission ranking
the junior. The same rule applies in such cases as that which governs
officers of the Army and officers of the Navy, as between themselves in
each case, namely, that seniority of commission or appointment gives
precedence in the same grade. This has become a well-understood rule of
action and practice, which, in fact, governs and controls officers of
the Army and Navy with the same force and precision as if embodied in
statute or regulation.
Then, as officers of the Army and officers of the Navy take relative
rank, as respects the two classes, first, according to their respective
grades; and, second, if of similar grade, then according to dates of
commission, it follows that officers of the Marine Corps, who are "in
relation to rank on the same footing as officers of similar grades in
the Army," take rank and precedence relatively to line officers in the
Navy in the same way, namely, first, according to grade; and second, if
of similar grade, then according to dates of commission.
As I have said above, this rule of seniority of commission applies to
officers of the Marine Corps as between themselves.
Inasmuch as there are different ranks in the same grade, in each
branch of the service, it is essential that there be some criterion by
which to determine this relative rank. The only practicable criterion
would seem to be either the dates of commissions or length of service.
In either case an apparent injustice, which has been pointed out, might
result. Thus, if date of commission were to determine, a captain in the
Navy who had been many years in the service might find himself ranked by
a colonel (the equivalent in grade) of the Army or the Marine Corps, who
had served but a short time, but whose commission was a few days
earlier. If length of service was the criterion, this same captain in
the Navy, though his commission was much older than that of the colonel,
might be ranked by him, because the latter had been a few days longer in
the service.
It suffices that the former has been uniformly adopted as the
criterion in all cases where Congress has acted, and by the unwritten
law of the Army and the Navy, to which Congress seems to have long given
its assent. Furthermore, I can perceive no reason for thinking that in
general this criterion would not operate equally and justly. In one
instance it might happen to benefit the Army or Marine Corps, but in
another it might equally benefit the Navy.
I have therefore to advise you that the provisions above referred to,
together with the unwritten law of the Army and Navy, to which reference
is made above, determine, as I have stated, the relative rank and
precedence of officers of the Marine Corps, both as between themselves
and as respects officers of the line of the Navy.
Respectfully,
W. H. MOODY.