LICENSED OFFICERS OF STEAM VESSELS-- COMPULSORY TESTIMONY; 24 Op.
Att'y.Gen. 136, October 18, 1902
A licensed officer of a steam vessel, duly summoned to give testimony
in a hearing before a board of United States local inspectors of steam
vessels, who refused to answer questions which are, in the opinion of
the board, material and proper, may be compelled to answer, under the
penalty of suspension or revocation of his license, or otherwise.
A refusal on the part of a witness to answer a proper question
pertinent to the issue before a court is a contempt, and while this
power may not be absolute in this special tribunal, which is not given
the right to impose fines or imprisonment for disobedience to its
authority, nevertheless the principle may be invoked so far as the
special service and special discipline go.
Such licensed officer when charged with a violation of section 4449,
Revised Statutes, and on trial before the above-named board on such
charge, has no right to refuse to answer a question material to the
inquiry upon the ground that his answer may subject him to the penalty
provided in that section.
Section 4449, Revised Statutes, is a remedial, not a penal, statute,
and the revocation of a license as therein provided may be viewed rather
as a remedy to insure better efficiency in the Steamboat-Inspection
Service than as a punishment for an offense committed.
Such licensed officers are engaged in a special service, peculiarly
related to the Government; they are endowed with certain privileges and
subject to certain burdens, and paramount considerations of the good of
the service require that such an officer shall not be permitted to
withhold any information material to an inquiry affecting the service
and yet remain a member of that service.
DEPARTMENT OF JUSTICE,
October 18, 1902.
The SECRETARY OF THE TREASURY.
SIR: Your communications of August 26 and September 17 submit to me
the following facts and questions of law arising thereon, with a request
for my opinion:
In a certain investigation before United States local inspectors of
steam vessels, respecting a number of duly licensed pilots and engineers
who, it was alleged by certain vessel owners, had violated section 4449
of the Revised Statutes, several of these licensed officers refused to
answer questions propounded to them, on the ground that their answers
might tend to subject them to revocation of their licenses as provided
by section 4449, and that to furnish the information called for by the
questions would be a violation of their obligation to the protective
union of tug men to which they belong, this organization having issued a
strike order which affected the service of licensed pilots and engineers
on a large number of steam tugs. It seems that other licensed pilots and
engineers, not under investigation but called as witnesses, refused to
answer questions propounded to them on similar grounds, some witnesses
simply refusing to answer.
The questions of law arising are as follows:
1. When a licensed officer is duly summoned to give testimony before
this board (the local board of the inspection service) in a hearing, and
refuses to answer questions which are in the opinion of the board
material and proper, has the board authority to compel answer under
penalty of suspension or revocation of the witness's certificate of
license or otherwise?
2. Has the licensed officer who is charged with violating section
4449 of the Revised Statutes, and is on hearing before this board on
such charge, the right to refuse to answer a question material to the
inquiry, on the ground that his answer may subject him to the penalty of
section 4449?
It appears that the Solicitor of the Treasury, on a reference of the
subject by you, has rendered opinions answering the first inquiry in the
negative and the second in the affirmative.
The entire plan of Government control over this branch of commerce
and its instrumentalities, as shown in Title LII, Revised Statutes, is
based upon public interest in "the better security of life," justifying
the creation of a special Government service regarding the management,
navigation, and inspection of sea-going vessels and vessels engaged in
trade on the Great Lakes and other waters of the United States. The
theory of the matter and the function of the Government in protecting
the people in this semi-public service require, and the law accordingly
imposes, burdens upon vessel owners, with corresponding rights or
privileges, and qualifications or restrictions upon the specially
skilled men who navigate and operate vessels. These conditions,
operating to limit the number of those qualified and licensed,
constitute also an advantage to the men actually in the service. Only
licensed officers may be employed (sec. 4438). These correlative burdens
and benefits are enforced by a system of penalties ranging from the
revocation of licenses and trifling fines to fines clearly penal and
imprisonment under those provisions of Title LII which are manifestly
criminal. The investigations of the boards of inspection cover different
aspects of the relations existing and the transactions arising in this
maritime and quasi Government service, and may be conducted, as they
constantly are conducted, upon the Government initiative or upon the
complaint or suggestions of private parties and vessel owners. And it is
apparent that vessel owners themselves, as well as members of the
special licensed service, are subject in various contingencies to
investigation and possible penalty, more or less serious. For the crimes
and misdemeanors which these laws define-- that is, for all the more
serious offenses-- a regular course of procedure through the criminal
courts, or for the recovery of penalties or forfeitures through judicial
proceedings, is provided. And within the jurisdiction of the inspection
boards, either for arriving at a finding of the real facts as to many
different occurrences, in order to inform the administrative arm, or for
maintaining the freedom and efficiency of the navigating side of the
service by disciplinary and corrective measures, the law provides for
appeal and review of the findings or action of the tribunal of first
instance.
(Sec. 4452; and see also sec. 5294, as to remission of penalties.)
Thus, that licensed officers constitute a special service, peculiarly
related to the Government if not of the Government, is evident not only
from irresistible conceptions drawn from the entire body of these laws,
but from such provisions as the act of May 28, 1896, amending section
4131, Revised Statutes, and adding other provisions. This law brings out
very clearly the interrelations of the Government, vessel owners, and
the skilled men employed on board vessels, and the way in which benefits
and privileges, on the one hand, and burdens and restrictions on the
other, interdepend among the different interests, by the requirements
that a vessel shall be wholly owned by a citizen of the United States or
by a corporation created under the laws of a State, shall be commanded
by a citizen of the United States, and that all watch officers,
including engineers and pilots, shall be native-born or fully
naturalized citizens; and by their exemption from liability to draft in
time of war, and by the right to pension conferred, based upon the
duties performed under the license in the military service of the United
States. Consequently, in whatever way investigation of owners or
employees may arise, since full opportunity for review of administrative
proceedings and action is given, and the more serious charges must go to
judicial trial, the suggestion is reasonable and logical that no other
allegiance of owners to possible associates, or of licensed men to labor
organizations, can interfere with the different measures of control over
them, respectively, justly exercised by the Government.
Passing on, then, from this review of the policy and general meaning
of the law, we take up the exact question presented as to the right of a
licensed officer to refuse to answer questions put to him in the course
of a regular investigation by a board of inspectors, on the ground that
he may thereby subject himself to penalty by way of revocation or
suspension of his license.
Section 4449, Revised Statutes, provides that--
"If any licensed officer shall, to the hindrance of commerce,
wrongfully or unreasonably refuse to serve in his official capacity on
any steamer, as authorized by the terms of his certificate of license,
or shall fail to deliver to the applicant for such service at the time
of such refusal, if the same shall be demanded, a statement in writing
assigning good and sufficient reasons therefor, or if any pilot or
engineer shall refuse to admit into the pilot house or engine room any
person whom the master or owner of the vessel may desire to place there
for the purpose of learning the profession, his license shall be
revoked, upon the same proceedings as are provided in other cases of
revocation of such licenses."
The local boards of inspectors are directed by Congress to--
"Investigate all acts of incompetency or misconduct committed by any
licensed officer while acting under the authority of his license, and
shall have power to summon before them any witnesses within their
respective districts, and compel their attendance by a similar process
as in the United States circuit or district courts; and they may
administer all necessary oaths to any witnesses thus summoned before
them; and after reasonable notice in writing, given to the alleged
delinquent, of the time and place of such investigation, such witnesses
shall be examined, under oath, touching the performance of his duties by
any such licensed officer is incompetent, or has been guilty of
misbehavior, negligence, or unskillfulness, or has endangered life, or
willfully violated any provision of this title, they shall immediately
suspend or revoke his . license." (Sec. 4450.)
Under section 4445 every licensed officer must make oath "that he
will faithfully and honestly, according to his best skill and judgment,
without concealment or reservation, perform all the duties required of
him by law."
These boards are thus created courts, and exercise judicial
functions; they have power to summon witnesses, compel their attendance
by similar process as in the United States courts, administer oaths to
the witnesses summoned, and if upon examination the board are satisfied
as to the incompetence or guilt of the licensed officer on trial, they
may pass sentence on him by revoking or suspending his license.
It follows, therefore, that persons summoned to appear as witnesses
before such boards are entitled to the privileges and subject to the
obligations attaching to witnesses in any regular court. A refusal on
the part of a witness to answer a proper question pertinent to the issue
before a court is a contempt. The board of inspectors, with its power to
summon witnesses, compel their attendance, etc., exercises the functions
of a court, and the power to punish for contempt is inherent in all
courts. "Its existence is essential to the preservation of order in
judicial proceedings * * * and to the due administration of justice."
(Ex parte Robinson, 19 Wall., 505.) "The power to punish for contempt is
inherent in the nature and constitution of a court. It is a power not
derived from any statute, but arising from necessity; implied, because
it is necessary to the exercise of all other powers." (Cooper's Case, 32
Vt., 253, 257; cited in Ex parte Terry, 128 U.S., 289, 303.) Now, while
the power may not be absolute in this special tribunal, which is not
given the right to impose fines or imprisonment for any disobedience to
its authority, nevertheless the principle may be invoked so far as the
special service and the special discipline go.
That a witness may refuse to answer a question where it reasonably
appears that such answer will have a tendency to expose him to a penal
liability, or to any kind of punishment, or to a criminal charge, is
well settled and needs no citation of authorities. It has also been held
that it is the privilege of a witness to refuse to answer questions
which may have a tendency to expose him to a penalty or forfeiture. (1
Greenleaf on Evidence, 453; Story Eq. Pl., sec. 607, 346; Johnson v.
Donaldson, 18 Blatch., 287; and see cases cited in 19 Am.and
Eng.Enc.,p. 836.) Is the revocation of a license such a "penalty" as
would entitle the witness to the benefit of this rule? While in a
general sense it may be considered a penalty, it can not be so
understood in a legal sense, and would not fall within the definitions
of the word given by the courts. "The words 'penal' and 'penalty' have
been used in various senses. Strictly and primarily they denote
punishment, whether corporal or pecuniary, imposed and enforced by the
State for a crime or offense against its laws.
* * * But they are commonly used as including any extraordinary
liability to which the law subjects a wrongdoer in favor of the person
wronged, not limited to the damages suffered." (Huntington v. Attrill,
146 U.S., 657, 667, and cases cited therein.)
The authorities holding that a witness may refuse to answer a
question tending to expose him to a penalty or forfeiture appear to be
mainly cases involving violations of penal statutes. Section 4449 is a
remedial, not a penal, statute, and the revocation of a license therein
provided for may be viewed, not in the light of a punishment for an
offense committed, but rather as a remedy placed in the hands of the
board of inspectors to insure greater efficiency in the
Steamboat-Inspection Service, and to guard against obstructions of or
injury to commerce, etc. Furthermore, even where a disability or
liability of this general nature in consequence of his own agreement,
and there he is compelled to answer; and the cases mainly relate to
liabilities which, though not criminal, eventually amounted to
forfeiture or punishment, because they led to the actual forfeiture of
estates. (Bird v. Hardwicke, 1 Vern., 109, and note 1.) So that the
authorities fully justify us in keeping this special remedial discipline
separate from the notion of criminal penalty or forfeiture.
It might, of course, happen, as suggested by the Solicitor of the
Treasury in his opinion dated June 19, 1902, that on the trial of a
licensed officer before the board for violation of section 4449,
questions might be put which, if answered, would disclose facts showing
that the officer had incurred a penal liability for which he was liable
to indictment and punishment, as under section 4437. In such a case the
officer would be entitled to his refusal to answer. But this has nothing
to do with the present inquiry, which is confined to refusal on the
ground that the officer may be subject to the penalty under section
4449-- the revocation or suspension of his license.
It seems to me that a delinquent inspector (see secs. 4406, 4407)
might with as much force decline to answer a question on the ground that
to do so might lead to his removal as a licensed officer decline to
answer inquiries because of the danger of incurring the statutory
discipline or penalty.
Under the peculiar relations of this service it might reasonably be said
that refusal to respond to inquiries was in itself just cause
influencing the executive discretion to remove an inspector or revoke
the license of an engineer, pilot, etc. Surely the power is plenary in
this service to determine whether a licensed officer has wrongfully or
unreasonably refused to serve; and any obstruction of investigation
must necessarily call down the summary corrective power, subject to the
right of review. If this is not true, the policy of this law is vain and
its terms futile to carry out its theory and intent.
The refusal to answer amounts to or may conceal the bad conduct,
inattention to duty, or misbehavior (if willful violation of the law is
excluded from present consideration) which sections 4439-4442 and 4450
specify, inter alia, as grounds for suspension or revocation of license.
So broad and far-reaching is the view of "misconduct" that a ruling
of the Treasury Department, dated July 27, 1893, based upon an opinion
of the Solicitor of the Treasury, dated June 6, 1893, holds that a
certain objectionable agreement between individual pilots and a
brotherhood of pilots amounts to a hindrance of commerce, and for this
reason renders licensed officers who are parties justly liable to
suspension or dismissal by revocation of their license without any
further act of "misconduct" on their part. If such is the established
executive view, I think it follows as a logical necessity in
administration that "misconduct" may also cover a refusal to answer
pertinent questions because, among other reasons, they might point to a
similar agreement. That seems to be the point as to the obligation to
the protective union.
It is suggested that a licensed officer thus under investigation is
liable to be deprived of his office together with salary and emoluments
belonging to the same, and that for this reason he is entitled to refuse
to answer a question which has a tendency to expose him to a penalty or
forfeiture; but that suggestion, indeed, begs the question, and the
authorities cited in support of it refer to consequences which were
undoubtedly penal.
In short, it is not too much to say that paramount considerations of
the good of the service require that a licensed officer shall not be
permitted to withhold any information material to an inquiry affecting
the service and yet remain a member of that service.
The foregoing reasons of law and legal policy, therefore, in my
opinion, require me to answer your first question in the affirmative and
your second question in the negative, and I so answer.
Very respectfully,
P. C. KNOX.
CIVIL-SERVICE LAW-- POLITICAL CONTRIBUTIONS-- SOLICITATION OF BY
FEDERAL OFFICER; 24 Op.Att'y.Gen. 133, October 17, 1902
The sending of a circular letter by a political committee to Federal
officers and employees, soliciting financial aid in Congressional or
State elections, upon or attached to which appear the names of Federal
officers or employees, is a violation of section 11 of the Civil-Service
act (act of January 16, 1883; 22 Stat., 406) which declares that no
officer or employee of the Government shall be in any manner concerned
in soliciting or receiving any assessment or contribution for any
political purpose whatever from any officer or employee of the United
States.
The statute unquestionably condemns all such circulars
notwithstanding the particular form of words adopted in order to show a
request rather than a demand and to give the responses a quasi-voluntary
character.
DEPARTMENT OF JUSTICE,
October 17, 1902.
The PRESIDENT.
SIR: Your note of the 15th instant requests me to advise you
relative to the subject of political contributions as shown by the
respective correspondence which you inclose between the Civil Service
Commission and officers of the Republican State committees of
Pennsylvania and Ohio.
In the Pennsylvania case it appears that recently a circular letter
was issued by the Republican State committee, signed "M. S. Quay,
chairman," stating that financial assistance is needed in the coming
Congressional and State election and that the committee will be greatly
obliged if the addressee will aid to the extent of his ability and
inclination. This circular letter bore in its caption as well the name
of Senator Quay as chairman and of W. R. Andrews (clerk to the Senate
Committee on Immigration) as secretary, and was sent by mail to various
Federal officers and employees at their home addresses. Upon advice from
the Commission that because of their official relations neither Senator
Quay nor Mr. Andrews could properly serve upon a committee concerned in
soliciting and receiving political contributions from Federal officials,
or permit their names to be held forth in letters making such
solicitation, the circular letter, so far as addressed to Federal
officials, was withdrawn. Immediately thereafter another circular letter
was issued in identically the same form, except that it bore the
signature of the treasurer of the committee, who is not a Federal
officeholder. The Commission pointed out the illegality of this circular
because it carried on its heading the names of Senator Quay and Mr.
Andrews, and directed its recall; and this ruling is now contested by
Senator Quay as chairman of the committee.
In the Ohio case a circular was issued by the Republican State
executive committee, bearing the names of Hon. Charles Dick (member of
Congress) and of various Federal officials, and stating that any
assistance which the addressee "can give as one of those directly
interested in party success in Ohio will be gratefully acknowledged." It
seems that this circular was sent to certain Federal officials, that the
Commission demanded its withdrawal, and that the executive committee
declines or neglects to accede to this demand.
The question presented is covered by section 11 of the Civil-Service
act, which provides:
"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."
Whatever the particular form of words adopted in such circulars in
order to show a request rather than a demand and to give to responses a
quasi-voluntary character, the explicit and comprehensive words of the
statute, forbidding those barred by their public relations to solicit
from Federal officials, directly or indirectly, or to "be in any manner
concerned in soliciting or receiving any assessment, subscription, or
contribution for any political purpose whatever," unquestionably condemn
all such circulars. They should not be sent to Federal officials, or
else they should not bear the names of the public officers and employees
designated in the act. In 21 Op.Att'y.Gen. 300, Attorney-General Harmon
said:
"All who are in the Government service are thus protected against the
possibility of actual coercion and from that of the coercion implied in
the relation of the person soliciting or receiving to the Government or
implied in solicitation or receipt in a public office; but Congress did
not attempt to prohibit solicitation by or payment to persons not in the
Government service otherwise than in Government offices."
"It is also pertinent to notice section 14 of the act, viz: "That no
officer, clerk, or other person in the service of the United States
shall, directly or indirectly, give or hand over to any other officer,
clerk, or person in the service of the United States, or to any Senator
or Member of the House of Representatives, or Territorial Delegate, any
money or other valuable thing on account of or to be applied to the
promotion of any political object whatever."
Your power to direct, by appropriate order, under the mandates of
these sections, all persons in the executive service of the United
States is clear.
I do not understand that I am now called upon by your present
reference to consider the penal section of the act (sec. 15), which
relates back to all the persons designated, and all the acts forbidden
by sections 11 and 14, inter alia.
Very respectfully.
P. C. KNOX.
CERTIFICATE OF RESIDENCE-- CHINESE-- RETURN CERTIFICATE; 24 Op.
Att'y.Gen. 132, October 17, 1902
A Chinese person possessing a "certificate of residence" as a person
other than a laborer, issued to him under the provisions of the act of
May 5, 1892 (27 Stat., 25), is not entitled thereby to the "return
certificate" provided for in Article II of the treaty with China of
December 8, 1894 (28 Stat., 1210), as that article applies only to
registered Chinese laborers.
DEPARTMENT OF JUSTICE,
October 17, 1902.
The SECRETARY OF THE TREASURY.
SIR: By your letter of October 13 you submit for my opinion the
question whether a Chinese person who is possessed of a "certificate of
residence" as a person other than a laborer, issued to him under the
provisions of the act of May 5, 1892, is entitled to a "return
certificate."
The act of 1892 provided (sec. 6) for the registration of resident
Chinese laborers, and the issue to them of certificates of residence,
and also provided that "any Chinese person, other than a Chinese
laborer, having a right to be and remain in the United States, desiring
such certificate as evidence of such right, may apply for and receive
the same without charge." Under this latter provision the applicant in
this case was furnished with a certificate of residence as a person
"other than a laborer."
The provision of the law for "return certificates" is found in
Article II of the treaty of 1894, which manifestly is applicable only to
registered Chinese laborers. Sections 5-7 of the act of September 13,
1888, the full validity of which is in doubt, also make it clear that
Chinese laborers alone are contemplated in the explicit return
concessions of the law.
It has been decided that a domiciled Chinese merchant may reenter
this country after temporary absence without the certificate required by
section 6 of the act of 1884 (Lau Ow Bew v. United States, 144 U.S.,
47), and this decision would extend to a member of any of the permitted
classes specifically enumerated in the law (e.g., Art. III, treaty of
1894) who had acquired a domicile in this country. The view of this
Department has been that a Chinaman "not a laborer" is not for that
reason a member of the expressly permitted classes. Whether the status
of the applicant here continues to be that of a non-laborer, or whether
as such he is also a member of one of the permitted classes, and, being
domiciled here, is entitled to reenter this country after a temporary
absence without a certificate, but under proof of his former status here
as required by section 2 of the act of November 3, 1893, is a question
of fact committed to your determination and not mine.
I have the honor to answer the question which you submit in the
negative, and to return the papers herewith.
Very respectfully,
P. C. KNOX.
CERTIFICATE OF MERIT-- ENLISTED MAN-- MILITARY SERVICE; 24 Op.
Att'y. Gen. 127, September 23, 1902
The President may grant a certificate of merit to an enlisted man of
the Army who has distinguished himself in the service and is recommended
for such certificate by the commanding officer of his regiment or by the
chief of the corps to which he belongs, notwithstanding the fact that he
is not in the military service at the time his case reaches the
President for consideration, and, if granted the certificate, will be
entitled to additional pay for the period intervening between the date
of such service and the date of his discharge from the military service;
but the President can not grant a certificate of merit if the
recommendation therefor by the commanding officer or chief of his corps
was made after the enlisted man was discharged from the military
service.
DEPARTMENT OF JUSTICE,
September 23, 1902.
The SECRETARY OF WAR.
SIR: Your letter of July 5, 1902, and subsequent communications
submit for my opinion the two following questions:
"1. When an enlisted man of the Army has distinguished himself in the
service, and is recommended for a certificate of merit by the commanding
officer of his regiment, or by the chief of the corps to which such
enlisted man belongs (sec. 1216, Rev. Stat.), can the President grant
him a certificate of merit, notwithstanding the fact that the man is not
in the military service at the time the case reaches the President for
consideration, when it appears that the man, if granted a certificate of
merit, will be entitled to additional pay for the period intervening
between the date of such distinguished service and the date of his
discharge from the military service?
"2. Under like circumstances, can the President grant a certificate
of merit, if the recommendation therefor, by the commanding officer of
his regiment or chief of his corps, was made after the enlisted man was
discharged from the military service?"
It is obvious that cases of this nature actually and constantly
arise.
By your request for an opinion and the related memorandum
subsequently transmitted, I was referred to the opinion of Mr. Devens
(16 Op.Att'y.Gen. 9), to opinions of Judge-Advocates-General, to the War
Department practice, and to paragraph 199 of the Army Regulations of
1891. The legislation important to be considered is as follows:
Section 17, act of March 3, 1847 (9 Stat., 186), from which section
1216, Revised Statutes, is taken, provides that when a non-commissioned
officer shall distinguish himself, or may have distinguished himself, in
the service, the President may, on the recommendation of the8 commanding
officer of the regiment to which such non-commissioned officer belongs,
attach him by brevet of the lowest grade of rank, etc., to any corps of
the Army; and then provides: "And when any private soldier shall so
distinguish himself the President may, in like manner, grant him a
certificate of merit, which shall entitle him to additional pay at the
rate of two dollars per month."
Section 1216 of the Revised Statutes, as amended by the acts of
February 9, 1891 (26 Stat., 737), and March 29, 1892 (27 Stat., 12),
provides:
"That when any enlisted man of the Army shall have distinguished
himself in the service the President may, at the recommendation of the
commanding officer of the regiment or the chief of the corps to which
such enlisted man belongs, grant him a certificate of merit."
Section 1285, Revised Statutes, as amended by the act of February 9,
1891 (ut supra), provides that--
"A certificate of merit granted to an enlisted man for distinguished
service shall entitled him, from the date of such service, to additional
pay at the rate of two dollars per month while he is in the military
service, although such service may not be continuous."
It does not seem to me that these slight changes recently carried
into the law have made any material difference in the nature of the
question.
The opinion of Attorney-General Devens holds that a certificate of
merit can not be issued under section 1216, Rev. Stat. (before
amendment), to a soldier who applies for the same after his discharge.
Mr. Devens makes no special distinction between the grant and the actual
issuance of a certificate, and his view manifestly relates to a case
where the claim was in all respects initiated after discharge.
I note here that in 5 Op.Att'y.Gen. 22, considering the first portion
of section 17 of the original act of 1847 (supra), Mr. Toucey held that
non-commissioned officers may receive brevet commissions, although not
in fact non-commissioned officers at the time such reward for
distinguished service was conferred. This conclusion evidently regards
prompt application and unavoidable delay merely in the actual grant or
issue, and regards, further, on the one hand, a termination of the
particular non-commissioned status but continuance in the service in
other capacities; and, on the other hand, as to two officers involved,
an actual expiration of the term of service or discharge. So far, then,
the earlier opinion is contrary to Mr. Devens's view. Mr. Toucey states
fully the grounds upon which the liberal construction of such statutes
is based, in the policy of Congress to promote the public service by
these incentives to acts of bravery; and also rests his conclusion, as
to the officers discharged, on the special ground of the President's
power to appoint even private citizens to be officers in the military
service-- a consideration which is not applicable to certificates of
merit.
The opinions of Judge-Advocates-General have uniformly construed the
law in accordance with the opinion of Attorney-General Devens.
(Digest, Opinions J.A.G., ed. 1901, secs. 667, 668; opinion of May 8,
1902.)
The Army Regulations (ed. 1901, paragraphs 196-199), while imposing a
condition (paragraph 197) which the law does not demand (sec. 668, Dig.
Opin. J.A.G.), may be said to carry out that opinion, for the issue or
delivery of a certificate after the soldier's discharge, contemplated in
paragraph 199, is consistent with an application or recommendation and
grant before discharge. At all events, it appears that, with certain
recent exceptions, the continuous practice of the War Department has
been not to grant certificates of merit after a private soldier or
enlisted man has left the service.
The situation, then, is such that the legal view of this Department
and the view and substantially uniform practice of the War Department,
covering together a long period of time, have followed the same
construction of laws which are practically the same in their present as
in their past form; and the question now arises whether this
construction is so clearly erroneous as to require or justify reversal.
Indeed, it may be said that this Department has never expressed a
plainly contrary view, for the opinion of Mr. Toucey might justly be
distinguished as relating in part to a case where a brevet officer had
remained in the service, although in a different capacity from that
designated by the statute, and in part to cases, where from the nature
of the subject-- brevet commissions as differentiated from certificates
of merit-- the broad ground of an unqualified right in the Executive to
appoint to military office could be invoked on behalf of those former
non-commissioned officers who had become separated from the service.
Undoubtedly the policy of Congress in these statutes is intended to be
liberal; but undoubtedly also that policy and many just considerations
of general governmental policy contemplate a prompt assertion of such a
claim and depreciate or forbid delay and such neglect as may render
substantiation difficult and doubt of the title natural simply because
of the passage of time.
In the associated subject of medals of honor under the act of March
3, 1863 (sec. 6; 12 Stat., 744, 751), regarding which arguments
requiring officers and men to be still in the service might be advanced
similar to and perhaps as strong as those suggested regarding the
certificate of merit laws.
It seems, nevertheless, that it is the practice of the War Department to
present medals of honor to persons formerly in the military service as
officers or enlisted men, but not in that service at the time of the
presentation. Without intending to advert to this fact as an
inconsistency, or as not congruous with an opinion of the
Judge-Advocate-General (Sept. 2, 1891), that the medal of honor law of
1863 is no longer in force, I may point out as bearing on the elements
of proper policy as to any such military honor that Attorney-General
Miller (20 Op.Att'y.Gen. 421) holds that a claim for a medal of honor
should not be entertained after an unexplained delay of twenty-eight
years in bringing forward the claim; that such laches sufficiently
discredits an application for a medal of honor, this view being "in
obedience to a principle of general jurisprudence, based on the teaching
of experience, that 'the lapse of time carries with it the memory and
life of witnesses, the muniments of evidence, and the other means of
judicial proof.'"
Considering for a moment the elements that are more strictly legal,
it may be said, for instance, that the very term "private soldier," or,
as it is now, "enlisted man," reasonably imports that character, not
necessarily at the time a certificate of honor is delivered, but
certainly at the time the application or recommendation is made; that
the use of the word "belongs," being in praesenti, plainly requires this
result. On the other hand, a reply to that position would be that a
strict insistence on the force of the present tense would bring us to
the reductio ad absurdum that the beneficiary must be in the service at
the date when the law was passed. But I do not deem it necessary to
analyze and attempt to reconcile these phases of the case nor to adduce
authorities, for on the whole my view is clear that prior construction
has not been manifestly wrong; that so far as there may be valid doubt
or a balance of doubts regarding this construction, the principle of
adhering to an interpretation long followed should be applied to this
case. This principle in executive opinions regards with especial respect
the guide of long-continued departmental practice (2 Op.Att'y. Gen.
558; 4 Op.Att'y.Gen. 470; 10 Op.Att'y.Gen. 52; 22 Op.Att'y.Gen.
162), a guide which is also recognized in judicial opinions.
(Edward's Lessee v. Darby, 12 Wheat., 206; United States v. Hill, 120
U.S., 169; Robertson v. Downing, 127 U.S., 607.) A view of the
principle which is especially controlling upon the Attorney-General is
that "a question once definitely answered by one of my predecessors and
left at rest for a long term of years should be reconsidered by me only
in a very exceptional case." (21 Op.Att'y.Gen. 24.)
These considerations, nevertheless, in the light of distinctions
indicated above, reasonably permit an affirmative answer to your first
question, but require a negative answer to your second question, it
being understood that the recommendation referred to coming after the
man's discharge is tantamount in effect to an application which
initiates the claim. I therefore have the honor to answer your questions
accordingly.
Very respectfully,
P. C. KNOX.
BRANDING OR LABELING FOOD AND DAIRY PRODUCTS; 24 Op.Att'y.Gen. 125,
September 20, 1902
The act of July 1, 1902 (32 Stat., 632), which prohibits the false
labeling or branding of dairy and food products which enter into
interstate commerce, does not provide that such products shall be
labeled or branded so as to show the State or Territory in which they
are produced. It provides merely that such products shall not be falsely
labeled or branded as to the State or Territory in which they are made,
produced, or grown. The mere omission, in the instances given, of the
place of manufacture can not be said to be in violation of that law;
nor is the name of the wholesale dealer on the label or brand
necessarily a representation that he is the manufacturer or producer.
DEPARTMENT OF JUSTICE,
September 20, 1902.
The SECRETARY OF AGRICULTURE.
SIR: Your letter of the 13th instant contains the following
statement:
"It is common practice for canned goods and other articles of food to
be labeled with the name of the wholesale grocer, often without the name
of the manufacturer. In some cases such goods are manufactured in one
State and bear only the name of the wholesale grocer whose place of
business is in another State. A typical label of this nature is the
following: 'Packed for W. L. Taylor Co., Ltd., wholesale grocers,
Shreveport, La.' Another class of labels omits the words 'packed for,'
and also 'wholesale grocers.' For instance, 'The T. C. Brand Lima Beans,
W. F. Taylor Co., Ltd., Shreveport, La.'"
You ask to be informed whether, in my opinion, "these labels would be
held to violate public law No. 223, enacted by the last Congress and
approved July 1, 1902?"
The first section of the act mentioned provides:
"That no person or persons, company or corporation, shall introduce
into any State or Territory of the United States or the District of
Columbia, from any other State or Territory of the United States or the
District of Columbia, or sell in the District of Columbia or in any
Territory any dairy or food products which shall be falsely labeled or
branded as to the State or Territory in which they are made, produced,
or grown, or cause or procure the same to be done by others."
This measure originated in the House, where it was introduced last
January in substantially the form it now bears. The Committee on
Interstate and Foreign Commerce, to whom it was referred, reported in
part as follows:
"During the Fifty-sixth Congress this committee gave hearings upon
and devoted some time and attention to parties appearing in favor of a
bill identical with this, and the necessity for such legislation was
explained at length.
"It seems that at present there are no interstate commerce laws which
adequately protect any State or Territory from the efforts of designing
and unscrupulous dealers from outside the particular State or Territory
to impose upon the public food or dairy products, branded or labeled as
the product of a State or Territory famous for the production of a
certain commodity or luxury, which, in fact, is an inferior article, and
which, were it not for such brand or label, could be placed upon the
market only at a lesser price, and sometimes not at all, were its true
character known.
"This fact is particularly true of two articles-- cheese and maple
sirup. In almost every store in any of the large cities may be found
packages labeled 'Vermont maple sirup,' which was never produced in
Vermont, and some of which is entirely artificial, yet which is sold at
the highest price because of the label which it carries. In the matter
of cheese and butter this practice is carried still further because of
the greater demand.
"It is believed the enactment of the bill into a law would correct
the evils which it is intended to correct, and the committee recommend
that it do pass as amended."
The Senate committee to which the bill was referred, in submitting
its report, after stating that the bill was "directed only against
interstate commerce in articles of food and dairy products misbranded as
to the State or Territory in which such articles are manufactured or
produced," adopted the report of the House committee.
It will be noticed that this law does not provide that food and dairy
products entering into interstate commerce shall be labeled or branded
so as to show the State or Territory in which they are produced. It
simply provides * * * that such products shall not be "falsely labeled
or branded as to the State or Territory in which they are made,
produced, or grown." In the examples given by you the mere omission of
the place of manufacture can not be said to be a violation of the law.
The name of the wholesale dealer on the label or brand is not
necessarily a representation that he is the producer or manufacturer of
the goods. Of course, if goods are manufactured or produced in one
State, and the wholesale dealer is a resident of another, and the label
or brand is so worded as to represent the dealer as the producer, there
would be a violation of the law if such commodities were introduced into
one State from another. But, in my opinion, none of the labels given by
you comes within this class.
Respectfully,
JOHN K. RICHARDS,
Acting Attorney-General.
TONNAGE TAX-- PORTO RICO-- MARINE-HOSPITAL SERVICE, 24 Op.Att'y.Gen.
122, September 17, 1902
The tonnage tax collected in Porto Rico under section 14 of the act
of June 26, 1884 (23 Stat., 57), as amended by section 11 of the act of
June 19, 1886 (24 Stat., 81), should be so deposited as to be available
for the maintenance in part of the Marine-Hospital Service.
DEPARTMENT OF JUSTICE,
September 17, 1902.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
the 14th ultimo inclosing a letter "from the collector of customs at San
Juan, P.R., in which he requests a decision whether tonnage tax
collected in Porto Rico shall be so deposited as to be available for the
maintenance in part of the Marine-Hospital Service."
Under section 4585, Revised Statutes, there was formerly assessed and
collected by the collectors of customs "from the master or owner of
every vessel of the United States arriving from a foreign port, or of
every registered vessel employed in the coasting trade, * * * the sum of
40 cents per month fro each and every seaman" who had been employed on
such vessel since she was last entered at any port of the United States;
and such master or owner was authorized to retain such sum from the
wages of such seaman.
Section 4803, Revised Statutes, provided that all such moneys should be
"placed to the credit of 'the fund for the relief of sick and disabled
seamen,' of which fund separate accounts should (shall) be kept in the
Treasury." Section 15 of "An act to remove certain burdens on the
American merchant marine and encourage the American foreign carrying
trade, and for other purposes," approved June 26, 1884, repealed said
section 4585, Revised Statutes, and provided that the expense of
maintaining said Marine Hospital Service should thereafter be borne by
the United States out of receipts for duties on tonnage provided for in
that act. Such tonnage duties are levied in Porto Rico under section 14
of said act of June 26, 1884, as amended by section 11 of the act of
June 19, 1886.
It will readily be perceived that the tonnage taxes collected under
the provisions of said act of June 26, 1884, as amended, constitute a
special and separate fund for a distinct and specific purpose, viz, for
the maintenance of the Marine-Hospital Service. The reasons assigned for
my opinion of July 15, last, wherein it was held that certain head money
levied on immigrants should be accounted for and included in the
"immigrant fund," as is done in the case of alien passengers "arriving
at ports of the United States," are applicable to the case under
consideration.
Section 4 of the Porto Rican act of April 12, 1900, provided that all
collections of duties and taxes in Porto Rico under the provisions of
the act should be paid into the treasury of Porto Rico "to be expended
as required by law for the government and benefit of Porto Rico." It was
held in said opinion of July 15, last, that the duties and taxes
referred to in said section 4 are those levied and collected as such and
which, without special legislation, would be covered into the general
fund of the treasury, and be devoted to the general purposes of
government.
If we permit the tonnage dues collected in Porto Rico to be covered
into the Porto Rican treasury, the money thus collected will be devoted
to a purpose entirely foreign to that contemplated in the law providing
for the support of the Marine-Hospital Service.
It is reasonable to believe that Congress, in extending the laws of
the United States not locally inapplicable to Porto Rico (sec. 14, Porto
Rican act), and in nationalizing Porto Rican vessels and admitting same
to the benefits of our coasting trade, intended that Porto Rico should
have the benefits of the Marine-Hospital Service. As that service is
supported and maintained out of a separate fund provided for that
purpose, it is believed that Congress intended that tonnage dues
collected in Porto Rico should not be paid into the Porto Rican
treasury, but should augment the Marine-Hospital fund. If the benefits
of the Marine-Hospital Service were meant to be extended to Porto Rico
under the provision of said section 14 of the Porto Rican act, there is
no reason to believe that Congress intended to except Porto Rico from
the burden of such service. In other words, if part of the law is
applicable to the island, it is all applicable. Inasmuch as it will
undoubtedly require the money thus collected in Porto Rico to maintain
the Marine-Hospital Service there, the spirit of said section 4 of the
Porto Rican act will be carried out, as well as the letter of the laws
relating to the Marine-Hospital Service, made applicable to Porto Rico
by section 14 of the said Porto Rican act.
I am, therefore, of the opinion that the tonnage tax collected in
Porto Rico should "be so deposited as to be available for the
maintenance in part of the Marine-Hospital Service."
Respectfully,
HENRY M. HOYT,
Acting Attorney-General.
INTERNAL-REVENUE TAX-- CIGARS-- PHILIPPINE ISLANDS; 24 Op.Att'y.
Gen. 120, September 11, 1902
Cigars shipped from the Philippine Islands to the United States are
not subject to internal-revenue tax under section 3402, Revised
Statutes.
Prior to the passage of the act of July 1, 1902 (32 Stat., 691), the
Philippine Islands were "within the exterior boundaries of the United
States" within the meaning of section 3448, Revised Statutes, and
subject to its provisions; but since its passage the provisions of that
section have been inoperative in those islands, section 1 of that act
providing in effect that the laws of the United States shall not apply
to the Philippine Islands. No internal-revenue tax therefore can be
imposed under the laws of the United States on cigars shipped into this
country from the Philippine Islands.
DEPARTMENT OF JUSTICE,
September 11, 1902.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter
transmitting a letter from the Commissioner of Internal Revenue and
requesting my opinion as to whether cigars shipped from the Philippine
Islands "are subject to internal-revenue tax as well as duty under the
laws of the United States."
Section 3402, Revised Statutes, provides that "All cigars imported
from foreign countries shall pay, in addition to the import duties
imposed thereon, the tax prescribed by law for cigars manufactured in
the United States." In the Fourteen Diamond Rings case (183 U.S., 176)
the Supreme Court held that goods brought from the Philippine Islands
were not "imported from a foreign country" within the meaning of our
revenue laws. In view of this decision, cigars shipped from the
Philippine Islands to the United States are not subject to
internal-revenue tax under said section 3402, Revised Statutes.
Section 3402, Revised Statutes, imposes internal-revenue tax "upon
cigars which shall be manufactured and sold, or removed for consumption
or use," said tax to be paid by the manufacturer of the cigars.
Section 3448, Revised Statutes, reads as follows:
"The internal-revenue laws imposing taxes on distilled spirits,
fermented liquors, tobacco, snuff, and cigars shall be held to extend to
such articles produced anywhere within the exterior boundaries of the
United States, whether the same be within a collection district or not."
In "The Cherokee Tobacco" case (11 Wall., 616) it was held that
section 3448 is in force in the Indian Territory, and supersedes a prior
treaty with the Cherokee Nation of Indians. The court said (page 620):
"The language of the section is as clear and explicit as could be
employed. It embraces indisputably the Indian territories. Congress not
having thought proper to exclude them, it is not for this court to make
the exception. If the exemption had been intended, it would doubtless
have been expressed."
Mr. Justice Bradley (with whom concurred Mr. Justice Davis), after
expressing his reasons for dissenting from the opinion of the court,
said (page 624):
"This view is strengthened by the fact that there is territory within
the exterior bounds of the United States to which the language of the
107th section of the recent act can apply, without applying it to the
Indian Territory, to wit, the territory of Alaska."
It is clear that Alaska was then understood by the court to be within
the exterior boundaries of the United States, and therefore within the
provisions of said section.
No reason can be found why the Philippines, prior to the passage of
the act of July 1, 1902, "Temporarily to provide for the administration
of the affairs of civil government in the Philippine Islands, and for
other purposes," were not also within the provisions of said section.
They were "within the exterior boundaries of the United States," and
were not, prior to July 1, excluded from the provisions of said section.
But the first section of said Philippine act of July 1, 1902,
provides in effect that the laws of the United States shall not apply to
the Philippine Islands.
I am therefore of the opinion that since said act went into effect,
the provisions of said section 3448 have been inoperative in the
Philippines. The provisions of section 3394 undoubtedly apply only to
cigars manufactured within the bounds of our internal revenue laws, i.
e., within the territory where these laws are operative. If this view is
not correct, there was apparently no necessity for the passage of
section 3402, which says that "all cigars imported from foreign
countries shall pay an internal revenue tax."
In the Porto Rican or Foraker Act of April 12, 1900, Porto Rico was
excepted from the operation of our internal revenue laws, but under
section 3 of said act a tax was imposed upon "articles of merchandise of
Porto Rican manufacture coming into the United States and withdrawn for
consumption or sale," "equal to the internal revenue tax imposed in the
United States upon the like articles of merchandise of domestic
manufacture." No such provision was made in the Philippine act with
reference to the collection of an internal revenue tax on articles
coming into the United States from the Philippines.
I am therefore of the opinion that no internal revenue tax can be
legally imposed under the laws of the United States on cigars shipped
from the Philippine Islands.
Respectfully,
HENRY M. HOYT,
Acting Attorney-General.
ATTORNEY-GENERAL-- OPINION; 24 Op.Att'y.Gen. 118, September 10,
1902
The Attorney-General declines to express an opinion upon the question
whether the Postmaster-General should enter into a contract with the
Return Postage Clearing Company for the institution of the "Reply
envelope and postal card" scheme, for the reason that the question is
hypothetical in its nature and involves considerations of administrative
discretion and judgment, and of practicability and advisability, which
must be determined solely by the Postmaster-General.
DEPARTMENT OF JUSTICE,
September 10, 1902.
The POSTMASTER-GENERAL.
SIR: Referring to the request of your predecessor for an opinion,
dated July 7, 1899, relative to the proposal of the Return Postage
Clearing Company, consideration of which has been suspended in the
interim, owing, as I understand, to the desirability of further
investigation by your Department; and referring to recent
correspondence on this subject, I have the honor to say that the form of
the request for an opinion presents a question merely hypothetical.
In effect, there was referred to me an inquiry which involves
considerations of administrative discretion and judgment, of
practicability and advisability, as well as the simple question of law
founded thereon. It does not appear that the former Postmaster-General
had conclusively settled in favor of the said proposal all of these
extra legal considerations which must be solely determined by the
Postmaster-General in his discretion. If the form of the question had
been substantially that the acceptance of the proposal having been
determined to be proper and advisable from the administrative point of
view, and the Postmaster-General, being ready accordingly to enter into
a contract, desired to know whether that step was justified by existing
provisions of law, I should have responded, or should now respond, to
the query presented.
I am confirmed in the view that it is not proper for me, on the
ground of the hypothetical nature of the question at this stage, to
render an opinion (13 Op.Att'y.Gen. 531; 20 Op.Att'y.Gen. 440; 21 Op.
Att'y.Gen. 506, 509; 22 Op.Att'y.Gen. 77), because I am informed this
day by the Acting Postmaster-General that the subject is at present
under investigation by you, and that you have before you now, for your
consideration and action, a report of a commission to consider the
advisability of adopting the "reply envelope and postal card" scheme,
this commission having been appointed by you under directions to make "a
thorough examination of the merits of the several devices which have
been presented." For these reasons and under these circumstances I must
respectfully decline to reply to the request of your predecessor. I
return the inclosures herewith.
Very respectfully,
HENRY M. HOYT,
Acting Attorney-General.
GIFTS FROM FOREIGN PRINCE-- OFFICER-- CONSTITUTIONAL PROHIBITION; 24
Op.Att'y.Gen. 116, September 8, 1902
The provision of Article 1, section 9, clause 9 of the Constitution,
which forbids the acceptance, without the consent of Congress, by any
person holding any office of profit or trust under the United States, of
any "present, emolument, office, or title, of any kind whatever, from
any king, prince, or foreign state," applies as well to a titular prince
as to a reigning one; and a simple remembrance of courtesy, even if
merely a photograph, falls under the inclusion of "any present of any
kind whatever."
This prohibition expressly relates to official persons, and does not
extend, under the circumstances outlined, to a department of the
Government or to governmental institutions.
DEPARTMENT OF JUSTICE,
September 8, 1902.
The SECRETARY OF STATE.
SIR: I have the honor to respond to your note of August 27,
submitting for my consideration a copy of a note from the German
embassy, which communicates a list of presents bestowed by Prince Henry
of Prussia on the occasion of his recent visit to this country. You ask
my opinion on the question whether the constitutional provision which
forbids the acceptance, without the consent of Congress, of any
"present, emolument, office, or title, or any kind whatever, from any
king, prince, or foreign state," may be construed as applying only to a
reigning prince, in which case the authority of Congress for the
delivery of these presents would not be required. The presents consist
of portraits given to the Navy Department, the Military Academy and the
Naval Academy, and of a photograph to each of several military and civil
officers of the United States. The provision of the Constitution is as
follows:
"No title of nobility shall be granted by the United States: And no
person holding any office of profit or trust under them, shall, without
the consent of the Congress, accept of any present, emolument, office,
or title, or any kind whatever, from any king, prince, or foreign
state." (Art. I, sec. 9, cl. 9.)
It is evident from the brief comments on this provision, and the
established practice in our diplomatic intercourse (2 Story on the
Constitution, 4th ed., pp. 216, 217; 1 Wharton's Int.Law Dig., 110, p.
757), that is language has been viewed as particularly directed against
every kind of influence by foreign governments upon officers of the
United States, based on our historic policies as a nation. Although it
is manifest that the particular collocation of words in the
Constitution, like the words "any foreign prince or state" in the
neutrality statutes, refers chiefly to a foreign government and its
regular executive (cf. act January 31, 1881; 21 Stat., 604), it would
not, in my judgment, be sound to hold that a titular prince, even if not
a reigning potentate, is not included in the constitutional prohibition.
For the phrase of the provision is "any king, prince, or foreign state,"
and a titular prince, although not reigning, might have the function of
bestowing an office or title of nobility or decoration, which would
clearly fall under the prohibition. As this remark suggests generally
the character of the gift, whether a present or some title of honor
(although you do not suggest this point), it must be observed that even
a simple remembrance of courtesy, which from motives of delicacy
recognizes our policy, like the photographs in this case, falls under
the inclusion of "any present * * * of any king whatever." The act of
1881 (supra) which, it is true, refers only to a foreign government,
uses the words "any present, decoration, or other thing."
But as the constitutional prohibition expressly and exclusively
relates to official persons, it could not properly be extended, under
the circumstances at all events, in my judgment, to a department of the
Government and to governmental institutions.
I have the honor to answer your question in the negative.
Very respectfully,
HENRY M. HOYT,
Acting Attorney-General.
NAVIGATION LAWS-- CONTRACT LABOR-- CHINESE EXCLUSION; 24 Op.Att'y.
Gen. 111, August 29, 1902
A Chinese crew which shipped at Hongkong on a vessel belonging to a
company chartered under the laws of the United States, for a trip to San
Francisco and return by the same vessel or any other vessel belonging to
that company, which crew, owing to an accident to the ship, was brought
to San Francisco on a vessel belonging to a different company, may be
transferred to another vessel substituted for the one injured, after
having duly signed for that service before a United States shipping
commissioner.
Such transfer would not be a violation of the alien contract labor
laws.
The landing of the crew, temporarily, for the purpose of transfer,
would not violate the treaty with China and the laws of the United
States in relation to the exclusion of Chinese.
DEPARTMENT OF JUSTICE,
August 29, 1902.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
the 28th instant, together with the papers therein referred to.
It appears that a Chinese crew was shipped on the City of Peking, a
vessel of the Pacific Mail Steamship Company, chartered under the
navigation laws of the United States on or about July 22 last, at
Hongkong, for a trip from said port to San Francisco and return, the
shipping articles signed by said crew stipulating for the return voyage
by the City of Peking "or any other vessel of the same company in the
trans-Pacific trade." On her voyage to San Francisco the City of Peking
was disabled and was towed into Kobe, Japan, for repairs. Her crew were
put upon the Gaelic, of the Occidental and Oriental Company, chartered
under the navigation laws of Great Britain, by which vessel they were
brought to San Francisco. The Pacific Mail Steamship Company now desires
to transfer said Chinese crew to the Korea, which vessel has been
substituted for the City of Peking, for the return voyage to Hongkong.
My opinion is requested upon the following questions:
"First. Would such shipping articles as those above described enable
the Pacific Mail Steamship Company to transfer a crew signed in a
foreign port for service on one of its vessels to another of its vessels
about to make its initial voyage from a port of the United States to
serve as crew thereof, without duly signing said crew for the last-named
service before a United States shipping commissioner?
"Second. If such transfer could be made without the said crew being
first duly signed for service on the Korea before a United States
shipping commissioner at the port of San Francisco, would it not be a
violation of the act of February 26, 1885 (23 Stat., 332), and the acts
amendatory thereof, known as the 'alien contract-labor laws?'
"Third. Would not the landing of the Chinese persons constituting
said crew, who now are merely passengers on a vessel of the said
Occidental and Oriental Line, even temporarily for the purpose of the
transfer above described, be in violation of the treaty and laws in
relation to the exclusion of Chinese, since they are without the
evidence prescribed for persons of that race of the classes excepted by
Article III of the convention of December 8, 1894, and without the
certificates of registration and return required of Chinese laborers?"
1. Section 20 of the act of June 26, 1884 (23 Stat., 58), provides
that "every master of a vessel in the foreign trade may engage any
seaman at any port out of the United States, in the manner provided by
law, to serve for one or more round trips from and to the port of
departure, or for a definite time, whatever the destination; and the
master of a vessel clearing from a port of the United States, with one
or more seamen engaged in a foreign port, as herein provided, shall not
be required to reship in a port of the United States the seamen so
engaged."
This section authorizes the shipment abroad on a vessel chartered
under the laws of the United States of a crew for a trip from a foreign
port to a port of the United States and return. But, although the
language used is not specific on the subject, it is evident that the
section contemplates the return of the crew to the foreign port of
departure in the vessel which they shipped. In the present case, the
shipping articles provided that the crew, outbound from Hongkong on the
City of Peking, should return thereto either on that vessel or on some
other vessel of the company in the trans-Pacific trade. Had not the
accident happened to the City of Peking, there would be no question as
to the authority, under this section, for the return of the crew upon
that vessel to Hongkong.
The question then arises whether, because of the accident and the
resulting transfer to the Gaelic of the crew of the City of Peking, by
which they reached San Francisco, they can serve as the crew of the
Korea without signing for such service before a United States shipping
commissioner.
Section 4511 of the Revised Statutes provides that "the master of
every vessel bound from a port in the United States to any foreign port
* * * shall, before he proceeds on such voyage, make an agreement, in
writing or in print, with every seaman whom he carries to sea as one of
the crew, in the manner hereinafter mentioned; and every such agreement
shall be, as near as may be, in the form given in the table marked A, in
the schedule annexed to this title. * * * ."
As the act of June 26, 1884, contemplates the return upon the same
vessel of a crew shipped in a foreign port for a round trip, it would
seem proper, in the absence of express authority to transfer the crew to
another vessel, to require compliance with section 4511, Revised
Statutes, when such transfer is sought to be made. I therefore answer
your first question to the effect that the transfer of the crew of the
City of Peking to the Korea may be permitted when they shall have duly
signed for the return voyage to Hongkong, in accordance with their
contract, before a United States shipping commissioner.
2. Answering your second question, I am of opinion that the alien
contract-labor laws have no application to Chinese or other foreign
seamen. It can not be supposed that Congress by the act of February 26,
1885 (23 Stat., 332), and the acts amendatory thereof, intended to
repeal the provision of the act of June 26, 1884, before referred to.
Had Congress so intended, its intention would have been clearly
manifested, and not left to be gathered by implication from acts which
have reference to entirely different subjects-- the one relating to
navigation and the other to the protection of labor within the United
States.
In the case of the United States ex rel. Anderson v. Burke (99 Fed.
Rep., 895, 898), which involved the construction of the immigration
laws, the circuit court for the southern district of Alabama, after
observing that all laws should receive a reasonable construction, and
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," said:
"A consideration of the whole legislation on the subject of alien
immigration, of the circumstances surrounding its enactment, and the
unjust results which would follow from giving such a meaning to it as is
here claimed for it, makes it unreasonable to believe that Congress
intended to include a case like the present one.
My opinion is that these statutes do not contemplate the exclusion of
the crews of vessels which lawfully trade to our ports, and that they do
not, in spirit or in letter, apply to seamen engaged in their calling,
whose home is the sea; who are here to-day and gone to-morrow; who
come on a vessel into the United States with no purpose to reside
therein, but with the intention, when they come, of leaving again on
that or some other vessel for the port of shipment or some other foreign
port in the course of her trade. To hold that these statutes apply to
aliens comprising the bona fide crews of vessels engaged in commerce
between the United States and foreign countries would lead to great
injustice to such vessels, oppression to their crews, and serious
consequences to commerce." (See also 23 Op.Att'y. Gen. 521.)
The principle thus announced applies to the alien contract-labor
laws.
I therefore answer your second question to the effect that the alien
contract-labor laws would not be violated by the transfer of the crew of
the City of Peking to the Korea.
3. In the case of In re George Moncan (14 Fed.Rep., 44, 47), where
the question was whether certain Chinese members of the crew of the
Patrician, of Maine, shipped before the American consuls of London and
Yokohama respectively, were within the United States in violation of
section 1 of the act of May 6, 1882, the circuit court for the District
of Oregon said:
"Nor do I think that the Chinese members of the crew of the Patrician
are 'laborers' within the meaning of this act. True, their vocation is
labor. But they are not brought here to remain and enter into
competition with the labor of the inhabitants of the country.
They labor upon the high seas in the navigation of a vessel engaged in
the exchange of commodities between this country and other parts of the
world. * * *
"It is not to be supposed for a moment that Congress intended by the
passage of this act to impede or cripple this commerce by prohibiting,
in effect, all vessels engaged in the carrying trade to and from the
United States, and particularly those on the Pacific coast, from
employing Chinese cooks, stewards, or crews, when, for any reason, it is
necessary or convenient to do so; for such would necessarily be the
result of holding that the Chinese crew of a vessel coming from a
foreign port to one of the United States are 'laborers,' within the
meaning of the act. Such a 'limitation' upon the right of the Chinese to
enter or be brought within our ports is clearly beyond the letter and
spirit of the concession made by the supplemental treaty, which declares
that it shall only apply 'to Chinese who may go to the United States as
laborers;' that is, with the intention to labor here and enter into
competition with the labor of the country. Upon this ground, also, it is
clear to my mind that the act does not apply to the crew of the
Patrician. Of course, a Chinese seaman, although allowed to come into
the ports of the United States as one of the crew of a vessel from a
foreign port, does not thereby obtain the right to remain in the country
and become a laborer therein; and if the master allows him to go ashore
permanently, the latter would be liable to removal, and the former to
the punishment prescribed in section 2 of the act. But such seamen would
have the same right to be on shore temporarily and not otherwise
employed than in the business of the vessel during her stay in port, as
those of other nationalities."
In the case of In re Jam (101 Fed.Rep., 989) the district court for
the southern district of New York held that a Chinese seaman "is not
within the purview of the acts so long as he merely touches here for no
other purpose than to reship so soon as shipment can be obtained," and
that the views announced on that subject by that court in In re Ah Kee
(22 Fed.Rep., 519) still applied.
The fact that the crew of the disabled City of Peking were brought
from Kobe, Japan, to San Francisco on the Gaelic did not divest them of
their character as the crew of the City of Peking. They went upon the
Gaelic, not voluntarily as passengers, but under their agreement as the
crew of the City of Peking, and they were bound, under the articles
which they had signed, to return to Hongkong upon her or some other
vessel belonging to the Pacific Mail Steamship Company. In the case of
Schermacher v. Yates (57 Fed.Rep., 668) a crew discharged without their
consent before reaching a final port of discharge were held to be
entitled to recover for transportation to that place. In the present
case the crew have not been discharged, but are held under their
agreement for the return voyage to Hongkong.
The bare landing of the crew of the City of Peking (if it is to be
considered a landing at all), in order that they may reship upon the
Korea, would not, in my opinion, violate the treaty and laws in relation
to the exclusion of Chinese. I see no objection, therefore, to
permitting them to come ashore for that purpose under proper custody and
safeguards; and, as a matter of just and reasonable convenience under
the peculiar circumstances of the present case, the crew may be
transferred direct to the Korea for the purpose of reshipment for the
return voyage.
The papers transmitted with your letter are herewith returned.
Respectfully,
HENRY M. HOYT,
Acting Attorney-General.
UNITED STATES SUPREME COURT REPORTS-- DISTRIBUTION; 24 Op.Att'y.
Gen. 106, August 27, 1902
Section 1 of the act of July 1, 1902 (32 Stat., 630), entitled "An
act for the further distribution of the reports of the Supreme Court,
etc.," authorizes the distribution of the official edition only of those
reports, together with reprints of such earlier volumes as are out of
print or are otherwise difficult to procure.
A reprint distinguished from a new edition.
Under section 2 of that act the circuit and district judges are
authorized to select the editions, whether official or otherwise, for
their respective courts, provided that no volumes of the reports have
been previously furnished such court.
This right of selection is limited to judges of the circuit and
district courts, and does not extend to the other distributees mentioned
in section 2. It is also limited to the copies to be supplied for the
courts, and does not include reports intended for the individual use of
the judges.
The copies to be distributed under section 3 are to be furnished by
the publishers of the official reports.
By section 4 the digests are to be distributed to each judge or other
official entitled to receive the decisions, either under the act of July
1, 1902, or prior legislation.
DEPARTMENT OF JUSTICE,
August 27, 1902.
The SECRETARY OF THE INTERIOR.
SIR: I have the honor to acknowledge the receipt of your letter of
the 5th instant, in which you ask my interpretation of the act approved
July 1, 1902, entitled "An act for the further distribution of the
reports of the Supreme Court, and for other purposes."
As to this act, you ask me the following questions:
(1) "Whether this Department is at liberty to distribute to any of
the executive and judicial officers of the Government named in section 1
any other than the official edition or an exact reproduction of said
official edition."
(2) "What is the legal import of the word 'reprint,' as used in
section 2."
(3) "Whether the option given in section 2 as to the edition from
which the reports are to be supplied applies to any other officers than
the judges holding courts, or does it extend to the heads of the Naval
and Military Academies and to the Secretary of War."
(4) "Whether such option includes the reports that are to be supplied
to United States judges for their individual use, or is it limited to
such reports as are to be 'distributed to each of the places where
circuit and district courts of the United States are now holden,' which
reports are to be kept in the custody of the clerks of said courts."
(5) "Whether, in procuring the reports to be supplied under the
provisions of section 3, the Department is limited to those furnished by
the same publisher, viz, the publisher of the official edition, by whom
all reports received by this Department have been hitherto supplied, or
can the Department procure them from some other publisher of the
decisions of the Supreme Court. If the latter, who is to decide which
publisher shall furnish the decisions."
(6) "Whether the digest referred to in section 4 is to be distributed
to the several executive officers of the Government entitled to the
reports of the Supreme Court under this act or prior laws, or only to
judges and to places where United States courts are holden."
The first two questions can be answered together. The act of July 1,
1902, was supplementary to previous legislation with reference to the
distribution of the official reports of the Supreme Court, and must,
therefore, be construed in harmony with prior legislation. Section 677,
Rev. Stat., authorizes the Supreme Court to appoint an official
reporter; and section 681 requires the reporter to deliver to the
Secretary of the Interior 300 copies of his work; section 683 provides
for the distribution of these copies. By the act of February 12, 1889,
provision was made for "the distribution, by the Secretary of the
Interior, of one set of the official reports of the decisions of the
Supreme Court, or an exact reprint of the same, comprising volumes one
to one hundred and twenty-two, inclusive, or so many volumes as may be
needed with those already supplied to make one such set, to each of the
places where the circuit and district courts of the United States are
regularly held." It is clear that this contemplates the distribution of
the official reports of the Supreme Court. It is true that the words "or
an exact reprint of the same" are used, but in my judgment this had
reference to the reprint of the earlier volumes. It is well known that
many of the volumes prior to 1860, as originally printed, can not be
procured except from private libraries, and that it has been necessary
to make reprints of the same in order to supply the needs of the bench
and bar.
Congress presumably knew this fact when it provided for the distribution
of the decisions from volumes 1 to 122. It appreciated that it might be
difficult to procure many of the earlier volumes in the original
edition, and therefore permitted the Secretary of the Interior to supply
the deficiency by the reprints of the original reports. With this
exception, however, Congress intended to supply the volumes for which
provision had been made in the sections of the Revised Statutes to which
I have referred.
Such being the state of the law, Congress passed the act of July 1,
1902, entitled "An act for the further distribution of the reports of
the Supreme Court, and for other purposes." Section 1 enlarged the
number of officials to whom such copies should be given, and in my
judgment there was no intention to change by this section the provisions
of previous laws with respect to the character of the publication to be
furnished. This section clearly contemplates the distribution of the
"Official Reports of the Supreme Court of the United States." And while
the words "or a reprint of the same" are added, yet in my judgment they
are used with the same meaning as in the act of February 12, 1889. While
a reprint of the official reports of the Supreme Court need not be a
fac-simile, yet it is not a reprint unless it contains the same matter
as the official edition. The official edition contains more than the
opinion of the court. It contains a preliminary statement of facts,
which is often prepared by the justices, a syllabus and headline,
indices, and occasionally foot notes. At times it contains addresses
made on the occasion of the death of members of the court, and unless
the so-called "reprint" contains all of these, it is not, in my
judgment, a reprint, even though it reproduces verbatim et literatim the
text of the decisions. As I understand it, there are editions of the
Supreme Court reports other than the official edition, and these contain
the opinion of the court, with different syllabii, indices, paging,
annotations, and other matter. The volumes have a different serial
number. These are a separate edition, and therefore, in the very nature
of the case not a reprint, for ordinarily an edition implies an editor,
and an editor implies some distinctive and original treatment of the
subject-matter.
There is a clear distinction between a reprint of the first folio of
Shakespeare and the various editions of Shakespeare with which learned
commentators have enriched literature.
For the reasons stated I am of the opinion that section 1 only
authorizes you to distribute the official edition of the Supreme Court
reports, together with reprints of such earlier volumes as are out of
print or otherwise difficult to procure.
Your third question as to the option given in section 2 is more
difficult. The section reads:
"That the Secretary of the Interior shall likewise distribute to each
of the places where circuit and district courts of the United States are
now holden, including the Indian Territory, islands of Hawaii and Porto
Rico, to which they have not already been supplied under the provisions
of the act of Congress approved February twelfth, eighteen hundred and
eighty-nine, and to the Naval Academy at Annapolis and to the Military
Academy at West Point, one complete set of the reports of the Supreme
Court, including those already published and those hereafter to be
published, or a reprint of the same, or such volumes as with those
already furnished will make one complete set, the judges holding such
courts to select the edition of such reports to be supplied for such
courts; and he shall also distribute to the Secretary of War twelve
complete sets for the use of the proper courts and offices of the
Philippine Islands and of the headquarters of military departments in
the United States, in his discretion, and to each and every place where
a new circuit and district court may be hereafter established one
complete set of said reports; and the clerks of said courts shall, in
all cases, keep these reports for the use of the courts and the officers
thereof: Provided, however, That no distribution of reports under this
section shall be made to any place where the court is not held in a
building owned by the United States, or where there is no United States
officer to whose responsible custody they can be committed."
I have already called attention to the fact that there is a clear
distinction between a reprint and a different edition. Congress
presumably knew that there were editions of the Supreme Court reports
other than the official edition, and with this knowledge it empowered
"the judges holding such courts to select the edition of such reports to
be supplied for such courts."
I can not believe that the word "edition" is here used synonymously with
the word "reprint." The more reasonable construction is that Congress
believed that some of the judges might prefer other editions than that
of the official reporter, and therefore gave to the judges a right of
selection. Such right, however, can only refer to courts where a
complete set is to be furnished, for where a part of the decisions has
previously been furnished, the additional volumes to be furnished must
be such as "will make a complete set." Congress did not intend to break
the harmony of existing sets by supplying later volumes of a different
edition, even though requested to do so by the judges referred to in
section 2. I think, therefore, Congress meant that where no volumes had
been previously furnished, the Secretary of the Interior should furnish
such edition, whether official or otherwise, as the judge might desire.
This right of selection was limited to judges of the circuit and
district courts, and had no reference to the other distributees
mentioned in section 2.
Answering your fourth question, I am of the opinion that the right of
selection was further limited to the copies to be supplied for the
courts. The language extends no further.
Replying to your fifth question, the copies to be furnished to you
under the act of July 1, 1902, are to be furnished by the publishers of
the official reports to the extent of the number therein mentioned.
Such is the express language of the provision.
Replying to your sixth question, the language of section 4 is not
entirely clear, yet in my judgment it was the intention of Congress to
distribute the digests to each judge or other official entitled to
receive the decisions of the court, either under the act of July 1,
1902, or of prior legislation.
I return you the inclosures of your letter.
Respectfully,
JAMES M. BECK,
Acting Attorney-General.
CIVIL SERVICE-- REINSTATEMENT; 24 Op.Att'y.Gen. 103, August 27,
1902
A person formerly employed as a clerk in the temporary or Spanish war
force, who resigned September 30, 1901, can not, by virtue of section 3
of the act of April 28, 1902 (32 Stat., 120, 171), which transferred
these temporary positions to the classified service, be reinstated
without examination.
The question whether such person is eligible to be reinstated under
rule 9 of the Civil Service Regulations depends upon the date of the
requisition. If the position was within the classified service at the
date of the requisition, then such person is eligible.
The word "may" in rule 9 vests a discretion in the Commission. The
question of reinstatement is one of administrative discretion, and is
not to be granted except when consistent with the interests of the
public service.
DEPARTMENT OF JUSTICE,
August 27, 1902.
The PRESIDENT.
SIR: I have the honor to acknowledge the receipt of your letter of
August 25, 1902, in which you ask me to submit an opinion in the case of
Mrs. Marian K. Rogers, who is an applicant for reinstatement in the War
Department under the following circumstances: The applicant, on January
2, 1898, was appointed a clerk in the temporary or Spanish war force of
the War Department, appointments to which, under the act of Congress,
were to be made without compliance with the civil-service rules. On
September 30, 1901, she resigned.
By section 3 of the act of April 28, 1902, these temporary positions
were transferred to the classified service, and the employees who then
filled them were placed in the same position as though they had complied
with the laws governing the civil service. As I held, in an opinion
under date of June 23, 1902, "this personal exemption is limited to
those who filled the positions in question at the time of the passage of
the act." As Mrs. Rogers had surrendered her position prior to the
passage of the act she can not, by the force of its provisions, claim
the personal exemption therein provided. The positions, however, being
brought within the operation of the civil-service laws "must be filled
in accordance with the laws and regulations governing appointments to
the civil service." The question therefore arises whether she is
eligible for reinstatement under rule 9 of the Civil Service
Regulations, which provides 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 said requisition, has, through no delinquency
or misconduct, been separated from a position included within the
classified service at the date of said requisition, and in that
department or office and that branch of the service in which said
vacancy exists."
Mrs. Rogers's eligibility for reinstatement, therefore, depends upon
the date of the requisition. If the position to which she desires to be
reinstated was within the classified service at the date of the
requisition, then she is eligible under rule 9. But if, on the contrary,
the requisition was made prior to the act of April 28, 1902, which
brought the position in question within the classified service, then, in
my opinion, rule 9 is without application.
You further ask me to submit an opinion as to whether the word "may"
in as used in rule 9, vests a discretion in the Commission as to such
reinstatement. Ordinarily the use of the word "may" in legal regulations
imports such discretion, although at times it is used without such
meaning, especially in cases where an exception to a previous rule is
being noted. In examining the civil-service rules it would appear that
the words "shall" and "may" have generally been used advisedly to
distinguish between that which is mandatory and that which is
discretionary. Thus section 4 of rule 7 provides that "the term of
eligibility shall be one year from the date on which the name of the
eligible is entered on the register: Provided, That this term may be
extended, in the discretion of the Commission, for a further period of
one year from the date of the expiration of the first year's
eligibility, upon such conditions as the Commission may prescribe: And
provided further, That in case a person whose name is upon any register
shall be mustered into the military or naval service of the United
States at a time when the United States may be engaged in war, the
period of eligibility of such person shall, under such conditions as the
Civil Service Commission may prescribe, be considered as suspended
during the time such eligible may be serving in the Army or Navy of the
United States.
Without enumerating the numerous instances in which the words "shall"
and "may" are used, and without committing myself to the interpretation
of these words in any rule except that now under discussion, it would
thus appear that the word "may" has been used advisedly in framing these
regulations. The rule now under consideration provides that--
"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 said requisition, has, through no delinquency
or misconduct, been separated from a position included within the
classified service at the date of said requisition, and in that
department or office and that branch of the service in which said
vacancy exists."
That the word "may," as thus used, was intended to vest a discretion,
is indicated by the fact that the reinstatement is not without
conditions, but is dependent upon the fact that the applicant was not
separated from the position which he formerly occupied by any
"delinquency or misconduct." Such reinstatement, therefore, depends upon
the good of the service, and for this reason the word "may" was used.
I am, therefore, of the opinion that, without respect to whether the
applicant's retirement from the service was for either delinquency or
misconduct, 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,
JAMES M. BECK,
Acting Attorney-General.
ATTORNEY-GENERAL-- OPINION; 24 Op.Att'y.Gen. 102, August 27, 1902
It is the invariable rule of the Department of Justice to decline to
give an opinion except when the request is accompanied by a statement or
finding of the facts involved.
DEPARTMENT OF JUSTICE,
August 27, 1902.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
the 26th instant, inclosing certain correspondence between the officers
of your Department and the Pacific Mail Steamship Company, as well as
certain communications submitted on behalf of the Sailors' Union of the
Pacific, and in which you ask my opinion upon the following questions:
(1) "Is not the proposed transfer of the said Chinese seamen, under
the circumstances mentioned in the accompanying correspondence, such a
landing as would bring them within the provisions of the treaty and laws
in relation to the exclusion of Chinese?
(2) "If the transfer contemplated may be made without violation of
the said laws, would it not be in pursuance of a contract or agreement
such as that prohibited by section 1 of the act of February 26, 1885 (23
Stat., 332), and the acts amendatory thereto, known as the alien
contract-labor laws?"
You do not give me, as the basis for an opinion, any agreed statement
of facts, but on the contrary ask for an expression of my opinion upon
facts to be gathered from the inclosures of your letter. It has been
the invariable rule of this Department to decline to give an opinion
except when the request is "accompanied by a statement or finding of the
facts involved." (23 Op.Att'y.Gen. 331, and previous opinions there
cited."
I am therefore reluctantly constrained to decline to express any
opinion.
I return you the inclosures of your letter.
Respectfully,
JAMES M. BECK,
Acting Attorney-General.
WIRELESS TELEGRAPHY-- INTERNATIONAL AGREEMENT; 24 Op.Att'y.Gen.
100, August 18, 1902
The United States have power, either alone or in cooperation with
other countries, to impose conditions upon the operation of any wireless
telegraph system which conveys messages to or from the United States.
Such transmission is commerce, and the power of the United States to
regulate commerce and to preserve the territorial integrity of this
country does not depend upon the means employed but upon the end
attained.
DEPARTMENT OF JUSTICE,
August 18, 1902.
The SECRETARY OF STATE.
SIR: I have the honor to acknowledge the receipt of your letter of
the 18th ultimo, transmitting "copy of a confidential memorandum from
the general embassy suggesting an international arrangement to prevent
the English Marconi Company from obtaining a monopoly of wireless
telegraphy," and also a copy of your reply, summarizing the answer of
the Treasury, War, and Navy Departments to the proposal.
You ask for my opinion "on the legal questions involved, so far as
this Government is concerned," and for "legal suggestions as to the
regulations proposed to be submitted to a preliminary conference."
The power of the United States, either alone or in cooperation with
other countries, to impose conditions upon the operation of any wireless
telegraph system which conveys messages to or from the United States is
perfectly clear. Such transmission has been repeatedly held by the
Supreme Court to be commerce, and, therefore, within the plenary and
paramount authority of the Federal Government to regulate, whether such
commerce be foreign or interstate.
Apart from this specific clause of the Constitution, I may refer you
to the carefully considered opinion of this Department (22 Op.Att'y.
Gen. 13), in which the inherent authority of the President to control
the landing of foreign submarine cables on the shores of the United
States was set forth. The conclusions therein reached are not affected
by the means employed to transmit messages, for whether transmitted by
the ordinary telegraph wires, by submarine cables, or by any of the
wireless systems, the power of the Government to regulate commerce and
to preserve the territorial integrity of this country depends not upon
the means employed but upon the end attained.
Whether the United States should participate in an international
conference to regulate wireless telegraphy is an administrative question
upon which I am not called to express an opinion. If your Department
should reach the conclusion to participate in such a conference, and
desires to formulate propositions for its consideration in behalf of the
United States, I am willing, if desired, to express an opinion, upon
their submission to me, as to their legal sufficiency.
Respectfully,
JAMES M. BECK,
Acting Attorney-General.
STATUTORY CONSTRUCTION-- REFUNDING OF LEGACY TAXES; 24 Op.Att'y.
Gen. 98, August 1, 1902
There is no distinction in the meaning of the terms "vested" in the
first paragraph, and "vested in possession or enjoyment," in the second
paragraph of section 3 of the act of June 27, 1902 (32 Stat., 406) which
provides for the refunding of taxes paid upon legacies and bequests for
religious uses, etc., under the act of June 13, 1898 (30 Stat., 464).
The two expressions should be given their technical legal
significance in each paragraph. The words "vested in possession or
enjoyment" do not imply an actual physical possession, but mean merely
that the contingency had been removed prior to July 1, 1902.
DEPARTMENT OF JUSTICE,
August 1, 1902.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
the 23d ultimo, asking for my opinion "as to the proper construction to
be given section 3 of the act approved June 27, 1902, entitled 'An act
to provide for refunding taxes paid upon legacies and bequests for uses
of a religious, charitable, or educational character, for the
encouragement of art, and so forth, under the act of June thirteenth,
eighteen hundred and ninety-eight, and for other purposes."
Said section 3 reads as follows:
"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."
The first paragraph of said section authorizes the refunding of all
taxes paid on contingent beneficial interests that had not become vested
prior to July 1, 1902. The second paragraph directed that no tax be
"assessed" or "imposed" after the passage of said refunding act
(approved June 27, 1902) upon any contingent beneficial interest not
"absolutely vested in possession or enjoyment prior to said July 1,
1902." The words "contingent" and "vested" should be given their
technical legal significance in each paragraph.
In the first paragraph no tax paid on a contingent interest can be
legally refunded where that interest vested prior to July 1, i.e., where
the contingency upon which the interest was conditioned happened before
that date.
In the second paragraph no tax could be legally demanded after June
27, 1902, upon a contingent interest, unless the contingency had been
removed and the interest vested prior to July 1 of that year.
Replying to your specific inquiry, I am unable to conclude that
Congress intended to make any distinction between the use of the terms
"vested" in the first paragraph, and "vested in possession or enjoyment"
in the second paragraph of said section. In each case the subject of
exemption was the same, viz, contingent interests in the technical legal
sense, and the only difference between them was that in the one case the
tax having been paid a refund is provided, and in the other case its
imposition is forbidden. I can not think that the words, "vested in
possession or enjoyment," imply an actual physical possession of the
subject of the legacy, for if Congress had so intended it would have
enabled anyone whose interest had become vested, and therefore
assignable, to avoid the tax by postponing the physical possession of
the interest. Both with respect to the taxes paid, or to be assessed,
the law sought to exempt contingent interests which might never vest,
and the words "vested in possession or enjoyment," therefore, reasonably
mean that the contingency had been removed prior to July 1, 1902.
Respectfully,
JAMES M. BECK,
Acting Attorney-General.
CIVIL SERVICE-- DEPARTMENT OF STATE; 24 Op.Att'y.Gen. 95, July 29,
1902
Section 3 of the legislative, executive, and judicial appropriation
act of April 28, 1902 (32 Stat., 120, 171), did not operate to place in
the classified service certain stenographers and a laborer who had been
employed by the Department of State since 1898 under succeeding yearly
appropriations providing $2,000 annually "for temporary typewriters and
stenographers" in that Department, the same "to be selected by the
Secretary."
That provision applied only to war-emergency employees who had been
repeatedly recognized, designated, and continued in employment in yearly
appropriation acts as an "additional temporary force rendered necessary
because of increased work incident to the war with Spain."
DEPARTMENT OF JUSTICE,
July 29, 1902.
The SECRETARY OF STATE.
SIR: I have the honor to acknowledge the receipt of your letter of
the 10th instant transmitting "copy of a letter from the Civil Service
Commission expressing the opinion that Caroline C. Galbreath and Kathryn
Sellers, temporary stenographers and typewriters, and Edmund A.
Burrill, temporary laborer engaged in messenger work, were not brought
into the classified service by section 3 of the 'Act making
appropriations for the legislative, executive, and judicial expenses of
the Government for the fiscal year ending June 30, 1903, and for other
purposes'" (approved April 28, 1902). You desire my opinion as to the
status of these employees.
At the time Congress passed the appropriation act above referred to
there were in the employ of the Government hundreds of capable and
efficient men and women whose appointment the exigencies of the
situation had led Congress to authorize without compliance with the
civil-service law. It was found that the growth of the business of the
Government rendered necessary the continuance of these employees in the
service, and it was probably the intent of Congress to extend to all
such employees, under the authority of said section 3, the benefits of
classification under the civil service. No reason apparently existed why
Congress should have neglected to extend the privileges of said section
3 to the persons named in your letter. There is grave doubt, however,
whether this was done.
The sundry civil act approved July 1, 1898, under the heading of
appropriations for the State Department, contained the following:
"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 same appropriation
was made, in the same language (except that the words "to be immediately
available" were thereafter omitted), in the legislative, executive, and
judicial appropriation acts of 1899, 1900, 1901, and 1902.
Attorney-General Griggs, in passing upon your authority to make
appointments under said appropriation of July 1, 1898, without reference
to the civil-service rules, said (22 Op.Att'y.Gen. 557):
"I think the original appointment of Mrs. Galbreath as a temporary
clerk in the Department of State, without reference to or conformity
with the proceedings directed to be complied with where appointments are
made to positions in the classified service, was lawful. The language of
the appropriation act above quoted indicates that the object of Congress
was to provide for extraordinary and unusual services which were only
temporarily required. The appropriation designates no number of
stenographers and typewriters which the Secretary may employ, leaving it
to his discretion to employ one or two if the exigencies of the service
and the necessity of speedy action required or a much larger number if
in the judgment of the Secretary a larger number would better facilitate
the work. The only limit on the discretion of the Secretary is the
amount of the expenditure for this purpose, which is fixed at $2,000.
The appropriation clause does not create offices or positions, but
merely provides for temporary employment."
He also held that the appointment of Mrs. Galbreath to the permanent
service under authority of the amendment to the civil-service rules of
May 29, 1899, authorizing the permanent employment of persons serving
under temporary appointments, was unauthorized.
Said section 3 of said appropriation act of April 28, 1902, provides:
"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."
Congress had theretofore repeatedly recognized and designated a class
of war emergency employees in the various Departments by making
appropriations from year to year "for continuing the employment of such
additional temporary force rendered necessary because of increased work
incident to the war with Spain." In said appropriation act of April 28,
1902, the war emergency employees in the Treasury, War, and Post-Office
Departments are all referred to as such.
Where Congress has provided that a certain class of employees shall
have certain benefits and privileges, and it is found that these
employees have been designated by a particular phrase, all others are
necessarily excluded. Each appropriation "for temporary typewriters and
stenographers in the Department of State, to be selected by the
Secretary," was separate and distinct and independent of the one
preceding it. The second and subsequent appropriations were not made, as
were the appropriations for the war emergency force, "for continuing"
such typewriters and stenographers.
Under said appropriation of April 28, 1902, you undoubtedly have the
authority to make appointments without compliance with the civil-service
law. This of itself is inconsistent with the theory that the persons now
holding positions under that appropriation are entitled to the benefits
of said section 3.
What has been said of persons holding appointments under said
appropriation for temporary typewriters and stenographers is equally
true of an employee "paid from the appropriation for emergencies arising
in the diplomatic and consular service."
Referring to the employees named in your letter, you say:
"These persons were taken into the service of the Department during
the Spanish-American war; the growth of the business of the Department
has rendered their continued service necessary, and they have shown
themselves highly capable of performing the duties which are assigned to
them. In view of the fact that it would be difficult to find persons so
competent to render the service they are rendering, * * * it is believed
by the Department that their services ought to be retained."
Under all the circumstances, the authority of the President to bridge
an apparent omission of Congress may seem to you proper to be invoked.
Respectfully,
HENRY M. HOYT,
Acting Attorney-General.
CHINESE EXCLUSION-- TREASURY DEPARTMENT CIRCULAR NO. 52; 24 Op.
Att'y.Gen. 91, July 26, 1902
Circular No. 52, Bureau of Immigration, Treasury Department, issued
May 10, 1902, providing that duly registered Chinese laborers seeking
admission to the United States after temporary absence under Article II
of the treaty of 1894 between the United States and China must prove
that some one of the conditions mentioned in that article exists at the
time of application for readmission, is warranted both by the treaty
with China and by the existing laws of the United States.
The facts which entitle such Chinese laborer to return to this
country must exist not only at the time of his departure but also at the
time of his return, and this notwithstanding the fact that he has
obtained a return certificate.
DEPARTMENT OF JUSTICE,
July 26, 1902.
The SECRETARY OF STATE.
SIR: Your letter of June 24, inclosing a note from the Chinese
minister dated June 14, presents for my opinion the question whether
Circular No. 52, Bureau of Immigration, issued by the Treasury
Department May 10, 1902, and relating to the enforcement of the Chinese
exclusion law, is warranted by the treaty with China and the laws of the
United States.
The circular provides that registered Chinese laborers seeking
admission to the United States after temporary absence under Article II
of the treaty of 1894 between the United States and China must prove
that some one of the conditions mentioned in Article II exists at the
time of application for readmission.
The circular states that such proof "constitutes a condition precedent
to reentry of such persons additional to the return certificate
prescribed in section 7 of the act approved September 13, 1888." The
following rules and conditions are prescribed: That return certificates
may be issued to duly registered Chinese laborers upon prima facie
evidence that they possess some one of the grounds recited in the act of
1888 to sustain their claim of right to return; that a return
certificate does not relieve the holder of the necessity of proving to
the satisfaction of the appropriate officers upon return to the port of
departure that some one of the conditions of Article II exists at the
time of return; that every Chinese laborer to whom a return certificate
has been issued should be informed that, in order to avoid the risk of
being refused readmission, he should, ninety days in advance of his
return, notify the collector of customs at the proper port of the
intention to return, giving the facts regarding his personal identity
and the grounds upon which he claims the right to reenter.
The remaining paragraphs of the circular provide that the collector
shall, upon receipt of such notice, investigate the claim, and if its
validity is not established, shall notify the person making it that he
will not be permitted to reenter this country; and that upon the
arrival of a returning laborer and the exhibition of his return
certificate, the collector shall require the applicant to establish
satisfactorily that he has at the time of arrival a lawful wife, child,
or parent in the United States, or property therein of the value of
$1,000, or debts of like amount due him and pending settlement.
Provision is made for entry without delay, if evidence of the
applicant's eligibility has previously been secured and is not
controverted, but otherwise a landing shall be refused until the
applicant's right is established.
The gist of the representations on behalf of Chinese persons is that
the existing law and practice contemplates the possession of a return
certificate as conclusive evidence of the right; that there is no
warrant for the position of the circular that the conditions of
allowance of reentry must exist at the time of return as well as at the
time of departure when the certificate is obtained.
The statement of this proposition is almost sufficient in itself to
condemn it. Accompanying it is some concession that fraud discovered
after the certificate was issued might invalidate it. But the claim is
made that the certificate is not prima facie evidence but the sole
evidence of the right of the laborer to return. The argument necessarily
means that, provided a registered laborer possessed the proper
qualifications to entitle him to return at the time of leaving this
country, although as soon as he had left, by fortuitous occurrence, or
design, short of fraud, all of those qualifications were withdrawn by
the departure of his family from this country and the collection and
remittance of his property or debts to China, yet the certificate of the
necessary facts which previously existed would be a sufficient charter
for his right to reenter.
The act of 1888 in its sixth section states the same basis for the
right of return as the treaty of 1894, and there is nothing in the
seventh section of that act providing for return certificates which
makes the issue of the certificate the final determination of the right,
or which is inconsistent with the view that the facts constituting the
foundation of the right must exist when the applicant actually returns
to this country as well as when he applied for the certificate.
Article I of the treaty of 1894 prohibits the coming of Chinese
laborers to the United States. The first sentence of Article II is as
follows: "The preceding article shall not apply to the return to the
United States of any registered Chinese laborer who has a lawful wife,
child, or parent in the United States, or property therein of the value
of $1,000, or debts of like amount due him and pending settlement." .The
remainder of Article II specifies the conditions upon which the Chinaman
must obtain a certificate and exercise the right of return. The
language quoted makes it very evident that the existence of the crucial
facts relates to the time of return. They must exist also at the time of
departure, in order to enable the Chinaman to obtain a certificate; but
manifestly there is no meaning or purpose in the allowance granted
except as giving an actual and existing reason for a Chinaman's reentry
into the country.
The law does not provide that the prohibition shall not apply to the
return of a laborer who had, but who has, a lawful wife, child, etc.
Consideration of the essential character of the exception granted and
of the reasons for it enables us to say that the requirement of
application for a return certificate a month prior to departure (sec.
7, act of 1888, supra), to enable the collector to investigate,
constitutes no reason for holding that no other examination was ever
intended to be made. The right is carefully guarded against abuse.
Before the apparent title to it is conferred, due investigation is made;
and manifestly the right should be shown by satisfactory proof to be
still possessed by the applicant when he actually arrives here on his
return voyage.
Paragraph III of the circular, suggesting rather than requiring that
a returning laborer should notify the collector from China in advance of
his intention to return, is plainly for the convenience of the Chinaman,
and to save him from loss and disappointment. This provision was
dictated by consideration for the Chinese, and the suggestion is not
just that the benefit and convenience to them is doubtful; that the
rule really subjects Chinamen to an adverse investigation in their
absence, with no opportunity to refute false charges or the machinations
of enemies. In any bona fide case adverse influences, if, indeed, such
should exist, would be powerless to prevent the establishment before the
appropriate Government officers of such patent facts as the necessary
family relations or property ownership.
In view of all the foregoing considerations, I have the honor to
advise you that in my opinion, as a matter of law, the circular in
question is warranted by the treaty with China and existing laws of the
United States.
Very respectfully,
HENRY M. HOYT,
Acting-Attorney-General.
ARMY OFFICERS-- APPOINTMENT; 24 Op.Att'y.Gen. 89, July 22, 1902
Where A, an officer in the military service of the United States, was
dismissed pursuant to the sentence of a general court-martial, which
court, as it afterwards appeared, had no jurisdiction over the officer,
and B was nominated to take his place on a certain date, "vice A,
dismissed," which nomination was confirmed by the Senate, the
appointment of B operated to supersede A, who ceased to be an officer
after the date on which that appointment took effect.
DEPARTMENT OF JUSTICE,
July 22, 1902.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge the receipt of your letter of
the 16th instant, in which you state that Hamilton H. Blunt was
dismissed from the military service of the United States as a captain of
the Forty-ninth Infantry, U.S. Volunteers, in pursuance of the sentence
of a general court-martial which became operative by the approval of the
President on January 2, 1901, and that Blunt has applied to your
Department "for 'an adjustment of his record under the decision of the
Supreme Court in the Deming case' and for a certificate of discharge."
You ask: "On what date and by what act was the officer separated from
the volunteer military service of the United States?"
It appears that under date of January 16, 1902, the President
nominated to the Senate "First Lieut. William H. Butler, Forty-ninth
Infantry, to be captain January 2, 1901, vice Blunt, dismissed;" that
the nomination was confirmed January 21, and that he was on January 25,
1901, commissioned as captain, to rank from January 2, 1901.
It was recently held by the Supreme Court in McClaughry v. Deming,
the case above referred to, that a court-martial organized to try an
officer of volunteers, and composed in part of officers of the Regular
Army, "had no jurisdiction over the person of the defendant or the
subject-matter of the charges against him," and that the sentence
imposed was for that reason void. The court-martial which tried Blunt,
an officer of volunteers, having been similarly composed, was for the
same reason without jurisdiction, and his sentence was also void.
The decision in the Blake case (103 U.S., 227) seems to determine the
question here at issue. In that case Blake, a post chaplain in the Army,
on December 24, 1868, while insane, tendered his resignation, which was
accepted by the President, to take effect March 17, 1869.
On July 7, 1870, the President nominated to the Senate to be a post
chaplain in the Army, to rank from July 2, 1870, "Alexander Gilmore, of
New Jersey, vice Blake, resigned." Gilmore's nomination was confirmed
July 12, 1870, and on the 14th of that month he was commissioned, to
rank from July 2, 1870. Blake subsequently regained his reason, and on
September 28, 1878, the President issued an order setting aside his
resignation on the ground that he was insane when he tendered it, and
ordering him to duty. Blake then brought suit in the Court of Claims to
recover the amount claimed to be due him by way of salary as a post
chaplain from April 28, 1869, to May 14, 1878. The case was taken by
appeal to the Supreme Court. After stating the ground upon which Blake
placed his claim, Mr. Justice Harlan, who delivered the opinion of the
court, said (p. 230):
"Did the appointment of Gilmore, by and with the advice and consent
of the Senate, to the post chaplaincy held by Blake, operate, proprio
vigore, to discharge the latter from the service and invest the former
with the rights and privileges belonging to that office? If this
question be answered in the affirmative, it will not be necessary to
inquire whether Blake was at the date of the letter of December 24,
1868, in such a condition of mind as to enable him to perform, in a
legal sense, the act of resigning his office."
He then proceeded to consider the question, and his conclusion was as
follows (p. 237):
"It results that the appointment of Gilmore, with the advice and
consent of the Senate, to the office held by Blake, operated in law to
supersede the latter, who thereby, in virtue of the new appointment,
ceased to be an officer in the Army from and after at least the date at
which that appointment took effect, and this without reference to
Blake's mental capacity to understand what was a resignation. He was,
consequently, not entitled to pay as post chaplain after July 2, 1870,
from which date his successor took rank."
Applying the decision in the Blake case to the case under
consideration, the appointment of Butler, with the advice and consent of
the Senate, to the office held by Blunt, "operated in law to supersede
the latter, who thereby, in virtue of the new appointment, ceased to be
an officer in the Army from and after at least the date at which that
appointment took effect," and this without reference to the
court-martial proceedings.
As Butler was nominated and commissioned to take rank from January 2,
1901, it must be held that his appointment took effect from that date.
It necessarily follows that Blunt was from the same date "separated from
the volunteer military service of the United States."
Respectfully,
HENRY M. HOYT,
Acting Attorney-General.
IMMIGRATION-- HEAD TAX-- PORTO RICO; 24 Op.Att'y.Gen. 86, July 15,
1902
The head tax upon alien passengers brought into ports of Porto Rico
should be accounted for and credited to the "immigrant fund," as is done
with like collections upon alien passengers arriving at ports in the
United States.
Section 14 of the act of April 12, 1900 (31 Stat., 77, 80), "to
provide revenues and a civil government for Porto Rico," gives force and
effect in that island to the immigration act of August 13, 1882 (22
Stat., 214).
DEPARTMENT OF JUSTICE,
July 15, 1902.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
the 28th ultimo, in which you ask for an opinion "as to whether, in view
of the provisions of sections 4 and 14 of the act 'to provide revenues
and a civil government for Porto Rico, and for other purposes,' approved
April 12, 1900, the head tax upon alien passengers brought to ports of
Porto Rico should not be accounted for and credited to 'immigrant fund,'
as is done with collections upon alien passengers arriving at ports of
the United States under the Provisions of 22 Stat., 214."
Said section 4 of the Porto Rican act, in substance, provided that
prior to the organization of the government of Porto Rico "all
collections of duties and taxes in the United States upon articles of
merchandise coming from Porto Rico" should not be covered into the
general fund of the Treasury, but should be held as a separate fund for
the benefit of Porto Rico, and that after such organization all moneys
theretofore collected under the provisions of said section, then
unexpended, should be transferred to the local treasury of Porto Rico,
and the Secretary of the Treasury should designate the several ports and
subports of entry in Porto Rico, and make such rules and regulations and
appoint agents to collect the duties and taxes authorized to be levied
and collected and paid in Porto Rico under said act; and said section
further provided that upon the organization of a civil government for
Porto Rico, and proclamation thereof by the President, all collections
of duties and taxes in Porto Rico under the provisions of said act
should be paid into the treasury of Porto Rico, to be expended as
required by law for the government and benefit thereof.
It is apparent, from a critical examination of section 4 above
referred to, that the duties and taxes therein mentioned are those
levied and collected as such upon "articles of merchandise." Reference
is made to ports and subports of entry, and to the making of rules and
regulations, and appointment of agents to collect the duties and taxes
authorized to be levied, collected, and paid in Porto Rico by the
provisions of said act.
Under section 14, the statutory laws of the United States not locally
inapplicable, except the internal-revenue laws, and except as otherwise
provided, were given "the same force and effect in Porto Rico as in the
United States."
Among the statutory laws of the United States "given force and effect
in Porto Rico" by said act is "An act to regulate immigration" (22
Stat., 214), approved August 3, 1882. It will be observed from the
title, and from a consideration of the provisions of said act, that its
scope and purpose is not the raising of revenue, but the regulation of
immigration. The duty of 50 cents exacted for each passenger is merely
nominal, and in no way restricts immigration. The act provides that this
duty shall be paid the collector of customs of the port to which such
passenger shall come, or the collector nearest thereto, not by the
immigrant, but by the master, owner, agent, or consignee of the steam or
sailing vessel bringing such immigrant, and that "the money thus
collected shall be paid into the United States Treasury, and shall
constitute a fund to be called the immigrant fund, and shall be used,
under the direction of the Secretary of the Treasury, to defray the
expense of regulating immigration under this act, and for the care of
immigrants arriving in the United States, for the relief of such as are
in distress, and for the general purposes and expenses of carrying this
act into effect.
* * * Provided, That no greater sum shall be expended for the purposes
hereinbefore mentioned at any port than shall have been collected at
such port."
If section 14 of the Porto Rican act really gives "force and effect"
to said immigration act in Porto Rico, the money collected thereunder
must be paid into the United States Treasury, and devoted to the
purposes designated in said act. Unless this is done, the purpose of the
act is clearly defeated.
If this is done the spirit of section 4 will be carried out as well
as the letter of section 14, for the money collected in Porto Rico under
said immigration act will undoubtedly all be expended at the various
ports in Porto Rico where it shall have been collected, and Porto Rico
receive the benefit thereof.
Inasmuch as section 4 of the Porto Rican act evidently deals with
duties and taxes levied and collected as such upon articles of
merchandise, and section 14, by implication, gives force and effect in
Porto Rico to said immigration act of August 13, 1882, and the head duty
collected thereunder is a mere incident to and not the object of said
act, and the diverting of such head duty from the purposes contemplated
in said immigration act will evidently defeat the provisions of said
section 14 of said Porto Rican act, so far as giving force and effect in
Porto Rico to said immigration act is concerned, I am of the opinion
that said head duty should "be accounted for and credited to 'the
immigration fund,' as is done with collections upon alien passengers
arriving at ports in the United States."
Respectfully,
HENRY M. HOYT.
Acting Attorney-General.
ATTORNEY-GENERAL-- OPINION; 24 Op.Att'y.Gen. 85, July 7, 1902
It is not deemed necessary or desirable for the Attorney-General to
express an opinion upon the question of granting extra compensation in
lieu of annual leave to certain former employees of the Census Office,
under a proviso to the deficiency appropriation act of June 30, 1902 (32
Stat., 571), that being a matter relating solely to payments out of the
Treasury. By section 8 of the act of July 31, 1894 (28 Stat., 208), it
is made the duty of the Comptroller of the Treasury to determine such
questions.
DEPARTMENT OF JUSTICE,
July 7, 1902.
The SECRETARY OF THE INTERIOR.
SIR: Your letter of July 3, inclosing a copy of a letter of the same
date addressed to you by the Acting Director of the Census, presents
certain facts and a question of law arising thereupon respecting the
legality of extra compensation in lieu of annual leave to certain former
employees of the Census Office, under a proviso to the deficiency
appropriation act of June 30, 1902. The question in its ultimate effect
thus relates solely to payments out of the Treasury. This is a matter
which falls especially within the function of the Comptroller of the
Treasury under section 8 of the act of July 31, 1894 (28 Stat., 162,
208), providing that certain officers of the Government, including the
head of any executive department, may obtain the decision of the
Comptroller 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 in passing upon the account in question.
In view of this law, and in accordance with various opinions of
Attorneys-General, I have the honor to say that I do not deem it
necessary or advisable for me to express any opinion upon the question
which you submit.
(21 Op.Att'y.Gen. 188; 22 Op.Att'y.Gen. 413, 420; id., 581; 23 Op.
Att'y.Gen. 468.)
Very respectfully,
HENRY M. HOYT,
Acting Attorney-General.
CONTRACT; 24 Op.Att'y.Gen. 82, July 2, 1902
A contract for the building of a dry dock contained the provision
that "the excavation shall be shored and protected from caving and
injury in a manner which shall be safe and sufficient, in the opinion of
the engineer in charge." Held: The Government has a right to require
that the land adjacent to the excavation, lying between the dry dock and
a quay wall, be protected from caving and injury.
DEPARTMENT OF JUSTICE,
July 2, 1902.
The SECRETARY OF THE NAVY.
SIR: I have the honor to acknowledge the receipt of your
communication of June 28, requesting my opinion upon the interpretation
to be placed upon the provision (known as paragraph 40 of the
specifications) in a contract for the building of a dry dock, that "the
excavation shall be shored and protected from caving and injury in a
manner which shall be safe and sufficient in the opinion of the engineer
in charge," and particularly whether the Government has a right to
require that the land adjacent to the excavation, and lying between the
dry dock and the quay wall, be protected from caving and injury.
I am advised that the materiality of this inquiry arises from the
contention of the contractors that the provision for shoring in the
contract was for the protection of the excavation, and that the demand
now made by the engineer of the Government upon the contractors to shore
the excavation in conformity with plans furnished by him is for the
protection of a quay wall, and that such work was not contemplated at
the time the contract was executed.
By the statement of facts furnished me, it appears that a contract
was entered into for the construction of a timber dry dock, which was
afterwards modified so as to provide for stone and concrete
construction. At the time of executing the first contract there was
along the water front, opposite the site of the dry dock, a wooden
wharf. This was removed and a quay wall built in its place for berthing
vessels, to serve as a landing, and to prepare this portion of the water
front and the land in the vicinity for the general uses of the navy
yard. This wall was practically completed when the modified contract was
executed, and the plans for the changed dock showed it complete. The
provision (paragraph 40) above referred to remained in the
specifications of the modified contract.
Under the contract to construct the dry dock, excavation to a large
amount and of great depth was required. It was contemplated that earth
should be removed from a greater area than necessary for the dock.
Consequently provision was made for refilling the spaces thus excavated.
The contract was to construct and complete the dry dock; and the
Government covenanted to give possession and occupancy of the site and
secure the same until the completion of the work.
The work was to be done under the supervision and inspection of a
Government engineer.
In making the excavation the obligation rested upon the contractors
to do no more than was necessary for the proper construction of the
dock. Because they were permitted to go upon the use certain Government
land, and because the Government was the owner of all the contiguous
land, gave them no privilege to excavate improvidently or to endanger or
injure the contiguous lands. Negligently removing or injuring the soil
rendered them liable. Their general duty was to prevent caving or loss
of the adjacent land; and this, whether it had structure upon it or
not.
The provision requiring the excavation to be shored and protected
from caving and injury in a manner which should be safe and sufficient
is in accordance with these principles. It may be true that this was not
primarily in the minds of the contracting parties; but it is also true
that the requirement would be superfluous and incomplete if it were
confined to the protection of the excavation. The contractors were
obliged to keep that clear in order to build the dock, which they were
to deliver to the Government, and which was not to be accepted and paid
for until it was complete. Even so far as the excavation was concerned,
the intent of the contracting parties was not that it should be
protected by a greatly extended removal of the banks. The protection was
to be by shoring, and it was expressed in this provision.
The terms of this specification are direct and plain. They are broad
enough to cover protection to both the excavation and the adjacent
lands. This shoring is to be done "in a manner which shall be safe and
sufficient, in the opinion of the engineer in charge." The engineer has
directed the work to be done according to a plan furnished. It was
agreed by both parties that this officer should determine this matter.
It was competent for them to so agree.
I do not consider it necessary for me to consider the question of the
direct object had in view in ordering this work done. Upon the
statements presented to me I am of the opinion that the Government has
the right to require that the land adjacent to the excavation be
protected from caving and injury in the manner directed by the engineer
in charge.
Very respectfully,
P. C. KNOX.
CIVIL SERVICE-- TRANSFER OF TEMPORARY CLERKS TO CLASSIFIED SERVICE;
24 Op.Att'y.Gen. 81, June 23, 1902
Section 3 of the act of April 28, 1902 (32 Stat., 120, 171), which
provides for the transfer to the classified service of the Government of
certain temporary positions which were created to meet the exigencies of
the war with Spain, exempts from examination such employees as filled
these positions at the time of the passage of the act, and transfers the
positions in question to the classified service. Subsequent vacancies
must be filled in accordance with the laws and regulations governing
appointments to the civil service.
DEPARTMENT OF JUSTICE,
June 23, 1902.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
the 20th ultimo, in which you ask my opinion as to the construction of
section 3 of the act approved April 28, 1902.
The section in question provides for the transfer to the classified
service of the Government of certain temporary positions which were
created to meet the exigencies of the recent war with Spain.
The section continues the appropriation for their salaries, and provides
that the clerks and employees in question--
"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."
You are in doubt "as to whether the classification effected by said
section 3 relates merely to the 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."
I am of the opinion that the latter view was the intention of
Congress. The section contemplates the transfer of the positions in
question to the classified service, but exempts from examination such
employees as filled the positions in question at the time of the passage
of the act. In bringing the places in question within the operation of
the civil service laws, it sought to place their incumbents in the same
position as though they had passed their examinations, and complied in
other respects with the laws and regulations affecting the civil
service. This personal exemption is limited to those who filled the
positions in question at the time of the passage of the act, and does
not extend to subsequent vacancies, which must be filled in accordance
with the laws and regulations governing appointments to the civil
service.
Respectfully,
P. C. KNOX.
CENSUS OFFICE-- SPECIAL AGENTS; 24 Op.Att'y.Gen. 78, June 21, 1902
The Director of the Census is authorized, under section 7 of the act
of March 6, 1902 (32 Stat. 51), to employ special agents temporarily in
the Census Office at Washington upon special work not clerical in its
nature.
The words "all employees of the Census Office" in section 5 of the
above-named act can not be held to apply to special agents or other
field employees who may be temporarily assigned to service in the Census
Office.
DEPARTMENT OF JUSTICE,
June 21, 1902.
The SECRETARY OF THE INTERIOR.
SIR: I have the honor to acknowledge the receipt of your letter of
the 21st instant, in which you submit a question as to the authority of
the Director of the Census to employ special agents temporarily in the
Census Office at Washington.
By section 4 of the act of March 3, 1899 (30 Stat., 1014), entitled
"An act to provide for taking the Twelfth and subsequent Censuses,"
provision was made for the appointment by the Director of the Census of
certain statisticians, clerks, etc., who should constitute the office
force employed in the census work, such appointments being "subject to
such examination as said Director may prescribe," under section 5 of the
act.
By section 6 of the act the collection of the information required
for the census was to be made by supervisors, enumerators, and special
agents, who were to constitute the field force employed in the census
work, and whose appointment was not subject to any examination.
Section 17 of the act, after fixing the compensation to be paid to
special agents, provided "that no pay or allowance in lieu of
subsistence shall be allowed special agents when employed in the Census
Office on other than the special work committed to them, and no
appointments of special agents shall be made for clerical work."
The act of March 6, 1902, entitled "An act to provide for a permanent
Census Office" (32 Stat. 51), provides, in section 4, for the office
force of the Permanent Census Office thereby established. The "permanent
clerical force in the Census Office" thus provided for is by section 5
brought within the operation of the civil-service law. No reference is
made to special agents in this connection.
By section 7 of the act it is provided that "for the purpose of
securing the statistics required by this section the Director of the
Census may appoint special agents when necessary," to be compensated as
thereinafter provided, and by section 10 the provision of section 17 of
the act of 1899, above referred to, is reenacted in totidem verbis. No
provision is made in the act for the examination of special agents, and
they are not brought within the operation of the civil-service law.
In reenacting the provision of section 17 of the prior act, "that no
pay or allowance in lieu of subsistence shall be allowed special agents
when employed in the Census Office on other than special work committed
to them, and no appointments of special agents shall be made to clerical
work," Congress apparently contemplated the use of special agents in the
office work of the Permanent Census Office.
The question then is, whether the Director of the Census is authorized,
with your approval, to employ special agents temporarily in the Census
Office, upon special work committed to them and with which they are
familiar, not clerical in its nature.
It is to be presumed that in enacting the law of 1899, Congress
legislated with knowledge of the proper requirements for taking a
census. Apparently it was foreseen that, in preparing for publication
the date gathered by special agents in the field, the services of these
agents, by way of advice and supervision in the Census Office at
Washington, would be of value. Accordingly, provision was made for this
purpose, and in the act of 1902 this provision was continued.
The act of 1902 was designed to establish a Census Office in
permanent form. By authorizing, in section 10, the Director "in his
discretion to employ the clerical force of the Census Office for such
field work as may be required to carry out the provisions of sections 7,
8, and 9, in lieu of employing special agents for that purpose,"
Congress left it to the discretion of the Director to use the clerical
force of the office in the field work usually performed by special
agents. In like manner, by the reenactment of the provision of section
17 of the act of 1899, the employment of special agents in the Census
Office at Washington was permitted in the discretion of the Director,
subject to the qualification that "no appointments of special agents
shall be made for clerical work," and that when employed in the Census
Office on other than the special work committed to them, no pay or
allowance in lieu of subsistence should be allowed.
The intention of Congress must be gathered from the language of the
act taken as a whole, and its provisions are to be construed, if
possible, so as to give proper force to each. In order that the
provisions of section 10 may stand with those of sections 4 and 5, I am
of opinion that it is necessary to interpret them as authorizing the
Director of the Census to "employ" special agents in the Census Office
at Washington who have been appointed under section 7.
The words "all employees of the Census Office," in section 5, can not be
held to apply to special agents or other field employees who may be
temporarily assigned to service in the Census Office here. What service
such agents so assigned shall perform, and what shall be considered
"clerical work," is for the Director to determine.
This construction of the act of 1902, while keeping the appointment
of the regular permanent clerical force of the Census Office within the
operation of the civil-service law, gives to the Director of the Census
what I am constrained to believe Congress intended he should have, such
discretion in the matter of employing special and temporary service as
the character of the work intrusted to him may demand.
Respectfully,
JOHN K. RICHARDS,
Acting Attorney-General.
OFFICERS OF THE MARINE CORPS-- RELATIVE RANK; 24 Op.Att'y.Gen. 74,
June 11, 1902
The mere promotion of two officers in different departments of the
Army does not, under sections 1603 and 1219, Revised Statutes, disturb
their preexisting relative rank.
Section 1219, Revised Statutes, does not purport to regulate merely
the relative rank of officers in the same department of the Army, but is
intended to fix the relative rank of the various officers of different
departments of the Army.
There is no warrant, therefore, for holding that promotions are
appointments where the officers promoted are in different departments of
the Marine Corps, but are not appointments where they are in the same
department.
Opinion of Attorney-General MacVeagh of August 17, 1881 (17 Opin.,
196), and of Attorney-General Brewster of May 18, 1882 (17 Opin., 362),
reaffirmed.
DEPARTMENT OF JUSTICE,
June 11, 1902.
The SECRETARY OF THE NAVY.
SIR: I have the honor to acknowledge the receipt of your letter of
April 17, 1902, in which you request my opinion as to the relative rank
of two officers of the Marine Corps, such rank, by section 1603, Revised
Statutes, being determined by the provisions of law regulating relative
rank in the Army.
The question therefore arises under the following provision of the
act of March 2, 1867 (14 Stat., 434):
"That in computing the length of service of any officer of the Army
in order to determine what allowance and payment of additional or
longevity rations he is entitled to, and also in fixing the relative
rank to be given to an officer as between himself and others having the
same grade and date of appointment and commission, there shall be taken
into account and credited to such officer whatever time he may have
actually served, whether continuously or at different periods, as a
commissioned officer of the United States, either in the Regular Army
or, since the nineteenth day of April, eighteen hundred and sixty-one,
in the volunteer service, either under appointment or commission from
the governor of a State or from the President of the United States; and
the provision herein contained as to relative rank shall apply to all
appointments that have already been made under the act to fix the
military peace establishment of the United States, approved July
twenty-eight, eighteen hundred and sixty-six."
The substance of this act was codified in the Revised Statutes in
section 1219, and the question of the relative rank between officers
"having the same grade and date of appointment and commission" must be
determined in accordance with the requirements of said act.
It appears from your statement of facts that until May 17, 1877,
Colonel Reid outranked Colonel Goodloe by seniority in commission. On
that day Colonel Goodloe was appointed major and paymaster, and
subsequently, on May 2, 1894, Colonel Reid was appointed major,
adjutant, and inspector. Both of these last-named commissions were
appointments by selection at the discretion of the appointing power, and
were not promotions under the statutes regulating such promotions. From
May 17, 1877, therefore, Colonel Goodloe outranked Colonel Reid by
seniority of commission, and on March 3, 1899, under the act of March 3,
1899 (30 Stat., 1008), both officers were promoted to the rank of
colonel.
If the promotion of the two officers in question on March 3, 1899,
gives them the "same grade and date of appointment and commission," then
it is obvious that Colonel Reid outranks Colonel Goodloe, inasmuch as
Colonel Reid was commissioned a second lieutenant five years prior to
Colonel Goodloe.
If, on the contrary, such promotion on March 3, 1899, is not to be
regarded as an "appointment" within Revised Statutes, 1219, then the
relative rank of the two officers as it existed between March 17, 1877,
to March 3, 1899, remains unaffected.
This question has already been considered by this Department, and
made the subject of official opinions. On February 21, 1881, upon the
request of the Secretary of War, Attorney-General Devens (17 Op.Att'y.
Gen. 34), held that a promotion was an "appointment" within the meaning
of the act of Congress already cited. As this opinion was opposed to the
practice of the War Department as it had therefore existed since the
passage of the act, the Secretary of War, on May 6, 1881, requested this
Department to reconsider the question. This Department, in an opinion by
Attorney-General MacVeagh (17 Op.Att'y.Gen. 196), reconsidered its
former opinion, and reversed the conclusion therein reached. The
conclusion of that opinion is thus stated by Attorney-General MacVeagh:
"I am constrained, therefore, to advise you that the word
'appointment' in section 1219 of the Revised Statutes applies only to
the original entry of the officer into the regular service, or
subsequent appointment by selection, but that it does not apply to
promotions by seniority as defined in the Regulations of the Army."
This conclusion was reaffirmed by an opinion of Attorney-General
Brewster pn May 18, 1882 (17 Op.Att'y.Gen. 362).
It is contended in the brief of argument submitted by Colonel Reid
that these opinions of Attorneys-General MacVeagh and Brewster, as well
as the legislation which they sought to interpret, should be limited to
cases where promotions of two officers claiming precedence by relative
rank were in the same department of the service. He contends that
inasmuch as their respective lineal ranks by promotion were independent
of each other, such promotions must be regarded as having all the force
and effect of "appointments" within the meaning of Revised Statutes,
1219.
In my opinion neither the section of the Revised Statutes referred
to, nor the two opinions of this Department which interpret it, are thus
limited in their application. The section cited does not purport to
regulate the relative rank in the same department of the Army, but is
apparently intended to fix the relative rank between the various
officers of the different departments of the Army by giving to such
officers, where "the same grade and date of appointment and commission"
exists, the benefit of seniority in service, whether as a volunteer or
regular. To hold that promotions are appointments where the officers
thus promoted are in different departments, but are not appointments
where they are in the same department, is to narrow the application of
the statute by reading into its general provisions a substantial
qualification of which its language gives no suggestion.
I presume it is as important to have a method of determining the
question of relative rank between officers of different departments as
it is between officers of the same department, and I can not conclude
that the act of Congress was intended to meet one contingency and ignore
the other. The opinions of Attorneys-General MacVeagh and Brewster do
not suggest any such distinction. Their opinions had reference to the
military establishment of the United States. As Attorney-General
MacVeagh clearly said (17 Op.Att'y.Gen. 197):
"As I understand it, a clear and well-defined distinction between
appointment and promotion has existed and been recognized in the War
Department continuously since the establishment of the Army.
Appointment is the selection of persons not now in the Army, as officers
of it, or the designation by selection of an officer already in the Army
to a vacancy which is not required by law or the regulations to be
filled by promotion according to seniority. Promotion is the advancement
of officers already in the Army, according to seniority, to vacancies
happening in the different arms of the service, and according to rules
prescribed by law or by regulations having the force of law.
"I understand also that since the passage of the act of March 2,
1867, it has been the uniform practice of your Department to fix the
relative rank of officers receiving appointments, within the meaning of
that term as herein defined, at the time of such appointment; and that
their relative rank thus fixed is not thereafter disturbed by any
subsequent promotion, but that subsequent promotion and rank is by
seniority in the regular service."
In this connection the terms of the act of Congress under which
Colonel Goodloe and Colonel Reid were promoted are not without force.
The provision reads:
"That the vacancies created by this act in the departments of the
adjutant and inspector and paymaster shall be filled first by promotion
according to seniority of the officers in each of these departments,
respectively, and then by selection from the line officers on the active
list of the Marine Corps."
It will thus be seen that there is a distinction in the act between
"promotion" and appointments by "selection."
For these reasons, I concur in the opinion which you expressed in
ruling upon this case, the "the mere promotion of two officers does not
disturb their preexisting relative rank," and that therefore Colonel
Goodloe continues to outrank Colonel Reid.
I return you the inclosures of your letter.
Respectfully,
P. C. KNOX.
GERMAN LETTERS ROGATORY-- EXECUTION OF BY UNITED STATES COURTS; 24
Op.Att'y.Gen. 69, June 9, 1902
The Attorney-General can not properly pass upon the question whether
the courts in this country have authority to execute letters rogatory
issued out of the German patent office, as that is a matter for judicial
and not for executive determination.
Congressional legislation recommended which shall explicitly
authorize the issuing of letters rogatory by the Patent Office of the
United States, and shall clothe Federal courts with power to execute
letters issued by those patent offices of the recognized powers which
possess and exercise well-defined judicial functions.
DEPARTMENT OF JUSTICE,
June 9, 1902.
The SECRETARY OF STATE.
SIR: It appears from your letter of April 12 that certain letters
rogatory were issued out of the Patent Office for execution in Germany,
and that on being forwarded to our embassy at Berlin to put in course of
execution, the German foreign office has expressed the desire that this
Government declare officially that the courts of the United States would
in any similar case execute letters rogatory issued by the German patent
office.
You request an expression of my views upon the point whether the courts
in this have authority to execute letters rogatory issued out of the
German patent office, and suggest that if this authority is lacking,
proper recommendation should be made to Congress with a view to
legislation to regulate the subject.
The usual practice in England and the United States has been to take
testimony abroad by open commission issued from a court of record and
directed to persons vested with no local judicial authority in the
foreign country, who proceed as commissioners of the instance court to
obtain voluntary testimony. (Wharton on the Conflict of Laws (1882),
sec. 723 et seq.) This method was formerly the usual and the only
regular mode of taking depositions in a foreign country. (Stein v.
Bowman, 13 Pet., 209; Froude v. Froude, 1 Hun., 76.) Letters rogatory
or requisitorial, drawn from the civil law, have obtained, as a rule, on
the Continent of Europe, and are currently employed more frequently than
at an earlier day. Under such letters, and by the doctrines of
international law respecting comity, the courts of each country are held
bound to execute commissions to take evidence, subject to the proviso
that the requirement shall contain nothing to prejudice national
sovereignty, and that reciprocity in such matters shall be assured.
It seems to be well settled that letters rogatory are issued only
when an ordinary commission can not be executed, that their use rests
wholly upon comity between foreign states, that interrogatories are
generally attached, and that the law of the forum to which the letters
are addressed governs the procedure under them. (Whart. Conf. Laws, ut
supra; Nelson v. United States, 2 Pet.C.C., 235; Kuehling v.
Leberman, 9 Phila., 160; Doubt v. Pittsburgh R.R. Co., 6 Pa.Dist.Rep.;
238; sec. 4071, R.S.)
Section 875, Revised Statutes, provides for letters rogatory from
United States courts in suits in which the United States have an
interest; and per contra, for letters rogatory addressed from a foreign
court to a circuit court of the United States.
And sections 4071-4074, Revised Statutes, provide for the taking of
testimony in this country, to be used in foreign countries, in suits for
the recovery of money or property in which the foreign government has an
interest, either by commission or letters rogatory, under the authority
and supervision of the district judge of the district where the witness
resides. So that the United States has recognized by statutory
provisions and judicially the principle of international comity
involved. The various States, either under statutes or pursuant to
general doctrines, reciprocate with each other and with foreign
countries in the same manner.
But certain foreign governments are unwilling to permit testimony to
be taken in the less formal way by open commission, and in that case,
before the Federal statutes definitely recognized the proceeding by
letters rogatory to the limited extent indicated, the Supreme Court held
that letters rogatory may be issued "for the purpose of obtaining
testimony when the government of the place where the evidence is to be
obtained will not permit a commission to be executed." (Nelson et al.
v. United States, ut supra; 1 Foster's Fed.Prac., 3d ed., sec. 290, and
note; Gross v. Palmer et al., 105 Fed.Rep., 833.) It seems that Germany
is such a country, and that the ground of objection by the German
Government to the execution of a commission is that this customary
practice, committing the examination not to a local tribunal but to an
individual acting as commissioner of the foreign court, may involve an
invasion of sovereign rights. Germany prefers that testimony taken
within her borders to be used abroad shall be subject to the control of
the established German courts under letters rogatory. (3 Whart.Int.Law
Dig.,c. 23.)
The United States Patent Office customarily issues commissions to
take testimony in foreign countries (rule 158, Patent Office Rules of
Practice) under the authority of section 4905, Revised Statutes, which
authorizes the Commissioner of Patents to establish rules for taking
affidavits and depositions required in cases pending in the Patent
Office, but does not explicitly refer to the taking of testimony abroad.
The Commissioner of Patents has decided in the case of Potter v.
Ochs (97 Official Gazette of the Patent Office, p. 835) that, under
section 4905 and the provisions of rule 158, he has authority to issue
letters rogatory; and accordingly the letters which produced your
inquiry were issued addressed to the royal district court at Berlin.
The Commissioner's decision is based upon the view that courts of the
United States issue letters rogatory under similar circumstances; that
the Commissioner of Patents possesses judicial functions analogous to
those of courts (United States ex rel. Bernardin v. Duell, 86 O.G.,
995); but that since the Commissioner is not authorized by law to issue
subpoenas to compel the attendance of witnesses, he is not able in
issuing letters rogatory to make the offer usual in such instruments to
render a like service to the foreign court. He also relies for the
regularity of his action on the view that the courts of this country
stand ready to render such service to the courts of Germany when
requested, and expresses the belief that the courts of this country
would comply with such a request issued by the German patent office
under similar circumstances.
There is no doubt that the Patent Office embraces a judicial side, as
pointed out in the case of Bernardin v. Duell, just cited. The
Commissioner as to various aspects of patent laws exercises judicial
functions, and the questions involved bear a judicial character. It also
appears that the German patent office exercises similar judicial
functions under different provisions of the imperial patent laws;
indeed, in German patent law the analogy to a court seems to be even
more pronounced.
It is obvious that this is a field where the influence of comity may
properly be liberal and does not appear to be liable to abuse. For these
executive branches of the respective governments are established and
responsible agencies of administration. They are peculiarly sensitive to
enlarging notions of international reciprocation as applied to inventive
skill and products of the brain. They possess and exercise important
judicial functions, and the Patent Office of the United States, at
least, does, as a matter of fixed practice, issue commissions, which
have historically issued from courts alone as strictly as letters
rogatory.
Nevertheless, as I have just implied, the fundamental idea
undoubtedly is that either one of these methods of obtaining testimony
abroad proceeds as a charter or authority granted by a regular judicial
tribunal. The precise question before me is whether the courts in
general of this country have authority to execute letters rogatory
issued from the German patent office. Now, I think the opinion may
safely be ventured that if Germany saw fit to issue a commission by her
patent office, voluntary testimony could be obtained here (as it is thus
usually obtained by us abroad), although the statutory ancillary process
of Federal courts, if needed, in such case, is restricted to certain
suits, as indicated ante (Revised Statutes, sec. 4071). But it is
probable that the power and discretion of Federal courts in this
particular, existing as elementary and antecedent to the statutes (Stein
v. Bowman; Nelson v. United States, above cited), is not restricted by
the statutes, but simply directed or commanded pro tanto. It may,
indeed, be that the open commission is unknown to German jurisprudence,
or is not commonly employed thereunder, and doubtless our courts might
be influenced by the failure to reciprocate; yet I understand from the
correspondence that commissions are sent from Germany to this country--
that this privilege not only would be, but is freely given by courts of
this country to subjects of Germany (letter of the Secretary of the
Interior, May 16, 1902). However, even as to the simpler procedure under
commission, I am unable to construe or predict, beyond the point of high
probability just indicated, the status of a commission from the German
patent office in the various jurisdictions and systems of the States of
this Union. And when we turn to the subject of letters rogatory, by
which ordinarily regular courts of exclusive judicial jurisdiction call
upon the friendly aid of such courts abroad and offer reciprocation, the
judicial character of the question more plainly appears; such a
question I am not permitted to answer (13 Op.Att'y.Gen. 160; 19
Op.Att'y.Gen. 56; 20 Op.Att'y.Gen. 210, 314, 539; 21 Op.Att'y.Gen.
369, 557, 583); I can not speak for the courts.
It is for the different courts of the various jurisdictions, Federal and
State, to say when the point comes before them for decision whether or
not they have the necessary authority in the premises. It is manifest
that I can not properly pass upon such a question, which is preeminently
matter for judicial and not executive determination.
Therefore, I have the honor to say, responding to your alternative
suggestion, that it may be well to propose to Congress legislation which
shall explicitly authorize the issue of letters rogatory by the Patent
Office of the United States, and shall clothe Federal courts with the
power to execute letters issued by those patent offices of the
recognized powers which possess and exercise well defined judicial
functions.
Very respectfully,
P. C. KNOX.
CENSUS OFFICE-- EMPLOYMENT-- HONORABLY DISCHARGED SOLDIERS; 24 Op.
Att'y.Gen. 64, June 5, 1902
The preference given honorably discharged soldiers of the United
States by section 5 of the act of March 6, 1902 (32 Stat., 51), in the
matter of employment in the Permanent Census Office, is not absolute and
regardless of qualifications. Such preference is to be given if the
person is equally qualified; but the appointing power still retains and
must exercise its discretion and judgment in determining the fitness for
the required work of the persons to be selected and retained.
To this end the Director of the Census may fix a reasonable standard
of fitness, and guard it by reasonable regulations intended and
calculated to secure an efficient permanent force. Such regulations may
relate to age, experience, rating, proposed time of service, etc.
The preference given by the statute is one with respect to the place
sought or held; but if a person of the preferred class fails to secure
the place he seeks, or to retain the one he has, there is no obligation
on the appointing power to create a vacancy by dismissing an efficient
employee to give him another chance.
DEPARTMENT OF JUSTICE,
June 5, 1902.
The SECRETARY OF THE INTERIOR.
SIR: I have your letters of the 23d and 31st ultimo and of the 3d
instant, inclosing communications from the Director of the Census, in
which are propounded certain questions concerning the interpretation of
the statutes requiring preference to be given to honorably discharged
soldiers and sailors, and their widows and orphans, in appointment or
retention in the public service. An early opinion upon the points
presented is urged, to aid the Director of the Census in selecting the
force of 800 clerks who are to be retained, the 1st of next July, in the
Permanent Census Office.
The statutes referred to, presented in chronological order, are as
follows:
By the act of March 3, 1865, carried into the Revised Statutes
(approved June 22, 1874) as section 1754, it is provided:
"Persons honorably discharged from the military or naval service by
reason of disability resulting from wounds or sickness incurred in the
line of duty, shall be preferred for appointments to civil offices,
provided they are found to possess the business capacity necessary for
the proper discharge of the duties of such offices."
A similar declaration of public policy, with respect to retention in
office, is found in the act of August 15, 1876, which reads as follows
(19 Stat., 169):
"Provided, that in making any reduction of force in any of the
executive departments, the head of such department shall retain those
persons who may be equally qualified who have been honorably discharged
from the military or naval service of the United States, and the widows
and orphans of deceased soldiers and sailors."
In the seventh section of the act of January 16, 1883, for the
regulation and improvement of the civil service, it was further provided
(22 Stat., 406):
"But nothing herein contained shall be construed to take from those
honorably discharged from the military or naval service any preference
conferred by the seventeen hundred and fifty-fourth section of the
Revised Statutes, nor to take from the President any authority not
inconsistent with this act conferred by the seventeen hundred and
fifty-third section of said statutes."
The fifth section of the act of March 6, 1902, providing for a
Permanent Census Office, contains this provision, to which my attention
is more particularly directed (32 Stat., 52):
"And persons who have served as soldiers in any war in which the
United States may have been engaged, who have been honorably discharged
from the service of the United States, and the widows of such soldiers,
shall have preference in the matter of employment.:
These being the provisions of law, the questions submitted are
designed to elicit an opinion as to the extent of the limitation they
place upon the discretion of the appointing power in the selection of
the employees to be retained in the Permanent Census Office. For
example, the question submitted in your letter of the 23d ultimo is
whether the fifth section of the act of March 6, 1902, above quoted,
requires a preference to be given honorably discharged soldiers and
their widows for permanent appointment on the 1st of next July,
regardless of their qualifications and efficiency as compared with other
employees. Other questions of a similar nature, presenting in various
phases the same general inquiry, are propounded in your other
communications.
The effect of the preference prescribed in section 1754, Revised
Statutes, came before Attorney-General MacVeagh in the case of a night
inspector in the New York customhouse, who, being a soldier honorably
discharged by reason of disability from wounds incurred in the line of
duty, claimed the right to be appointed permanently without reference to
the civil-service rules promulgated by the President under authority of
the act of March 3, 1871 (rev. Stat., 1753). Respecting the power of the
President in view of the preference given soldiers ans sailors,
Attorney-General MacVeagh said (17 Op.Att'y.Gen. 195):
"These two expressions of the legislative will form one harmonious
system. They do not exempt honorably discharged soldiers and sailors
from liability to examination, but they do prescribe that of two or more
applicants found to be equally qualified by such examination for
appointment the preference shall be given to any such applicant who has
been honorably discharged from the military or naval service by reason
of disability resulting from wounds or sickness incurred in the line of
duty.
I concur in the view thus indicated, that these statutes regulating
appointment and retention in the public service are to be considered as
in pari materia. They form parts of one harmonious system. A preference
is given, but not to the prejudice of the public service. The preference
given is one which follows fitness for the place. Other things being
equal, the man who has served his country in war is to be preferred in
appointment or retention in the public service. This is indicated by the
phraseology of the preference acts. Thus, the preference contained in
section 1754, Revised Statutes, is limited by the proviso that the
person claiming it shall "possess the business capacity necessary for
the proper discharge of the duties of such office;" and the preference
contained in the act of August 15, 1876, above quoted, is restricted to
those "who may be equally qualified."
The preference contained in the act of March 6, 1902, now under
consideration, must, I take it, be construed in harmony with the line of
public policy indicated.
A preference "in the matter of employment" is given to soldiers and
their widows. While there are no qualifying words, with respect to
capacity or fitness, such limitations must of necessity be read into the
act. Certainly the person relying on the preference must be fit for the
place sought, equally fit with others, or he can not, with a due regard
for the interest of the service, be preferred over them. No vested or
exclusive right to a particular office was intended to be given. The
preference was in the nature of a declaration of public policy, intended
to reward patriotism in time of war by preferring soldiers for public
service in time of peace, where other things are equal. It is obvious,
therefore, that the preference is always conditioned upon the fitness of
those who claim it, and necessarily limited by considerations of public
policy affecting the good of the service. As Mr. Justice Brewer said, in
Keim v. United States (177 U. S., 290, 295), "it would be an insult to
the intelligence of Congress to suppose that it contemplated any
degradation of the civil service by the appointment to or continuance in
office of incompetent or inefficient clerks simply because they had been
honorably discharged from the military or naval service."
The opinion of Attorney-General MacVeagh, from which I have quoted,
was followed by an opinion of Attorney-General Miller, in which he said
(19 Op.Att'y.Gen. 318):
"I have no doubt that it was the purpose of Congress to make it the
duty of those making appointments for civil offices to give a
preference, other things being equal, to the class of persons named in
this section. Of course, as the Assistant Attorney-General for the
Post-Office Department says, the matter of capability and personal
fitness is still a matter of judgment for the appointing power."
The correctness of these conclusions is confirmed by the decision of
the Supreme Court in the case of Keim v. United States (177 U.S., 290).
Keim, an honorably discharged soldier, was dismissed from one of the
departments for inefficiency. He claimed that in view of the statutory
preference his dismissal was unlawful. The Supreme Court, after citing
the preference statutes, said (p. 293):
"The appointment to an official position in the Government, even if
it be simply a clerical position, is not a mere ministerial act, but one
involving the exercise of judgment. The appointing power must determine
the fitness of the applicant; whether or not he is the proper one to
discharge the duties of the position.
Therefore it is one of those acts over which the courts have no general
supervising power."
And again (p. 295):
"Nowhere in these statutory provisions is there anything to indicate
that the duty of passing, in the first instances, upon the
qualifications of the applicants, or, later, upon the competency or
efficiency of those who have been tested in the service, was taken away
from the administrative officers and transferred to the courts. Indeed,
it may well be doubted whether that is a duty which is strictly judicial
in its nature. It would seem strange that one having passed a civil
service examination could challenge the rating made by the Commission,
and ask the courts to review such rating, thus transferring from the
Commission, charged with the duty of examination, to the courts a
function which is, at least, more administrative than judicial; and if
courts should not be called upon to supervise the results of a civil
service examination, equally inappropriate would be an investigation
into the actual work done by the various clerks, a comparison of one
with another as to competency, attention to duty, etc. These are matters
peculiarly within the province of those who are in charge of and
superintending the Departments, and until Congress by some special and
direct legislation makes provision to the contrary, we are clear that
they must be settled by those administrative officers."
It is my opinion, therefore, that while, under the provisions of
section 5 of the act of March 6, 1902, it is the duty of the appointing
power to give preference in the matter of employment in the Permanent
Census Office to the class of persons described therein, this preference
is not absolute and regardless of qualifications and efficiency. A
preference is to be given if the person is equally qualified.
Nevertheless, the appointing power retains and must exercise its
discretion and judgment in considering and determining the fitness for
the required work of the persons to be selected and retained.
This general answer embodies a principle which, when applied, solves
the questions contained in the various communications of the Director of
the Census, which are largely of an administrative nature. Since he must
pass upon the fitness of the persons to be selected and retained, he has
a right to fix a reasonable standard of fitness, and to guard it by
reasonable regulations intended and calculated to secure an efficient
permanent force. Such regulations may relate to age, experience, rating,
proposed time of service, etc.
Finally, the preference given by the statute is one with respect to
the place sought or held. The person of the preferred class who applies
for a vacant place is to be given that place if he is equally qualified,
and he is to be retained therein as long as the good of the service will
not suffer. But if he fails to get the place he seeks, or to hold the
place he has, there is no obligation on the appointing power to create a
vacancy by dismissing an efficient employee in order to give him another
chance.
Respectfully,
HENRY M. HOYT,
Acting Attorney-General.
CUSTOMS LAW-- INFORMER'S COMPENSATION; 24 Op.Att'y.Gen. 61, June 4,
1902
Notwithstanding the absence of the certificate provided for by
section 6 of the act of June 22, 1874 (18 Stat., 186), the Secretary of
the Treasury is authorized, under section 4 of that act, to award
compensation to a Canadian customs official who furnished information
which resulted in a forfeiture of certain diamonds for violation of
section 3082, Rev. Stat.
A deputy collector of customs, with headquarters in the customs
district of Vermont, but stationed for service at Montreal, Canada, is a
"chief officer of customs" within the meaning of section 4 of the
above-named act, which authorizes the payment of a reward for original
information leading to the discovery of any fraud upon the customs
revenue.
DEPARTMENT OF JUSTICE,
June 4, 1902.
The SECRETARY OF THE TREASURY.
SIR: Your letter of May 20 informs me that a Canadian customs
officer claims compensation as informer under section 4 of the act of
June 22, 1874, in a seizure case; that as a result of the information
received from this man the Government secured above $31,000 from the
forfeiture, by judicial proceedings, of certain diamonds for violation
of section 3082, Revised Statutes; that section 6 of the act of 1874
provides that no payment shall be made to an informer in any case
wherein judicial proceedings are instituted unless the claim to reward
is established to the satisfaction of the court and a certificate of the
value of the services given by the court to the Treasury, which
certificate, however, shall not be conclusive upon the Secretary as to
the value of the services; that in the present case the court holds
that section 6 attempts to confer upon the judiciary a power not
judicial, and that the courts are without jurisdiction to make the
required certificate; that thereupon the point has been raised in favor
of the informer that since section 6 has been declared in effect to be
unconstitutional and inoperative, section 4 of that act remains in full
force, and that under section 4 the authority of the Secretary to make
an award is clear, and therefore the award in this case may now be made,
notwithstanding the absence of the certificate required by section 6.
Upon these facts you submit to me the question whether or not your
Department is authorized to award compensation in the absence of the
certificate of section 6.
Section 4 (act June 22, 1874, 18 Stat., 186) provides that-- * * *
"whenever any person not an officer of the United States shall furnish
to a district attorney, or to any chief officer of the customs, original
information concerning any fraud upon the customs revenue, perpetrated
or contemplated, which shall lead to the discovery of any duties
withheld, or of any fine, penalty, or forfeiture incurred * * * such
compensation may, on such recovery, be paid to such person so furnishing
information as shall be just and reasonable, not exceeding in any case
the sum of five thousand dollars." * * *
The information in this case was given to a deputy collector of
customs, with headquarters in the customs district of Vermont, but
stationed for service at Montreal, Canada. He thus appears to have been
in reality the "chief officer of the customs" who was available for the
receipt of this information in order that it might be promptly and
effectively used by this Government. In 20 Opin., 690, Mr. Olney holds
that the information, in order to justify the reward, must be conveyed
directly to the chief officer of the customs; but he is also of opinion
that there may be circumstances where information transmitted to or
through an inferior officer may properly be considered as coming to the
chief officer within the meaning of the statute. Under the facts of this
case I think this is an instance within the exception or concession of
Mr. Olney's opinion. The deputy collector appears to have been the chief
officer of customs in the service in Canada.
Section 6 of the act provides for a certificate of the value of the
informer's service, as above stated, by the court or judge before whom
the subsequent forfeiture proceedings are instituted.
In Ex parte Riebeling (70 Fed.Rep., 310) it is decided, in accordance
with well-known precedent authorities holding that the courts are
without jurisdiction to perform any other than judicial functions, that
section 6 "is an attempt to confer upon the court or judge a power not
judicial, which Congress has no power under the Constitution to require
the judiciary to exercise, and accordingly the courts and judges are
without jurisdiction to make such certificate."
This decision, which is carefully considered, reviews and approves the
decision to the same effect in Ex parte Gans (17 Fed.Rep., 471), which
was in all essential respects similar to the Riebeling case.
These decisions intimate that section 6 was intended to modify or
limit the power given under section 4; and state that the provision may
have been intended as a check on the Secretary; that nevertheless the
section presents the anomaly of confounding or confusing judicial and
executive functions. "The duty attempted to be imposed by section 6 upon
the courts is simply clerical in its nature, which may be as
conveniently and efficiently discharged by any competent member of the
Executive Department." It is also noted that section 6 expressly
provides that the Secretary is not bound by the certificate of the court
as to the amount of the compensation awarded.
I think these opinions are conclusive on the point. They clearly
amount to a decision that section 6, so far as attempting to impose an
executive function upon the courts, is unconstitutional and inoperative.
This gives to section 4 full and unqualified effect in cases in which
there are, as well those in which there are not, judicial proceedings. I
therefore have the honor to advise you that the Treasury Department is
authorized to award compensation in the case submitted, notwithstanding
the absence of the certificate provided for by section 6 of the act of
June 22, 1874.
Very respectfully,
JOHN K. RICHARDS,
Acting Attorney-General.
ATTORNEY-GENERAL-- OPINION; 24 Op.Att'y.Gen. 59, May 31, 1902
The settled policy of the Department is that no opinion should be
rendered upon any question of law unless it is specifically formulated
in a case actually arising in the administration of a Department, and
accompanied by a statement or finding of the facts involved.
Nor will the Department consider any question committed to judicial
review. To do so might bring it into conflict with a judicial tribunal.
The conclusions of a Federal court, until reversed by a higher court,
are binding upon the Attorney-General.
DEPARTMENT OF JUSTICE,
May 31, 1902.
The SECRETARY OF THE INTERIOR.
SIR: I have the honor to acknowledge the receipt of your letter of
April 21, 1902, from the Hon. W. B. Allison and the Hon. Robert G.
Cousins, relative to the legal status of certain Indians in Iowa and the
jurisdiction of the State of Iowa over them, with respect to crimes
committed either on the Indian reservation or outside of its limits.
Your letter does not request an opinion on any specific question, but
only "upon the questions set out in the communication submitted."
Referring to this communication, it appears that my opinion is requested
upon various questions affecting the status of the Indian tribes in
question, and involving generally the application of the civil and
criminal laws of the State of Iowa to such Indian tribes and its
jurisdiction over them. The purpose for which these opinions are
requested is, as stated in the communication submitted to you, "to
secure such legislation as may be deemed necessary."
I regret to say that compliance with your request would involve a
departure from the settled policy of this Department with respect to
such opinions. My predecessors have repeatedly held that no opinion
should be given upon any question of law unless it is "specifically
formulated" in a case "actually arising in the administration of a
department, and accompanied by a statement or finding of the facts
involved." (23 Op.Att'y.Gen. 330, 473, and the opinions there cited.)
Moreover, your correspondents in effect ask me to review the
decisions of the United States circuit court for the northern district
of Iowa in the case of Ma-Ka-Ta-Wah-Qua-Twa v. Rebok (111 Fed.Rep., 12),
and Peters v. Malin (111 Fed.Rep., 244). In these cases the status of
these Indians, and the application of the laws of Iowa to them, were
discussed at length by Judge Shiras, and his conclusions, until reversed
by a higher court, are necessarily binding upon this Department. Even if
the question should be regarded as still sub judice, this Department has
uniformly refused to consider any questions that have been committed to
judicial review. To do so might "bring this Department into conflict
with a judicial tribunal," and this has been held to be an adequate
reason for a refusal to give an official opinion. (23 Op.Att'y.Gen.
221.)
For the reasons suggested, I am unable to comply with your request.
Respectfully,
JAMES M. BECK,
Acting Attorney-General.
REMOVAL AND DESTRUCTION OF MERCHANDISE HELD IN BOND; 24 Op.Att'y.
Gen. 58, May 31, 1902
Articles of merchandise imported into the United States and held in a
bonded warehouse for use in the manufacture of articles for exportation
in accordance with section 15 of the tariff act of July 24, 1897 (30
Stat., 207), may be removed from such warehouse and destroyed in the
presence of an officer designated by the collector of the port and
accounted for as waste, and the manufacturer relieved from the payment
of duty thereon.
DEPARTMENT OF JUSTICE,
May 31, 1902.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
the 25th ultimo relative to an application made by the American Tobacco
Company for permission to remove from the bonded manufacturing warehouse
of said company, at Durham, N.C., and destroy 565 pounds of imported
tin, 28,850 imported photographs, and 10 bobbins of imported cigarette
paper, which said company represents are "an accumulation of waste
incident to manufacture, and discarded by reason of being unfit for
sale."
You state that this merchandise was transferred to said bonded
warehouse for use in the manufacture of articles for exportation in
accordance with section 15 of the act of July 24, 1897, and ask for an
expression of my opinion as to whether the same may now be removed from
said warehouse and destroyed "either without or with the payment of
duties."
The evident scope, intent and purpose of section 15, above referred
to, is to permit the domestic manufacture of imported merchandise for
foreign consumption without the payment of duties on such merchandise.
American labor is thereby benefited and our revenue not lessened or
affected for the obvious reason that the imposition of duties would
probably result in such merchandise being manufactured abroad. The
privilege conferred under section 15 is safeguarded with provisions and
restrictions aimed to prevent the unlawful removal of any part of such
bonded merchandise for domestic consumption; but there is nothing in
these restrictions that prohibits the destruction of waste material.
Section 23 of the act of June 10, 1890, is particularly applicable to
goods imported for domestic consumption, and the provision therein for
an allowance on account of goods damaged in transit in no way affects
the question of the right of the manufacturer of bonded merchandise to
destroy waste material.
I am, therefore, of the opinion that if such material is destroyed in
the presence of an officer designated by the collector of the port, it
can be accounted for as waste, and the manufacturer relieved from the
payment of duty thereon.
Respectfully,
JOHN K. RICHARDS,
Acting Attorney-General.
CUSTOMS LAW-- IMPORTATION OF PORTO RICAN PRODUCTS; 24 Op.Att'y.Gen.
55, May 19, 1901
All articles of Porto Rican origin exported from Porto Rico to
foreign countries after the passage of the Foraker act of April 12, 1900
(31 Stat., 77), may, since the proclamation of the President on July 25,
1901, doing away with the 15 per cent duty imposed under section 3 of
that act, be imported into the United States free of duty under
paragraph 483 of the tariff act of July 24, 1897 (30 Stat., 195),
provided the articles have not been advanced in value or improved in
condition by any process of manufacture or other means.
Such free importation does not, however, affect the question of the
payment of the internal-revenue tax provided for in section 3 of the
Foraker act.
DEPARTMENT OF JUSTICE,
May 19, 1902.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
the 8th instant, relative to the expression of an opinion by me as to
"whether articles of Porto Rican origin can be exported to a foreign
country and imported therefrom into the United States free of duty."
Under paragraph 483 of the tariff act of July 24, 1897, "articles the
growth, produce, and manufacture of the United States, when returned
without having been advanced in value or improved in condition by any
process of manufacture or other means," may be entered free of duty.
It appears from the cases submitted by you that the Boston Molasses
Company, of Boston, Mass., during the year 1901 shipped a cargo of
molasses from Porto Rico to Halifax, Nova Scotia, and that the same "is
now held in bond at that port, just as imported;" that Herz Brothers, of
New York City, in June, 1901, shipped a lot of tobacco from Porto Rico
to Canada, a part of which remains there; that Steindler Brothers, of
New York City, have in bond in Montreal, Canada, 141 bales of Porto
Rican leaf tobacco, shipped there direct from Porto Rico. It is assumed
for the purposes of this opinion that this last shipment was made, as
were the others, subsequent to the passage of the Porto Rican or Foraker
act of April 12, 1900. Can these articles be now brought into the United
States duty free?
Section 2 of said Porto Rican act provided that "the same tariffs,
customs, and duties shall be levied, collected, and paid upon all
articles imported into Porto Rico from ports other than those of the
United States which are required by law to be collected upon articles
imported into the United States from foreign countries."
Section 3 provided that merchandise coming into the United States
from Porto Rico and coming into Porto Rico from the United States shall
be subject to the payment of 15 per cent of the duties charged upon like
articles of merchandise imported from foreign countries; and in
addition thereto, upon articles of merchandise of Porto Rican
manufacture coming into the United States and withdrawn for consumption
or sale, a tax equal to the internal revenue tax imposed in the United
States upon like articles of domestic manufacture; and on all articles
of merchandise of United States manufacture coming into Porto Rico, in
addition to the duty above provided, "a tax equal in rate and amount to
the internal revenue tax imposed in Porto Rico upon the like articles of
Porto Rican manufacture." Said section further provided that upon the
happening of certain contingencies and proclamation of the fact by the
President, all tariff duties between the United States and Porto Rico
upon the products of each should cease, and that they should not be
collected in any event after March 1, 1902.
Proclamation was accordingly made on July 25, 1901.
Section 14 of said act provided: "That the statutory laws of the
United States not locally inapplicable, except as hereinbefore or
hereinafter otherwise provided, shall have the same force and effect in
Porto Rico as in the United States, except the internal revenue laws,
which, in view of the provisions of section 3, shall not have force and
effect in Porto Rico."
While the letter of the language used in paragraph 483 may limit the
privilege therein conferred to articles produced in the United States,
the evident purpose of the paragraph is such that it may well be held to
admit a country having the legal status which Porto Rico has not been
given. Under section 14 of the Foraker act, previously quoted, all our
statutory laws "not locally inapplicable" and not "otherwise provided"
are extended to the island. It was, as we have seen, "otherwise
provided" as to internal-revenue tax on goods going into Porto Rico from
the United States and withdrawn for consumption or sale.
The laws of the United States relating to customs, commerce, and
navigation were extended to Alaska, and that country was made a customs
district, upon its acquisition from Russia. Provision was also made for
the nationalization of all vessels owned by actual residents of the
territory at the date of its cession, as was done in the case of Porto
Rico.
Under date of July 13, 1878 (Treasury decision 3653), it was held by
your Department that section 4347, Rev. Stat., relating to the
transportation of merchandise "from one port of the United States to
another port of the United States" applies to Alaska; and that section
4367, Rev. Stat., requiring the master of every foreign vessel "bound
from a district in the United States to any other district within the
same" to deliver, previous to departure, a manifest to the collector,
also applies to Alaska. It is believed that since that time Alaska has
been regarded by your Department as within the privileges, requirements,
and limitations of our customs laws.
No good reason can be found why Porto Rico, now completely brought
within our customs bounds, within our navigation laws (Foraker act, sec.
9), and within the benefits of our statute law in general, should not
enjoy the benefits of paragraph 483.
I am therefore of the opinion that all articles of Porto Rican origin
exported from Porto Rico after the passage of the Foraker act may, since
the proclamation doing away with the 15 per cent duty, be imported into
the United States under said paragraph 483. This, of course, does not
affect the question of the payment of the internal-revenue tax provided
in section three of the Foraker act.
Respectfully,
P. C. KNOX.
CAMEL'S HAIR NOILS-- DRAWBACK; 24 Op.Att'y.Gen. 53, May 16, 1902
The separation of imported camel's hair into "tops" and "noils" by
combing, for the purpose of preparing the material for manufacture, does
not result in such "noils" becoming a distinct manufactured article and
entitled to drawback within the meaning of section 30 of the tariff act
of July 24, 1897 (30 stat., 211).
The drawback law contemplates the manufacture of a separate and
complete article which is not merely the finished material of a further
stage.
The principle announced in the opinion of Attorney-General Olney (21
Op.Att'y.Gen. 23), that "a question once definitely answered by a former
Attorney-General and left at rest for a long term of years should be
reconsidered only in a very exceptional case," concurred in.
DEPARTMENT OF JUSTICE,
May 16, 1902.
The SECRETARY OF THE TREASURY.
SIR: It appears from your letter of April 28 that an application has
been made for reconsideration of the ruling that "camel's hair noils,
resulting from the separation of imported camel's hair into hair and
noils, were not entitled to drawback under section 25 of the tariff act
of October 1, 1890, as a manufactured article" (21 Op.Att'y.Gen. 159).
Furthering this application, you request an expression of my opinion as
to whether camel's hair noils are not entitled to drawback under the
provisions of the law mentioned now appearing as section 30 of the
tariff act of 1897.
Your letter of April 6, 1895, as well as G.A. 2725 which the
applicants invoke, makes it clear that this merchandise results from the
separation by combing of camel's hair into "tops" (corresponding to the
"long staples" of wool) and the short fibers, or "noils," which on the
camel are a soft woolly fur. The decision of the Board of General
Appraisers shows that, before combing, camel's hair goes through a
cleaning process which advances it to a condition equal to wool which
has been washed or scoured. The view of the board's decision undoubtedly
is that, in order to separate the noils, camel's hair so far passes
through processes of manufacture, and that the object of the manufacture
of fabrics from camel's hair, using noils as material, is to obtain this
short and downy hair as the more valuable product, rather than the tops,
which exactly reverses the case of wool. Such an intermediate
manufacturing process, for the purpose of preparing the material of
further manufacture, does not necessarily result in a distinct
manufactured article. The test as to whether an article is or is not
manufactured, for the purposes of the duty schedules, may differ from
that applicable in drawback laws. In my opinion the drawback law in
question contemplates the manufacture of a separate and complete article
which is not merely the finished material of a further stage.
In an opinion rendered to you on February 14 last (23 Opin., 625), a
contrasted aspect is presented, the thing imported in that case having
passed beyond the stage of materials and being itself substantially a
completed article to which manufacture in this country merely added the
finishing touches.
Mr. Olney's opinion, although brief, is evidently based on careful
consideration of all aspects of the case. It is not perhaps accurate, in
view of the facts shown, to denominate noils as a "by-product;" but I
concur in the principle of my predecessor's ruling, and perceive no
sufficient reason to revise the same. "A question once definitely
answered by one of my predecessors and left at rest for a long term of
years should be reconsidered by me only in a very exceptional case." (21
Op.Att'y.Gen. 24.)
Very respectfully,
P. C. KNOX.
APPOINTMENT-- STUDENT INTERPRETERS AT LEGATION TO CHINA; 24 Op.
Att'y.Gen. 52, May 16, 1902
The President is authorized, under the provisions of the diplomatic
and consular appropriation act of March 22, 1902 (32 Stat., 78), to
appoint the ten student interpreters at the legation to China therein
provided for without sending their names to the Senate for confirmation.
DEPARTMENT OF JUSTICE,
May 16, 1902.
The SECRETARY OF STATE.
SIR: The diplomatic and consular appropriation act of March 22,
1902, provides "for ten student interpreters at the legation to China, *
* * at one thousand dollars each, ten thousand dollars," who "shall be
chosen in such manner as will make the selections nonpartisan so far as
may be consistent with aptness and fitness for the intended work," and
that "upon receiving such appointment each student interpreter shall
sign an agreement," etc. The character and manner of appointment are not
in terms prescribed. Your letter of April 16, therefore, asks my opinion
on the question whether the President is authorized to appoint these
interpreters without sending their names to the Senate for confirmation.
You refer to laws providing for interpreters which expressly confer
upon the President power to appoint. Thus, section 1680, Revised
Statutes, provides that "the President may appoint for the legation to
Chian an interpreter, when the secretary of the legation does not act as
such;" and section 3 of the act of June 11, 1874 (18 Stat., 66, 70),
provides "that the President shall be, and he is hereby, authorized to
appoint interpreters" to certain consulates in China.
Discussing a related subject in an opinion to you, dated May 11, 1900
(23 Op.Att'y.Gen. 136), my immediate predecessor held in effect that
such officers as interpreters do not fall within the constitutional
requirement of appointment by and with the advice and consent of the
Senate (Art. II, sec. 2, par. 2); that Congress, by the use of the
unqualified phrase "may appoint," or equivalent language, had seen fit
to give the sole power of appointment to the President; that respecting
an office not plainly included in the constitutional requirement of
confirmation, that is, respecting "inferior officers" in the sense of
the clause of the Constitution cited, the appointment, if requiring the
advice and consent of the Senate, is so conditioned in the law creating
the office.
This subject is also discussed in an opinion dated November 7, 1901 (23
Opin., 574), which I addressed to the Secretary of War (see also opinion
addressed to the President dated December 24, 1901; 23 Op. Att'y.Gen.
599). The doubts suggested by the authorities upon the question of what
are inferior offices, and the uncertainty due to differing phraseology
of various laws, as well as the effect of practice as establishing a
precedent, are indicated in those opinions.
The practice relative to interpreters under laws which gave the power
of appointment to the President and did not expressly require
confirmation has become established. As to this particular law, the
authority to appoint is matter of necessary inference and is not
explicitly prescribed. Proceeding by obvious and reasonable analogies,
it is my opinion that inasmuch as the law does not require confirmation
by the Senate, and yet necessarily confers upon the President the power
to select and appoint a certain class of officers whom ordinarily he
alone appoints, Congress intended to authorize the President to appoint
the student interpreters in question without sending their names to the
Senate for confirmation.
Very respectfully,
P. C. KNOX.
JURISDICTION OF STATE HARBOR COMMISSIONERS, NORFOLK HARBOR; 24 Op.
Att'y.Gen. 50, May 15, 1902
The State of Virginia, through its legislature, having duly
relinquished jurisdiction over the lands belonging to the United States
at the navy-yard at Norfolk upon which it is proposed to construct a dry
dock, the State board of harbor commissioners for the port of Norfolk
and Portsmouth is without authority to require the submission to and
approval by it of the plans of the contemplated improvement, although
such improvement be within the harbor line established by that board.
The authority of the United States over that harbor is paramount and
absolute.
DEPARTMENT OF JUSTICE,
May 15, 1902.
The SECRETARY OF THE NAVY.
SIR: It appears from your communication of the 24th ultimo, with
inclosures, that in the construction of the new granite dry dock at the
United States navy-yard at Norfolk, Va., it will be necessary to extend
the cofferdam at the entrance of the dock about 80 feet inside of the
line established by the State board of harbor commissioners for the port
of Norfolk and Portsmouth.
Although the contemplated improvement is on ground belonging to the
United States, over which Virginia has duly relinquished jurisdiction,
the board of harbor commissioners insist that the plans for the
contemplated improvement be submitted to and approved by them, in
accordance with the provisions of the State law, before the work be
proceeded with.
You desire my opinion upon the question whether this demand is
warranted.
Under the Constitution, Congress is given power "to regulate commerce
with foreign nations, and among the several States," and when Congress
once exercises its power under this clause over the navigable waters of
the United States the power (so the Supreme Court has held time and
again) is paramount and absolute.
In the case of South Carolina v. Georgia (93 U.S., 4), Mr. Justice
Strong, speaking for the court, said, respecting the contention that
Congress can not place an obstruction in a navigable stream (p. 11):
"It is not, however, to be conceded that Congress has no power to order
obstructions to be placed in the navigable waters of the United States,
either to assist navigation or to change its direction by forcing it
into one channel of a river rather than the other.
It may build light-houses in the bed of the stream. It may construct
jetties. It may require all navigators to pass along a prescribed
channel, and may close any other channel to their passage."
Akin to the absolute and paramount authority over the navigable
waters of the United States in the regulation of interstate and foreign
commerce is the power which the Constitution vests in Congress, in
providing for the common defense and general welfare, "to provide and
maintain a navy," and "to exercise like authority (that is, exclusive
jurisdiction) 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.
Virginia, through its legislature, consented that the United States
should take and use this property for a navy-yard. That meant such a
navy-yard, with such docks, structures, and improvements, as the United
States might determine the general interest required. Virginia reserved
no right to supervise the nature of the navy-yard to be constructed.
As to the harbor, the United States, as I have pointed out, has
paramount and absolute authority over it. The jurisdiction of the State
board of harbor commissioners is subordinate. It is not to be assumed
that the United States, to which is intrusted the protection and
improvement of this harbor, will unnecessarily obstruct or interfere
with its navigability. On the contrary, it is to be presumed that every
interest intrusted to the protection of the United States will be
preserved and advanced by carrying out the improvements according to the
plans prepared and approved by it.
Your question, therefore, is answered in the negative.
Very respectfully,
JOHN K. RICHARDS,
Solicitor-General.
Approved:
P. C. KNOX.
LEAD BULLION-- ASSAY; 24 Op.Att'y.Gen. 45, May 15, 1902
While paragraph 181 of the tariff act of July 24, 1897 (30 Stat.,
166), which imposes a duty on imported lead ores, contemplates the
determination of the quantity of metal in the ore by assay, by paragraph
182 of that act the determination of the quantity of metal contained in
imported lead bullion is to be by official weighing only, and the
application of assay to lead bullion under the current Treasury
regulations for bonded smelters and refiners is without warrant of law.
DEPARTMENT OF JUSTICE,
May 15, 1902.
The SECRETARY OF THE TREASURY.
SIR: Your letter of March 25, inclosing a copy of a letter from the
collector of customs at New York relative to the present practice of
assaying imported lead bullion treated in a bonded smelter and refiner
in order to determine the quantity of dutiable metal, cites paragraphs
181 and 182 of the tariff act of 1897, providing for duty on
"lead-bearing ores of all kinds" and "lead dross and lead bullion, * * *
" respectively, and cites section 29 of the same act providing for the
bonding of smelting and refining warehouses.
You inclose a copy of the current regulations relative to such
warehouses, and ask for my opinion on the question whether these
regulations are in accordance with law in not providing for the
assessment of duty on the imported weight of lead bullion transferred to
a bonded smelter.
Paragraph 181 relates especially to lead ores, and assesses a
specific duty on the "lead contained therein." It then provides that on
all importations duties shall be estimated at the port of entry and bond
given for transportation by bonded common carriers to sampling and
smelting establishments; that there the ores shall be sampled under
Government supervision and assayed by a Government assayer, and the
entries liquidated thereon unless the ores are sent to a bonded
warehouse to be refined for exportation.
Paragraph 182 assesses a higher specific rate upon lead dross, lead
bullion, or base bullion, and lead in other forms, making no provision
for assay; that is, the duty is assessed on gross weight.
Section 29 permits the bonding of smelting and refining works for
treatment of "ores or metals in any crude form," imported into the
United States to be smelted or refined for exportation. Such merchandise
may be removed on importation into the bonded establishment in which
smelting or refining or both are carried on, without payment of duties.
A quantity of refined metal must each day be set aside equal to 90 per
cent of the imported metal smelted or refined that day, and shall not be
taken from the works except for transportation to another bonded
warehouse or for exportation, although it may also be removed for
domestic consumption under Treasury regulations upon entry and payment
of duties, the exportation of the 90 per cent aforesaid entitling the
ores and metals imported to admission without payment of duties.
The collector's letter objects to the conclusion of G.A. 5032 (which
construed section 29 exhaustively) only so far as sustaining the
practice under the regulations of arriving at the designated percentage
of refined metal under section 29 in the case of lead bullion as well as
lead ore, upon the basis of the quantity of pure metal as determined by
assay.
The collector contends that since assay is required only for lead ore
(par. 181) and lead bullion is ordinarily dutiable on weight alone
without assay (par. 182), and section 29 makes no mention of assay, this
test to determine the quantity of imported metal is erroneously applied
to lead bullion, resulting in an unwarrantable loss to the revenue, and
consequently that the regulations should be amended to agree with the
law.
Section 29 and earlier forms of the same law have attached to the
tariff schedules special provisions encouraging the reduction of
imported ores and metals in this country. Glancing at the schedules
separately, and the executive and judicial rulings, it is apparent that
there has been much uncertainty under the differing language of former
tariff acts in arriving at the proper test of quantity for taxation in
the case of lead ores and lead bullion. Lead bullion is a fusion of
metals, the product of primary smelting abroad, containing about 97 per
cent pure lead by weight. (United States v. Guggenheim Smelting Co., 112
Fed.Rep., 517.)
But it is not necessary to review the doubts under former laws as to
classification of lead-bearing ores and lead bullion, and as to quantity
test by gross weight or net contents (see, for example, G.A. 1595,
2002, 3262; Balbach Smelting Co. v. United States, 81 Fed.Rep., 950;
Guggenheim Smelting Co. case, ut supra), for the current tariff act
makes it clear that all lead ores are dutiable on the lead contained and
that lead bullion is taxed as pig lead. Ordinarily, then, such imported
bullion is subject to duty on gross weight as lead, unless being treated
in bond under section 29 that section has modified this rule of
dutiability.
The law on smelting and refining metals under bond was generally the
same under the tariff acts of 1890 and 1894, as under the current act
(sec. 24, act of 1890; sec. 21, act of 1894.) The only substantial
difference is that the effect of the current act, by requiring
segregation of 90 per cent of the smelted or refined product instead of
the entire product (in order to receive the benefit of exportation), is
to give the importer and manufacturer an allowance for "wastage." The
regulations have been modified accordingly, and are now more detailed
(cf. T.D. 10585 with T.D. 19501).
None of the laws on smelting and refining in bond provides explicitly
for test by assay in the estimations of quantity or quality contemplated
or necessarily implied; but the power of the Secretary of the Treasury
to make rules and regulations is broadly given and appears to cover the
entire course of proceeding from transfer into the warehouse to
exportation or withdrawal for consumption; and there is no doubt that
the former as well as the present regulations prescribe the
determination by assay of the quantity of dutiable refined metal, and
this method is applied to crude metals as well as ores. Nor is there any
doubt that lead bullion is a crude metal.
The test by assay was formerly controlling in the collection of
duties upon a consumption withdrawal as well as upon exportation (par.
4, T.D. 10585). But now (par. 7, T.D. 19501), under a consumption
withdrawal, duty is exacted on the entire importation, which appears to
mean that in such case, involving crude metals and not ores, assay does
not affect the question, but gross weight is the rule. This leaves the
point to be considered in case of direct exportation and transportation
for rewarehouse and ultimate exportation. Paragraphs 2, 6, 8 (current
regulations), and the form of bond for establishing a smelting and
refining warehouse (Form F), show clearly that assay is applied equally
throughout the entire field to crude metals as well as ores. An
illustration will show how the method in vogue operates to the detriment
of the Government. On an importation of 2,000,000 pounds of lead
bullion, assay shows, say, 97 per cent lead, equaling 1,940,000 pounds.
On the exportation of 90 per cent of this under the law, 1,746,000
pounds, the remainder, 254,000 pounds, is admitted free. On the other
hand, on the gross-weight basis, the amount set aside for exportation
would be 90 per cent of 2,000,000 pounds, or 1,800,000 pounds, which
would entitle 200,000 to be admitted free. There is a loss, then, of
duty at the rate of 2 1/8 cents per pound on the difference between
200,000 pounds and 254,000 pounds, amounting to $1,147.50. Where assay
shows a lower percentage than in the illustration given, a
correspondingly larger loss to the revenue results.
Now, the necessity of the assay test in the case of ores, as provided
in paragraph 181 of the Dingley Act, is obvious, and, on the other hand,
it is certain that ordinarily it is neither necessary nor customary for
crude metals or metals in pigs to be assayed for purpose of duty. There
appear to be no assay provisions in the tariff schedules for any crude
metals, but the rule of dutiability by gross weight is applied. This
fusion of metals known as lead bullion or base bullion (although, being
intermediate between ores and refined metals, it may appear to invoke
assay naturally and properly) has been associated for duty purposes with
pig lead and other forms of substantially pure lead. Indeed, the
merchandise is itself substantially pure lead, containing a very small
percentage of other metals and impurities. It seems to me that the law
contemplates the determination of the quantity of metal in lead ore by
assay and in lead bullion by official weighing only.
Under the foregoing circumstances I am of the opinion that the
application of assay to lead bullion under the current regulations for
bonded smelters and refiners is without warrant of law, and that the
regulations should be revised accordingly. The general authority to
frame regulations given by section 29 can not have the effect of
nullifying a necessary inference drawn from other parts of the same law,
especially since construction should seek to establish all parts of the
law as consistent and coherent if possible. Therefore my answer to your
question must be in the negative.
Very respectfully,
P. C. KNOX.
WAR-REVENUE ACT-- BILLS OF LADING; 24 Op.Att'y.Gen. 44, May 15,
1902
Under the war-revenue act of June 13, 1898 (30 Stat., 459), a 1-cent
stamp should be attached to all bills of lading for goods transported
from places within the United States to Canada or Mexico. Such bills
being in part domestic, given for transportation within the United
States as well as for export, may be taxed upon the domestic part
regardless of the ultimate destination of the goods.
Opinion of January 2, 1900 (23 Op.Att'y.Gen. 3), affirmed.
DEPARTMENT OF JUSTICE,
May 15, 1902.
The SECRETARY OF THE TREASURY.
SIR: On December 19, 1899, at the request of certain railroads
engaged in the transportation of goods from places in the United States
to Canada and Mexico, you submitted to this Department the question
whether, under the war-revenue act of June 13, 1898 (30 Stat., 459), a
stamp tax of 10 cents was required to be attached to each bill of lading
for goods so transported as a foreign bill of lading, or a stamp tax of
1 cent as an ordinary freight receipt on railroad bill of lading; and
Attorney-General Griggs held, in his opinion of January 2, 1900, that a
stamp tax of 1 cent only was required to be attached. (23 Op.Att'y.Gen.
3.)
Since the decision of the Supreme Court in Fairbank v. United States
(181 U.S., 283), holding that the 10-cent stamp tax on foreign bills of
lading was unconstitutional, the same railroads have requested you to
submit the question whether a bill of lading given by a railroad for
goods to be shipped by rail from a point in the United States to Canada
or Mexico is not a foreign bill of lading, and therefore exempt from any
stamp tax whatsoever.
I have examined the opinion of January 2, 1900, in the light of the
decision of the court in the Fairbanks case, and have carefully
considered the arguments advanced by counsel for the railroads. I see no
reason to change the conclusion reached by Attorney-General Griggs. The
proper effect of the decision in the Fairbanks case is merely to
eliminate the discriminating stamp tax against foreign bills of lading
treated strictly as such; but a bill of lading which is in part
domestic, given for transportation within the United States as well as
for export, may be taxed upon the domestic part.
In my opinion, all bills of lading for goods transported by rail from
place to place within the United States ought to have a 1-cent stamp
attached, regardless of the ultimate destination of the goods.
Very respectfully,
JOHN K. RICHARDS,
Solicitor-General.
Approved:
P. C. KNOX.
AMERICAN ARTIST-- CITIZEN OF PORTO RICO-- DUTIES; 24 Op.Att'y.Gen.
40, May 13, 1902
A native Porto Rican, an artist by profession, although temporarily
living in France on the 11th day of April, 1899, is, under section 7 of
the act of April 12, 1900 (31 Stat., 79), a citizen of Porto Rico, and,
as such, is an American artist, whose paintings upon importation into
the United States are entitled to the privileges provided in paragraph
703 of the tariff act of July 24, 1897 (30 Stat., 203).
DEPARTMENT OF JUSTICE,
May 13, 1902.
The SECRETARY OF THE TREASURY.
SIR: I have received your letter of April 28, asking my opinion upon
the question whether Mr. Molinas, who is an artist by profession, is an
"American artist" within the meaning of section 703 of the tariff act of
July 24, 1897, and inclosing a letter from the Hon. Federico Degetau,
resident commissioner from Porto Rico, stating that Mr. Molinas has
shipped to him certain paintings.
The section reads as follows:
"703. Works of art, the production of American artists residing
temporarily abroad, or other works of art, including pictorial paintings
on glass, imported expressly for presentation to a national institution,
or to any State or municipal corporation, or incorporated religious
society, college, or other public institution, except stained or painted
window glass, or stained or painted glass windows; but such exemption
shall be subject to such regulations as the Secretary of the Treasury
may prescribe."
Mr. Molinas, as I understand from Mr. Degetau, is a native Porto
Rican, temporarily living in Biarritz, France, who was there and not in
Porto Rico on the 11th day of April, 1899, the date mentioned in section
7 of the Foraker Act, which section reads as follows:
"SEC. 7. That all inhabitants continuing to reside therein who were
Spanish subjects on the eleventh day of April, eighteen hundred and
ninety-nine, and then resided in Porto Rico, and their children born
subsequent thereto, shall be deemed and held to be citizens of Porto
Rico, and as such entitled to the protection of the United States,
except such as shall have elected to preserve their allegiance to the
Crown of Spain on or before the eleventh day of April, nineteen hundred,
in accordance with the provisions of the treaty of peace between the
United States and Spain entered into on the eleventh day of April,
eighteen hundred and ninety-nine; and they, together with such citizens
of the United States as may reside in Porto Rico, shall constitute a
body politic under the name of The People of Porto Rico, with
governmental powers as hereinafter conferred, and with power to sue and
be sued as such."
It will be observed that paragraph 703 above quoted does not mention
citizenship, but uses the phrase "American artists." It is clearly not
inconceivable for a man to be an American artist within the meaning of
such a statute and yet not a citizen of the United States. An American
tribal Indian, or a native Alaskan, for example, who should become an
artist and go abroad might naturally be considered an American artist
within the intent of the statute.
The word "reside" is used concerning a person who may remain a week
in a place, or one who remains a year or two, or one who makes his home
there; that is, one who is a permanent resident or inhabitant.
Undoubtedly section 7 of the Foraker Act, in providing that citizens of
the United States who "may reside" in Porto Rico shall constitute part
of the body politic of Porto Rico, uses the word "reside" in the last
sense. It would have been absurd to provide that every citizen of the
United States visiting or temporarily sojourning in Porto Rico should be
a citizen of Porto Rico, and it seems not unlikely that throughout
section 7 the word "reside" has the same meaning. Section 9 of the act
tends to show that it was not used to eliminate from "all inhabitants
who were Spanish subjects" at the date of the treaty of Paris, a class
of inhabitants who were temporarily absent on any date from Porto Rico,
because it provides for the nationalization of all vessels owned by "the
inhabitants of Porto Rico" on that date, "and which continued to be so
owned up to the date of such nationalization," not excluding vessels
owned by inhabitants temporarily absent on any date. And section 18
assumes that "native inhabitants" of Porto Rico will all be citizens of
Porto Rico, since it provides that of the executive council, five (5)
shall be "native inhabitants," without adding that they shall be
citizens of Porto Rico, although, of course, it was not intended to have
in the executive council persons who should not be. This interpretation
of section 7 is further supported by the consideration that the Foraker
Act is to have a reasonable interpretation and is to be regarded as in
pari materia with the treaty of Paris, so far as that treaty transferred
Porto Rico and the allegiance and protection of persons there, from
Spain to the United States. It would be unreasonable to suppose, unless
we are forced to do so, that any of the persons who were intended by the
treaty to remain in porto Rico, and owe permanent allegiance and be
entitled to protection to and from the United States, were intended to
be omitted from the body politic called "The People of Porto Rico," and
least of all would the native inhabitants, whose "civil rights and
political status" were expressly turned over by the treaty to be
determined by Congress, be omitted from that body politic.
The language of section 7 is easily accounted for without seeing an
intention to exclude any of such inhabitants; or any inhabitants
continuing to be such who were turned over by Spain to the United
States. The inhabitants who were German, French, or Italian were
excluded by confining section 7 to inhabitants who were Spanish subjects
at the date of the treaty. Inhabitants at the date of the Foraker Act
who were not inhabitants of Porto Rico, but inhabitants and subjects of
Spain at the date of the treaty, were not among those turned over by the
treaty to the allegiance and protection of the United States, and these
are excluded by the phrase referring to the date of the treaty, "and
then residing in Porto Rico." And the phrase "continuing to reside,"
following "inhabitants" serves to omit those inhabitants who were not to
remain in Porto Rico, but preferred to leave it; as, in the contrary
case, Article IX of the treaty made provision for such of those who were
to remain-- "who will remain"-- que permanecieran-- as, being natives of
Spain, wished to avoid becoming Americans. (See agreement extending
election period in the Philippines.)
If this view is correct, then the first part of section 7 has the
same meaning as though it had been written thus: "That all present
inhabitants continuing to be inhabitants who were Spanish subjects on
the 11th day of April, 1899, and were then inhabitants of Porto Rico,
and their children born subsequent thereto, shall be deemed and held to
be citizens of Porto Rico."
But even in supposing that a native Porto Rican like Mr. Molinas,
temporarily absent at the date of the treaty, has been unintentionally
omitted from section 7, he is undoubtedly one of those turned over to
the United States by Article IX of the treaty to belong to our
nationality. He is also clearly a Porto Rican; that is to say, a
permanent inhabitant of that island, which was also turned over by Spain
to the United States. As his country became a domestic country and
ceased to be a foreign country within the meaning of the tariff act
above referred to, and has not been fully organized as a country of the
United States by the Foraker Act, it seems to me that he has become an
American, notwithstanding such supposed omission.
For these reasons I am of the opinion that his paintings are entitled
to the privileges provided in paragraph 703 of the act referred to.
Respectfully,
P. C. KNOX.
LIQUIDATION OF DUTIES-- REFUND-- MISTAKE OF FACT; 24 Op.Att'y.Gen.
34, May 9, 1902
Where, notwithstanding the instruction of the Secretary of the
Treasury that collectors of customs should delay final liquidation of
duties on certain merchandise until further orders, duties were
nevertheless liquidated and subsequently reliquidated, Held: Such
original liquidation was complete and subsisting until changes by
reliquidation.
The authority of the Secretary of the Treasury to refund duties
erroneously collected, on the ground of mistake, is to be restricted to
mistake of fact.
The question whether another country pays a bounty on the exportation
of sugar can not properly be called a pure question of fact. It is a
question of mixed fact and law.
A mistake in such a question does not arise upon an error of fact
within the meaning of the concluding proviso to section 1 of the act of
March 3, 1875 (18 Stat., 469), defined in 21 Opin., 224, to be a
common-law mistake of fact.
DEPARTMENT OF JUSTICE,
May 9, 1902.
The SECRETARY OF THE TREASURY.
SIR: Your letter of February 12 submits the following situation:
The tariff act of 1894 provided (paragraph 182 1/2) that in addition
to an ad valorem duty importations of sugar from a foreign country
paying a direct or indirect bounty on export should pay also a
countervailing specific duty subject to relief under certain conditions.
T.D. 15209, dated August 31, 1894, declared that indirect counties
may apparently be earned by exporters of sugar from France;
countervailing or additional duty was assessed accordingly, and T.D.
15541 regulated relief in accordance with the statute. On April 5, 1897
(T.D. 17978), the Secretary of the Treasury, under his power to direct
the superintendence of the collection of import duties, etc., "as he
shall judge best" (Rev. Stat., 249), instructed collectors to delay
until further orders final liquidation of entries of any merchandise
arriving after April 1, 1897; but this order was not to be applied to
entries made after April 1 of merchandise which was purchased and
directed to be shipped before that date. This circular order was revoked
July 21, 1897 (T.D. 18198). On May 10, 1897 (T.D. 18036), the Treasury
announced that under a law of France, which took effect April 7, 1897, a
bounty was paid on the exportation of sugar, but does not appear to have
changed its view of the previous French regime or its practice in
assessing countervailing duty accordingly.
The Franklin Sugar Refining Company of Philadelphia made two
importations of sugar, one of which was cleared from France April 1, and
entered at Philadelphia April 24; and the other was cleared from France
April 6, and entered at Philadelphia April 27. The first entry was
liquidated June 13, under the circular of April 5, and assessed with the
additional duty. On July 7 this entry was "reliquidated" or amended on
the Government's own motion to correct an error in price or valuation by
adding a certain cash discount. The other entry was liquidated July 13
and assessed in the same way. Against these liquidations the importers
protested on the single ground that the discount should not have been
added to make price or value. The collector claims that the entries at
this stage were finally or in reality liquidated, and so treated in
accordance with the regulations, and that withdrawals took place on this
theory. Final action was not taken on the importers' protest for over a
year. In the meantime, on October 30, 1897, the Board of General
Appraisers (G.A., 4029) referred to G.A., 1884 (December, 1892), holding
that while France then gave a bounty on the manufacture of sugar, there
was none paid on its export, and determined that under the French law of
April 7, 1897, "a bounty is now paid on sugar exported from France or
her colonies," and that sugars exported prior to the taking effect of
this law are not liable to additional duty under the act of 1894. The
Treasury took no appeal on the latter ruling, but appears to have
accepted it only as to that particular case and not as conclusive on the
whole situation prior to April 7, 1897.
On November 5, 1897, the importers filed notices with the collector
claiming a mutual mistake of fact. On July 21 and August 15, 1898,
respectively, the entires were reliquidated on the protests of the
previous July, and the claim dated on the protests of the previous July,
and the claim that the cash discount was improperly included was
sustained and refunds made accordingly. Thereupon the importers
protested against the reliquidation, claiming that no export bounty was
paid by France.
Upon this situation you present to me the following questions for my
opinion:
1. Were the original liquidations complete and subsisting
liquidations until changed by reliquidation?
2. Did the assessment of countervailing duty by the collector and the
payment of same by the importer arise upon an error of fact within the
meaning of the concluding proviso to section 1 of the act of March 3,
1875, defined to be (21 Op.Att'y.Gen. 224) a common law mutual mistake
of fact?
3. If you (I) hold the original liquidation to have been complete,
and that a mutual mistake of fact is involved, are the reliquidations
final and conclusive under section 21 of the act of June 22, 1874?
It is to be observed that in G.A., 4032 (November 10, 1897), the
Board held that certain liquidations under the circular order were
provisional and did not constitute final decisions of the collector.
But this was the necessary inference from the fact that the collector
regarded those liquidations as merely tentative and never promulgated
them.
The question of the finality of the original liquidations here is
close. It seems clear that this merchandise should not have been
included under the Secretary's order, but is was included. The terms of
the order are positive that liquidations shall not be final.
Nevertheless, in view of the actual steps taken by the collector and the
importers, distinguishing this case from that considered in G.A., 4032,
I am of the opinion on the whole that the answer to your first question
must be in the affirmative. I am influenced in this view by the strict
rules respecting liquidation and the right and duty of protest, and by
the facts that importers are charged with knowledge on these points,
that under the Treasury view excision here becomes a question of fact,
or of law, or of mixed fact and law.
It might be suggested that if the existence of a foreign bounty, in
view of the foreign law and our own, is a question of fact, the courts
which have passed upon other phases of the foreign bounty situation
would not have had jurisdiction, on the theory that the Board of General
Appraisers settle conclusively all findings of fact. But while appellate
courts will not under many circumstances review findings of fact by the
courts below, and while in general findings of fact by the Board of
General Appraisers will not be disturbed on review in the courts, the
jurisdiction conferred by the customs administrative act is special, and
plainly provides that the board shall examine and decide the case
submitted (which must be held to mean a decision on the law as well as
on the facts), and that the courts shall review the questions of law and
fact involved (secs. 14, 15, customs administrative act).
So that the question does not become a question of law merely because
the courts are empowered to pass upon it.
In the Downs Case (113 Fed.Rep., 144), considering the Russian Sugar
Law in the light of section 5 of the act of 1897, it appears that the
Secretary of the Treasury, not insisting that his determination under
that law was exclusive as a settlement of facts, voluntarily committed
to the board the query whether Russia paid a bounty, saying that:
"While the question in its initiative lies in the administration of the
Treasury Department, the question is of a judicial rather than of an
administrative character, and its importance demands determination by a
judicial tribunal."
The board indicated the dual nature of the question, referring to the
Secretary's preliminary finding of a bounty and its amount as a decision
"as to this particular fact * * * whether the laws of Russia do in fact
bestow such a bounty," and, on the other hand, as involving "the
construction of the laws of Russia." The circuit court of appeals held
that the question whether a country pays a bounty, where it depends upon
the construction of the laws of the country, is a judicial one. This was
not necessarily to decide that it was not a question of fact, but only
that in view of the importance of the question from many standpoints and
of the peculiar jurisdiction of the board and the courts as to fact and
law in customs cases, the Secretary's primary decision is reviewable.
The court also held "that the Government of Russia does secure to the
exporter * * * a money reward * * * whenever he exports sugar from
Russia."
Again, the case of Hills Bros. Company (107 Fed.Rep., 107) the court
construed the Dutch law, and held that the Netherlands Government, in
practical effect, paid a bounty upon exportation.
In the ultimate analysis are such findings the determination of a mere
question of fact?
The act of March 3, 1875 (18 Stat., 469), is restrictive of previous
liberality rather than remedial. The second proviso now involved
requires for the allowance of refund, based upon the correction of
errors in liquidation, whether for or against the Government, that such
error shall arise "solely upon errors of fact discovered within one year
from the date of payment, and, when in favor of the Government, brought
to the notice of the collector within ten days from the date of
discovery." Timely notice was given in this case. In 21 Op.Att'y.Gen.
224, the phrase "errors of fact" in this law is defined to refer to
"mistakes of fact in the meaning of the common law-- that is, to mutual
mistakes of fact." The mistake here, whatever its character, was mutual.
This opinion was affirmed in 21 Opin., 251, which notices the
restrictions rather than the enabling character of the act. These
opinions presuppose the propriety of strict construction of such laws
granting dispensing power to the Secretary of the Treasury. The
authority to refund moneys covered into the public treasury must always
clearly appear. Concurring in the reasons and conclusions of these
opinions, I see no ground in the present case for qualifying the rules
laid down.
The conception of a "common-law mistake of fact" appears to have been
drawn from the doctrine of the law of contracts, which held that in
order to authorize relief in equity there must be mutual mistake of
fact. The corresponding doctrine is that there could be no relief either
in equity or law for a mistake of law, founded on the maxim that
ignorance of law will not furnish an excuse. (1 Story Eq.Jur.,13th ed.,
p. 149, note (a); id., p. 108 eq seq. and notes.) The rigidity of these
principles has doubtless been mitigated in many applications of
equitable relief. Thus it has been held that the doctrine is confined to
cases of pure unmixed mistake of law in which there is no element
whatever of mistake of fact. Where there is in some measure a mistake of
fact, the tendency of equity is to liberalize the rule. (King v.
Doolittle, 1 Head, 77.) And Parsons says (3 Parsons on Contracts, 8th
ed., p. 399): "Courts of law, as well as of equity, give relief where
there is a mistake both of law and of fact; that is, one who is injured
by his mistake of fact does not lose his remedy by having mistaken the
law also."
Ignorance of fact and mistake of fact are not precisely equivalent
expressions. The former may be mere want of knowledge; the latter
always supposes some error of opinion as to the real facts. It is on
this distinction that ignorance of foreign law is deemed to be ignorance
of fact, and the cases holding that foreign laws are matters of fact to
be proved like other facts before courts may notice them proceed upon
the theory that until so proved there is entire want of knowledge as to
the existence of the law as well as of its terms and meaning. (Story ut
supra, pp. 158 (note 1), 159; Bank of Chillicothe v. Dodge, 8 Barb.,
233.) The doctrine, therefore, of the aspect of foreign law as fact
merely means that the court will not consider such a law at all until it
has been duly proved as a fact; the doctrine does not seem to me to
mean that after such proof a foreign law may not be weighed and
considered by the court as law.
Now, Story also says (p. 166), in pointing out the general ground of
the distinctions as to mistakes of fact respecting materiality and
mutuality, that where "there is no concealment of facts, and no surprise
or imposition, the mistake or ignorance, whether mutual or unilateral,
is treated as laying no foundation for equitable interference; it is
strictly damnum absque injuria." Finally, it is to be remembered that
the learning upon this subject relates especially, if not solely, to the
exceptions to the rule which refuses to permit parol evidence to vary a
written contract, and contemplates particularly the intervention of the
equitable jurisdiction of courts. Neither of those principles is
involved here, but we are dealing with a highly technical statutory
subject, and seeking to construe an act of legislation which is not
properly subject to liberal prepossessions.
The question narrows down, then, to the nature of the mistake here
under the definition of the phrase "errors of fact" in the statute. I do
not think the question respecting the French bounty can properly be
called a pure question of fact.
The inference seems necessary that in respect to the situation before
April 7, 1897, both the Treasury and the Board of General Appraisers
contemplated, in reaching their opposite conclusions, an actual French
law or ordinance. The question, then, not only involves the existence of
a foreign law, but after that law was presented as a fact in existence,
its meaning and construction were involved-- the judicial weighing of
its terms and effect. The error here is not like those errors of fact
construed in the Treasury practice, comprising mistakes as to
circumstances, dates, values, computations, etc., which lead to false
results. The question is one of mixed fact and law. The statute requires
that the mistake shall arise solely on errors of fact, and, as in my
conception of the proper principles to be applied, not permitting here
the mitigations of a court of equity, your authority to refund on the
ground of mistake is to be restricted to mistakes of fact alone. I am
constrained to say that the mistake here did not constitute an error of
fact within the meaning of the act of 1875, and I therefore answer your
second question in the negative. This renders it unnecessary to answer
your third question.
Very respectfully,
P. C. KNOX.
CUSTOMS LAW-- FREE ENTRY-- PHILOSOPHICAL OR SCIENTIFIC APPARATUS; 24
Op.Att'y.Gen. 28, April 30, 1902
An instrument designed for the reproduction of artists' models,
statuary, and decorative architecture, imported for the purpose of being
temporarily exhibited as a philosophical or scientific apparatus for the
promotion of industry in the United States, and to be exported within
six months after its importation, may fairly be regarded as a
"philosophical or scientific apparatus" within the meaning of paragraph
701 of the tariff act of July 24, 1897 (30 Stat., 203), and is entitled
to be admitted free of duty.
DEPARTMENT OF JUSTICE,
April 30, 1902.
The SECRETARY OF THE TREASURY.
SIR: Your letter of April 22 informs me that application has been
made to you for the admission under section 701 of the tariff act of
1897 of an instrument designed for the reproduction of artists' models,
statuary, and decorative architecture; that the applicant proposes to
exhibit this instrument as a philosophical or scientific apparatus, for
temporary use, for the promotion of industry in the United States, and
tenders a bond for the payment to the United States of such duties as
may be imposed by law thereon, unless exported within six months after
such importation.
Under these facts you request my opinion on the question whether such a
machine is a philosophical or scientific apparatus within the meaning of
the statute.
The section of the law mentioned provides that--
"Works of art, drawings, engravings, photographic pictures, and
philosophical and scientific apparatus brought by professional artists,
lecturers, or scientists arriving from abroad for use by them
temporarily for exhibition and in illustration, promotion, and
encouragement of art, science, or industry in the United States, and not
for sale, shall be admitted free of duty, under such regulations as the
Secretary of the Treasury shall prescribe;"
upon giving bond for the payment of the duty if not exported within
six months after importation, or within an extension for the further
term of six months if the Secretary of the Treasury in his discretion
grants an application for the extended term.
It is apparent that this law is liberal in its purpose and intention.
I do not mean by this that it is necessarily to be construed liberally
so as to embrace doubtful cases not fairly within its terms, but only
that in view of the temporary use in a special way, and in recognition
of the advantages of development in art, science, and industry, the
spirit and tendency are liberal. It is also apparent that the revenue
interests of the United States are protected from imposition by the
limited nature of the free-entry privilege, by the power of the
Secretary to regulate, and by the bond to export or pay the duties.
G.A. 4886 held that various instruments, utensils, and apparatus were
entitled to be called scientific or philosophical within the meaning of
an earlier law corresponding to paragraph 638 of the act of 1897. Under
that paragraph an importation of this nature is absolutely free; that
is, it is not subject to exportation or payment of duties.
A similar aid to development of the higher human faculties there appears
as a concession to institutions, importing for their own use and not for
sale, incorporated, established, or maintained for religious,
philosophical, educational, scientific, literary, or artistic purposes.
Again, in G.A. 4918, the board held that under that law certain other
instruments or devices for demonstrating scientific truths were entitled
to free entry; and in G.A. 5040 a model for the use of a medical school
was admitted under the same law. (But see G.A. 4717, in which
dutiability was sustained because the institution itself was not brought
within the categories of paragraph 638.)
These decisions evidently take note of the claims which may be
advanced in all this field on behalf of liberal learning or of artistic
or scientific development. It seems natural to suppose that Congress in
paragraph 701 saw an analogous claim, when an industrial development
might be dependent upon a development or application of science. In
these decisions the board considered various opinions of the courts, all
of them relating to laws antecedent and corresponding to section 638,
some of them to such laws when the word "philosophical" alone was used,
and others to later laws wherein the word "scientific" was joined to
"philosophical." The principles established are, in general, that
philosophical apparatus and instruments are such as are ordinarily used
for making observations, discoveries, and experiments in relation to
nature and natural forces (Robertson v. Oelschlaeger, 137 U.S., 436);
that the word "scientific" when added to the law enlarged the class of
instruments exempted, and refers to intrinsic character and not to the
nature of the use for which designed or employed. (United States v.
Presbyterian Hospital, 71 Fed.Rep., 866; In re Massachusetts General
Hospital, 95 Fed.Rep. 973.)
In the latter case the court, discussing the apparent inconsistency
between the test of principal use indicated in Robertson v.
Oelschlaeger, and intrinsic character announced in the case of the
Presbyterian Hospital, held that the rule of the former case is not to
be so strictly applied as to exclude from the exempted classification
when used in the ordinary practice of a scientific profession; that
while the use of philosophical instruments may be limited to
observations, experiments, and discoveries, the use of scientific
instruments, from the nature of the subject to which they relate, may
extend to other purposes; that surgical instruments are scientific
instruments until it is shown that their principal use is in the trades
and arts.
On appeal the exemption was sustained (United States v. Massachusetts
General Hospital, 100 Fed.Rep., 932), the court remarking that neither
the rule of principal use nor of intrinsic character is an infallible
guide, while both are of great aid in reaching proper conclusions. An
exact definition is not attempted, the court pointing out the vagueness
of the term "scientific instruments," the propriety of liberal
construction on behalf of an exemption having in view the highest
interests of the public, and concluding (p. 937): "We must look at the
general purpose of the statute, and to the rule frequently stated, but
not often applied, that in cases of doubt the doubt must be resolved in
favor of the importer."
I have dwelt on these decisions respecting another section of the law
in order to show the general doctrine in cognate cases-- the difficulty
of laying down a final and satisfactory rule, the shifting tests, in
different cases, of principal use and intrinsic character; the
propriety of liberal interpretation, and the guide by which a practical
use in trades beyond the region of education, art, or scientific
demonstration closes the door to exemption. The authorities imply,
perhaps with some doubt, that what is or what is not an article entitled
to exemption is to be determined as a question of fact. This view (see
G.A. 5040) and the doubt are both expressed in the Presbyterian Hospital
case. Under the aspect either of use or character, the nature of the
subject seems to present a question of fact, or at least a question
depending upon various considerations of fact respecting the thing, as
well as upon the terms of the law.
While the courts, in the peculiar customs jurisdiction, review (sec.
15, customs administrative act) the facts as well as the law, although
ordinarily not disposed to disturb the finding of the Board of General
Appraisers as to the facts ('in re Van Blankensteyn, 56 Fed.Rep., 474;
Marine v. Lyon, 65 id., 992; White v. United States, 72 id., 251;
Apgar v. United States, 78 id., 332), the statutes and established rules
under which the Attorney-General renders opinions do not permit him to
pass upon a question of fact (18 Op.Att'y.Gen. 487; 20 Op. Att'y.Gen.
253, 384, 459; 21 Op.Att'y.Gen. 174, 240, 454) or a mixed question of
fact and law (19 Op.Att'y.Gen. 672; 20 Op.Att'y.Gen. 524; 22 Op.Att'y.
Gen. 342).
It would be necessary, then, for me to decline to answer your question
on this ground, if I did not understand that your brief statement of
facts in itself contains the correct answer to the question in its
doubtful or dual aspect as one of fact and law.
Recurring, then, to paragraph 701, and seeking to apply, as advice to
you rather than a formal and strict opinion, the just inferences from
the doctrines on a related law set forth, supra, I note that the
situation as to use here withdraws an embarrassment found in considering
the other law, for the use is recognized by the statute itself as
temporary and in illustration or promotion of art, science, and
industry. Thus the applied use in practical trades or industry is not
now involved, although the statute contemplates that ultimate result, to
which, however, the exemption would not extend. The restricted use thus
helps out, so to speak, because of its demonstrating, illustrating, or
experimental character, the liberal and beneficial purpose of the law. I
say beneficial, because while this exemption may not have in view the
"highest interests of the public," as the court thought of the exemption
in the Massachusetts General Hospital case (100 Fed.Rep. 932), the
intention of Congress clearly regards the interests of the public when
it seeks thus to promote arts, science, and industry in the United
States.
Your letter states or implies that the article here is an instrument
or an apparatus; that the design contemplates the encouragement of art.
It seems further, that while this instrument or apparatus is probably a
machine patented or entitled to patent abroad and in this country, it
invokes and applies philosophy or scientific principles in hydraulics,
pneumatics, or electricity, and constitutes a novel development of the
laws of mechanical forces. Your letter also seems to attribute to the
applicant the character of an exhibitor, who, as lecturer or scientist,
will demonstrate its nature and use in promoting industry; the use is
to be temporary, the apparatus is not for sale, and a bond under the
law, with proper condition, has been tendered.
An apparatus so described may reasonably be said to promote and
encourage in combination all three objects of the care of Congress,
namely, art, science and industry. But while it appears to me in
accordance with the views of the courts, supra, that so far as the case
is doubtful, doubt should be resolved in behalf of the importer, and I
therefore have the honor to advise you that such a machine may fairly be
regarded as a philosophical or scientific apparatus within the meaning
of paragraph 701, I desire to recur to the aspects of this question
which characterize it as one of fact rather than of law, and one for
you, therefore, to decide under your discretion and authority rather
than for me. So far, then, as you may not yourself have concluded that
in point of fact this instrument or machine is a philosophical or
scientific apparatus within the meaning of this statute, you must
yourself complete your function and finally pass upon that question. My
advice to you on the legal side of the matter-- given, indeed, with some
hesitation, because the elements of fact and law are closely
interwoven-- is based on the understanding that on the whole, in view of
the principles involved, the intrinsic character and the temporary use
for the statutory purpose, you know of no consideration of fact which
would prevent the apparatus from being classed as a philosophical or
scientific apparatus.
I have the honor to add, also, that the vagueness of these terms, and
the difficulty of laying down an infallible rule on the subject, pointed
out by the courts, leads me to emphasize the view that any conclusion
reached upon one case is not to be extended, because of general
expressions used, to any other similar case which may arise. The
similarity may be very indefinite and general, and the principle which I
have just stated is well established and is specially applicable to the
present circumstances.
Very respectfully,
P. C. KNOX.
PHILIPPINE ISLANDS-- AMERICAN VESSEL-- ENTRY-- MANIFEST; 24 Op.
Att'y.Gen. 27, April 23, 1902
An American vessel in ballast, arriving in March or April, 1902, at
Port Townsend, Wash., from Manila, did not arrive from a foreign port
and was not engaged in the coasting trade within the meaning of the laws
requiring the making of entry and the sending of a copy of the manifest
to the Auditor.
Sections 4351, 4352, 4353, 2806, 2811, 2823, 2824, etc., of the
Revised Statutes considered with reference to such a vessel and voyage.
DEPARTMENT OF JUSTICE,
April 23, 1902.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
the 11th instant inclosing a communication from the collector of customs
at Port Townsend, Wash., in which he reports the arrival there of the
American schooner Endeavor from Manila, P.I., in ballast, and that the
master was required to make entry of the vessel as from a foreign port
and requested to mail a copy of his manifest to the Auditor, but that no
entrance or survey fees were collected.
You ask for an opinion regarding the matter.
The Revised Statutes provide the officers to collect all the revenue
and give you the direction of them.
The Philippine tariff act fixes rates of duty on goods coming from
the Philippines, and authorizes their collection and the collection of a
tonnage tax on foreign vessels coming from The philippine ports. It
might have provided that all the specific provisions of existing laws
enacted with a view to the convenient collection and protection of the
revenue, in the case of vessels arriving from foreign ports, should be
applicable to and obligatory upon vessels arriving from the ports of
that archipelago, or it might have provided that the specific provisions
of law applicable to vessels licensed for carrying on the coasting trade
(e.g., Rev. Stat. 4351, 4352, 4353) should be applicable.
It did not do so, and these ports not being foreign ports, as the
Supreme Court had theretofore decided, and the vessels not those
licensed for the coasting trade, those specific provisions can not be
made applicable by you.
Such regulation by you as may be indispensable to collecting the
revenue, if the act of June 10, 1890, expressly made applicable, does
not sufficiently provide for that, is within the intent of the
Philippine tariff act, because it directs the collection to take place.
But if Congress thought, expected, or intended that the statutes
referred to would or should apply, as laws, with the same force as the
statutes it expressly declared applicable, it used no language which
expresses or implies that they should, and Congress can legislate in no
other way. In construction, the question is not what the legislature
thought, but what the words of the law express or imply. If there is an
omission of what would be wise or convenient to have in the statute,
only the legislature can supply it.
The Endeavor was not from a foreign port (Rev. Stat. 2806, 2811,
2774, 2823, 2824, etc.). A vessel from such a port, or one licensed for
and engaged in the coasting trade, would be required by Rev. Stat.
2806, or by Rev. Stat. 4350-53, to have on board a manifest.
The vessel here in question not being such a vessel or a vessel from
such a port, or even laden with merchandise (Rev. Stat. 2811), the laws
applicable in such cases do not, in my opinion, bind it.
Respectfully,
P. C. KNOX.
MILITARY SUPPLIES-- ARMS-- CHINA; 24 Op.Att'y.Gen. 25, April 11,
1902
The mere shipment or exportation of arms, in the way of commerce, to
a country in which there are insurrectionary movements, does not seem to
be prohibited by the statutes of the United States or by the law of
nations.
DEPARTMENT OF JUSTICE,
April 11, 1902.
The SECRETARY OF STATE.
SIR: I have your favor of the 28th ultimo, in relation to the
importation of arms and material, used exclusively for the manufacturing
of arms and ammunition, into China.
You set forth that a preliminary protocol between China and the
powers maintaining intercourse with that Empire, provided (among other
stipulations for the adjustment of the questions arising out of the
attacks upon foreigners and the injury to foreign interests in China)
that provision should be made for the maintenance, under conditions to
be settled between the powers, of the prohibition of the importation of
arms, etc.
You say that previous to the signing of the final protocol under date
of September 7, 1901, there was much discussion in the conference of the
powers relating to the conditions to be settled between them for this
prohibition, and that several of them undertook to prevent the
exportation of the arms from their jurisdictions; that it was explained
that any steps taken in this country would have to be subject to
existing or future laws; and that in the final protocol, it is stated
that China agreed to prohibit the importation of arms, etc. And you add:
"The representatives of several of the powers have called my
attention to the situation created in China by the insurrectionary
movements now flagrant in the southern provinces and to the fact that
the insurgents are deriving supplies of arms and warlike material from
abroad; and they urge that the measures which they are taking to
prevent the exportation of such supplies from their territories to China
should be seconded as far as possible by similar action on the part of
the United States.
"I have the honor to bring this matter to your notice with the
request that the officials of your Department may be instructed to do
whatever may be practicable under existing laws in the way of
restricting the exportation of arms and warlike materials to China for
use against a nation with which the United States are at peace and to
the injury of foreigners (including citizens of the United States) found
in China. I should be glad if you would communicate to me your views on
the subject in order that I may inform the foreign representatives of
what is or can be done in the premises."
Since receiving your communication, I have sent you one concerning
shipments of mules and horses to South Africa, and I refer you to that
as throwing some light upon the present matter.
The mere shipment or exportation of arms, in the way of commerce, to
a country in which there are insurrectionary movements, does not seem to
be prohibited by our statutes, or by the law of nations; and for this
reason there appears to be nothing which this Department can do in the
direction of restricting the exportation of arms and warlike material to
China.
This question was passed upon by the Attorney-General (21 Op.Att'y.
Gen. 267) in connection with the insurrection in Cuba.
The only thing practicable, if it is deemed necessary to prevent such
exportation to China, would seem to be to suggest Congressional action.
Respectfully,
P. C. KNOX.
NEUTRALITY-- MILITARY SUPPLIES-- HORSES; 24 Op.Att'y.Gen. 15, April
4, 1902
A general statement of the law to be applied in the matter of the
shipment of horses from New Orleans to South Africa, for military
purposes, and the alleged establishment of foreign agencies in the
United States for the purchase and shipment of hostile supplies (horses
and mules) for use against a third party:
According to the weight of authority, the sale of contraband or war
supplies to a belligerent is not unlawful, or a thing which a neutral
nation must forbid to its citizens.
A neutral nation must not give aid to one of the belligerents in the
carrying on of war; but the carrying on of commerce with the
belligerent nations in the manner usual before the war, is not in itself
the giving of such aid.
The mere increased demand for warlike articles, and their consequent
increased quantity in the commerce between the neutral and the
belligerent countries, does not of itself make the commerce cease to be
the same that was usual before the war.
A belligerent may seize at sea merchandise involved in such commerce
when it is the property of his enemy, or when it is composed of articles
for direct and immediate use for warlike purposes.
The fact that neutral individuals, instead of their government, give
aid to the belligerent, does not relieve the neutral government from
guilt; but the government is innocent if the acts of individuals are
such as, from their nature, make it impracticable or excessively
burdensome for the government to watch and prevent, or, if preventable
without excessive burden, the government uses due diligence about their
prevention.
The fact that neutral merchants give aid to belligerents purely from
motives of gain-seeking does not relieve their government from its
obligation to prevent such aid being given.
In determining whether a series of transactions which, in one aspect
are commercial in character, are prohibited to the neutral nation and
its people as being an aid to one of the belligerents in carrying on war
against the other, the criteria are practically impossible to specify in
advance. Among the points by which to be guided in determining that
question are the systematic character of the transactions, their greater
or less extensiveness, their persistence in time, their governmental
character or the absence of it, their objects and results, and,
principally, their relation, if any, to the prosecution of the war being
carried on by the belligerent.
DEPARTMENT OF JUSTICE,
April 4, 1902.
The SECRETARY OF STATE.
SIR: I have the honor to acknowledge the receipt of two
communications from you, one of the 29th ultimo and the other of the 2d
instant, concerning the shipment of horses from New Orleans to South
Africa, and the alleged establishment in the United States of foreign
agencies for the purchase and shipment of hostile supplies (horses and
mules) for use against a third party. Each letter contains numerous
inclosures relating to those subjects, including a letter from the
governor of Louisiana and one from Messrs. Wessels and Wolmarans.
You ask for appropriate advice and in the later communication for a
brief memorandum of my opinion upon the questions raised by the
governor's letter.
The governor, while reciting a number of alleged facts concerning the
transactions referred to, and among others the arrival and action at New
Orleans of Gen. Sir Richard Campbell Steward and aids, of the British
army, reported to be on a tour of inspection of the transport and mule
shipment service at Southport and Chalmette, near New Orleans, asks your
views as to the powers and duties of the State governments in matters of
this character.
He also sends copies of correspondence between his office and the mayor
of New Orleans and sheriff of St. Bernard Parish, growing out of the
suggestion in a letter from Samuel Pearson, described as a burgher of
the South African Republic, that he be permitted to use force against
the British officers said to be carrying on war at Chalmette.
It seems necessary to say nothing as to the duties and powers of the
State of Louisiana, except that they involve, of course, the exercise of
the usual civil means of preserving the peace, in the improbable event
of its breach in the manner supposed to be suggested by Pearson. I can
not believe that the latter contemplates taking the law into his own
hands, in defiance of the State and Federal governments; nor does he
threaten to act without the President's permission, which, it is
needless to say, he will not receive. Nor can I believe that he expects
any such permission. His object is doubtless to bring forcibly to the
attention of the Government that he considers the proceedings of the
British equivalent to "carrying on war" upon our territory.
The principal question raised by your communications seems to be
whether the transactions concerning the horses and mules involve a
departure, on the part of our Government, from the duties of neutrality
with regard to the war which has so long devastated a portion of South
Africa; a delicate question in view of the interests of our citizens
engaged in selling and otherwise dealing with the animals, and of our
foreign relations.
Notwithstanding the urgency of Samuel Pearson and of the governor of
Louisiana, I think this Government should not take any action without
mature consideration by the President and his advisers. In order to
initiate the disposition of the business in that way, I submit the
following tentative suggestions:
The sale of contraband or war supplies to a belligerent is held by
many eminent authorities on international law to be unlawful and
something which a neutral nation must forbid to its citizens. But the
weight of authority is the other way.
One of the rules of international law which seems to be now fully
agreed upon is that a neutral nation shall not give aid to one of the
belligerents in the carrying on of the war. Carrying on commerce with
the belligerent nation in the manner usual before the war is likewise
agreed not to be in itself giving such aid. It is also settled that the
belligerent may seize at sea merchandise involved in such commerce when
it is the property of his enemy, or when it is composed of articles of
direct and immediate use for warlike purposes. It also seems to be
agreed that the mere increased demand for warlike articles and their
consequent increased quantity in the commerce between the neutral and
the belligerent countries, does not of itself make the commerce cease to
be the same that was usual before the war. It does not seem to be
settled that the mere fact that the belligerent government is the
purchaser of such warlike articles of itself makes the neutral
government's permission of the commerce a departure from the obligation
to give no aid to the belligerent in the carrying on of the war. It
seems, on the other hand, to be settled that the fact that neutral
individuals instead of their government give aid to the belligerent does
not relieve the neutral government from guilt; but the government is
innocent if the acts of individuals are, from their nature such, as to
be impracticable or excessively burdensome for the government to watch
and prevent, or, if preventable in their nature without such excessive
burden, the government uses due diligence about the prevention of them.
It also seems to be settled that the fact that neutral merchants give
aid to the belligerents purely from motives of gain-seeking does not
relieve their government from its obligation to prevent. If this were
otherwise, the supplying the ships of war with coal sufficient to enable
them to carry on their warfare would be, in nearly all cases, lawful to
permit, and even the supplying them with cannon and powder.
These things being premised, there remains the difficulty of drawing
the line which divides the right of carrying on, and of governmental
permission to carry on, the commerce usual before the war, and the
obligation upon the government and citizens of the neutral country to
give no aid to the belligerents in the prosecution of the war.
Each new case that arises seems to present new difficulties, and
because it is new the nation interested in carrying on the commerce
argues from the part of international law which is based upon express
treaties and distinct precedents, and affirms that it can not be shown
by the actual practice of nations and by treaties that all nations have
recognized that such a transaction as is in question is prohibited by
the common consent of nations. The other interested nation, on the other
hand, usually dwells upon that part of the law of nations which has been
developed by famous text writers into a system of principles, and argues
that general principles are violated by the transaction. One nation
brings forward all that can be shown in favor of the freedom of
commerce; the other all that can be shown in favor of belligerent right
and neutral duty. But in international law, as in municipal, cases must
be decided for which no exact precedents can be found. It is impossible
to do nothing. Where there is nothing else to determine whether a thing
belongs to one class or another, as whether it belongs to State or
interstate commerce, or whether it is an ore of lead or an ore of
silver, and it must be classed one way or the other to accomplish
justice, it is a familiar principle to permit the preponderant
characteristics to control the determination. This principle seems to
have been recognized in international law. Thus, Hall (Int. Law),
speaking of the Confederate cruiser Shenandoah having entered Melbourne
in need of repairs, provisions, and coal, and obtaining her supplies,
and a surreptitious addition to her crew, says that "it was urged on the
part of the government of that country" (the United States) that "the
main operation of the naval warfare" of the Shenandoah having been
accomplished by means of the coaling "and other refitment" at that port,
Melbourne had been converted into her base of operations.
Hall continues (page 628):
"The argument was unsound because continued use is above all things
the crucial test of a base, both as a matter of fact, and as fixing a
neutral with responsibility for acts in themselves innocent or
ambiguous. A neutral has no right to infer evil intent from a single
innocent act performed by a belligerent armed force; but if he finds
that it is repeated several times, and that it has always prepared the
way for warlike operations, he may fairly be expected to assume that a
like consequence is intended in all cases to follow, and he ought
therefore to prevent its being done within his territory. If a
belligerent vessel, belonging to a nation having no colonies, carries on
hostilities in the Pacific by provisioning in a neutral port, and by
returning again and again to it, or to other similar ports, without ever
revisiting her own, the neutral country practically becomes the seat of
magazines of stores, which though not warlike are necessary to the
prolongation of the hostilities waged by the vessel. She obtains as
solid an advantage as Russia in a war with France would derive from
being allowed to march her troops across Germany. She is enabled to
reach her enemy at a spot which would otherwise be unattainable."
In the latter case there is merely a purchase of food in a neutral
port, in one view of the matter, and that would be a purely commercial
transaction; but the mere repetition of the transaction, and the
dependence of the belligerent's vessel upon such transactions to enable
her to remain on the seas with a view to carrying on hostilities there,
causes the aid given to the belligerent power to overweigh the mere
commercial business of selling food to a visiting purchaser. So, where a
large quantity of guns was sold during the Franco-Prussian war by the
Government of the United States in the open market at New York, and
agents of the French Empire became the purchasers, upon complaint being
made by the opposing belligerent, President Grant put a stop to the
sales, notwithstanding the purely commercial design with which the sales
were being made, the assistance to France in her warfare overweighing
the commercial elements of the business.
During the same war, the German Government complained that a
considerable number of British ships had been hired in Newcastle for the
conveyance of coal to the French fleet operating on the North Sea.
In the correspondence between the British representative at Berlin and
his own Government, the British representative, while denying the
justice of other German complaints, said on the subject of the coal:
"With reference to these questions, I have had several conversations
with Baron Thile and M. Delbruck. On the subject of coal, I have stated
that we could not prohibit the exportation of an article which was
destined for other than war purposes, and the exportation of which, I
believed, we had taken an engagement in our commercial treaty with
France not to prohibit. The chartering of English vessels for the
express purpose of provisioning the French fleet, and the delivery of
the coals direct from those vessels on board French men-of-war in
hostile naval operations against Prussia, is undoubtedly a contravention
of the neutrality which we are bound to observe between the belligerent
parties."
The British Government forbade the sending of the coal. And on that
subject Bluntschli, section 805, remarks:
"The neutral state may without hesitation accord to vessels of war
the taking on board in its ports of coal necessary to enable them to
reach another neighboring port, but it is with reason that the British
Government, during the French-German war, prohibited the sending to the
French fleet on the North Sea coal taken from English ports. The intent
to aid one of the belligerents was evident."
Thus, also, in discussing the famous second rule of the treaty of
Washington which prohibited the use of neutral ports for obtaining a
renewal or augmentation of military supplies, Count Sclopis, one of the
arbitrators under that treaty, says that England and the United States
equally hold "that it is not a violation of the laws of nations to
furnish arms to the belligerent," and then he adds (Whart. Int. Law
Dig., vol. 3, sec. 370):
"But if an excessive supply of coal is connected with the other
circumstances which show that it was used as a veritable res hostilis,
then there is an infraction of the second article of the treaty.
* * * Thus, for example, when I see the Florida and the Shenandoah
choose for their fields of action, the one the stretch of sea between
the Bahama Archipelago and Bermuda, to cruise there at its ease, and the
other Melbourne and Hobson's Bay, for the purpose, immediately carried
out, of going to the Arctic seas, there to attack the whaling vessels, I
can but regard the supplies of coal in quantities sufficient for such
services infraction of the second rule of Article VI."
And further, Secretary of State Bayard, writing under date of June 1,
1885, to Mr. Smithers, says (Whart. Digest, vol. 3, sec. 369):
"Even supposing such articles to be contraband of war and
consequently liable to be seized and confiscated by the offended
belligerent, it is no breach of neutrality for a neutral to forward them
to such belligerent ports, subject, of course, to such risks. When,
however, such articles are forwarded directly to vessels of war in
belligerent service, another question arises. Provision and munitions of
war sent to belligerent cruisers are unquestionably contraband of war.
Whether, however, it is a breach of neutrality by the law of nations to
forward them directly to belligerent cruisers depends so much upon
extraneous circumstances that the question can only be properly decided
when these circumstances are presented in detail."
Calvo, section 2749, says that Great Britain, while refusing to
interdict the exportation of coal in 1870, declared that--
"The shipments of coal leaving her territory ought to be directly to
the ports of the enemy or neutral ports, by merchant ships and not by
military transports, and that they could not serve to renew on the high
seas the supplies of fleets or of belligerent cruisers."
Wharton, author of the International Law Digest, says (vol. 3, sec.
398):
"Nor is it a breach of neutrality for a neutral state to permit the
sale of coal to any extent to a belligerent. It would, however, be a
breach of neutrality for a neutral to permit a permanent depot or
magazine to be opened on its shores, on which a particular belligerent
could depend for constant supplies.
To require a neutral to shut up its ports so as to exclude from coaling
all belligerents, would expose a nation with ports as numerous as those
of the United States to an expense as great as would be imposed by
actual belligerency. It is on the belligerent, who goes to war, not on
the neutral, who desires to keep out of it, that should be thrown
expenses so enormous, and constitutional strains so severe as those thus
required. On the other hand, the breaking up of central depots or
magazines for the constant supply of particular belligerents would be
within easy range of ordinary national police."
Hall, after stating the principle that a neutral state can not allow
its territory to become a scene of hostilities, and adverting to the
extension of this principle concerning acts of hostilities having their
commencement on neutral ground, and after giving examples of using
neutral territory, including those in the above quotation, says (p.
629):
"That previously to the American civil war neutral states were not
affected by liability for acts done by a belligerent to a further point
than that above indicated, there can be no question; but there is
equally little question that opinion has moved onwards since that time
and the law can hardly be said to have remained in its then state. Even
during the American civil war ships of war were only permitted to be
furnished with so much coal in English ports as might be sufficient to
take them to the nearest port of their own country, and were not allowed
to receive a second supply in the same or any other port, without
special permission, until after the expiration of three months from the
date of receiving such coal. The regulations of the United States in
1870 were similar; no second supply being permitted for three months
unless the vessel requesting it had put into a European port in the
interval. There can be little doubt that no neutral states now venture
to fall below this measure of care; and there can be as little doubt
that their conduct will be as right as it will be prudent. When vessels
were at the mercy of the winds it was not possible to measure with
accuracy the supplies which might be furnished to them, and as blockades
were seldom continuously effective, and the nations which carried on
distant naval operations were all provided with colonies, questions
could hardly spring from the use of foreign possessions as a source of
supplies.
Under the altered conditions of warfare matters are changed. When
supplies can be meted out in accordance with the necessities of the
case, to permit more to be obtained than can, in a reasonably liberal
sense of the word, be called necessary for reaching a place of safety,
is to provide the belligerent with means of aggressive actions; and
consequently to violate the essential principles of neutrality."
While discussions of such matters have, as in the Alabama claims
cases, principally concerned war vessels and expeditions by sea, it can
not be doubted that aid given to an army engaged in actual warfare
stands upon the same footing as aid given to a fleet so engaged, since
both equally involve a taking part by the neutral in furthering the
military operations of the belligerent. Nor should the municipal laws of
England and the United States, or of other countries, by principally
dealing with such vessels and expeditions, obscure the fact that aid can
as well be given to military operations of the belligerent the one way
as the other, by proceedings carried on upon the neutral territory.
From all that has been said, I think that it may be concluded that,
in determining whether a transaction of the kind referred to, which in
one aspect is commercial in character, is yet not entitled to enjoy the
rights belonging to commerce, but is prohibited to the neutral nation
and its people as being an aid to one of the belligerents in carrying on
war against the other, the criteria are practically impossible to
specify and enumerate in advance. Each case that arises must be
considered in all its circumstances and determined accordingly.
In the case before us there is no statement of facts by you upon
which to give an official opinion as to the law, and I do not understand
that one has been requested. A number of allegations and some testimony
have been sent me, and they are sufficient to challenge attention. But
the first thing to be done is to ascertain whether the allegations are
true. I have endeavored, as well as I could in advance, to indicate the
law to be applied to them, and shall only add that, among the points by
which to be guided, are the systematic character of the transactions,
their greater or less extensiveness, their persistence in time, or the
reverse, their governmental character or the absence of it, their
objects and results, and principally, of course, their relations, if
any, with the prosecution of the military operations in South Africa.
Very respectfully,
P. C. KNOX.
GENERAL APPRAISER-- OFFICE-- INCOMPATIBLE SERVICE; 24 Op.Att'y.Gen.
12, April 2, 1902
The provision in section 12 of the customs administrative act of June
10, 1890 (26 Stat., 136), directing that a general appraiser "shall not
be engaged in any other business, avocation, or employment," is not
applicable to the case of a general appraiser detailed by the Secretary
of the Treasury, without additional compensation, as "an expert to
represent the United States in the international commission for the
conversion of the present Chinese tariff into specific rates." That
provision, in connection with other provisions of the law, means that
such officer can not hold another office under the Government or be
engaged in other incompatible Government service.
There is no incompatibility between the office of general appraiser
and the special service of expert for which such officer was detailed,
the latter service being a mere employment without compensation, and not
an office.
DEPARTMENT OF JUSTICE,
April 2, 1902.
The PRESIDENT.
SIR: Your request to the Secretary of State to make a report to you
in connection with the Treasury and the Attorney-General's Office on the
status of Mr. Thaddeus S. Sharretts, a member of the Board of General
Appraisers, has come to me from the Secretary of the Treasury after
consideration by him and the Secretary of State.
It seems that in August of last year the State Department requested
the Treasury Department to "detail an expert to represent the United
States in the international commission for the conversion of the present
Chinese tariff into specific rates."
After intermediate correspondence the Secretary of the Treasury selected
Mr. Sharretts as such representative of the United States, and thereupon
the latter proceeded to China upon this special service under the
auspices of the Departments of State and the Treasury, where he now is.
I draw from the memoranda of those Departments on the subject the
following additional facts:
That the service of an expert in the adjustment of the Chinese
tariffs was necessary and important for the interests of the United
States; that Mr. Sharretts was well qualified by his ability and
experience to perform the necessary duties; that while these duties in
connection with the international commission are not the usual duties of
a United States general appraiser, the Secretary of the Treasury did not
believe that the provision of the customs administrative act (sec. 12,
act of June 10, 1890), directing that a general appraiser "shall not be
engaged in any other business, avocation, or employment" had any
application here; that Mr. Sharretts is not in receipt of any pay or
emoluments on account of this special service; that his actual and
necessary expenses only, while attending to the revision of the Chinese
tariff, are paid by the Department of State in accordance with the
understanding had with the Treasury Department.
In United States v. Maurice (2 Brock., 96) Chief Justice Marshall
says:
"An office is defined to be 'a public charge or employment,' and he
who performs the duties of the office is an officer. If employed on the
part of the United States, he is an officer of the United States.
Although an office is 'an employment,' it does not follow that every
employment is an office. A man may certainly be employed under a
contract, express or implied, to do an act or perform a service, without
becoming an officer. But if a duty be a continuing one, * * * it seems
very difficult to distinguish such a charge or employment from an
office, or the person who performs the duties from an officer."
In United States v. Hartwell (6 Wall., 385, 393) the definition is as
follows:
"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
public service of the United States. * * * His duties were continuing
and permanent, not occasionally or temporary."
These views have been invoked in rulings which hold that certain
special employment or additional service is not incompatible with an
office under the United States, and does not even preclude the payment
of compensation for the special employment under the prohibitions of
sections 1763-1765, Revised Statutes, and section 2 of the act of July
31, 1894, 28 Stat., 162, 205 (22 Op.Att'y.Gen. 184; 2 Comp.Dec., 172;
id., 467). Here the question of additional compensation is not involved,
and it seems clear that the special service does not constitute an
office. Inasmuch as Mr. Sharretts receives no additional compensation
and does not fill two distinct places, his case is not covered in either
aspect by United States v. Saunders (120 U.S., 126), which held (prior
to the act of 1894 above cited) on the one hand that where there are two
distinct offices or employments, each with its own duties and
compensation, both may be held by one person at the same time,
notwithstanding sections 1763-1765, R.S.; and implied very clearly, on
the other hand, that where an officer performs added duties under his
appointment to a single place, as by direction of the head of his
Department, the statute then provides that he shall receive no
additional compensation for that class of duties unless it is so
provided by special legislation.
Nor is there any incompatibility between the office of a general
appraiser and the special service in this case, a point touched upon as
to two military commissions, in 22 Op.Att'y.Gen. 237. There are many
precedents for such special service by officers of the Government, some
of which were indicated by Mr. Griggs in 22 Op.Att'y.Gen. 184, above
cited. There are also recent precedents of which you know.
I agree with former Secretary Gage in thinking that the provision in
section 12 of the customs administrative act, forbidding general
appraisers to be engaged in any other business, avocation, or
employment, is not applicable to this case.
That language means, of course, that general appraisers shall give their
whole time to their public duties, and shall not be engaged in any
private occupation; and it means, in connection with other provisions
of the law, that they can not hold another office under the Government
or be engaged in other incompatible Government service. But I do not
think it means that a general appraiser, specially qualified for the
important public service presented in this case, is not permitted to
perform that service. It is to be assumed, if the exigencies of the
customs branch of the public business required at this particular
juncture Mr. Sharrett's unremitting attendance upon the duties of the
Board of General Appraisers that the Secretary of the Treasury would not
have employed him or detailed him upon this extraordinary mission.
I have the honor to advise you, therefore, that in my opinion Mr.
Sharrett's present employment is not repugnant to his character as a
member of the Board of General Appraisers, and is not contrary to law.
The principle of republican institutions which is opposed to "duplicate
offices" is not applicable to the present case.
Very respectfully,
P. C. KNOX.
PUBLIC LANDS OF PORTO RICO; 24 Op.Att'y.Gen. 8, March 19, 1902
The so-called "public lands" of Porto Rico which, prior to the treaty
of Paris of December 10, 1898 (30 Stat., 1754), belonged to Spain, were,
by that treaty, ceded to and now belong to the United States and not to
Porto Rico.
DEPARTMENT OF JUSTICE,
March 19, 1902.
The SECRETARY OF THE INTERIOR.
SIR: I have received your letter of the 6th instant requesting my
opinion "upon the question presented in the accompanying report of the
commissioner of the interior for Porto Rico, for the fiscal year ended
June 30, 1901, as to whether the so-called 'public lands' of Porto Rico
were ceded as 'Crown lands' to the United States by the treaty of Paris
concluded December 10, 1898, and proclaimed April 11, 1899 (30 Stat.,
1754), or were they and did they remain the property of Porto Rico as
'State lands?'"
You inclose a letter from the governor of Porto Rico, dated February
14, 1902, concerning a bill in Congress giving supervisory authority to
the Secretary of the Interior over the public lands in Porto Rico.
Upon examining the report of the commissioner of the interior for
Porto Rico, the question presented there is found to be whether, in view
of Article VIII of the treaty of Paris, the lands in Porto Rico not
owned by individuals but by the public, and not being in public use for
roads, buildings, etc., belonged to the province or island of Porto
Rico, instead of to the Crown of Spain, and now belong to Porto Rico
rather than to the United States.
The commissioner of the interior for Porto Rico quotes Article VIII
of the treaty as ceding in Porto Rico "all the buildings, wharves,
barracks, forts, structures, public highways, and other immovable
property which, in conformity with law, belong to the public domain, and
as such belong to the crown of Spain," and declaring that the cession
should not "in any respect impair the property or rights which by law
belong to the peaceful possession of property of all kinds of provinces,
municipalities, public or private establishments, ecclesiastic or civic
bodies, or any other associations having legal capacity to acquire and
possess property in the aforesaid territories, renounced or ceded, or of
private individuals, of whatsoever nationality such individuals may be."
The commissioner says that "no other provision for the cession of
public lands in Porto Rico appears in the treaty," and that the Civil
Code of Spain, extended to Porto Rico by decree of July 31, 1889,
provides:
"ART. 338. Property is of public or private ownership.
"ART. 339. Property of public ownership is--
"1. That destined to the public use, such as roads, canals, rivers,
torrents, ports, and bridges constructed by the State, and banks,
shores, roadsteads, and that of a similar character.
"2. That belonging exclusively to the State without being for public
use and which is destined to some public service or to the development
of the national wealth, such as walls, fortresses, and other works for
the defense of the territory, and mines, until their cession has been
granted.
"ART. 340. All other property belonging to the State which has not
the conditions stated in the preceding article is considered as private
property."
The commissioner then says:
"The definition of property of public ownership is quite clearly
given, and does not embrace 'public lands,' as the expression is
understood and applied in the United States, but article 340 classifies
such lands, if the property of the State, as private property.
"The point I would raise is whether the so-called 'public lands' of
Porto Rico were ceded to the United States by the treaty of Paris as
Crown' lands, or were they and do they remain the property of Porto Rico
as 'State' lands."
I shall endeavor to answer the question as I presume you would wish
to have it stated rather than as it has been formulated by the
commissioner.
The commissioner makes a fundamental mistake in assuming that Article
VIII is the only provision of the treaty to be interpreted. By Article
II Spain ceded to the United States "the island of Porto Rico."
It might be admitted that Article VIII of the treaty concerns only
buildings, wharves, highways, and other like property without thereby
admitting that the lands now in question do not belong to the United
States. It may be that the purpose of Article VIII was to cede only such
property as article 339 of the civil code embraces under property of
public ownership. It by no means follows that the lands not mentioned by
Article VIII as such property were, by virtue of the same treaty, to
"remain the property of Porto Rico as 'State' lands."
The treaty did not cede anything to Porto Rico. It ceded the island
to the United States. If, then, the lands now in question did not belong
to Porto Rico before the cession, the treaty has not transferred to
Porto Rico the title, but has transferred it as part of the title to the
island itself to the United States.
The latter part of Article VIII does not purport to give the province
of Porto Rico anything it did not already own.
Porto Rico unquestionably belonged to Spain by right of discovery and
conquest, in consequence of the exertions of the people and Government
of Spain, and not of any exertions of any people of Porto Rico. The
public lands of Porto Rico, as we understand the expression, thus came
into the ownership of the Spanish Government subject to the rights of
the Indians, who have gradually disappeared. The lands there not owned
by individuals are commonly spoken of as lands of the State (estado),
and the State means not Porto Rico but Spain.
Exh. R, App. II Rep. Evac. Commission, Porto Rico.
Rep. Gen. Davis on Civil Aff., P.R., 1899, pp. 41, 240.
Rep. Commissioner Int. for P.R., 1900, pp. 5, 8.
Rep. on P.R., by Carroll, 1899, p. 512.
56, 2nd, Sen. doc. 117, pp. 6, 7.
Regulations, Law of Em. Domain, Porto Rico (royal decree, 1879), art.
16.
Provincial and Municipal Laws, Porto Rico (royal decree, 1896), chap.
3, art. 14.
Law of Railroads, Porto Rico (royal decree, 1887), Chap. IV, art.
31; Chap. X, art. 63.
Regulations for execution of above, Chap. II, art. 7, 10.
Law of Public Works, Porto Rico, Chap. I, arts. 1, 2, 3, 4, 5; Chap.
VIII, art. 94, 95, 106, 108, 112; Chap. IX, art. 116.
Regulations for execution of above, Chap. VIII, art. 122.
Mining Law, Porto Rico (royal decrees, 1883, 1884), Chap. I, art. 2.
I have not found in the laws of the Indies or any of the royal
cedulas, orders or decrees concerning Porto Rico that for any good or
valuable consideration, or otherwise, the title to lands acquired by
Spain through the discovery and conquest was transferred to the people
of the island or province or to its government.
Provinces of Spain, and Porto Rico was one, were capable of owning
and did own lands (see citations above). They usually owned them,
however, as our States of recent admission to the Union have owned small
quantities of former public lands of the United States through special
grants by Congress in aid of internal improvements, education, etc., or
as the States own land acquired from individuals in consequence of debts
and taxes (Alcubilla, Diccionario de la Administration Espanola).
It may be that the records at San Juan show that the province of Porto
Rico owned some land in this way. If so, the latter part of Article VIII
of the treaty may embrace its title.
But I understand your question to concern the general mass of what we
should call "public lands." These, in my opinion, belonged to Spain,
and, by virtue of the treaty of Paris, now belong to the United States.
Respectfully,
P. C. KNOX.
HONOLULU A PACIFIC PORT-- DRAWBACK; 24 Op.Att'y.Gen. 6, March 19,
1902
Honolulu is a Pacific port of the United States within the meaning of
the tariff act of July 24, 1897 (30 Stat., 151, 190), and coal imported
into the United States, which is afterwards used for fuel on board a
vessel propelled by steam plying between the ports of New York and
Honolulu and registered under the laws of the United States, is entitled
to drawback under paragraph 415 of that act.
DEPARTMENT OF JUSTICE,
March 19, 1902.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
the 13th instant relative to the allowance of drawback, under the
provisions of paragraph 415 of the tariff act of July 24, 1897, on coal
used as fuel on board a vessel registered under the laws of the United
States and propelled by steam and plying between the ports of New York
and Honolulu. You ask for an opinion as to whether Honolulu is a Pacific
port of the United States within the meaning of said paragraph.
It is provided in said paragraph "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, 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 shall
prescribe."
In the act to provide a government for the Territory of Hawaii (31
Stat., 161, sec. 98), it is provided that all vessels carrying Hawaiian
registers on August 12, 1898, and owned by citizens of the United States
or citizens of Hawaii, "shall be entitled to be registered as American
vessels, with the benefits and privileges appertaining thereto, and the
coasting trade between the islands aforesaid and any other portion of
the United States shall be regulated in accordance with the provisions
of law applicable to such trade between any two great coasting
districts."
Section 88 of the same act provides "that the Territory of Hawaii
shall comprise a customs district of the United States, with ports of
entry and delivery at Honolulu, Hilo, Mahukona, and Kahului."
It was held in Huus v. New York and Porto Rico Steamship Company (182
U.S., 392) that vessels engaged in trade between Porto Rican ports and
ports of the United States are engaged in the coasting trade, and that
steam vessels engaged in such trade are coastwise vessels under Revised
Statutes. Mr. Justice Brown, speaking for the court, said (p. 396):
"At the same time trade with that island is properly a part of the
domestic trade of the country since the treaty of annexation, and is so
recognized by the Porto Rican or Foraker act. By section 9, the
commissioner of navigation is required to 'make such regulations * * *
as he may deem expedient for the nationalization of all vessels owned by
the inhabitants of Porto Rico on April 11, 1899, * * * and for the
admission of the same to all the benefits of the coasting trade of the
United States; and the coasting trade between Porto Rico and the United
States shall be regulated in accordance with the provisions of law
applicable to such trade between any two great coasting districts of the
United States.' By this act it was evidently intended, not only to
nationalize all Porto Rican vessels as vessels of the United States, and
to admit them to the benefits of their coasting trade, but to place
Porto Rico substantially upon the coast of the United States, and
vessels engaged in trade between that island and the continent as
engaged in the coasting trade."
Congress in providing for the refunding of the duty on coal
afterwards used as fuel on board American steam vessels engaged in trade
"between the Atlantic and Pacific ports of the United States" thereby
made a distinction in favor of American vessels engaged in the coasting
trade carried on by long voyages around the Horn as against those
engaged in other coasting trade. A special privilege was granted the
former, and there is every reason to believe that Congress in passing
the Hawaiian act intended to extend to American coastwise vessels
trading there not only the privileges and laws common to all American
coastwise vessels and trade, but the particular law and privilege
concerning such vessels engaged in the long voyage around the Horn.
Hawaii is in the Pacific, is not so far south as Porto Rico, nor so
far west as the western ports of Alaska. If the Porto Rican act placed
Porto Rico "substantially upon the coast of the United States," it is
difficult to perceive why the Hawaiian act, almost identical in
language, did not place Hawaii substantially upon the coast.
I am therefore of the opinion that Honolulu is a Pacific port of the
United States within the meaning of paragraph 415 of the act of July 24,
1897.
Respectfully,
P. C. KNOX.
CUSTOMS DUTIES IN CASES OF FORFEITURE; 24 Op.Att'y.Gen. 1, March 12,
1902
Regular duties may be exacted on an importation of foreign goods,
notwithstanding the goods have been seized and forfeited for a violation
of section 9 of the customs administrative act of June 10, 1890 (26
Stat., 136), and the whole of the proceeds from their sale applied to
the use of the United States.
There is no authority for the practice of the Treasury Department to
exact duties, when forfeiture prevails, only in those cases which arise
under section 32 of the tariff act of July 24, 1897 (30 Stat. 211, 212),
and not in other customs revenue cases involving forfeiture.
DEPARTMENT OF JUSTICE,
March 12, 1902.
The SECRETARY OF THE TREASURY.
SIR: I am in receipt of your letter of February 12, asking for an
expression of my opinion as to whether the Government is authorized to
exact duties on an importation of foreign goods when said goods are
seized, forfeited, and the whole of the proceeds applied to the use of
the United States.
It appears from your letter that an importation of a quantity of
tobacco was made and entered for warehouse at the port of New York, that
a portion of the tobacco was seized and forfeited for violation of
section 9 of the act of June 10, 1890, that the proceeds of the sale
were less than the duties which would have accrued but for the
forfeiture, had the tobacco been withdrawn for consumption, and that the
collector demanded of the importers payment of a sum equivalent to the
duty, less the proceeds from the sale, basing his action on Treasury
decisions 22008, 22146, 22169, and 22218, in relation to the collection
of 50 per cent additional duties under section 7 of the customs
administrative act as amended by section 32 of the act of July 24, 1897.
You state further that "it has been and is the practice to exact duty
when forfeiture prevails only in cases arising under section 32 of the
act of July 24, 1897; in other customs revenue cases involving
forfeiture and sale the importer is not required to pay duties."
The duty on tobacco (not manufactured) is a specific duty. Section 7
of the customs administrative act of June 10, 1890, as amended by
section 32 of the act of July 24, 1897, refers exclusively to
merchandise on which an ad volorem duty is imposed, and the question as
to the collection of additional duties under that section can not arise
in this case.
The question to be considered hinges on the construction of section 9
of the customs administrative act of June 10, 1890, which provides that
if any owner, importer, etc., shall make or attempt to make any entry of
imported merchandise by means of any fraudulent or false invoice, etc.,
or by means of any false or fraudulent practice or appliance whatsoever,
etc., by means where the United States shall be deprived of the lawful
duties, or any portion thereof, accruing upon the merchandise--
* * * "such merchandise, or the value thereof, to be recovered from
the person making the entry, shall be forfeited * * * ; and such person
shall, upon conviction, be fined for each offense a sum not exceeding
five thousand dollars, or be imprisoned for a time not exceeding two
years, or both, in the discretion of the court."
This section provides two penalties-- one against the goods and one
against the person. The one against the goods has been adjudged and
executed. It seems that criminal prosecution under the section is not
involved or invoked.
Have the remedies been exhausted, or is the United States now entitled
to access and collect the regular duties notwithstanding the forfeiture?
The tariff act of July 24, 1897, prescribes the "lawful duties" which
shall be "levied, collected and paid" upon imported merchandise. There
can be no doubt that duties accrue to the United States upon
importation. In Meredith v. United States (13 Pet., 486, 493) it was
held that "the duties due upon all goods imported constitute a personal
debt due to the United States from the importer (and the consignee for
this purpose is treated as the owner and importer) independently of any
lien on the goods and any bond given for the duties." As the syllabus
puts it, "the importers of goods do, in virtue of the importation
thereof, become personally indebted to the United States for the duties
thereon." The case of United States v. Boyd (23 Blatchf., 299) speaks of
the "very ancient doctrine that duty lies for customs due upon
merchandise even though the goods are forfeited." (United States v. A
Cargo of Sugar, 3 Sawy., 27.) This is the import of the common-law
authorities. (Salter v. Malapert, 1 Roll.Rep., 383.) From this decision
Chief Baron Comyns (Dig. Debt, A. 9) deduced the principle that under
the head of debt upon contract implied the law is that debt lies for
customs due for merchandise though the goods are forfeited for
non-payment. The opinion of the court of exchequer was that "duties were
due by the unlading." (Swinerton v. Wolstonholme, reported in Sir
Matthew Hale's Treatise on the Customs: Harg. L.T., 214.)
These doctrines are followed in cases which unquestionably hold that
the payment of duties is no bar to a subsequent proceeding to forfeit;
that if the duties remain unpaid, proceedings to forfeit, whether
determined in favor of the Government or the importer, do not terminate
the Government's right to enforce the liability for duty. The importer
"loses as well the duties paid or secured as the property seized and
condemned." (Hoyt v. United States, 10 How., 137; Wood v. United
States, 16 Pet., 362; Taylor v. United States, 3 How., 197.) "The
circumstance that the duties have not been paid when the proceeding to
forfeit the goods is instituted is, in reason, attended with no
difference in favor of the importer.
If the proceeding is groundless, the goods are to be restored to him,
but the regular duties are to be paid. If the goods are condemned, he
loses them, but this does not exempt him from liability for the duties."
(Opinion of district court for eastern district of Pennsylvania,
Cadwalader, J., in United States v. Segars, 3 Phil.Rep., 517, 522.) This
case cites Meredith v. United States (13 Pet.,p. 493), in which the
Supreme Court approved a decision of the English court of exchequer
(Anstr., 558) that even "where a dutiable article was lost or destroyed
by a casualty before it became available to the party personally liable
for the duty, his liability nevertheless continued." It seems, then,
that, as in other branches of the law, the civil liability is not
avoided because the punitive remedy has been pursued.
Some of the authorities cited refer to forfeiture for fraudulent
undervaluation rather than for entry on false or fraudulent invoice, and
involve considerations respecting additional duties which under some
laws are penal and under others are not. The two offenses lie close
together, and the underlying principles are applicable a fortiori to the
graver offense of entry by means of a false invoice or "any false or
fraudulent practice or appliance whatsoever."
While the authorities appear to be unanimous that in cases of
fraudulent undervaluation as well as of fraudulent or false invoices,
forfeiture and the collection of regular duties may proceed pari passu,
the Supreme Court declared in the case of the 67 Packages of Dry Goods
(17 How., 85, 94) that if additional duty has been levied, the
Government can not forfeit (see also Murray v. Arthur, 13 Blatchf.,
413), upon which the Treasury Department based rulings under earlier
laws to the effect that the Government may "sue for forfeiture or impose
the additional duty, but it can not do both." (Art. 896, regulations for
1892; see also unpublished ruling of 1878.) This seems to have been the
Treasury rule until the existing form of section 7 of the customs
administrative act became law (sec. 32, act of July 24, 1897), when,
upon the express requirements of that section, and the provision that
additional duties shall not be construed to be penal, the Treasury
regulations were changed and the rule adopted contemplates regular
duties, additional duties and forfeiture as well in proper cases coming
within the law.
(T.D. 20306; art. 1425 of Treasury regulations of 1899.) The Government
construction of section 32 aforesaid has been sustained by the courts.
(United States v. 1,621 Pounds of Fur Clippings, 106 Fed. Rep., 161;
United States v. Gray; United States v. Baldwin, 107 Fed. Rep., 104.)
It is thus clear that the rulings of the Treasury Department under
earlier laws manifestly referred to the incompatibility of forfeiture
and additional duties. On the other hand, the Treasury published rulings
show that the regular duties must be collected even if the goods are
forfeited. (Art. 1092, Regulations of 1884.) This accords with the
decisions as referred to above.
In United States v. 500 Boxes of Pipes (2 Abb., 500), it is held that
regular duties are due and payable upon a decree in favor of claimants
in forfeiture proceedings; and in United States v. Segars, ut supra, it
was held that regular duties should be exacted where the goods were
forfeited, and that it makes no difference whether the duties have or
have not been paid at the time of forfeiture, or whether the forfeiture
proceedings result in favor of the claimant or the Government.
I have traced this subject somewhat minutely, because your letter
states that it is not the practice of your Department in customs revenue
cases other than those arising under section 32 of the act of July 24,
1897, to require an importer to pay duties when there has been a
forfeiture and sale of his goods; but I am constrained to say that I
find no authority for this practice, either in the decisions of the
courts or the rulings of your Department. And I can find no intimation
to that effect in the decision of the circuit court of appeals in the
Baldwin case which you mention, not yet reported. (113 Fed.Rep., 217.)
It is obvious, under the peculiar rule of paragraph 213 of the
Dingley tariff act, which applies the wrapper tobacco duty to an entire
package of filler tobacco if it contains more than 15 per cent of
wrapper tobacco, that a very onerous burden might be placed upon
consignees who are themselves wholly innocent of any intention to
defraud.
If the question here turns upon that situation and such are the facts,
it is the misfortune of the consignees here to be burdened or punished
for the faults of others; but I can not perceive how any equity which
they might show may be recognized consistently with the law. I advise
you that the Government is authorized to exact duties on an importation
of foreign goods when said goods are seized, forfeited and the whole of
the proceeds applied to the use of the United States.
Very respectfully,
P. C. KNOX.
PRESIDENT'S ORDER-- GOVERNMENT EMPLOYEES INFLUENCING LEGISLATION; 23
Op.Att'y.Gen. 637, February 21, 1902
The order of the President of January 31, 1902, forbidding all
officers and employees of the United States to influence legislation by
Congress in their own interest, prohibits "The Navy-Yard and Arsenal
Employees' Protective Association." of Washington, from seeking to
influence Congress or its committees to pass a pending bill granting an
additional fifteen days' leave of absence to the employees who
constitute that association.
DEPARTMENT OF JUSTICE,
February 21, 1902.
The PRESIDENT.
SIR: I have received your request for an opinion upon the question
whether your order of January 31, last, forbidding employees of the
Government to urge legislation by Congress in their own interest,
prohibits "The Navy-Yard and Arsenal Employees' Protective Association,"
of Washington (city), from seeking to influence Congress or its
committees to pass a pending bill granting an additional fifteen days'
leave of absence to the employees who constitute that association.
The language of the order referred to is very broad. It forbids, on
pain of dismissal, all officers and employees to the United States of
every description, serving in or under any of the Executive Departments,
and whether so serving in or out of Washington, to solicit an increase
of pay, or to influence, or attempt to influence, in their own interest,
any other legislation whatever, either before Congress or its
committees, or in any way, save through the heads of the Departments in
or under which they serve.
The association of which you speak is made up of employees of the
Government at the navy-yard and arsenal, at or near this city, serving
under the Navy and War Departments, and therefore comes within the
description of persons in your order, and what they desire to do is
undoubtedly to influence legislation in their own interest; that is to
say, legislation by Congress giving them a leave of absence in addition
to that to which they are now entitled.
I think it is clear, therefore, that the order forbids their proposed
action. In fact, the spirit of the order, so far as it prohibits the
soliciting of an increase of salary, seems to extend to the solicitation
of an increased leave of absence.
Very respectfully,
P. C. KNOX.
REGISTRATION OF TRADE-MARKS-- CUBA-- PORTO RICO-- THE PHILIPPINES;
23 Op.Att'y.Gen. 634, February 19, 1902
Porto Rico being an organized Territory of the United States, and the
laws of the United States not locally inapplicable having been extended
to that Island, its residents are entitled to register trade-marks in
the United States, as provided in the act of Congress of March 3, 1881
(21 Stat., 502).
The Philippine Islands, not being organized Territories of the United
States as contemplated by section 1981, Revised Statutes, the residents
of those islands are not, as such, entitled to the privileges of the
trade-mark law.
While Cuba is a foreign country and the treaties of Spain no longer
apply there, yet it is now being governed by the United States; and
since the law in force there gives to citizens of the United States
similar privileges to those given by our trade-mark law, Cuba may be
regarded as one of the countries with which we have reciprocal
arrangements, and a person located there is entitled to register
trade-marks under our law.
DEPARTMENT OF JUSTICE,
February 19, 1902.
The SECRETARY OF THE INTERIOR.
SIR: I have received your letter of the 11th instant asking my
opinion "as to the rights of residents of the Philippine Islands, Cuba,
and Porto Rico in regard to the registration of trade-marks in the
United States, in view of the treaty of peace and the subsequent
legislation by Congress relating to those islands."
The trade-mark act of Congress of March 3, 1881, provides--
"That owners of trade-marks used in commerce with foreign nations, or
with the Indian tribes, provided such owners shall be domiciled in the
United States, or located in any foreign country or tribes which by
treaty, convention, or law afford similar privileges to citizens of the
United States, may obtain registration of such trade-marks by complying
with the following requirements."
In so far as residents of Porto Rico are concerned, laws of Congress
"not locally inapplicable" have, by the act for the government of that
island and by Revised Statutes, section 1981, been extended to it.
What laws are locally inapplicable is sometimes a difficult question,
but in Hornbuckle v. Toombs (18 Wall., 654) the Supreme Court says:
"That clause has the effect, undoubtedly, of importing into the
Territory the laws passed by Congress to prevent and punish offenses
against the revenue, the mail service, and other laws of a general
character and universal application, but not those of specific
application. The act of March 2, 1831, has a specific application to the
courts of the United States by its very terms, and is not of universal
application and can not be made to apply to the Territorial courts under
said clause of said organic act."
See also Commonwealth v. Knowlton, 2 Mass., 534; Commissioners of
Silver Bow Co. v. Davis, 6 Mont., 312; Ardmore Coal Co. v. Bevel, 61
Fed.Rep., 759; Territory v. Murray, 7 Mont., 261.
Porto Rico has been fully organized under a law of Congress providing
the details of its government, and organized, for the most part, upon
the plan adopted for the Territories contiguous to the States of the
Union. The presumption from the whole tenor of this organic act is that
a liberal construction of the provision extending the laws of the United
States would comport with the design of Congress.
The trade-mark act, however, is confined, so far as our country is
concerned, to owners of trade-marks domiciled in the United States, and
it may be argued that persons domiciled in Porto Rico are a different
class, and that by the terms of the act of Congress the law is
inapplicable in Porto Rico. But it seems to me that in inquiring into
the applicability of a law transferred as a part of a system undoubtedly
intended only for another country when passed, we should pay more
attention to substance than to words. While it is true that persons
domiciled in the United States have a distinct status as such, it is
also true that the trade-mark law is not based upon anything specific or
peculiar in that status which should lead us to narrow its application,
since it equally embraces foreigners who are not residents at all in the
United States, but in their own foreign countries or tribes. Nor is
there anything peculiar in the relations between the Government of the
United States and a person domiciled in the United States different from
the relations between the Government of the United States and a person
domiciled in Porto Rico which should prevent us from regarding this law
as extending to the latter.
The rights, privileges, and immunities of citizens, as such, are not
involved, and, in short, there is no perceivable reason why Congress
should make a distinction between residents of the United States and
residents of Porto Rico. In addition to this, the trade-mark act
undoubtedly applied to the United States in the sense of the States, the
organized Territories, and the District of Columbia, and not in the
sense of the States united. The law was therefore broad originally and
intended to apply to Territories as well as States. To these organized
Territories Porto Rico, similarly and completely organized, has now been
added. In addition to these suggestions, it is apparent that a law
regulating our arrangements with foreign countries, and referring to
treaties and conventions upon the same subject, should be treated as
concerning the United States in a very broad sense. (Downes v. Bidwell,
182 U.S., 244.)
I am of opinion, therefore, that residents of Porto Rico are entitled
to register trade-marks under the act of Congress first referred to.
As for the Philippine Islands, I do not regard them as completely
organized Territories in contemplation of Revised Statutes, section
1981. The general course of governmental legislation and action
concerning them seems to me to indicate that Congress and the Executive
have taken the same view of them. And the trade-mark act, expecially
that part which concerns persons domiciled in the United States, is not
a treaty or convention or other international act such that the phrase
"the United States," employed in it, has been regarded by the courts as
extending to all places however remote within our dominions. Moreover,
the phrase the United States," employed in it, has been regarded by the
courts as extending to all places however remote within our dominions.
Moreover, the phrase "United States" is converted in sections 5 and 13
into "this country," which may well be regarded as too narrow to embrace
an after-acquired archipelago 8,000 miles across the ocean.
I think, therefore, that the residents of the Philippines are not, as
such, entitled to the privileges of the trade-mark law.
Cuba is a foreign country and persons domiciled there are not
domiciled in the United States. The treaties of Spain no longer apply in
Cuba, and we have no treaty or convention with Cuba, unless what is
known as the Platt amendment (31 Stat., 897) may be regarded as such.
That does not concern trade-marks.
Cuba is at present governed by ourselves, and the law there
purporting to give "similar privileges to citizens of the United States"
as those given by our trade-mark law (General Orders No. 160), will
doubtless be continued, since it is itself but a continuation of the
arrangement made by our treaty with Spain.
Cuba may therefore be regarded as one of the countries with which we
have reciprocal arrangements, and a person located there is entitled to
register trade-marks under our law.
Respectfully,
P. C. KNOX.
SECRETARY OF THE TREASURY-- COMPROMISE OF CLAIM; 23 Op.Att'y.Gen.
631, February 19, 1902
While the Secretary of the Treasury has no authority under section
3469, Revised Statutes, to compromise a claim in favor of the United
States which has been reduced to judgment, affirmed by the highest
court, and which is clearly collectible, that section confers upon him
the authority to compromise all other claims in favor of the United
States, except those arising under the postal laws.
DEPARTMENT OF JUSTICE,
February 19, 1902.
The SECRETARY OF THE TREASURY.
SIR: It appears from your letter of the 28th ultimo that on November
13, 1901, you made a demand upon the North American Commercial Company
for the sum of $42,515.55, with interest at the rate of 6 per cent from
May 1, 1891, on account of the tax, bonus, and rental due onder the
contract of March 12, 1890 (whereby the North American Commercial
Company on May 1, 1890, became the lessee for a period of twenty years
thereafter of the exclusive right to take fur seals on the islands of
St. George and St. Paul, in the Territory of Alaska), for 4,158 seal
skins, taken during the fall of 1889 and spring of 1890 by the natives
of the seal islands under the privilege granted them by law to kill
seals for food, and subsequently turned over to the North American
Commercial Company.
The North American Commercial Company conceded the validity of the
Government's claim for the sum named, but resists the payment of
interest thereon from May 1, 1891, upon the following ground:
The seal skins in question having been taken prior to the transfer of
the sealing privilege from the Alaska Commercial Company to the North
American Commercial Company, the former company laid claim to the skins,
which were accordingly shipped to the collector of customs at San
Francisco to await the determination of the controversy by the courts.
While this controversy was still pending, the seal skins were turned
over to the North American Company, and that company, on April 14, 1891,
was notified by your Department that in view of the fact that the Alaska
Company had entered suit against it for the value of the skins, "the
question of the payment of the tax to the Government is held in abeyance
awaiting the final decision of ownership." Prior to this date, namely,
on April 1. 1891, your Department, after acknowledging the payment of
rent and tax for the year ending May 1, 1891, notified the North
American Company that the amount to be paid for the seal skins in
question was not included in the account paid but was left "for future
adjustment."
In view of these facts and the fact that the Government never
demanded the payment of the tax, bonus, and rental for the seal skins
until November 18, 1901, the North American Company contends that the
Government can not justly and legally exact interest from May 1, 1891,
but "desiring to avoid conflict and litigation is willing, by way of
settlement of said claim, to pay a part of the interest demanded, say 3
per cent, from the date when the litigation between the two companies
was settled on March 8, 1894, until now."
The question you submit to me is whether your Department has
authority to compromise the claim. I am of the opinion it has. Section
3469 of the Revised Statutes provides as follows:
"Upon a report by 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 same
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 of the Treasury is authorized to compromise such
claim accordingly.
But the provisions of this section shall not apply to any claim arising
under the postal laws."
In an opinion given January 17, 1900, I held, following
Solicitor-General Maxwell (21 Opin., 51), and Attorney-General Harmon
(21 Opin., 264, 266), that this section does not authorize the Secretary
of the Treasury to compromise a claim which has been reduced to
judgment, affirmed by the highest court, and is clearly collectible,
because a compromise is an adjustment or settlement by mutual
concession. The claim must in some way be doubtful. There must be room
for the "play of give and take." In the case of a collectible judgment,
which has been affirmed by the highest court, there is no room for "give
and take," no basis for a compromise; the concession is all on the one
side, the side of the Government, which remits in place of compromising.
But in the case of this claim for interest, there are involved
disputed questions of fact and of law, which if put in litigation might
be decided the one way or the other. The claim, therefore, is clearly
one subject to compromise under this section. I am sustained in this
view by the position taken by Attorney-General Griggs in his letter of
November 8, 1899, approving of the acceptance by the Government from the
North American Company of interest at the rate of 4 per cent per annum
on the amounts left unpaid from year to year, pending certain litigation
with that company.
Respectfully,
JOHN K. RICHARDS,
Solicitor-General.
Approved:
P. C. KNOX.
ISLAND OF TUTUILA-- STATUS-- CUSTOMS DUTIES; 23 Op.Att'y.Gen. 629,
February 17, 1902
In view of the convention concluded by the United States, Great
Britain, and Germany on December 2, 1899 (31 Stat., 1878), the island of
Tutuila is not a foreign country within the meaning of our tariff laws,
and goods coming into the United States from that island are not subject
to duty.
DEPARTMENT OF JUSTICE,
February 17, 1902.
The SECRETARY OF THE TREASURY.
SIR: I have received your letter of the 10th instant, asking my
opinion upon the question "whether merchandise shipped from Pago Pago,
Tutuila, is entitled to free entry in view of the convention concluded
by the United States, Great Britain, and Germany on December 2, 1899."
If Pago Pago is not a foreign port, then, according to the recent
decisions of the Supreme Court the law imposing duties upon goods
imported into the United States does not impose a duty upon goods
brought from that place.
The privilege of establishing at the harbor of Pago Pago a station
for coal and other naval supplies for our naval and mercantile marine
was obtained by treaty of 1878 with Samoa, and a deed made in pursuance
thereof.
By recent event, including the making and executing of a treaty
between Great Britain, Germany, and the United States, the island of
Tutuila, of which Pago Pago is a port, has come under the control and
into the possession of the United States.
It is a small island, with but 3,000 or 4,000 inhabitants, has been
separated politically from the remainder of the Samoan group, the
authority of the King of Samoa over it is at an end, and it has no
government but that of a naval officer appointed by United States
authority, except local town governments. By the treaty referred to, the
exclusive sovereignty of the United States over it appears to be
asserted by us and recognized by Great Britain and Germany, which
nations formerly shared with us a protectorate.
I find that on December 6, 1900, the Department of State, whose
opinion is entitled to great weight in interpreting the effect of its
own negotiations and proceedings in such a case, expressed the view that
Pago Pago is not a "foreign port or place" within the meaning of the law
imposing a tonnage tax upon vessels. And on December 8, 1900, two days
later, your own Department (Treasury Decision 22661) ruled that such a
tax was not collectible upon a vessel from Pago Pago. Among the
inclosures of your letter to me is one from the Secretary of State,
advising you that "the islands of Tutuila and Manua, being in the
exclusive possession and control of the United States, should be
considered as domestic territory in the sense in which and to the extent
that Porto Rico was so, immediately before the passage of the statute
providing a government therefor."
In view of these things, I am of opinion that our tariff laws,
imposing duties upon goods from "foreign countries" are not applicable
to goods arriving from Pago Pago.
A practical question arises from the provision of the tripartite
treaty referred to, that "each of the three signatory powers should
continue to enjoy, in respect of their commerce and commercial vessels,
in all the islands of the Samoan group, privileges and conditions equal
to those enjoyed by the sovereign power in all ports which may be open
to the commerce of either of them"-- that is to say, it is possible that
German and British merchants may attempt, under cover of this provision,
to carry goods via Pago Pago into some of our other ports, since,
according to the doctrine laid down in Dooley v. United States (182
U.S., 222), and other cases, goods entering Pago Pago from the United
States are not dutiable by executive authority, and so as to goods
arriving from Pago Pago in the ports of the United States.
But this can not alter the status of the ports of Tutuila, nor does it
present any difficulty which Congress and your Department can not easily
deal with. The treaty neither stipulates for free entry into Pago Pago
nor is intended to provide a means for entry into other ports on the
terms stipulated in the case of Pago Pago, but only that the same
privileges we see fit to accord at Pago Pago to our own commerce and
vessels shall be enjoyed by British and German goods and vessels
arriving there, and that, reciprocally, American merchants shall have
the privileges in the ports of the British and German islands of the
group accorded there to British and German commerce.
Respectfully,
P. C. KNOX.
AUTOMOBILE-- DRAWBACK; 23 Op.Att'y.Gen. 625, February 14, 1902
An importer is not entitled to a refund of duties paid upon an
automobile imported for use in the construction of an express wagon upon
the reexportation of the completed wagon, such wagon not being a
manufacture within the meaning of section 3019, Revised Statutes, and of
section 30 of the act of July 24, 1897 (30 Stat., 211).
To entitle an importer to a refund of duties under those statutes, it
is necessary that the ultimate completed article shall be wholly
manufactured in this country, and the mere combination of a completed
motor with, or its construction into, a vehicle, does not constitute a
new and distinct manufacture within the meaning of the drawback laws.
DEPARTMENT OF JUSTICE,
February 14, 1902.
The SECRETARY of the TREASURY.
SIR: I beg to acknowledge the receipt of your letter of January 30,
in which you state that the Adams Express Company has applied for the
allowance of drawback on an automobile used in the construction of an
express wagon; that the motor when imported was complete as such, but
there was no provision for a framework or other portions of the
superstructure which were built in this country; that subsequently the
company, in order to make a better machine, which would work
satisfactorily in the conduct of their business, overhauled the
apparatus and added a number of new parts.
It then appeared that the machine so constructed and reconstructed would
not perform the work for which it was imported, and the company now
desires to export the same in its present condition with the benefit of
a drawback. You ask my opinion on the question, whether a machine so
produced constitutes a manufacture within the meaning of the drawback
laws, calling my attention to the case of the Tide Water Oil Company v.
United States (171 U.S. 210).
I have the honor to say that the case mentioned construes section
3019, Revised Statutes, providing for a drawback equal to the duties
paid on all articles wholly manufactured in this country of imported
materials. The articles in that case were packing boxes made out of
imported shooks manufactured in Canada, which required slight trimming
and mere nailing together in this country to constitute the finished
boxes. The court held that boxes so constructed were not wholly
manufactured in the United States, and that drawback was not allowable.
In the course of the opinion they say:
"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 articles
manufactured in other countries."
And again:
* * * "The object of the drawback was partly, at least, to encourage
domestic manufactures."
It is evident, then, that under this law and under later analogous
drawback laws, the joint purpose or object is to build up an export
trade and to encourage domestic manufactures, and one or the other of
these objects may be said, in general, to be the basis of all drawback
laws. The following is an outline of the statutes upon the subject:
Duty-paid merchandise may remain in warehouse in Government custody,
and if exported directly from that custody within three years shall be
entitled to return duties (sec. 2977, Rev. Stat.). But no return of
duties shall be allowed on exportation of merchandise after it has been
removed from the custody and control of the Government (secs. 2978 and
3025), except as provided in section 3019, supra, and except in the case
of certain specified articles also involving the principle of the use of
material produced or labor applied in the United States (secs. 3020,
3022, 3026).
These other specific exceptions do not affect the instance before us.
In the evolution of the subject, beginning with section 3019, other
laws have been passed, the most recent of which is section 30 of the
tariff act of July 24, 1897, which provides in part--
"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"-- with provisos requiring that
both the domestic and imported materials used shall be so identified and
so appear in the completed article that the quantity or measure thereof
may be ascertained. In the view I take of this question, however, it
will not be necessary to consider these provisos; and, indeed, if the
case were clearly favorable to the importer on the fundamental
propositions, it is likely that the provisos would present no
difficulty.
I see no reason to doubt that under the intent of the later law, as
well as under the express language of section 3019, Revised Statutes, it
is necessary that the ultimate completed article shall be wholly
manufactured in this country, whatever the stage of advancement of the
preceding "materials" may be. It is clearly decided that the idea of
"materials" does not demand products in the cruder stages; that the
finished product of one manufacture may become the material of the next
in rank, i.e., the material may be raw material or material which was
the result of the last complete manufacture. (Tide Water Oil Co. v.
United States, ut supra.) But the import of that decision is that the
boxes were partially or even substantially manufactured abroad before
the separate parts were assembled in this country. It is true, on the
one hand, that if, for instance, all the separate parts of a watch are
imported from abroad and merely put together in this country, the watch
is not manufactured in the United States within the meaning of the law;
and it is true, on the other hand, in this case-- and I suppose in other
similar instances-- that while the separate parts were put together and
the framework set up abroad, and thus a stage beyond the separate parts
was reached before importation, nevertheless the machine was completed
in various respects by the materials produced and the application of
labor employed in this country.
Were these additions here the essence of the completed article, and did
they substantially make it what it was, or were they, on the other hand,
merely the finishing touches? The line is not always easy to draw, as
the opinion in the Tide Water Oil Company case indicates. I am clear,
however, that the thing imported in this case can not fairly be called
the mere materials for manufacture within this country, even if, in some
instances, the work done to constitute a new and distinct manufacture
may not be great or may be in reality only the completion of an
antecedent process. Your letter describes the article as an automobile
to be used in the construction of an express wagon. You say that the
motor, when imported, was complete. It is misleading to infer that its
combination with, or construction into a vehicle constituted a new and
distinct manufacture.
Although we touch upon a question of fact here which embraces an
evolving industrial development, I can see no valid reason for saying
that an automobile or complete motor is simply material for the
manufacture of an express wagon. And this leads me to the underlying
consideration which I have in mind. It is obvious that this importation
and the subsequent constructive work were casual and experimental, in
pursuance, perhaps, of a progressive policy on the part of the company.
In developing their experiments with this motor, various efforts and
trials were made to reconstruct and adapt it to the demands of their
business. All these were finally unsuccessful, and now the importer
wishes to file a claim for drawback on the export of this apparatus in
its present condition. The case is anomalous and accidental; but one
thing is very clear-- neither of the purposes lying at the foundation of
the drawback policy will benefit the application. The Adams Express
Company, as I understand it, is neither engaged in the export trade nor
in domestic manufacture-- at least, in such directions as this.
It may certainly be said that neither the one business nor the other
moved them to import and now to export this machine. The purpose merely
was to obtain, after trial and experiment, an effective motor wagon for
use in their business of inland transportation.
On the whole case, I am strongly of the opinion that the machine, the
ultimate article, produced here as you state, does not constitute a
manufacture within the meaning of the drawback laws, and I so advise
you.
Respectfully,
P. C. KNOX.
CHINESE EXCLUSION LAWS-- RETURN CERTIFICATES; 23 Op.Att'y.Gen. 619,
February 11, 1902
A Chinese laborer, holding a certificate of residence under the act
of May 5, 1892 (27 Stat., 25), who, prior to his leaving this country,
has made application under oath for a return certificate, but who has
not filed such application with the collector of customs nor received a
return certificate, as required by the treaty of 1894 with China (28
Stat., 1210) and the act of September 13, 1888 (25 Stat., 478), is not
entitled to reentry, although such application bears upon its face the
stamp and signature of the Chinese inspector showing the departure of
such laborer on a certain date.
Nor has the Treasury Department authority to issue to such person a
return certificate nunc pro tunc, although such person may have believed
that he had done all that was incumbent upon him, and may have been
misled by the action of the Government officer in affixing to such
application his certificate of departure.
DEPARTMENT OF JUSTICE,
February 11, 1902.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
january 20, with its inclosures relating to the case of a returning
Chinese laborer who has been denied admission to this country, and
submitting certain questions of law thereon for my opinion.
The facts are that Jung Wai Yuen is a Chinese laborer who holds a
certificate of residence under the act of 1892, which was issued to him
at San Francisco in 1894; that on April 8, 1901, he signed under oath
an application addressed to the collector of customs at San Francisco
under the treaty of 1894 and the act of September 13, 1888, for a
"return certificate," in which he states that he has a lawful wife and
child in this country; that his residence is in San Francisco, and that
he desires to depart for China with the intention of returning within
one year. It does not appear that the application was ever presented to
the collector of customs at San Francisco, nor was a return certificate
ever signed and delivered by that officer to the Chinaman. The
application bears across its face the stamp and signature of the Chinese
inspector, showing departure from San Francisco per steamer on April 9,
1901. Upon the Chinaman's return he was denied admission on the ground
that he had failed to secure a return certificate, and the claim is now
advanced in his behalf that he was deceived by the action of the Chinese
inspector and supposed that he would be entitled to return on the
application so stamped; and the request is made that the Secretary of
the Treasury instruct the collector of customs at San Francisco that if,
after investigation, Jung Wai Yuen shall appear to have been entitled
thereto, to issue to him a return certificate nunc pro tunc. Thereupon
you ask for my opinion on the question whether the Treasury Department
has the authority to accept, in lieu of the provisions of the law
requiring the application to be made thirty days in advance of
departure, the granting of a return certificate before departure, and
the presentation of such certificate upon return, a return certificate
made out in accordance with the request on the Chinaman's behalf.
The treaty of 1894 provides in Article II that a registered Chinese
laborer possessing the necessary relationship or property interest in
this country may return after a temporary absence upon the express
condition that he shall, before leaving the United States, deposit with
the collector of customs at the port of departure a full description, in
writing, of his family or property or debts, and shall be furnished by
the collector with a return certificate, as the laws prescribe, not
inconsistent with the treaty.
Section 7 of the act of September 13, 1888, required the application
for the return certificate of such Chinese laborers to be made to the
collector of customs a month prior to the time of departure. The
existing validity of that act has been questioned, and the status of
section 8, authorizing the Secretary of the Treasury to frame
regulations upon this and other subjects, is involved in cases now
before the Supreme Court for decision. Section 12 has been held by the
court not to be in force. (Li Sing v. United States, 180 U.S., 486.) The
ground of this decision appears to be that the effect of a later act was
to repeal that section or enact a substitute for the rule thereof. In an
opinion dated October 10, 1901, I held upon similar ground that a
requirement of a separate paragraph of section 7 has been replaced by
the relative provision of the treaty of 1894. Nevertheless, it has been
held in general by Federal courts that while sections 1 to 4 and section
15 of the act never took effect, because the treaty upon which they were
dependent was not ratified, the remainder of the act was not dependent
on the treaty and has a field of operation as existing law. There are
variances in the views of the district courts on this point, and some
uncertainty in the opinions of Attorneys-General, but in the main this
is the result of the decisions, and this view was followed by the
Treasury Department under an opinion of the Solicitor of the Treasury,
and the present regulations as to the return of registered laborers were
accordingly adopted and promulgated. (T.D. 21357; Regulations, edition
of 1900, pars. 39 et seq.) These regulations incorporate the provisions
of Article II of the treaty of 1894 and of sections 6 and 7 of the act
of 1888, and among other steps require a registered Chinese laborer
claiming the right to leave the United States and return thereto to make
application to the collector of customs at least a month prior to the
time of his departure. The collector of customs is required to make a
thorough examination as to the accuracy of the applicant's statements,
and if he finds that the Chinese person is entitled to a return
certificate, he may sign and give the same to him in a form particularly
described.
Various other requirements to insure accuracy and to prevent frauds are
imposed upon the exercise of the right of departure and return, all
showing that the administration of this subject is rigidly guarded and
applied in evident obedience to this provision of section 7 of the act
of 1888, which has been carried into the regulations:
"And no Chinese laborer shall be permitted to reenter the United
States without producing to the proper officer of the customs at the
port of such entry the return certificate herein required."
In view of the entire situation I am of the opinion that the portion
of the act of 1888 involved herein must be regarded as in force until
and unless an authoritative judicial decision holds otherwise.
Opinions of my predecessors uniformly hold that the requirements of
the Chinese exclusion laws must be strictly complied with by applicants
for admission. (21 Opin., 6.) Earlier conditions of the return of
Chinese laborers are characterized as "stringent" (Id., 424), and the
import of that opinion is that all such provisions should be strictly
construed. "The character and purpose of the Chinese exclusion
legislation demand that the statutory provisions upon which the right of
entry is conditioned should be strictly obeyed and construed. This has
been the ruling of the courts" (citing authorities). (22 Opin., 608;
see also Id., 72; Id., 130.)
21 Opinion, 424, practically rules the present case. It appears there
that the Chinese laborers before leaving this country complied with all
the requirements except that of procuring from the collector of customs
at the port of departure certificates of their right to return. It was
Mr. Harmon's opinion that the words "before leaving the United States"
in Article II of the treaty of 1894 qualify the words "shall be
furnished by said collector with such certificate of his right to
return," and that it was the intent that each Chinaman should, before
leaving, receive such certificate in order to entitle him to return;
and it was held that departing Chinese laborers are not entitled to
leave the country without return certificates, and then to have
certificates forwarded to them, but that the established rule which is
consistent with the treaty requires personal delivery of the return
certificate by the collector to the Chinaman.
It seems that this decision applied to a case which presented at
least as strong an equity as the present case, whether the express
requirement of the act of 1888 and the regulations that an application
shall be made by the laborer in person a month prior to departure, or
the general language of the treaty that the Chinese laborer shall,
before leaving, deposit, etc., without any definite limit of time before
departure, be taken as the true guide. Here there was no application
whatever to the collector, but the Chinaman's petition, duly sworn to
and dated on one day, was apparently handed the next day at the gang
plank of the steamer to the Chinese inspector, who stamped it with his
vise, seemingly without examination. It may be that the Chinese
inspector was careless in the performance of his duty, and that he
should not have permitted the applicant to go on board without a proper
return certificate. It may be that the Chinaman did not understand the
law, and relied, to his harm, on statements made to him by interested
parties that he had done all that was incumbent on him; that he thought
he was entitled to return upon the incomplete paper which he possessed,
and thus was innocently misled by the action of the Government officer
in affixing his certification of departure. But even if it is assumed
that the inspector know of the defect in the Chinaman's paper (which is
not a necessary assumption), and, notwithstanding the performance of a
routine duty in the hurry and confusion of a steamer's sailing, should
have observed the obvious omissions and defects in the Chinaman's paper
and should have turned him back, I can not grant that this constitutes
an estoppel against the Government which should prevent the enforcement
of the usual rules. It is by no means clear that the Chinaman can
complain of the Government inspector with any force or reason; but if
he could, such complaint can not be heard to avoid the requirements of
the law. The result may be in part the inspector's fault, and may be
altogether the misfortune of the Chinaman without any intentional fault
on his part; but that situation can not be taken as equivalent to a
title and right to reenter the country, notwithstanding the failure to
comply with the law.
It is the essence of the right that application should be made
sufficiently long in advance of departure to enable the Government to
make investigation before a return certificate is signed and issued.
Therefore it appears to me to be a case where the principle of nunc pro
tunc is particularly inapplicable and improper. For that principle, if
applied to this case, would result in passing an application now which
should not only have been made a month before the Chinaman's departure,
and was not, but was never made at all; and in issuing a return
certificate to a person who should have taken it with him when he left
this country, and who, by the express mandate of a law which is
presumably in force, is not permitted to return to this country without
it.
Nevertheless there seem to be peculiar elements of equity and
hardship in this case, although the only fact which clearly appears is
the fact that the Chinaman is a registered laborer, and the claim that
he has a wife and child in this country is asserted rather than
established. Assuming that his home and family and business are in the
United States, where he appears to have lived without offense for many
years, it is fair to say that the man was simply ignorant and was
innocent of fraud, for with these compelling reasons moving him to
return, and with the evidence that he desired to do so and had taken the
preliminary steps to obtain the right, it is not likely that he
willfully and intentionally avoided the completion of these steps and
took the manifest risk of refusal of entry on his return.
I must find, however, that under the peculiar nature and language of
these laws it is not possible to recognize the appeal to considerations
of elementary justice and humanity (even if well-founded), or to bring
the case within the scope of an act of executive clemency. The
Chinese-exclusion laws are necessarily rigorous and of the highest
degree of technicality, and do not permit the imposition of maxims of
equity which commend or command judicial authorities to search with
scrupulous care for a way to do justice when the technicalities of the
law present obstructions.
I venture the suggestion, however, that in your power and discretion
as administering these laws, and expecially is your comprehensive
authority over such "landing" cases as these, you may fairly soften the
seeming harshness of the case by continuing the custody of the man and
delaying his return to China long enough to enable his business
interests here to be settled and his wife and child to accompany him on
his return voyage; provided you find upon investigation that the
allegations as showing an equity are true, and provided, further, the
responsibility of the steamship company for safe custody covers the
additional period of detention.
I return the papers herewith.
Very respectfully,
P. C. KNOX.
WAR-REVENUE ACT-- PLEDGE OF STOCK-- STAMP TAX; 23 Op.Att'y.Gen.
615, January 4, 1902
The depositing with the Girard Trust Company by the Pennsylvania
Company, under a written agreement, of certificates of stock of other
corporations as a pledge for the performance of its covenant to pay,
when due, the interest and principal of certain certificates of
indebtedness issued and sold by the former company for the benefit of
the latter, constitutes such a pledging of stocks for the future payment
of money as to render the transaction taxable under Schedule A of the
act of March 2, 1901 (31 Stat., 942), although the power of attorney
accompanying the agreement only authorized the transfer of the stock so
deposited in case of default by the pledgor, and until such default the
pledgor was to retain and exercise all the rights, powers and privileges
belonging or incident to such ownership.
DEPARTMENT OF JUSTICE,
January 4, 1902.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to respond to your note of October 31, 1901,
with its inclosures, in which you request my official opinion whether,
under the war-revenue acts of June 13, 1898, and March 2, 1901, revenue
stamps are required upon a transaction stated as follows, viz:
"The Pennsylvania Company (a corporation of the State of
Pennsylvania, engaged in the operation of railroads), desiring to obtain
funds for its proper corporate purposes, has negotiated an agreement
with the Girard Trust Company (also a Pennsylvania corporation), as
trustee, the essential features and results whereof are--
"(a) That Girard Company shall issue and deliver to Pennsylvania
Company, for sale by, and for the corporate use of the latter, 20,000
certificates of indebtedness for $1,000 each, aggregating $20,000,000,
bearing 3 1/2 per cent interest, and payable, interest and principal,
according to the tenor thereof.
"(b) Pennsylvania Company covenants to provide and furnish Girard
Company with the moneys required to pay the interest and principal of
said certificates according to their tenor, and also deposits with last
named company, as a pledge for the performance of its covenant,
certificates of stocks of other corporations, owned by it and specially
enumerated in the covenant, aggregating, at their face value,
$25,000,000, accompanied by a single power of attorney authorizing
transfer thereof only in event of failure to observe said covenant, and
with express stipulation in the agreement that unless and until default
shall occur, Girard Company will not cause said certificates of the
stock so deposited and pledged to be transferred to itself or any other
corporation, and further, that, until said default occurs, Pennsylvania
Company to retain and exercise all the rights, powers, and privileges
belonging or incident to ownership of said stock."
The question is whether this pledging of certificates of stock is
taxable under what was the first paragraph of Schedule A of the act of
June 13, 1898, and is now part of the act of March 2, 1901.
The portion of the paragraph referred to which bears upon this
question is this:
"On all sales, or agreements to sell, or memoranda of sales or
deliveries or transfers of shares or certificates of stock in any
association, company, or corporation, whether made upon or shown by the
books of the association, company, or corporation, or by any assignment
in blank, or by any delivery, or by any paper or agreement or memorandum
or other evidence of transfer or sale, whether entitling the holder in
any manner to the benefit of such stock or to secure the future payment
of money or for the future transfer of any stock, on each hundred
dollars of face value or fraction thereof, two cents."
The things taxed are sales, agreements to sell, memoranda of sales,
memoranda of deliveries, memoranda of transfers, whether made on the
books or by assignment in blank, or by delivery, or by any paper or
other evidence of transfer or sale, whether entitling the holder in any
manner to the benefit of such stock or to secure the future payment of
money or the future transfer of the stock.
Obviously this transaction is, in both the legal and popular sense, a
pledge of stocks as collateral security for the future payment of a
definite sum of money, and substantially upon the same terms as those
which the law would attach without their expression. The latter clause,
as to the retention of rights of ownership, can not, of course, be
effective in any literal sense, for the right of ownership, being the
right to possess, sell, pledge, or transfer absolutely, is inconsistent
with what is given and granted to the Girard Company.
The most that can be said of this clause is that is reserves all rights
of ownership consistent with the right of the Girard Company to hold and
use the stock for the security for which it was pledged, and this is
what the law would imply without is expression.
In my opinion, in this case there is a memorandum of delivery of
stocks to secure the future payment of money and the future transfer of
the stock in the event of the Pennsylvania Company defaulting upon its
obligation to pay the trust company under the arrangement, and the
transaction is therefore taxable as the section provides.
In a letter of the general counsel of the Pennsylvania Company to the
Commissioner of Internal Revenue, accompanying your note, it is forcibly
contended that the portion of the act of June 13, 1898, taxing mortgages
or pledges of lands, estate, or property, real or personal, is the only
one which imposes a stamp tax upon such a pledge of stocks as the one
here considered. He refers to previous rulings of the Commissioner to
sustain this contention, and then contends that as the clause is omitted
in the act of March 2, 1901, there is now no provision taxing a mere
pledge like this one as a security for the payment of a definite and
certain sum; and further that the first paragraph of Schedule A of the
act of June 13, 1898, carried without change into the act of March 2,
1901, applies "only to transactions immediately resulting in change of
ownership of the shares involved therein," and does not apply to a mere
pledge of stock where the ownership does not pass from the pledgor. I
have given a great deal of consideration to this argument, but it has
failed to convince me. I know no rule of construction that will justify
ignoring the plain language of the statute because of the interpretation
placed by the Internal Revenue department upon a provision of the law
now repealed. Upon this subject of the construction of amendatory acts,
it is said in Black, Intp. Laws, 365, quoting Lord ******** in a recent
English case:
"I think the proper course is in the first instance to examine the
language of the statute, and to ask what is its natural meaning
uninfluenced by any considerations derived from the previous state of
the law, and not to start in by inquiring how the law previously stood,
and then assuming that it was probably intended to leave it unaltered,
to see if the words of the enactment will bear an interpretation in
conformity with this view. * * *
I am, of course, far from asserting that resort may never be had to the
previous state of the law for the purpose of aiding in the construction
of the provisions of the code. If, for example, a provision be of
doubtful import, such resort would be perfectly legitimate."
And quoting from Heck v. State (44 Ohio Stat., 536):
"Where the language used in a revised statute is of such doubtful
import as to call for construction, it is both reasonable and usual to
refer to the statute or statutes from which the revision has been made.
But where the language is plain and leads to no absurd or improbable
results, there is no room for construction and it is the duty of the
courts to give it the effect required by the plain and ordinary
signification of the words used, whatever may have been the language of
the prior statute or the construction placed upon it."
And quoting also from United States v. Brown (100 U.S., 508), on page
513:
"Where there is a substantial doubt as to the meaning of the language
used in the revised, the old law is a valuable source of information.
The Revised Statutes must be treated as the legislative declaration of
the statute law on the subjects which they embrace on the 1st day of
December, 1873. When the meaning is plain the courts can not look to the
statutes which have been revised to see if Congress erred in that
revision, but may do so when necessary to construe doubtful language
used in expressing the meaning of Congress."
This, then, is the rule when provisions of a former act are carried
into amendatory or revised statutes, viz: Where the meaning of such
provision is plain, it must be observed without any reference to the
original act or to the meaning or construction of the provision
thereunder. If the provision be doubtful, obscure, or ambiguous, resort
may be had to the original act and to the meaning and construction
thereunder of the particular provision, but even then only for the
purpose of ascertaining the true meaning of the provision in its present
place, and not at all with any idea of making it conform to its former
meaning or construction; and if its former construction was not the
result of an interpretation of the meaning of its language, but was made
necessary by other provisions of the original act not carried into the
existing one to affect construction, it is manifest that the former
construction can not be resorted to, and can not affect the meaning or
construction of the provision in its new relation.
Specifically, then, answering your question, it is my opinion that
the transaction stated your letter should be stamped as required under
the provisions of the act of March 2, 1901.
Very respectfully,
P. C. KNOX.
MARSHALS OF CONSULAR COURTS-- OATH OF OFFICE; 23 Op.Att'y.Gen. 608,
January 3, 1902
Subjects of a foreign nation may be appointed marshals of consular
courts and, when so appointed, need not, under the laws or regulations,
take the oath prescribed by sections 1756 or 1757, Revised Statutes. In
such cases the officer should take the oath prescribed, except as to
allegiance.
The meaning or construction of a statute is that which the
legislature intended, if that can be legitimately determined; and to
this end not merely the provisions in question should be consulted, but
also the whole act, and other acts in pari materia.
DEPARTMENT OF JUSTICE,
January 3, 1902.
The SECRETARY OF STATE.
SIR: I have the honor to respond to your note of December 17, 1901,
in which you request my official opinion whether, in view of Revised
Statutes, sections 1756, 1757, and 4113, and paragraphs 33 and 45 of the
Consular Regulations, "it is necessary for a Marshal to qualify by
taking the oath of office."
You inclose copies of correspondence between your Department and the
Comptroller of the Treasury in relation to the same question, from which
and your note I infer that your question refers to the oath of office
prescribed in sections 1756 and 1757 of the Revised Statutes, and to
Marshals of Consular courts in China, as you state that "It is
impossible in many places in China to obtain the services of a Marshal
who is a citizen of the United States. It is, therefore, desired in
certain cases to employ a citizen of a foreign Government."
The question is one which can not be answered with the certainty that
is desirable, but one upon which opinions may differ, and there are
provisions of the law affecting the question, other than those to which
you refer.
The Revised Statutes, section 1756, provides that--
"Every person elected or appointed to any office of honor or profit,
either in the civil, military, or naval service, excepting the President
and the persons embraced by the section following, shall, before
entering upon the duties of such office, and before being entitled to
any part of the salary or other emoluments thereof, take and subscribe
the following oath," being one of allegiance to the United States.
The persons alluded to in this "section following" are those who, by
reason of participation in the rebellion, are unable to take the oath
prescribed in the previous section; but the one here prescribed is also
incompatible with foreign allegiance, and if these sections are
applicable to this part of the consular service, no such foreign subject
can be appointed.
Before referring to certain special considerations indicating the
application of this and other general provisions, it may at the outset
be said that upon the question whether this section applies also to our
diplomatic and consular service abroad and to the smaller offices of
that service, it is to be noted that the act of which this section is a
part is a most general one, regulating the entire civii, military, and
naval service. But a general statute, covering a wide range of subjects,
however broad its terms, does not necessarily apply to every subject
within that range.
And this is especially so where a particular branch of the general
subject is regulated, in whole or in part, by laws specially framed or
intended therefor. In such case, where and to the extent that this
special legislation deals with a particular matter, it is, unless
otherwise expressly or impliedly provided, complete and exclusive of
other general provisions, although they are expressed in terms
sufficient to include this.
In this case, the section requiring this oath of office is
undoubtedly, in its terms, as applicable to the diplomatic and consular
service as to any other, and so are many other provisions of that act.
But the act is of the most general kind, applicable generally to the
whole service, while the diplomatic and consular service is, in the
main, regulated by laws especially enacted therefor. (Revised Statutes,
sections 295 to 317 and 783 to 794). As far as these laws deal with a
subject, they may be taken, unless otherwise expressly or impliedly
provided, as complete in themselves and exclusive of other general
provisions. These special provisions may not be intended to cover every
subject in that branch of the service, but some may be left to be
governed by appropriate provisions of the general law. How is it, in
this respect, as to the requirement of the prescribed oath of office?
It is not a question of the interpretation of section 1756 only.
Standing alone, the meaning of this section is plain, and it applies in
terms to all officers except the President. But the question is whether,
in view of the conditions affecting its application to particular cases,
this section was intended to be as broad and universal as its language.
The meaning or construction of a statute is that which the legislature
intended, if that can be legitimately determined; and to this end we
must consult not merely the provisions in question, but also the whole
act, and other acts in pari materia.
Although this section requires that every officer in the entire
service except the President shall take the oath prescribed, yet there
are very many who are required to and do take a very different oath, and
who are not required to and do not take this one. So that no literal
application or construction of this section is intended or made; but,
on the contrary, it has many exceptions.
Is the case here presented one of them?
The duties of the Government service, for which this section was
intended, are, in the main, performed here at home, and its officers are
qualified here. Therefore Revised Statutes, section 1758, provides
that--
"The oath of office required by either of the two preceding sections
may be taken before any officer who is authorized either by the laws of
the United States or by the local municipal law to administer oaths in
the State, Territory, or District where such oath may be administered."
This means a State, Territory, or District within the United States,
and refers to a district in the United States just as certainly as it
does to a State or Territory within that limit, and refers to the
District of Columbia. All the oaths, then, that are thus required to be
taken may be taken in the United States. This would seem to operate, as
many other provisions do operate, to limit the otherwise universal
application of section 1756; so that the requirement may be no broader
than the permitted performance, and so that no oaths are intended except
such as may be taken in the only mode prescribed. Indeed, taking the two
sections together, it is legally impossible that any oath is required
except such as may be taken here; and if any law provides for officers
who, as it was contemplated, could not take the oath here, then this
section does not refer to them. While the section is in terms permissive
only, it is in effect much more, for, as it says that all oaths which
are required may be taken here, it is implied, of course, that none are
intended but such as it was contemplated might be thus taken, and as it
was not contemplated that all the various officers of the diplomatic and
consular service would either be qualified here and go to those far-off
countries, on the small salaries allowed, or come here to be qualified,
it would seem that they were not within the intended purview of those
sections.
Again, while the act for the entire service generally requires this
official oath as a qualification for officers, the act expecially
intended for the consular service, and providing for consular courts and
their officers, prescribing how the marshals of such courts shall
qualify, requires therefor a bond, but does not require this official
oath.
(Revised Statutes, section 4113.)
As this act deals directly with a special service, creates courts and
officers therefor and prescribes a qualification for the office of
marshal, it must be taken as complete, as to the subject for which it
thus specifically provides, and, in fixing one qualification for office,
it must be taken as fixing all that is required. This need not be
elaborated by argument. But, if a reason is sought for not requiring the
oath generally prescribed, it may be found in the fact, referred to
later, that in the only places where these marshals were to act, it
would be difficult and often impossible to find persons who could take
such an oath.
As showing that section 1756 was not intended to apply to these
officers in the diplomatic and consular service who are mentioned in
section 1675 shall be citizens of the United States. This is the plain
implication of the section, which forbids payment of salaries to those
officers unless they be such citizens. The officers, thus mentioned,
range from ambassadors down to second secretaries of legation, and do
not include marshals, interpreters, or other subordinate officers.
This express requirement that certain principal officers of a
particular service shall be citizens is equivalent to saying that the
other and minor officers need not be citizens. But if not citizens, then
they are, as is contemplated, subjects of a foreign nation; and it can
not for a moment be supposed that any law was intended to require of a
foreign subject an oath of allegiance to the United States. An alien,
desiring to become a citizen, may take an oath of allegiance, but it is
not believed that the United States can require or receive an oath of
allegiance from one who still retains and owes allegiance to his own
country. Such double allegiance is incompatible and can not exist. It
follows, therefore, that however broad the language of any general
statute requiring an oath of allegiance as a qualification for office,
it can have no application to foreign subjects appointed to office
abroad.
If it were within our province to inquire the reason for this
distinction as to citizenship of consular officers it would be easy to
see that while citizenship and allegiance were properly deemed essential
in the cases of ambassadors, consuls, and other superior officers of
that service, it might not be so in the cases of subordinate officers in
the same service, and in view of the fact that in many places where
their services would be required it would be difficult and sometimes
impossible to obtain suitable citizens therefor, and that, in some
cases, the service might be better performed by a native, such
citizenship and promised allegiance might well be dispensed with. But as
this distinction is in fact thus made by the law we need not inquire for
its reason.
And, as bearing upon the question of construction, the Supreme Court
has said that the construction given by one of the departments of the
Government to a statute which that Department is called upon to
administer, is entitled to great weight in determining what is the true
construction. This is equivalent to saying that such construction will
be taken as correct, unless certainly wrong. The President and the
Department of State have, I believe, uniformly construed the law as not
necessarily requiring citizenship in cases of inferior officers of the
consular service. (See Consular Regulations, 1888, paragraphs 26, 27.)
But while this would seem to necessarily imply that, being subjects
of a foreign nation, these officers need not take an oath of allegiance
to this country, which they can not lawfully do, yet, in paragraph 42,
it is said that interpreters qualify by taking the oath (form 1, which
is the oath of allegiance) and that marshals of consular courts, qualify
by taking this oath and giving bond. But if this is required it would
seem to be so because the regulations, and not the law, require it. For
it is not believed that the law which authorizes the appointment of a
foreign subject to an office contemplates that he shall take an oath
which he can not lawfully take, and which would be, in a sense, treason
to his own country.
And this is corrected in the current Consular Regulations of 1896,
paragraph 33 of which provides that "every consular officer, consular
clerk, regularly appointed interpreter, and marshal of a consular court
shall, if a citizen of the United States," take the prescribed oath of
office; and this, I think, is the correct construction of those
provisions.
But, where Congress has acted upon a matter, these regulations are
effective only as construing such law, and can not establish anything
contrary thereto. Whatever power the President may have to make rules or
regulations, they must not be inconsistent with any act of Congress,
except in cases-- if, indeed, there be any-- where the power conferred
is broad enough to authorize rules and regulations without reference to
their consistency, or otherwise, with existing laws; and if these
statutes require of the marshals of consular courts, who are not
citizens, the oath prescribed by section 1756, those rules and
regulations can not dispense with it.
But, I am of opinion, and so advise you, that subjects of a foreign
nation may be appointed marshals of the consular courts, and, when so
appointed, need not, under the laws and regulations, take the oath
prescribed by sections 1756 and 1757 of the Revised Statutes.
But, while this is so, still, in conformity with the general
requirements of the laws, the usual practice and its own propriety, it
is suggested that all such officers should be required to take an oath
or affirmation to faithfully perform the duties of their offices, and
similar to that prescribed, except as to allegiance and support of the
Constitution of the United States. Even if the sections referred to
applied to such officers abroad who are foreign subjects, it might well
be held that this, being as far a compliance therewith as is lawful, was
a sufficient compliance.
And it might be held that this section does apply to cases like the
one here considered, so far as to require an oath of office, and that
other provisions-- expecially those authorizing the appointment of
foreign subjects to some offices abroad-- dispense with that part
thereof, which promises allegiance. I think that, in such cases as are
here considered, the officer should take the oath prescribed, except as
to allegiance.
Respectfully,
P. C. KNOX.
FOREIGN REPRESENTATIVES-- HUNTERS' LICENSE-- EXEMPTION; 23 Op.
Att'y. Gen. 607, January 2, 1902
There being no Federal statute requiring the payment of a license tax
for the privilege of hunting or shooting upon territory subject to the
jurisdiction of the United States, it follows that no exception from its
payment has been made in favor of the diplomatic or consular
representatives of foreign Governments residing within the United
States.
DEPARTMENT OF JUSTICE,
January 2, 1902.
The SECRETARY OF STATE.
SIR: I have the honor to acknowledge the receipt of your note of
December 19, 1901, in which you request to be advised "whether any
United States statutes exist imposing licensed taxes for hunting or
shooting upon territory subject to the jurisdiction of the Government of
the United States, and whether any exception has been made as to payment
for these licenses by the diplomatic representatives and consuls of
foreign Governments residing in the United States?"
In reply, I have to say that I am not aware of any such statutes. As
you are doubtless aware, there are statutes prohibiting hunting,
shooting, or capturing game in certain specified localities-- such as
some of the public parks and reservations-- but, except in certain
specified cases, hunting or shooting is not forbidden within the
Territories of the United States, nor is any license or license fee
necessary to authorize the same. And, as no license taxes are required,
no exception from their payment is made in favor of diplomatic or
consular representatives of foreign Governments residing here.
I have the honor to be, sir, your obedient servant,
P. C. KNOX.
EXTRADITION-- DUTY OF DEPARTMENT OF STATE; 23 Op.Att'y.Gen. 604,
December 24, 1901
Acosta, having been returned from Mexico to the State of Florida
under extradition proceedings, to be punished for a crime committed
within that State, was convicted and sentenced to imprisonment. Upon his
release he was arrested for another crime without having an opportunity
of returning to Mexico. Demand having been made upon the State
Department by the Mexican Government for his release, and it not
appearing that the prisoner has made an attempt to invoke his right to
return to Mexico, Held: That any action by the Department of State at
this time to secure his release would be premature.
The primary resort of the defendant is to the courts. He may either
apply to the Federal courts for a writ of habeas corpus, or interpose
the alleged irregularity of his arrest as a matter of defense on the
trial of his case in the State court.
The question whether, in case any rights the prisoner may possess are
denied in the State courts, the Federal Government is powerless or free
from obligation to interfere in that which may then be a matter of
international obligation, is not decided.
Opinion of March 27, 1901 (ante, p. 432), reaffirmed.
DEPARTMENT OF JUSTICE,
December 24, 1901.
The SECRETARY OF STATE.
SIR: I have the honor to acknowledge the receipt of your letter of
the 11th ultimo, in which you request my opinion as to whether your
Department should comply with a certain request made by the Mexican
Government in the matter of a criminal prosecution which is pending in
the State courts of Florida against Henry E. Acosta. You further ask in
the event of an affirmative reply that I express my views as to the
manner in which your Department shall proceed to make such compliance.
It appears that one Henry E. Acosta was, upon the requisition of this
Government in 1897, in pursuance of the treaty of December 11, 1861,
which was then in force between the two countries, on a charge that the
said Acosta had committed the crime of forgery in Hillsboro County, Fla.
Acosta was tried for this offense, was convicted, and sentenced for five
years' imprisonment. On October 20, 1901, his term of imprisonment
expired, and he was released; but it appears that he was on the same
day rearrested, and is now being detained for prosecution on another
charge of forgery, alleged to have been committed, previous to his
extradition, in Pasco County, Fla. While you do not affirmatively stat
it, yet the fact that he was rearrested on the day of his release would
seem to justify the assumption that no reasonable opportunity was given
to him to return to the country whence he was extradited.
Your letter, however, fails to state whether the said Acosta has made
any attempt to invoke his right to return to Mexico, either under the
provisions of any treaty with Mexico, or under the general principles of
international law. I shall therefore assume for the purposes of this
opinion that Acosta has taken no steps, either in the courts of Florida
of in the Federal courts, to obtain his release.
Under these circumstances it would seem to me that the matter is
within the ruling of this Department in the case of Edward Underwood,
which was made the subject of an opinion to your Department on March 27,
1901. In that case Underwood had been extradited from Canada in 1896 on
a charge of murder, and upon his trial was acquitted.
He was immediately rearrested on two charges of robbery committed prior
to his extradition, and was found guilty by the criminal district court
of Harris County, Tex., and sentenced to a term of sixteen years'
imprisonment. His Majesty's Government insisted that, without respect to
any failure on the part of Underwood to claim his liberty on the ground
that he was being tried for an offense which was not the subject of the
extradition proceedings, this Government, as a matter of international
obligation, should take steps to enforce such return.
In disposing of this contention this Department decided, under the
authority of the United States v. Rauscher (119 U.S., 407), that the
matter had not become "one of international obligation," and denied that
His Majesty's Government had any just claim for the release of the
prisoner in the absence of any action which the prisoner might take on
his own behalf. This Department, therefore, advised you that "there were
no steps proper to be taken by the Executive in order to fulfill in the
case of Underwood the obligations of the treaty in question, except
through judicial proceedings," which were suggested.
Without restating the reasons upon which these conclusions were base,
it is enough for me to suggest that if they were applicable to a case
where the defendant had been duly convicted for a crime which was not
the subject of the extradition proceeding, they are a fortiori
applicable to a case where there has as yet been no denial by the court
having jurisdiction, of the prisoner's claim to a release. In the
Underwood case, the court which tried him had finally passed upon the
guilt of the defendant, had sentenced him, and the sentence had been
duly affirmed by an appellate tribunal. It did not appear, however, that
at any time during the trial immunity from arrest or trial was claimed
by Underwood. Whatever doubt may have existed in that case as to whether
or not the defendant, having had his day in court, could further claim
his liberty on the ground that he had not been tried for an offense for
which he was extradited, it is clear that in the present case Acosta can
either apply to the Federal courts for a writ of habeas corpus, or
interpose the alleged irregularity of his arrest as a matter of defense
on the trial of his case in the State court, as was done in the case of
United States v. Rauscher, above cited.
I am, therefore, of opinion that any action by the Executive Department
of the Government would be premature in the absence of any attempt by
Acosta to obtain due redress in the courts.
I do not mean to intimate that his only resort is to the courts, or
that if they deny him any rights which he may possess, the Federal
Government is powerless or free from obligation to interfere in that
which may then be a matter of international obligation. Upon that point
I express no opinion. My present opinion is only intended to intimate
that his primary resort is to the courts, and that the executive
department of the Federal Government is under no obligation to take
steps to protect Acosta in his legal rights until he has himself
asserted them in the judicial department of the Government.
I would further disclaim any opinion at this time that Acosta is
entitled to his release on the grounds indicated. The matter is, in a
certain sense, sub judice. A criminal prosecution is pending in which
Acosta may interpose this, with other defenses, and his right to have a
release on the grounds indicated may, therefore, be passed upon by the
criminal courts of Florida. In such case this Department is always
indisposed to express any opinion.
Very respectfully,
P. C. KNOX.
PRESIDENT-- APPOINTMENT OF OFFICERS-- HOLIDAY RECESS; 23 Op.Att'y.
Gen. 599, December 24, 1901
The President is not authorized to appoint an appraiser at the port
of New York during the current holiday adjournment of the Senate, which
will have the effect of an appointment made in the recess occurring
between two sessions of the Senate.
There is no distinction between an appointment and a nomination other
than the fact that the President nominates for appointment when the
Senate is in session, and appoints when he fills a vacancy temporarily
during the recess of the Senate.
The recess of the Senate during which the President shall have power
to fill a vacancy that may happen (Const., Art. II, sec. 2, clause 3)
means the period after the final adjournment of Congress for the session
and before the next session begins; while an adjournment during a
session of Congress means a merely temporary suspension of business from
day to day, or for such brief periods of time as are agreed upon by the
joint action of the two Houses.
DEPARTMENT OF JUSTICE,
December 24, 1901.
The PRESIDENT.
SIR: I have the honor to reply to your note of this date requesting
my advice upon the question whether you have authority to appoint an
appraiser of merchandise in the district of New York during the current
holiday adjournment of the Senate, so that the appointment shall become
operative at once and have the effect of an appointment made in the
recess occurring between two sessions of the Senate.
Section 2536, Revised Statutes, provides that there shall be an
appraiser in the collection district of New York, but does not prescribe
the method of appointment. Section 16 of the act of March 1, 1823 (3
Stat., 729, 735), provided that the appraisers at New York and certain
other ports should be appointed by the President, with the advice and
consent of the Senate. Other portions of the act of 1823 were carried
into the Revised Statutes, e.g., section 2614, but not this particular
provision, which therefore as an express requirement seems to have
disappeared in the general repeal of prior statutes by section 5596.
Nevertheless, the practice of submitting the appointment of appraisers
to the Senate for confirmation has been unbroken since as well as before
the revision of the statutes, and it may fairly be said that without
affirmative requirement such an appointment is subject to confirmation
under clause 2, section 2, Article II of the Constitution, since
Congress has not vested the appointment in the President alone.
In an opinion addressed to the Secretary of War, dated November 7,
1901, I reviewed certain phases of the President's power to appoint, and
instanced various offices some of which were not created under laws
empowering the President alone to appoint, and yet were filled without
confirmation by the Senate; and I quoted the following passage from
Justice Story's work on the Constitution (vol 2, 5th ed., sec. 1536):
"In the practical course of the Government there does not seem to
have been any exact line drawn who were and who were not to be deemed
inferior officers in the sense of the Constitution whose appointment
does not necessarily require the concurrence of the Senate. In many
cases of appointment Congress has required the concurrence of the Senate
where perhaps it might not be easy to say that it was required by the
Constitution."
This seems to be such a case; but since for many years the law
expressly required confirmation, and the practice in conformity
therewith has become established, and Congress has never vested the
appointment of this officer as an inferior officer in the President
alone, there can be no doubt that the appointment of an appraiser must
be with the advice and consent of the Senate.
I am unable to see any distinction between an appointment and a
nomination other than the fact that the President nominates for
appointment when the Senate is in session and appoints when he fills a
vacancy temporarily during the recess of the Senate. This statement
raises the exact point in issue: May the President appoint as in the
recess when the Senate has adjourned temporarily to a day certain?
The provision of the Constitution is (Art. II, sec. 2, clause 3):
"The President shall have power to fill up all vacancies that may happen
during the recess of the Senate, by granting commissions which shall
expire at the end of their next session." It will be observed that the
phrase is "the recess." Section 16 of the act of 1823, to which I have
referred, uses the same phrase: "And the President of the United States
is hereby authorized in the recess of the Senate to appoint the
appraisers for the ports provided for in this section, which
appointments shall continue in force until the end of the session of
Congress thereafter."
Section 1761, Revised Statutes, forbids the payment of salary to any
person appointed during the recess of the Senate to fill a vacancy, if
the vacancy existed while the Senate was in session, etc.
The Constitution also provided (Art. I, sec. 5, clause 4) that
"neither House, during the session of Congress, shall, without the
consent of the other, adjourn for more than three days, * * * ."
The dictionaries give to both the words "adjourn" (or "adjournment")
and "recess," when used in reference to deliberative assemblies, the
meaning of the remission or suspension of business or procedure, the
word "adjournment," however, implying a less prolonged intermission than
"recess." (See Webster.) This distinction is familiar in ordinary
language, and the Constitution and laws make it clear that in our
legislative practice an adjournment during a session of Congress means a
merely temporary suspension of business from day to day, or, when
exceeding three days, for such brief periods over holidays as are well
recognized and established and as are agreed upon by the joint action of
the two Houses; whereas the recess means the period after the final
adjournment of Congress for the session, and before the next session
begins. Congress "adjourns" in either case, but in the one temporarily,
so as merely to suspend an existing session for a short time; and in
the other, finally, so as to terminate the existing session. It is this
period following the final adjournment for the session which is the
recess during which the President has power to fill vacancies by
granting commissions which shall expire at the end of the next session.
Any intermediate temporary adjournment is not such recess, although it
may be a recess in the general and ordinary use of that term.
Mr. Wirt, in 1 opin., 631, points out the reason underlying this
distinction when he says that the constitutional provision as to recess
appointments refers to vacancies which happen to exist at a time when
the Senate can not be consulted as to filling them.
Mr. Evarts approved this view (12 Opin., 449, 452). It is worthy of
remark that in the many elaborate opinions of my predecessors which
discuss the question of the right of the President to make recess
appointments, no case is presented in which an appointment during a
temporary adjournment of the Senate was involved. The opinions of Mr.
Wirt and Mr. Evarts and all the other opinions on this subject relate
only to appointments during the recess of the Senate between two
sessions of Congress.
It will be instructive to examine the language used by Congress in
respect to adjournments of the different kinds herein referred to. For
instance, on Thursday, December 12, the Senate "adjourned until Monday,
December 16, 1901, at 11 o'clock a.m." (Cong. Rec., vol. 35 p. 252). On
December 19 "the House, under its previous order, adjourned until
Monday, January 6, 1902, at 12 o'clock noon." (id., p.413.) The Senate
"adjourned, under the concurrent resolution of the two Houses, being
until Monday, January 6, 1902, at 12 o'clock meridian." (id., p. 402.)
The concurrent resolution is as follows: "That when the two Houses
adjourn on Thursday, December nineteenth, they stand adjourned until
twelve o'clock meridian, Monday, January sixth, nineteen hundred and
two." (id., p. 206.) The language used on final adjournment of the
session is as follows: (Senate) "The hour of five o'clock having
arrived, in accordance with the resolution of Congress, the Senate
stands adjourned sine die." (Cong. Rec., vol. 33, p. 6875.) (House) "The
Speaker: * * * And now, in pursuance of the concurrent resolution
adopted by the two Houses of Congress, I declare this House adjourned
with day." (Id., p. 6892.) And the language used on final adjournment of
the Congress is as follows: "The Chair declares the United States
Senate adjourned sine die." (Id., vol. 34, p. 3562.) "The Speaker: * *
* I now declare the House of Representatives of the Fifty-sixth Congress
adjourned without day." (Id., p. 3605.)
The only case which has been brought to my attention bearing upon the
exact point is Gould v. United States (19 Ct.Cls., 593), from which it
appears that there were adjournments of the first session of the
Fortieth Congress from March 30 to July 3, 1867, and again from July 20
to November 21, and a final adjournment on December 2, when the second
session commenced.
It was decided that an appointment during the adjournment, from July 20
to November 21, was made during a recess of the Senate and was legal.
The public circumstances producing this state of affairs were unusual
and involved results which should not be viewed as precedents. The
decision of the Court of Claims, while squarely passing upon the point,
has in view the officer's right to receive pay rather than the power of
the President, the function of the Senate, or the nature of the
adjournment; and the court appears to have some residuum of doubt, for
it expressly holds that it is immaterial whether the claimant was
legally in office or not, and rests its conclusion on the fact that he
was in actual service under color of office and was recognized and
treated as an officer by the Executive. I can not regard this case as
binding authority against the clear implications to the contrary drawn
from the uniform practice of the Executive and the various opinions of
my predecessors. If a temporary appointment could in this case be
legally made during the current adjournment as a recess appointment, I
see no reason why such an appointment should not be made during any
adjournment, as from Thursday or Friday until the following Monday.
It may be that Congress might "temporarily adjourn" for several
months as well as several days, and thus seriously curtail the
President's power of making recess appointments. But this argument from
inconvenience, like the argument against a power because of its possible
abuse, can not be admitted to obscure the true principles and
distinctions ruling the point.
Furthermore, the Constitution (Art. I, sec. 2) requires Congress to
assemble at least once every year. This assembling or sitting is also
called in the same article a session, wherein it provides that neither
House during the session shall adjourn for more than three days without
the consent of the other House. This contemplates the continuance of the
session notwithstanding the adjournment.
There have always been two sittings, sessions or assemblings of each
Congress. The first session of the Fifty-seventh Congress began the
first Monday of December, 1901. Its second session will begin the first
Monday of December, 1902.
The interval between these two sessions is the recess. If an adjournment
during a session is a recess within the meaning of the clause of the
Constitution in question, then the commission of an appointee of the
President would extend in this case to the end of the Fifty-seventh
Congress, as the Constitution provides that it shall extend to the end
of the next session, not the session within which the recess occurs. The
only theory to defeat such a conclusion would be that the reassembling
of the Senate after each adjournment constitutes a new session, a
position wholly untenable in view of the constitutional provision as to
adjournments during the session.
The conclusion is irresistible to me that the President is not
authorized to appoint an appraiser at the port of New York during the
current adjournment of the Senate, which will have the effect of an
appointment made in the recess occurring between two sessions of the
Senate; and I have the honor so to advise you.
Very respectfully,
P. C. KNOX.
CIVIL-SERVICE RULES-- AMENDMENTS; 23 Op.Att'y.Gen. 595, December 2,
1901
It is within the power of the President so to modify the
Civil-Service rules as to impose upon all officers and employees in the
public service the duty of giving to the Civil Service Commission or its
authorized representatives all proper and competent information in
regard to all matters inquired of, and to subscribe to and make oath to
such testimony before some officer authorized by law to administer
oaths.
The imposition of such a duty upon every officer and employee in the
public service is neither unreasonable nor unsuitable. It is clearly
within the exercise of the Executive power and its legality can not be
doubted.
Other proposed amendments commented on.
DEPARTMENT OF JUSTICE,
December 2, 1901.
The PRESIDENT.
SIR: I have the honor to return herewith the respective drafts of
proposed amendments to Rules II and VIII and section 13 of Rule VIII of
the Civil-Service rules, which were handed to me by Mr. William Dudley
Foulke, of the Civil Service Commission, under your direction, for my
consideration and advice to you respecting the legality of the proposed
modifications.
It is proposed to amend Rule II by adding the following clause, to be
numbered 9:
"For the purpose of enabling the Commission to make the
investigations authorized by section 2 of the Civil-Service act, it
shall be the duty of every officer and employee in the public service to
give to said Commission or its authorized representatives all proper and
competent information and testimony in regard to all matters inquired
of, and to subscribe such testimony and make oath or affirmation to the
same before some officer authorized by law to administer oaths."
The provision of section 2 of the act as to investigations is as
follows:
"Said Commission may make investigations concerning the facts, and
may report upon all matters touching the enforcement and effects of said
rules and regulations, and concerning the action of any examiner or
board of examiners hereinafter provided for, and its own subordinates,
and those in the public service, in respect to the execution of this
act."
The new section of Rule II prescribes a duty for every officer and
employee in the public service, which the fact of employment in that
service makes obvious. The exercise of the executive power to direct and
instruct subordinates in the Government service upon fundamental
considerations, and your extensive authority under the Civil-Service law
to impose suitable rules to carry its spirit as well as its letter into
effect, are necessarily guided by the wide discretion which is and was
meant to be confided largely to the President's own judgment and views.
I am not able to perceive that the proposed requirement, by which
information and testimony upon proper subjects of civil-service
investigation may be elicited from Government officers and employees in
an orderly and formal way, ie either unreasonable or unsuitable. In the
light of the principle which I have stated respecting the executive
authority on this subject, I conceive that the legality of the new
provision can not be doubted. It is no answer to this position to say
that the law does not empower the Commissioners to issue subpoenas to
witnesses nor to administer oaths. The Commissioners do not propose to
do these things; the requirement is restricted to Government officers
and employees; no definite penalty for refusal to testify is imposed.
Section 13 of Rule VIII provides in its first sentence for temporary
appointments for emergency service where there are no eligibles upon a
register and the place must be filled before eligibles can be provided
by the Commission. The present rules require for regular appointment a
certification of the names of three eligibles (sec. 1, Rule VIII). The
proposal is to add at the end of the first sentence of section 13
language which provides that where there are not more than two
eligibles, one, or one of the two, may be appointed in the same manner
as if three eligibles were available for certification; and if the
appointing officer elect not to make a regular appointment from such
incomplete register, he must select the one eligible or one of the two
thus available for temporary appointment, unless special reasons are
given and approved (sec. 4, Rule VIII) why the selection should not be
so made.
For the reasons herein given respecting the scope of your power to
frame rules and to call upon the Civil Service Commission in aid of this
power, which is patent upon the face of the law and of the existing
rules, I perceive no legal objection to this proposed change.
Indeed, it may be said that all of the amendments under consideration
are merely modifications of the existing rules, and import no violent or
illogical changes. If the rules as they stand are proper and legal,
these alterations will make them no less so. Short of a purpose to break
down this law, or impose some arbitrary and unfair requirement which is
inconsistent with the spirit of law in general (a supposition too absurd
to be indulged), it is not too much to say that the determination of the
contents of these rules rests almost wholly with the President himself.
Respecting the last-mentioned amendment, I desire to point out what
appears to be an inadvertent repugnancy. Section 13, under the amendment
suggested, permits a temporary appointment to continue no longer than
three months, even though made as now proposed by selection of one
eligible or of one of two eligibles on a register when there are not
three eligibles; whereas section 14 of the same rule provides that
"whenever a temporary appointment shall be made through certification
from the eligible registers * * * such temporary appointment shall in no
case continue longer than six months * * * ."
The other amendment to Rule VIII proposes to add a clause, to be
numbered 16, providing that in order to secure proper enforcement of
sections 2 and 7 of the Civil-Service act and of the existing rules, the
Commission shall, whenever it finds that any person is holding a
position in the civil service in violation of law, certify information
of the fact, after notice to the person affected and to the Department
or branch of the Government under which he serves-- to the disbursing
and auditing officers through whom the payment of such person's
compensation is made, and thereafter these officers shall not pay such
compensation or permit it to be paid.
Section 2 of the Civil-Service act makes it the duty of the
Commissioners to aid the President, as he may request, in preparing
suitable rules for carrying the act into effect; and makes it the duty
of all officers of the United States in the different Departments and
offices to which the law and the rules relate to aid in all proper ways
in carrying said rules and any modification thereof into effect.
The scope of the rules in their bearing upon the classified service as
to competitive and non-competitive examinations, the filling of
vacancies and other matters, is then indicated.
Section 7 of the act provides that 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; and then proceeds to express certain preferences and
exceptions relative to this requirement.
There appears to be no question that sections 2 and 7 of the act
contemplate objects which the proposed addition to Rule VIII fitly and
legally seeks to carry out.
It occurred to me that the propriety of a proviso in this addition,
expressly permitting the President or the head of a Department to obtain
the opinion of the Attorney-General upon a question of law respecting
the power or authority to appoint, in any case coming under that
addition, has a legal bearing or aspect which permits me to suggest the
form of such a proviso. I have accordingly attached the same to the
draft of that amendment, and with this further change I am of opinion
that your authority to incorporate the proposed addition to Rule VIII is
clear, and that no legal objection exists.
My conclusion, therefore, is that all these amendments to the
Civil-Service rules may be legally adopted and promulgated.
Very respectfully,
P. C. KNOX.
PROHIBITION OF HUNTING UPON FOREST RESERVES; 23 Op.Att'y.Gen. 589,
November 29, 1901
The Secretary of the Interior can not, without express authority of
law, prescribe rules and regulations by which the national forest
reserves may be made refuges for game, or by which the hunting, killing,
or capture of game thereon may be forbidden.
Neither the act of June 4, 1897 (30 Stat., 11, 34), nor the act of
March 3, 1899 (30 Stat., 1095), nor any other provision of law, confers
upon the Secretary of the Interior this power.
DEPARTMENT OF JUSTICE,
November 29, 1901.
The PRESIDENT
SIR: In response to your request expressed in the note of your
secretary, dated November 13, 1901, I have the honor to transmit to you
my official opinion upon the matters there referred to, viz:
"Mr. Gifford Pinchot, of the Bureau of Forestry, in his letter to you
accompanying the above note, requests the submission to the
Attorney-General of the question, in substance, whether for the
preservation of the big game of the West the Secretary of the Interior
has power to prohibit, by rules and regulations, the killing of such
game within the national forest reserves-- in other words, whether he
can make such reserves the refuges for game, in order to its
preservation-- and he suggests the inquiry whether the act of June 4,
1897 (30 Stat., 11, 34), confers this power, as it does the power to
make rules and regulations in many other respects; and also whether the
right does not exist as incident to the governmental ownership of the
lands."
The question is not free from difficulty. It will conduce to a better
understanding of the whole to consider these two constituent questions
in the reverse order of their statement.
It is true that the United States has the absolute title to and
ownership of all the public domain, including the forest reservations;
and equally true that this title and ownership carry with them the right
of either absolute or partial exclusion from such lands, and the right
to permit intrusion thereon for such purposes and upon such terms as the
owner may prescribe. And I have no doubt that, as incident to such
ownership, Congress has the power, if it so choose, to absolutely
prohibit the intrusion of the public into any of the public lands, or to
prohibit it for certain purposes, as for cultivation, mining, cutting
timber, hunting, fishing, etc.
Such right of control and exclusion is incident to ownership, and is a
part of that which the owner owns with the land. But it does not follow
from this that the Secretary of the Interior may exercise this right of
control which resides in the Government and may be exercised by
Congress. The powers of the head of a department are limited, and are to
be exercised, generally, only for the accomplishment of some end or
purpose prescribed by law or usage.
And, it is to be borne in mind that this title and ownership of the
United States are not absolute for its own benefit, as in the case of a
private individual who holds his land and the title thereto solely for
his own benefit and purpose. On the contrary, the National Government,
while having the absolute title to the public lands, yet holds it with
the lands, to a great extent, for the ultimate benefit of the people in
ways prescribed by law.
Partly, at least, for this reason, it has never been the policy of
the Government to exclude the people, its citizens, from the public
domain. On the contrary, from the beginning, it has been the policy to
permit free access for any and all purposes not violative of law, and
especially (except as otherwise provided in special cases) for the
purpose of hunting, trapping, and fishing. Indeed, in early times and
for many years, large portions of the great West could not have been
then settled as they were without this permission. With the exception of
certain exclusions, restrictions, and regulations applicable to certain
specified portions of the public lands and waters, this policy has
continued to the present time, and although, as I have said, Congress
would have the power to adopt by law a policy of absolute exclusion,
yet, at this day, this would be deemed arbitrary and harsh.
But, while Congress might exercise this incident of ownership, it is
manifest that the Secretary of the Interior can not, without express
authority of law, change this long-settled policy of the Government in
favor of the people, by rules or regulations forbidding that access to
the public domain which this policy has so long permitted, or for
purposes within that permission or not violative of any law.
And it is further manifest that, unless authorized by law, he can no
more do this with reference to the forest reserves, than with reference
to any other of the public lands; for this incident of ownership is
applicable alike to all the lands held by the Government, and if the
Secretary could exercise it as to any, he could equally as to all.
While the management and control of the public lands, except as
otherwise provided by law, is committed to the Secretary of the
Interior, this, even to the extent committed to him, is not absolute,
but is a management and control subordinate to and for the purposes and
objects intended, as expressed by law or settled usage or practice. He
is but the agent of the Government for carrying out its purposes, and
the rules and regulations which he makes can be such only as have
relation to and subserve those purposes. He can not permit that which
the law or the settled policy of the Government forbids, nor can he
forbid what is thus permitted. And in view of what I have said of the
long settled policy and practice of the Government, I am of opinion that
the Secretary of the Interior can not, as the mere exercise of this
incident of governmental ownership, exclude people from the forest
reserves, whether there for hunting or other purposes, nor prohibit the
hunting or killing of game on such reserves. I do not say that he can
not do this at all-- only that he can not do it in the exercise of that
control which belongs to the governmental ownership of the lands, and
that as long as or to the extent that Congress sees proper to continue
its former policy of permission the Secretary can not interfere.
It remains to inquire whether, independently of this right of control
incident to ownership, the law has conferred upon the Secretary of the
Interior the power to prescribe rules and regulations for the
preservation of game, or to prevent its being hunted and killed on the
national forest reserves.
I have little doubt that, if unaffected by other legislative
provisions and other considerations, the general and specific powers
conferred upon the Secretary would be sufficient for this purpose.
But these must be read in the light of other legislative action and
non-action, and of other considerations to which I shall refer. The
various statutory provisions which may have a bearing upon the question
are too numerous to permit here more than a very general reference to
them.
I know of no provision expressly conferring upon the Secretary of the
Interior the power to make rules or regulations for the preservation of
game in our forest reserves generally, or for using such reserves as
game refuges; and, if any such power exists, it must be implication
from the general powers conferred, or from those conferred for specific
purposes.
But, in what I say upon this subject, I do not refer to particular
localities, as the Yellowstone Park and perhaps some particular forest
reservations as to which special provision is made for game
preservation, or special power conferred upon the Secretary for that
purpose. I understand the question to refer generally to forest reserves
and not to particular cases.
It must be borne in mind that the power conferred upon the Secretary
of the Interior to make rules and regulations is for the accomplishment
of certain objects and purposes of the Government, and that it can not
be so construed as to authorize them for any other purpose; and,
further, that such objects and purposes may be expressed either by
legislative action, or by a long course of usage or practice.
Now, as already said, the settled policy and practice of the
Government has been, from the beginning, to permit free access to the
public lands for hunting, trapping, and fishing. The exceptions have
been expressly made by Congress as to certain specified localities or
reservations; and, unless so stated expressly and clearly, it can not
be presumed that Congress intended to confer upon the Secretary a power
of exclusion which, so far, it has appeared unwilling to itself
exercise. Had Congress intended any further exclusion of the public from
the public lands for hunting, etc., than it has itself ordained, it is
fairly certain that in such an important matter it would have said so
expressly, and not merely by implication from a general power to make
rules and regulations, or specific powers to make such rules upon other
subjects.
The purpose or policy of the Government, in whichever way expressed, can
not be thus changed. On the contrary, the rules and regulations which
the Secretary is authorized to make are those only which conform to and
subserve this purpose or policy with others properly expressed.
Again, Congress has at various times restricted, regulated, and
forbidden this public right of hunting or fishing in certain portions of
the public lands and waters, and has adopted certain measures for the
preservation of game and fish in specified localities; and we are bound
to presume that, in doing so, it thus adopted all the measures in that
direction which it then intended should be enforced. And still further
along the same line of argument, Congress has conferred upon the
Secretary many specific powers with reference to these forest reserves,
and we must assume that it has done so to the full extent to which it
was intended that he should exercise power. And in the act of June 4,
1897 (30 Stat., 11, 34), Congress has expressly declared the objects of
forest reserves to be the protection of forests and favorable conditions
of water flows, and has declared the general provisions under which said
reserves shall be controlled and administered, and, what is more
significant, has conferred specific powers upon the Secretary with
reference to their control and management, but not including the power
in question, which must therefore be taken as not intended to be
conferred.
It is true that this power is, inter alia, to regulate the "use and
occupancy" of the reserves. But, in view of the whole act, this must
obviously be taken to mean the use and occupancy by the various persons
who, for various purposes, are by that act and others expressly
permitted to enter upon, use, and occupy such reserves. And on page 36,
after referring there and in other places for various classes of persons
who are permitted there for various purposes, it is stated "nor shall
anything herein prohibit any person from entering upon any such forest
reservation for all proper and lawful purposes."
It is therefore obvious, that, unless hunting, trapping, or fishing is
made unlawful by either Federal or State law, the Secretary can not
prohibit it there.
More than this, by provision on page 36, the civil and criminal
jurisdiction of the State within which such reservation is situated is
expressly recognized, and that all persons on such reservation are
subject to it, and if citizens, with all the rights of citizens of such
States; so that, if State laws permit hunting or fishing there, the
Secretary may not forbid it, or, if unlawful, he can not permit it. And
then, in the act of March 3, 1899 (30 Stat., 1095), with the subject of
game preservation in the forest reserves directly before it, Congress,
instead of authorizing the Secretary to prescribe general rules to that
end, contented itself with directing that forest agents, rangers, etc.,
should aid in the enforcement of State or Territorial laws for the
preservation of game and fish; and this appears to have been as far as
Congress was then willing to go.
Under these circumstances, I am constrained to the opinion that,
until further legislation, the Secretary of the Interior is not
authorized to prescribe rules and regulations by which the national
forest reserves may be made refuges for game, or by which the hunting,
killing, or capture of game in such reserves be forbidden.
It is with regret that I reach this conclusion, as I would be glad to
find authority for the intervention by the Secretary for the
preservation of what is left of the game, from wanton or unnecessary
destruction; but it would seem that whatever is done in that direction
must be done by Congress, which alone has the power.
I return herewith the letter of Mr. Pinchot, transmitted with your
note.
Respectfully,
P. C. KNOX.
ATTORNEY-GENERAL-- OPINION-- REFUND OF DUTIES; 23 Op.Att'y.Gen.
586, November 16, 1901
The Attorney-General declines to express an opinion upon the
authority of the Secretary of the Treasury to refund the fine exacted,
in lieu of the payment of duties, upon certain merchandise brought into
the United States from Porto Rico after the ratification of the treaty
of 1898 with Spain and before the taking effect of the Porto Rican act,
due protest against the exaction not having been made. That duty by
section 8 of the act of July 31, 1894 (28 Stat., 207), is imposed upon
the Comptroller of the Treasury.
DEPARTMENT OF JUSTICE,
November 16, 1901.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letters of
September 4 and 13, with their inclosures, relative to the refund of
moneys paid as duties, or as a fine equal to the duty, on certain
merchandise brought into this country from Porto Rico. The following
facts appear:
The merchandise was brought in after the ratification of the treaty
with Spain and before the Porto Rican act of 1900 took effect. No
protests against the duties levied were filed, but a protest was filed
against the exaction of the fine. The Treasury Department holds that
such moneys, paid as duties without protest, constitute voluntary
payments which are not recoverable, and that, therefore, there is no
authority to refund; while the applicants contend that the exactions
were unlawful, the payments involuntary, and protest unnecessary. It is
further contended that if protests were necessary, they should have been
made at the time of payment, and that protests made two or three months
later, but within ten days after liquidation, would be no more effective
than if made two or three years later. As to the fine, the applicant
asserts, and the Government is inclined to deny, that the authority to
refund extends to cases of seizure and fine.
Thereupon you request an expression of my opinion as to the necessity
of filing protest in the case where the moneys were paid as duties, and
as to the authority to refund in the case where the goods were seized
and a fine exacted equal to the duty.
After careful consideration of all the facts I was inclined to advise
you that under various established authorities the payment here as
duties was involuntary, and that so far as the absence of protest is
concerned, you are not forbidden to refund; and then to point out that
the general legality of a refund amounts to a nugatory right unless you
are specifically authorized and empowered to make refunds in given cases
by force of statutory provisions and under the language of appropriation
acts which clearly apply.
But it will not be necessary, for the reasons given below, for me to
pursue this course, which seems to reach the result that there is no
available appropriation unless a protest has been filed in the case of
moneys paid as duties ("to repay to importers the excess of deposits for
unascertained duties, or duties or other moneys paid under protest,"
sec. 3689, Rev.Stat., pp. 724, 726); and that in the case of a fine
equal to the duty sections 5292 and 5293 may apply. I say "may apply,"
because it is a question whether the Secretary's power to mitigate or
remit a fine under those sections is restricted to the waiver of
collection where the penalty is incurred or has been imposed, but the
money has not been paid into the Treasury, or also includes the
authority to repay after deposit in the Treasury on the ground that the
amount in the Treasury so collected is not the money of the United
States but belongs to the claimant of right, under such facts as here
appear, as money had and received to his use which he is entitled to
have refunded. On this point I may say that where the law intends to
deal with a particular case of a fine which has actually been paid, it
seems that the Secretary of the Treasury is specifically authorized to
refund. Thus, by section 26 of the act of June 26, 1884 (23 Stat. 53),
referring to fines, etc., arising under laws relating to vessels or
seamen, the Secretary of the Treasury is empowered to refund if he finds
that the exaction was illegally, improperly, or excessively imposed, and
a standing appropriation for this purpose is made.
This is obviously an important as well as a doubtful question, in
view of the general principle that for legal payment of moneys out of
the Treasury due appropriation by Congress is requisite. It may, indeed,
be that the fine, equal to the duty exacted in this case and paid under
protest, would be covered by the phrase, "or other moneys paid under
protest," in section 3689 as quoted, supra, which carries a permanent
appropriation, while it must be remembered that the general principle to
which I referred above rests upon the provision of the Constitution
(Art. I, sec. 9, cl. 7) that "no money shall be drawn from the Treasury
but in consequence of appropriations made by law."
On full consideration, however, and while indicating that an appeal
of this nature to you to refund money wrongfully collected may not only
be strong equitably but strong as well on the legal principles entitling
the claimant to a right, but that, nevertheless, the right can not be
effectively asserted by way of refund unless statutory provisions
clearly give you a corresponding authority, I do not mean to decide
these questions, for the following reasons:
The same question as to moneys paid as duties was referred to the
Comptroller of the Treasury by you on June 24 last, the only difference
being that in the former case there was a protest and here there was
not. On July 10 you referred the same question to me for my opinion, and
on July 20 I advised you that in view of section 8 of the act of July
31, 1894, and of certain opinions of my predecessors, it seemed to me
that the determination of the question presented fell specially within
the functions of the Comptroller of the Treasury; that it was neither
necessary nor proper for me to express my own views upon the subject. I
therefore declined to comply with that request for an opinion, and for
the same reasons I must decline to comply with your present request.
Very respectfully,
P. C. KNOX.
CHINESE-- RIGHT OF TRANSIT THROUGH THE UNITED STATES; 23 Op.Att'y.
Gen. 585, November 15, 1901
The question of the right of transit of Chinese persons from a port
of the United States to the Territory of Mexico, or from a port of the
United States directly by sea to a foreign port, being now before the
courts, it would not be proper for the Attorney-General to express an
opinion thereon.
DEPARTMENT OF JUSTICE,
November 15, 1901.
The SECRETARY OF THE TREASURY.
SIR: Acknowledging the receipt of your letter of November 13, with
its inclosures, in relation to the cases of Chinese persons who have
been refused permission by the collector of customs at the port of San
Francisco to pass in transit from the said port across the United States
territory to Mexico, or from said port directly by sea to foreign ports,
I have the honor to say that inasmuch as the question of the rights of
Chinese persons under the transit privilege is now before the courts,
and the point of the right of appeal to the Secretary of the Treasury is
likely to be involved, upon consideration of the proper jurisdiction in
hearings before the Supreme Court or in the lower Federal courts, I
conceive that this point is now so far committed to judicial review,
that it will not be proper for me to express an opinion thereon (see
opinion of November 14, 1901, and other opinions therein cited).
I must, therefore, decline to comply with your request.
I return the papers herewith.
Very respectfully,
P. C. KNOX.
RETURNING CHINESE LABORERS-- TREASURY REGULATIONS; 23 Op.Att'y.Gen.
582, November 14, 1901
The question of the validity of a proposed regulation of the Treasury
Department providing that in case a Chinese laborer who has left the
United States upon a valid return certificate is delayed beyond one year
from the date of his departure by reason of sickness or other disability
beyond his control, the consular representative of the United States
shall certify to such facts before the Chinaman shall be admitted into
this country, not being a question actually or presently arising in the
administration of the Treasury Department, the Attorney-General declines
to express his opinion thereon.
Should this proposed regulation be promulgated, and the question of
its validity arise in that Department, as upon an appeal under the act
of August 18, 1894 (28 Stat., 390), the right and duty of the
Attorney-General to reply to the question would be untrammeled.
DEPARTMENT OF JUSTICE,
November 14, 1901.
The SECRETARY OF THE TREASURY.
SIR: Your letter of October 25 refers to my opinion of October 10,
relative to Chinese laborers who leave the United States upon valid
return certificates, but whose return is delayed beyond one year from
the date of departure; and requests my opinion upon the question
whether the promulgation and enforcement of a regulation providing that
in such case the consular representative of the United States shall
certify that the cause of delay is by reason of sickness or other
disability beyond the Chinaman's control, would conflict with the
provisions of the treaty or laws relating to the exclusion of Chinese.
The draft of the proposed regulation which you inclose explicitly
rests your authority to create the new rule upon section 8 of the act of
September 13, 1888, and thereupon requires a returning laborer to
present a certificate from our consular representative showing that the
claim of disability preventing an earlier return has been investigated
and found to be correct. Section 8 of that act provides that the
Secretary of the Treasury may make such rules and regulations not in
conflict with the act as he deems necessary to secure the rights of
Chinese laborers and Chinese of the privileged classes, and to protect
the United States against the unauthorized entry of Chinese.
My opinion of October 10 held substantially that the provisions of
section 7 of the act of 1888, indicating our consular representative in
China as the proper officer to certify the cause of delay, have been
replaced by the provision of Article II of the treaty of 1894,
indicating the Chinese consul at the proper port in the United States as
such officer, partly because the treaty is express and is the later
provision of law, and partly because it is difficult to say what
sections, if any, of the act of 1888 are now in force.
As I point out in that opinion, Federal courts have differed on this
question. Many of them have held that sections 2-4 and section 15 have
no field of operation, but that the rest of the act is in force. "It
will be noted that section 13 has been uniformly held, by the Federal
courts which have directly passed upon it, to be in force, while there
is a divergence of opinion as to the other sections" (2 Sup.Rev.Stat.,
141, note). The Supreme Court, in the case of Li Sing v. United States,
180 U.S., 486, while declining the pass upon other sections of the act,
have held that section 12 is not in force.
It appears to me, then, that among the reasons which might be given
for declining to answer your inquiry, respecting those portions of the
act of 1888 which have not already been finally passed upon, is the fact
that this point is a judicial question rather than one for executive
determination (20 Opin., 210; id., 314; 21 Opin., 369; id., 583; 22
Opin., 181); that the courts have already considered it and are not in
accord (20 Opin., 729). In saying this, I am aware that under the Li
Sing decision, supra, and authorities therein cited, and in view of the
act of August 18, 1894, it is now fully established that the executive
decision upon the application of an alien for admission into this
country is beyond review by the courts. Yet, it is conceivable that the
legality of regulations to be framed by you under section 8 of the act
of 1888 might be brought before the courts. Indeed, I am just to-day
advised of the case of Fok Young Yo v. United States, recently decided
in the Circuit Court of Appeals for the Ninth circuit, and likely to be
brought before the Supreme Court, in which the right of the Secretary of
the Treasury to frame regulations under the eighth section of the act of
September 13, 1888, appears to be involved to a certain extent.
The fact can not well be concealed that the proposed regulation seeks
to avail of the Secretary's general power, under section 8 of the act of
1888, when the special authority for the object to be attained expressed
in section 7 has been found to be unavailable. That is to say, the
regulation seeks to do indirectly what the formulated law has not done
directly. Nor is there a mere omission, or failure to act; the law, as
I have found, seems to forbid the rule at which the regulation aims. I
need not consider generally the foundations of the right to make
regulations which have the force of law, nor the restrictions on that
right, for, as I have noted, the right in this case is explicitly
referred to section 8. It is worthy of remark on the one hand that there
is no conflicting law respecting this authority to make regulations, as
was found in the treaty respecting the rule of section 7 as to the
disability certificate; and it is to be assumed that the purpose of
your proposed regulation is necessary and proper, while it is evident
that that purpose is meant to be carried into effect after due notice
and warning of the additional requirement to Chinese interested. On the
other hand, I note again that the regulation undertakes to import into
the law, through the provisions of section 8, a rule which in its
explicit form in section 7 has been held to be without validity, and
that the status of the entire act is a matter of grave doubt.
Yet I shall not assume in this opinion to determine directly whether
or not section 8 is an existing enactment, for my conclusion is that
your inquiry falls under the ban of the rules of this Department which
forbids me to render an opinion upon a question which is hypothetical.
Your inquiry, in the last analysis, asks me what would be the standing
of such a regulation if you should determine to promulgate and enforce
it. This is not a question actually or presently arising in the
administration of your Department. It is, it seems to me, evidently
contingent and hypothetical in its nature, and as such I must decline to
pass upon it. (9 Opin., 421; 13 Opin., 531; 20 Opin., 703; 21 Opin.,
201; id., 506; 22 Opin., 77.)
If in the exercise of your official discretion, believing that this
new rule respecting the delayed return to this country of Chinese
laborers entitled to return, is a necessary and proper requirement, you
determine to impose this additional condition, and then the question
should arise in your Department, as upon an appeal to you under the Act
of August 18, 1894, the case would be different.
If in that event you choose to refer this question of law, then actually
arising in your Department, to me for my opinion, my right and duty to
reply would be untrammeled. As it stands, however, I feel compelled,
because of the various reasons heretofore stated or indicated, to
decline with regret to respond to your request.
Very respectfully,
P. C. KNOX.
PORTO RICO-- FRANCHISES-- EXECUTIVE COUNCIL; 23 Op.Att'y.Gen. 581,
November 12, 1901
The franchises granted to the Compania de los Ferrocarriles de Puerto
Rico and the Port America Company by the Executive Council of Porto Rico
and approved by the Governor thereof, having been amended so that the
exemption from taxation granted them "shall not become effective or
operative until the Legislative Assembly of Porto Rico shall by law duly
authorize such exemption," no reason exists why the President should not
approve the franchises.
DEPARTMENT JUSTICE,
November 12, 1901.
The SECRETARY OF STATE.
SIR: In answer to your request of the 7th instant for an opinion to
guide the President in the matter of approving or not approving two
franchises granted by the Executive Council and approved by the Governor
of Porto Rico, the first to the Compania de los Ferrocarriles de Puerto
Rico and the second to the Port America Company, I have to say:
These two franchises are discussed in my opinion of August 14 last,
wherein it was held that the exemptions from taxation therein provided
for were beyond the power of the Executive Council of Porto Rico to
make.
They have been amended and reissued, the proposed exemptions referred
to being now accompanied by the following proviso:
"Provided, however, That said exemption shall not become effective or
operative until the Legislative Assembly of Porto Rico shall by law duly
authorize such exemption."
I am of opinion that by this proviso the objection referred to has
been removed, and I see no legal reason why the franchises should not be
approved by the President.
Respectfully,
P. C. KNOX.
ARMY OFFICERS-- APPOINTMENT-- ORIGINAL VACANCY; 23 Op.Att'y.Gen.
574, November 7, 1901
A, a captain in a regiment of volunteer infantry authorized to be
raised by the act of March 2, 1899 (30 Stat., 977), was appointed on
June 14, 1901, a quartermaster in the Army, with the rank of captain, to
rank as such from February 2, 1901. He accepted the appointment on June
27, 1901, and resigned on July 8 following. A captain of cavalry in the
line of the Army was detailed in the Quartermaster's Department to fill
the vacancy thus created, such detail being made under authority
conferred by section 26 of the act of February 2, 1901 (31 Stat., 755).
Held: That the vacancy thus created is not an original vacancy which
can be filled by the appointment of a person similarly qualified, but
must be filled by detail under the provisions of section 26 of the
last-mentioned act.
It being the intention of Congress, as expressed in the sixteenth
section of that act, not to require confirmation of appointments in the
grade of captain in the Quartermaster's Department, the appointment of
Captain A was not a recess appointment, the concurrence of the Senate
was not necessary, and the action of the President alone constituted a
final and complete appointment.
The only vacancy which the President is authorized to fill under
sections 16 and 26 of that act is an original vacancy. After such
vacancy has been filled there is no longer an original vacancy in that
particular place, and any subsequent vacancy must be filled by promotion
or by detail.
DEPARTMENT OF JUSTICE,
November 7, 1901.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge the receipt of your letter of
October 10, 1901, in which you request my opinion as to the right of the
President to make an appointment as quartermaster, with the rank of
captain, under the army reorganization act of February 2, 1901 (31
Stat., 748), as modified by a proviso to the army appropriation act of
March 2, 1901 (31 Stat., 895, 900), under circumstances, of which you
submit the following statement:
"A, formerly a captain in the Twenty-sixth Regiment of Volunteer
Infantry, authorized to be raised by the act of March 2, 1899, was
appointed a quartermaster in the Army, with the rank of captain, on June
14, 1901, to rank as such from February 2, 1901. He accepted the
appointment so conferred on June 27, 1901; he resigned on July 8
following, and his resignation was duly accepted. On July 9, 1901, a
captain of the cavalry in the line of the Army was detailed in the
Quartermaster's Department to fill the vacancy thus created, such detail
being made under authority conferred by section 26 of the act of
February 2, 1901. The captain of cavalry so detailed is now performing
the duties of the office."
You further state: "The question is, Does the vacancy created by the
resignation of Captain A create an original vacancy which can be filled
by the appointment of a person similarly qualified; or should the
vacancy be filled by detail under the provisions of section 26 of the
act of February 2, 1901?
The situation presented was caused by section 16 of the act of
February 2, 1901 (31 Stat., 748, 751), which provides, inter alia, as
follows:
"The Quartermaster's Department shall consist of * * * sixty
quartermasters with the rank of captain, mounted; * * * Provided, * * *
That to fill original vacancies in the grade of captain created by this
act in the Quartermaster's Department the President is authorized to
appoint officers of volunteers commissioned in the Quartermaster's
Department since April twenty-first, eighteen hundred and ninety-eight."
* * * (The act of March 2, 1901, omits the words "in the Quartermaster's
Department" where last above appearing.)
Section 26 of the same act provides, inter alia--
"That * * * when any vacancy, except that of the chief of the
department or corps, shall occur, which can not be filled by promotion
as provided in this section, it shall be filled by detail from the line
of the Army, and no more permanent appointments shall be made in those
departments or corps after the original vacancies created by this act
shall have been filled. Such detail shall be made from the grade in
which the vacancies exist, under such system of examination as the
President may from time to time prescribe. All officers do detailed
shall serve for a period of four years," etc.
This case, as I view it, does not present the ordinary distinction
between a "temporary" and "permanent" appointment, nor involve the
general power of the President (which is well established; 19 Opin.,
261, and authorities cited) to appoint to an office ultimately requiring
confirmation, when a vacancy "happens" or happens to exist during a
recess of the Senate.
"Whether the President appoints in the session or in the recess, he
can not and does not fill the office without the concurrence of the
Senate. He may fill the vacancy in the recess, but only by an
appointment which lasts until the end of the next session." (12 Opin.,
32, 41.)
The uniform opinion on this point simply regards the fundamental
power of the President when untrammeled by any specific statutory
restriction, express or implied. Here there is a restriction in the law,
which I consider below. The question is not only whether the appointment
was temporary or permanent respecting the President's underlying power
and the Senate's right to interpose, but also whether the act does not
use the word "permanent" in contrast merely with the four years' detail,
and does not thereby look to the President's intention in making the
appointment and to the general purpose of army reorganization rather
than to the Senate's concurrence. To borrow Mr. Stanbery's statement in
12 Opin., supra, the President filled the vacancy and presumably meant
to fill the office permanently. Was confirmation by the Senate essential
to the complete attainment of this result? Thus the question at the
threshold, before we reach the special restriction in the law, regards
generally the nature and extent of the President's power of appointment
in this case.
It may be argued with force that in this particular class of
appointments, as well as in others under the act of February 2, 1901,
the President's act is final and complete and confirmation by the Senate
not required. It will be observed, for example, that by sections 12, 26,
and 33 certain appointments are directed to be made and vacancies to be
filled by and with the advice and consent of the Senate, whereas certain
other appointments, including some consequent upon promotions and those
required by the original vacancies which we are considering and other
such vacancies, do not expressly call for confirmation by the Senate.
The language is that "the President is authorized to appoint, et.,"
without reference to the Senate (sec. 16); and that "vacancies * * *
remaining after such promotions may be filled by appointment of persons
who have served, etc." (sec. 24).
This difference and contrast is obvious throughout the act (secs. 15,
17, 21, and par. 2, sec. 33). The act contemplates appointments by and
with the advice and consent of the Senate, appointments in which the
power is not so restricted, promotions, the "selection" of the Chief of
Engineers "as now provided by law," and other methods of designation, as
by department detail and by appointment by officers subordinate to the
President. Not only is the President "authorized to appoint" without
restriction, in filling these particular original vacancies, but where
Congress intends to impose some restriction short of confirmation by the
Senate the purpose is clear. In the thirty-sixth section the President
is authorized to make provisional appointments of natives of the
Philippine Islands to the grades of second and first lieutenants in the
native squadrons and battalions.
The intention of Congress not to require confirmation for
appointments of the class in question thus seems to be evident. But is
this intent in conformity with the Constitution?
Clause 2, section 2, Article II, provides that 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."
Is this office an inferior office? Or, rather, is a captain in the
Quartermaster's Department such an "inferior officer?"
I do not think that this term, while importing a difference in
relative rank, necessarily conveys the idea of unimportant or petty
officers. It means subordinate officers in a general way, and indicates
those who are different from as well as lower in rank than the officers
specified.
The distinction is not clearly marked out, and the language results in
two unenumerated and contrasted groups-- "all other officers" and
"inferior officers"-- respecting which the discretion of Congress has
proceeded without strict checks. Various officers of the Government, who
are not inferior officers in the usual sense of inferiority, are
nevertheless appointed under laws similar to the one before us, or which
specifically empower the President "solely" to appoint, as-- the
Librarian of Congress (sec. 88 R.S.); the Superintendent of the
Military Academy, commandant of cadets and the professors (sec. 1313);
the members of the Light-House Board, who must be officers of the Navy
of high rank, officers of the Corps of Engineers of the Army, and
civilians of high scientific attainments (sec. 4653); the commandant of
the Marine Corps, who "shall be appointed by selection by the President
from the officers of said corps" (act of June 6, 1874; 18 Stat., 53,
58); various special commissioners, e.g., act of March 3, 1897 (29
Stat., 624); while other commissions are appointed with the advice and
consent of the Senate (the Civil Service Commission, act of January 16,
1882, 22 Stat., 403; Patent Law Commission, act of June 4, 1898, 30
Stat., 431). Under the act of March 3, 1901 (31 Stat., 1440), providing
for the Louisiana Purchase Exposition, the language of section 2 is that
the Commission shall be appointed by the President, and shall also be
subject to removal by him, and that vacancies shall be filled in the
same manner as original appointments.
I am not fully advised, but I understand that all of the foregoing
officers, as to whom confirmation by the Senate is not expressly
required, are in practice fully appointed by the President alone.
There are singularly few authorities on this question. In the case of
United States v. Germaine (99 U.S., 508), showing that appointees of a
government officer subordinate to the head of a department are not
officers of the United States within the meaning of the Constitution,
the court say:
"The Constitution, for purposes of appointment, very clearly divides
all its officers into two classes. The primary class requires a
nomination by the President and confirmation by the Senate.
But, foreseeing that when offices became numberous and sudden removals
necessary, this mode might be inconvenient, it was provided that in
regard to officers inferior to those specially mentioned Congress might
by law vest their appointment in the President alone, in the courts or
law, or in the heads of departments. That all persons who can be said to
hold an office under the Government about to be established under the
Constitution were intended to be included within one or the other of
these modes of appointment there can be but little doubt."
In Story on the Constitution (vol. 2, 5th ed., sec. 1536, p. 362) the
following passage occurs:
"In the practical course of the Government these does not seem to
have been any exact line drawn, who are and who are not to be deemed
inferior officers in the sense of the Constitution, whose appointment
does not necessarily require the concurrence of the Senate. In may cases
of appointments Congress have required the concurrence of the Senate
where, perhaps, it might not be easy to say that it was required by the
Constitution. The power of Congress has been exerted to a great extent
under this clause in favor of the executive department. The President is
by law invested, either solely or with the Senate, with the appointment
of all military and naval officers and of the most important civil
officers." * * *
Note 1 to this passage, citing authorities, says: "Whether the heads
of the departments are inferior officers in the sense of the
Constitution was much discussed in the debate on the organization of the
department of foreign affairs in 1789. The result of the debate seems to
have been that they were not."
To use a military illustration, the distinction is similar to that
between general or regimental, and company officers.
The act before us indicates the line of distinction. Appointments are
to be made and vacancies filled in and above certain grades wither with
the advice and consent of the Senate or by promotion according to
seniority; whereas in certain of the lower grades, including the
captaincies now in question, the President's authority to appoint is
unrestrained.
I am strongly inclined to the view that this appointment was not a
"recess appointment" at all; that the concurrence of the Senate was not
necessary, and that the action of the President alone constituted a
final and complete appointment. Perhaps the reason why confirmation by
the Senate was not required for this and other such appointments under
the act before us was the recognition of the superior claim of volunteer
officers whose service was contemporary with our recent wars and whose
appointments as such officers had already been confirmed by the Senate,
or who had been called into the service of the United States after
appointment by the governors of the States (secs. 6, 10, act of April
22, 1898; 30 Stat., 361; secs. 12, 14, act of March 2, 1899; id.,
977).
Another point remains to be considered, and that is the special
restriction in this law, which does not so much affect the appointing
power itself, as limit its exercise to a narrow field. I have italicized
the words of the act which show to my mind that the only vacancy which
the President can fill is an original vacancy; that after such vacancy
has been filled by him, there is no longer an original vacancy quoad
that particular place, and that any other or subsequent vacancy must be
filled by promotion or by detail. The act constantly speaks of vacancies
"created or caused by this section" or vacancies "created or caused by
this act." The President's authority to fill the captaincies now
involved is restricted to original vacancies created by this act, and
does not extend to other vacancies which may be created or caused by
either section 16 or section 26, or to any other vacancies whatever,
however caused or happening.
It strikes me that the chief, and probably the only, significance in
the work "permanent," as used in the act, is suggested by the contrast
between permanent appointments in the staff departments under the
previous organization of the Army, and temporary details for staff
service, which was one of the main purposes of the Army reorganization
act of 1901.
On the whole, I am clearly of opinion that after the appointment and
resignation of Captain A., and the detail of a captain of the line to
perform the duties of the office, the power of the President was
exhausted, since that appears to be the evident purpose of the law.
I therefore answer the first clause of your question in the negative,
the second clause in the affirmative.
Very respectfully,
P. C. KNOX.
JUDGES OF POLICE COURT-- DISTRICT OF COLUMBIA; 23 Op.Att'y.Gen.
572, November 5, 1901
Section 42 of the municipal code for the District of Columbia, which
goes into effect January 1, 1902 (31 Stat., 1196), does not vacate the
commissions of the judges of the police court nor require new
appointments of such judges.
DEPARTMENT OF JUSTICE,
November 5, 1901.
The PRESIDENT.
SIR: I have received your request of the 4th instant for my opinion
upon the question whether the municipal code of the District of
Columbia, which goes into effect January 1, 1902, vacates the
commissions of the judges of the police court and requires new
appointments of such judges.
Section 2 of the code provides that the judicial power in the
District--
"Shall continue as at present, to be vested in--
"First. Inferior courts, namely, justices of the peace and police
court; and
"Second. Superior courts, namely, the Supreme Court of the District
of Columbia, the Court of Appeals of the District of Columbia, and the
Supreme Court of the United States."
Section 60 of the code provides:
"Constitution: The Supreme Court of the District shall continue as
at present constituted, and consist of a chief justice and five
associate justices, appointed by the President of the United States, by
and with the advice and consent of the Senate, and holding their offices
during good behavior."
Section 221 of the code reads as follows:
"Constitution: The Court of Appeals of said District shall continue
as at present organized and shall consist of one chief justice and two
associate justices, who shall be appointed by the President, by and with
the advice and consent of the Senate, and shall hold office during good
behavior."
Section 42 of the code begins as follows:
"Constitution: There shall continue to be a Police Court in the
District, as at present, consisting of two judges learned in the law,
appointed by the President, by and with the advice and consent of the
Senate, for the term of six years," etc.
This last section and the one following merely transcribe into the
new code the provisions of law under which the police court was
constituted and has been acting.
Comparing, in the light of this fact, the language of section 42 with
that of sections 2, 60, and 221, above quoted, it seems clear that the
intention was to continue, and not to terminate, the police court as at
present existing. It will continue by virtue of the new law as it was
constituted under the old.
Your question is therefore answered in the negative.
Respectfully,
P. C. KNOX.
PORTO RICO-- RENT OF POST-OFFICE BUILDING; 23 Op.Att'y.Gen. 571,
October 29, 1901
The Postmaster-General may properly refuse the demand of the Insular
government of Porto Rico for rent for the post-office building at San
Juan which belonged to the Spanish Government and came into the
possession of the United States with the cession of Porto Rico.
The question whether certain public buildings and structures in Porto
Rico are owned by the United States or Porto Rico, and whether various
public utilities and functions are to be controlled or exercised by the
National or local government under the treaty with Spain and existing
laws, not decided.
DEPARTMENT OF JUSTICE,
October 29, 1901.
The POSTMASTER-GENERAL.
SIR: I have the honor to acknowledge the receipt of your letter of
October 5, in which you state that the post-office at San Juan, P.R., is
located in a building claimed to be owned by the Insular government, for
which that government demands rent running back to May 1, 1900; that
your Department is in doubt whether the building, having belonged to the
Spanish Government, and having come into the possession of the United
States Government with the cession of Porto Rico, is not a United States
Government building, and therefore whether the post-office should not be
exempt from rent as any other Government building thus occupied.
You submit the question as to the status of this building, and
request my opinion on the query whether the claim for rent is well
founded.
The general question whether certain public buildings and structures
in Porto Rico are owned by the United States or Porto Rico, and whether
various public utilities and functions are to be controlled or exercised
by the National or Island government under the treaty with Spain and
existing laws, is now under careful review, to the end that a
comprehensive determination and settlement may be reached. It may well
turn out that the question in this large aspect, or in reference to any
particular phase and concrete property right, is one which fitly
requires judicial review and decision rather than executive opinion.
But although, because of this consideration, I do not now attempt to
reason the subject out in the abstract and reach a broad conclusion, I
have no hesitation in advising you that you may properly refuse the
demand of the Insular government for rent for the post-office building
at San Juan, which you state belonged to the Spanish Government and came
into the possession of the United States with the cession of Porto Rico.
Very respectfully,
P. C. KNOX.
CULEBRA ISLANDS-- ASSIGNMENT AS NAVAL BASE; 23 Op.Att'y.Gen. 564,
October 25, 1901
Under the treaty of peace with Spain (30 Stat., 1755), the Culebra
Islands constitute a part of Porto Rico.
By the thirteenth section of the act of April 12, 1900, providing a
civil government for Porto Rico (31 Stat., 77), Congress committed to
local control, subject to the express limitation upon the local
legislative power, the administration of certain public property and
utilities, including "harbor shores, docks, slips, and reclaimed lands,"
but excluding "harbor areas or navigable waters."
Since the General Government made no reservation, express or implied,
of any zone or strip of harbor shore not intended to be surrendered to
the local government by that act, the United States should obtain, in
accordance with the usual methods of authorization by Congress, a
transfer of such individual property rights as may be involved, and a
retrocession pro tanto from the government of Porto Rico of such part of
the Culebra Islands as may be needed for a naval station.
The Navy Department would not be warranted in requesting the
President to make assignment to it of the Culebra group of islands for a
naval base, so far, at least, as that portion of the plan is concerned
which involves harbor shores, or any other branch of the rights and
property committed by section 13 of the act of April 12, 1900, to the
administration of the government of Porto Rico.
DEPARTMENT OF JUSTICE,
October 25, 1901.
The SECRETARY OF THE NAVY.
SIR: I have the honor to reply herewith to your letter of October
15, in which you inform me that the general board of the Navy Department
has recommended that the President be requested to assign by Executive
order the Culebra group of islands east of Porto Rico, for the use of
the Navy as an advanced naval base; and thereupon you request my
opinion on the question whether in view of the provisions of the Porto
Rican act of April 12, 1900 (31 Stat., 77), and of the establishment in
Porto Rico of the government authorized by said act, the Navy Department
will be warranted in requesting the President to make assignment to it
of said group of islands for the purpose mentioned. The general board
state that these islands have "an excellent harbor, capable of quick and
easy defense, with an anchorage near by of sufficient size to enable all
the vessels of our fleet to coal and receive other supplies."
There can be no doubt that the sovereignty over and complete rights
of property on the side of public domain in the Culebra Islands, passed
to the United States under the treaty with Spain, subject to the private
property rights of municipalities, corporate bodies, or individuals.
Arts, II and VIII; 30 Stat., 1755, 1758.) It is equally certain that
the Culebra Islands are included in the law cited, as part of Porto
Rico, because the first section of that law provides "that the
provisions of this act shall apply to the Island of Porto Rico, and to
the adjacent islands and waters of the islands lying east of the
seventy-fourth meridian of longitude west of Greenwich, which were ceded
to the United States by the Government of Spain by treaty entered into
on the tenth day of December, eighteen hundred and ninety-eight; and
the name Porto Rico as used in this act shall be held to include not
only the Island of that name, but all the adjacent islands as
aforesaid."
It is to be noted that on March 29, 1899-- that is to say, more than
a year before the passage of the Porto Rican act-- the President by
proclamation reserved for naval purposes certain lands on the island of
Porto Rico proper, lying to the eastward of the city of San Juan (31
Stat., 1947). The act itself in section 12 imposes upon the government
of Porto Rico the expenses incurred in the conduct thereof, 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." The thirteenth section of the act provides--
"That all property which may have been acquired in Porto Rico by the
United States under the cession of Spain in said treaty of peace in any
public bridges, road houses, water powers, highways, unnavigable
streams, and the beds thereof, subterranean waters, mines, or minerals
under the surface of private lands, and all property which at the time
of the cession belonged, under the laws of Spain then in force, to the
various harbor-works boards of Porto Rico, and all the harbor shores,
docks, slips, and reclaimed lands, but not including harbor areas or
navigable waters, is hereby placed under the control of the government
established by this act to be administered for the benefit of the people
of Porto Rico; and the legislative assembly hereby created shall have
authority, subject to the limitations imposed upon all its acts, to
legislate with respect to all such matters as it may deem advisable."
And the thirty-first section, with its proviso, reserves to Congress
the opportunity and authority to annul laws enacted by the legislative
assembly of Porto Rico.
So it seems that Congress committed to local control, subject to the
expressed limitation upon the local legislative power, the
administration of certain public property and utilities, including
"harbor shores, docks, slips, and reclaimed lands," but excluding
"harbor areas or navigable waters."
I have had occasion to point out, in an opinion addressed to the
Secretary of War bearing date October 17, the uncertain delimitation
indicated by this language between the local and Federal control, and to
state, in effect, that the national jurisdiction over "harbor areas and
navigable waters" is properly to be exercised in accordance with the
provisions of the river and harbor act of March 3, 1899 (30 Stat.,
1121), with especial reference to section 10 thereof (id., 1151).
The obvious implication of sections 12 and 13 of the Porto Rican act
is that the General Government retains title to, possession of, and
control over certain other public property, of which fortifications and
their appurtenances are specified, and also reserves for its own
administration the usual national powers over lights, buoys, and other
matters affecting navigation or "works undertaken by the United States."
From all this it is certain that the ordinary national control of the
marine belt affects the coastal waters of Porto Rico as well as those of
any State or any other Territory of the United States. But I am unable
to escape from the conclusion that when harbor margins are involved, the
Government of the United States, by reason of these grants of Congress
to the government of Porto Rico, is now is the same position with
reference to the island government, as well as to private owners, as it
would be in a similar case affecting a State of the United States.
In such case the Constitution indicates the proper course to be taken,
to which the practice of the Government has conformed, by providing that
Congress may "exercise exclusive legislation * * * 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" (Art. I, sec. 8, cl. 17). It is
not needful in this case to withhold the analogy because the word
"State" alone is used in this provision, for Congress appears clearly to
have placed the Territory of Porto Rico on the same plane as a State, in
this respect at least, by its surrender of a large share of public
property and functions to the local control.
It is true that Mr. Cushing, in an opinion respecting military
reservations in Oregon (6 Opin., 157), says:
"In general, the decision as to the quantity of land to be reserved
for public use, and the places where to be located, rests in the
discretion of the President, subject to such regulations as Congress may
from time to time make, either as to the particular public use, or the
quantity capable of reservation therefor, or as to the disposal, for
private use, of the whole or any part of that which may have been set
apart for public use."
But that statement was made with reference to the particular
condition of Oregon and special legislation bearing thereon, from which
it appeared that in the organic act for the government of that
Territory, it was provided that "no law shall be passed interfering with
the primary disposal of the soil:" and that "all laws heretofore passed
in said Territory making grants of land or otherwise affecting or
encumbering the titles to lands shall be and are hereby declared to be
null and void." The legislation of Congress further provided "that such
portions of the public lands as may be designated under the authority of
the President of the United States for forts, magazines, arsenals,
dockyards, and other needful public uses shall be reserved and excepted
from the operation of this act" (sec. 14, act of September 27, 1850, 9
Stat., 496; act of February 14, 1853, 10 Stat., 158).
In view of this legislation, Mr. Cushing thus disposes of an
objection to the power of the President found in an act of the
legislature of Oregon which was approved by Congress:
"It is idle to suppose that the legislature of the Territory in
passing that law, or that Congress in approving it, intended to divest
the United States of the title and use of the fort and barracks at Fort
Vancouver, * * * and if such an act of local legislation could by strong
imagination be of itself construed into a grant of land, or as affecting
or encumbering the title of the United States, then such act of the
local legislature is ipso facto null and void by express provision of
the act of Congress."
The difference between the two cases may thus be stated: In the
Oregon case the right of the United States to dispose of the public
domain was plainly and necessarily reserved, and the title of the
Government and the authority of the President respecting portions of the
public lands for forts, etc., and other needful public uses were
expressly reserved. In the case of Porto Rico there are no such clear
reservations, and while among the statutory laws of the United States
applicable to Porto Rico appear to be included the laws relating to
public lands, so far as applicable-- since it is not "otherwise
provided" in the Porto Rican act (sec. 14, et passim)-- and while among
the things and matters committed to local control by section 13, public
lands as such are not included, nor the general littoral of the islands,
yet it is clear beyond peradventure that 'harbor shores, docks, slips,
and reclaimed lands" are explicitly entrusted or granted to the control
and administration of the island government. At the same time I think it
is beyond question that section 1851, Revised Statutes, declaring that
"no law shall be passed (by a Territorial legislature) interfering with
the primary disposal of the soil," is a complete denial of power in the
government of Porto Rico to dispose of public lands. (6 Opin., ut
supra.)
It seems fitting here to examine briefly the bases and extent of the
President's power to create a public reservation by Executive order or
proclamation.
A reference is found in the act of September 4, 1841 (5 Stat., 453),
of which a portion of the eighth section is preserved in the Revised
Statutes (sec. 2378).
That act distributed among the States and Territories a certain residue
of the proceeds of sales of public lands, and by the eighth section
provided for the grant to certain States of land for purposes of
internal improvement, excepting such land "as is or may be reserved from
sale by any law of Congress or proclamation of the President of the
United States." A similar grant is then made to new States as admitted,
including the quantity that was granted while such State was under
Territorial government. (Sec. 2378, R.S.)
Another instance of the same power is found in sections 2458 and 2459
of the Revised Statutes, by which the reservation of timber lands for
naval purposes from vacant and unappropriated lands of the United States
was authorized. And a recognition of the established practice of making
reservations for military and other public purposes is found in section
2393 of the Revised Statutes, by which the statutory provisions
affecting the reservation and sale of town sites on the public lands are
declared not to be applicable to such other reservations.
Still another illustration is found in section 24 of the act of March
3, 1891 (26 Stat., 1095), which authorizes the President from time to
time to "set apart and reserve in any State or Territory having public
land bearing forests, in any part of the public lands wholly or in part
covered with timber or undergrowth, whether of commercial value or not,
as public reservations, and the President shall, by public proclamation,
declare the establishment of such reservations and the limits thereof."
The principle underlying Indian reservations is stated in section
1839, Revised Statutes, by which unextinguished Indian territory is not
to be embraced within the territorial limits or jurisdiction of any
State or Territory until the tribe interested signifies its assent to
the President.
As various reservations for military, naval, and other purposes are
abandoned or become useless, Congress has provided for the restoration
to the public domain and sale and disposal of the same (e.g., act of
July 5, 1884, 23 Stat., 103; sec. 9, act of March 3, 1891, ut supra;
act of March 2, 1895, 28 Stat., 814).
Other provisions affecting our inquiry are found in section 355 of
the Revised Statutes, providing that no public moneys shall be expended
upon any site purchased by the United States for purposes of erecting
thereon any armory, navy-yard, light-house, etc., or other public
building of any kind whatever, until the opinion of the Attorney-General
shall have been had upon the validity of the title, nor until the
consent of the State, in which such land or site may be, to the
purchase, has been given (See resolution of Sept. 11, 1841, from which
this section was drawn; 5 Stat., 466). Section 1828 of the Revised
Statutes authorizes the President to procure the assent of the
legislature of any State within which purchase of land has been made for
the erection of forts, etc., without such consent having been obtained;
section 4660 authorizes the Light-House Board, under a certain
restriction, to purchase the necessary land for new light-houses; and
section 4661 provides that no light-house, beacon, public piers, or
landmark, shall be erected on any site until cession of jurisdiction
over the same has been made to the United States.
Typical laws with respect to such cessions by a State, showing how
consent of the local authority is shown or may be obtained, will be
found in the act of April 1, 1790 (1 Stat., 106), and the resolution of
January 24, 1827 (4 Stat., 245). See also act of June 1, 1872 (17 Stat.,
214); act of March 3, 1873 (id., 614); act of September 1, 1888 (25
Stat., 452).
In view of the foregoing principles and laws, therefore, if or so far
as the proposed naval base on the Culebra Islands is not included in
existing defenses, barracks, or other national property and works ceded
by Spain, or in such harbor control as has been reserved to the United
States; and since it does not appear that among the reservations to the
General Government, express and implied, is embraced some zone or stip
of harbor shores formerly belonging to the Crown of Spain and taken over
by this Government, and not intended to be surrendered to the local
government by the Porto Rican act, it seems to me that the United States
should obtain, in accordance with the usual methods of authorization by
Congress, a transfer of such individual property rights as may be
involved, and a retrocession pro tanto from the government of Porto
Rico.
Congress may see fit, by some new law, to make it clear that the grant
of local control and administration is subject to such exception for
national purposes as this case suggests, and may thereupon define the
field generally or by special location, establishing appropriate methods
and rules of procedure in making Federal reservations from public lands
in Porto Rico.
But, in view of existing provisions of law, I hold and advise you
that the Navy Department would not be warranted in requesting the
President to make assignment to it of the Culebra group of islands for a
naval base, so far, at least, as that portion of the plan is concerned
which involves harbor shores or any other branch of the rights and
property committed to the administration of the government of Porto Rico
by section 13 of the Organic act.
Very respectfully,
P. C. KNOX.
PORTO RICO-- LICENSE TO CONSTRUCT WHARF; 23 Op.Att'y.Gen. 551,
October 17, 1901
The coastal waters, harbors, and other navigable waters of the Island
of Porto Rico are waters of the United States within the meaning and
intent of section 10 of the river and harbor act of March 3, 1899 (30
Stat., 1151), although the ratifications of the treaty whereby that
Island was ceded by Spain to the United States were not exchanged until
after the passage of that act.
The relinquishment of sovereignty over and the cession of domain by
Spain to the United States of the island of Porto Rico by the treaty of
Paris of April 11, 1899 (30 Stat., 1754), must be regarded as immediate
and absolute from the date of its signature, subject only to the
possibility of a failure of ratification.
While as respects performance of conditions of a grant by a private
grantee, the date of a treaty is the date of its final ratification, so
far as it affects the relations of the sovereigns concerned, it
operates, when ratified, from the date of its signature.
Prior to the passage of the Porto Rican act of April 12, 1900 (31
Stat., 77), the Secretary of War had authority, under section 10 of the
river and harbor act of March 3, 1899 (30 Stat., 1151), to issue a
license for the building and maintenance of a wharf in the harbor of San
Juan, P.R., and the rules imposed by section 3 of the resolution of May
1, 1900 (31 Stat., 715), upon the grant of franchises by the Executive
Council of that Island do not extend to an antecedent license granted by
him.
The power to revoke the license so granted is vested in the Secretary
of War, and so long as it is unrevoked, the rebuilding of the wharf,
under such license, is subject to his control and supervision, and not
to that of the Executive Council.
DEPARTMENT OF JUSTICE,
October 17, 1901.
The SECRETARY OF WAR.
SIR: Your letter of June 20 refers me to section 10 of the river and
harbor act of 1899 (30 Stat., 1151), prohibiting unauthorized
obstructions to navigation in any of the waters of the United States and
providing for control by the Secretary of War, within certain
restrictions, of wharves and similar structures in ports and other
waters of the United States. After citing that provision of the Porto
Rican act of April 12, 1900 (31 Stat., 80, sec. 14), which, with
particular exceptions, extends to Porto Rico the statutory laws of the
United States not locally inapplicable, you inform me that the War
Department issued a certain license, dated February 28, 1900, in lieu of
a former license, to build and maintain a wharf in the harbor of San
Juan; that the wharf built in pursuance of this authority has been
largely destroyed by fire and that the licensee contemplates rebuilding.
You also state that the Executive Council of Porto Rico have granted a
franchise, subject to local control, to the licensee, and that the Navy
Department protests against the reconstruction of the pier on the
present site because of asserted injury to the harbor. The objection of
the Navy Department has, however, been considered by the Chief of
Engineers of the Army, who concludes that "there would appear to be no
necessity for revoking the license or prohibiting any rebuilding which
the company may desire to undertake." Thus the inference is apt that the
licensee stands on your authority under the law and its claimed rights
under the license, and the question appears for my opinion whether
section 10 of the act of 1899, supra, is in force in Porto Rico, or
applies to the navigable waters of Porto Rico, so that the wharf in
question can not be rebuilt "unless the work has been recommended by the
Chief of Engineers and authorized by the Secretary of War prior to
beginning the same."
I lay aside, as not within the scope of my inquiry, the question of
your discretionary power to revoke the license. It seems clear, from the
nature and language of this instrument and from the law as to such
grants, that the license is absolutely revocable at will by the
Secretary of War, whatever claims the licensee, in case of revocation,
might found upon its terms. The matter of revocation, as between this
Government and the licensee is wholly in your hands.
It will be well to set forth the laws which control or affect the
inquiry propounded. Section 10 of the act of March 3, 1899 (30 Stat.,
1151), provides:
"That the creation of any obstruction not affirmatively authorized by
Congress, to the navigable capacity of any of the waters of the United
States, is hereby prohibited; and it shall not be lawful to build or
commence the building of any wharf, pier, dolphin, boom, weir,
breakwater, bulkhead, jetty, or other structures in any port, roadstead,
haven, harbor, canal, navigable river, or other water of the United
States, outside established harbor lines, or where no harbor lines have
been established, except on plans recommended by the Chief of Engineers
and authorized by the Secretary of War; and it shall not be lawful to
excavate or fill, or any manner to alter or modify the course, location,
condition, or capacity of any port, roadstead, haven, harbor, canal,
lake, harbor of refuge, or inclosure within the limits of any
breakwater, or of the channel of any navigable water of the United
States, unless the work has been recommended by the Chief of Engineers
and authorized by the Secretary of War prior to beginning the same."
Section 14 of the act of April 12, 1900, "temporarily to provide
revenues and a civil government for Porto Rico, and for other purposes"
(31 Stat., 77-80), provides:
"That the statutory laws of the United States not locally
inapplicable, except as hereinbefore and hereinafter otherwise provided,
shall have the same force and effect in Porto Rico as in the United
States, except the internal-revenue laws, which, in view of the
provisions of section three, shall not have force and effect in Porto
Rico."
Other sections of the Porto Rican act which bear upon the question
are as follows:
Section 13 provides that--
* * * "all property which at the time of the cession belonged, under
the laws of Spain then in force, to the various harbor-works boards of
Porto Rico, and all the harbor shores, docks, slips, and reclaimed
lands, but not including harbor areas or navigable waters, is hereby
placed under the control of the government established by this act to be
administered for the benefit of the people of Porto Rico; and the
legislative assembly hereby created shall have authority, subject to the
limitations imposed upon all its acts, to legislate with respect to all
such matters as it may deem advisable."
Section 32 of the same act provides:
"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."
Sections 13 and 32 should be read in connection with the proviso to
section 31, which is:
* * * "Provided, however, That all laws enacted by the legislative
assembly shall be reported to the Congress of the United States, which
hereby reserves the power and authority, if deemed advisable, to annul
the same."
The second section of the joint resolution of May 1, 1900 (31 Stat.,
715), provides:
"That 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."
Section 3 of this resolution imposed certain provisions on franchises
granted under the act, and limited the functions of corporations thus
created.
I am of the opinion that the coastal waters, harbors, and other
navigable waters of the Island of Porto Rico are waters of the United
States within the meaning and intent of section 10 of the river and
harbor act of 1899, for the following reasons:
When that act was passed, the treaty by which Porto Rico was ceded
had been negotiated, and had been approved by the Senate, although
ratifications had not been exchanged; that Island, with respect to time
subsequent to ratification, has been called "territory of the United
States" (De Lima v. Bidwell, 182 U.S. 1, 200), and "territory
appurtenant and belonging to the United States" (Downes v. Bidwell, 182
U.S. 244, 287). The necessity for the interchange of ratifications to
give the treaty full effect seems to influence individual rights (Haver
v. Yaker, 9 Wall., 321, as cited in Dooley v. United States, 182 U.S.,
222, 230), rather than public interests, international relations, or
incidents of sovereignty. In other words, in this region the doubt
whether the words "the United States" include its Territories, and the
further doubt whether those words would include this territory before
the treaty was ratified, would be misplaced. For, although the treaty
was not fully ratified until after the river and harbor act of 1899 was
passed, the fact that it had been negotiated, that the Senate had
advised ratification, and the President has ratified it, and the
knowledge of its provisions were before Congress when they enacted this
legislation. Furthermore, the policy and intention of Congress are also
shown by the extensions to Porto Rico, under the Organic act of 1900, of
all statutes of the United States not locally inapplicable; and,
specifically upon this subject, by section 9 of that act, regulating
trade between Porto Rico and the United States as coasting trade.
Congress, since the ratification of the treaty with Spain, has nowhere
indicated that Porto Rican waters are not to be regarded as waters of
the United States, nor directed that your authority under the river and
harbor act of 1899 shall not extend to Porto Rican waters. On the
contrary, Congress has used language in the Porto Rican act, as for
instance in section 13, which clearly contemplates national jurisdiction
over those waters as waters of the United States.
Inasmuch as this case may be decided on a strict view (as you will
perceive), without deciding conclusively and generally the question of
the applicability of the river and harbor act, I think it well to dwell
somewhat further on the points just raised. For, after all, your general
jurisdiction under the river and harbor act is so intimately connected
with the particular circumstances, that I think I may properly decide
that question if my conclusion is free from serious doubt. The
distinction, in the abstract, respecting the time when a treaty takes
effect, between those public relations which import dominion and
sovereignty on the one hand, and private rights on the other, is founded
upon an accepted principle, which is thus stated by Halleck (Int. Law:
San Francisco, 1861, p. 815):
"We have already remarked, that when one belligerent acquires
military possession of territory belonging to an enemy, the sovereignty
and dominion of the latter is suspended. If such possession be retained
till the completion or confirmation of the conquest, the temporary
dominion thus acquired by the conqueror becomes full and complete,
plenum dominium et utile. Moreover, this confirmation or completion of
the conquest has, so far as ownership is concerned, a retroactive
effect, confirming the conqueror's title from the date of the conquest."
* * *
It is difficult to conceive that so far as matters of sovereign
dominion are concerned there is any break of continuity between the
cessation of hostilities and the negotiation of a treaty of cession, or
between negotiation and ratification; and if ratification is followed
by legislation respecting the acquired territory, which fully emphasizes
the assumption of the new duties and rights of sovereignty, I can
perceive no valid reason for doubting that this sovereignty extends over
all the usual public phases thereof, including the jurisdiction over
public waters, from the moment when hostilities resulted in military
control of the acquired territory.
"When a country which has been conquered, is ceded to the conqueror
by the treaty of peace, the plenum et utile dominium of the conqueror
will be considered as having existed from the beginning of the
conquest." (Halleck, ut supra, p. 831.)
"But when is the treaty to be considered as concluded (in the absence
of any stipulation of this point), at the time of its signature, or of
its ratification? Upon this question, there is some difference of
opinion, although the weight of authority is, that no public treaty
begins to operate till it has passed through all the necessary forms and
been ratified. It may have a retroactive effect, and relate back to the
time of signing, if so provided in the treaty itself, but not otherwise.
* * * But the act of ratification may operate with retrospective effect,
to confirm the treaty according to the terms of its provisions."
(Halleck, p. 855, and auth. cit.)
The foregoing statement calls for further examination. At a time when
this country was complaining of Spain's action in delaying or declining
to ratify a treaty, it was said by President Monroe that "a treaty
concluded in conformity with instructions is obligatory in good faith in
all its stipulations, according to the true intent and meaning of the
parties. Each party is bound to ratify it." (Third Annual Message, 1819;
2 Wharton, pp. 7-9, sec. 131.) "The difference between the treaty
unratified and ratified may be likened to the difference between a
covenant to convey lands and the deed of conveyance itself. Upon a
breach of the covenant to convey, courts of equity decree that the party
who has broken his covenant, shall convey, etc. As there is no court of
chancery between nations, their differences can be settled only by
agreement or by force. * * * The King of Spain was bound to ratify the
treaty, etc." (Mr. Adams as Secretary of State; Wharton, ut supra.)
Now, the general maxim that public conventions do not become obligatory
until ratified is firmly established, and the later insistence of this
Government has been that, in view of the constitutional functions of the
Senate as part of the treaty-making power (of which foreign governments
are aware), differentiating our case from that of a sovereign promising
to ratify an agreement which he himself, through his minister, has
concluded, a treaty negotiated for this country is not effective until
the consent of the nation through assent by the Senate is given.
(Wharton, ante et passim.) Nevertheless, the principle of binding
obligation is so far in force as to justify the statement that a treaty
is a valid agreement from the conclusion of negotiations, although
subject to rejection, and is inchoate only because of this latter fact.
The Supreme Court has decided that, as respects performance of the
conditions of a grant by a private grantee, the date of a treaty is the
date of its final ratification, but that so far as affects the relations
of the sovereigns concerned, it operates when ratified from the date of
its signature, and that, unless otherwise provided, treaties in their
public relations take effect from signature, to which period the
ratification relates back. This was decided specifically in regard to
the treaty by which France ceded Louisiana to the United States, and the
treaty of St. Ildefonso, by which France acquired Louisiana from Spain.
(United States v. Arredondo, 6 Pet., 691; Haver v. Yaker, ut supra;
United States v. Reynes, 9 How., 127; Davis v. Concordia, id., 280; 2
Whart.Int. Law Dig., p. 27, sec. 132.)
I observe also that the Senate advised ratification, and the
President ratified this treaty February 6, 1899, although the formal
exchange of ratifications did not take place until April 11, 1899 30
Stat., 1754). And while certain provisions became operative from the
date of exchange of ratifications, and others upon signature (e.g.,
Arts, IV, VI), the relinquishment of sovereignty and cession of domain,
which were the main purposes of the treaty, and were formulated in
several articles, are unqualified and must be regarded as immediate and
absolute from the date of signature, subject only to the possibility of
a failure of ratification. It is impossible to suppose that the
sovereignty of the United States in its full scope did not attach at
once or was suspended until ratification should be complete.
Thus narrowing down the point to be decided, apart from the abstract
proposition effecting all treaties, since this treaty was ratified and
related back to a date before the adoption of the river and harbor act
of 1899, and since the Porto Rican act applied to that territory
statutes of the United States not locally inapplicable, I have no
hesitation in reaching the conclusion that "navigable waters of the
United States" covered by the said river and harbor act include
navigable waters of Porto Rico.
But the river and harbor act of 1899 gives you control over the
specified harbor structures "outside established harbor lines or where
no harbor lines have been established." That is a definite limitation of
your powers to harbor areas outside the established lines, and is in
accordance with a continuous policy and practice respecting the
demarcation between State and Federal jurisdiction along and over port
waters. In the absence of any statement by you, the assumption that the
pierhead of this wharf falls within the established line in San Juan
Harbor seems neither violent nor improper. If such is the case, the
answer to your question, were it not for the existing license, would
necessarily be that although section 10 of the river and harbor act of
1899 applies to the navigable waters of Porto Rico, nevertheless the
rebuilding of the wharf, "except on plans recommended by the Chief of
Engineers and authorized by the Secretary of War," is not forbidden.
The concluding clause of section 10, which you quote as the applicable
condition, seems to refer rather to alterations in the location or
capacity of a port, short of the obstructions which are absolutely
prohibited.
Because of the outstanding license, however, I am compelled to
broaden the inquiry somewhat, and to find an essential question
necessarily involved in the question you actually put; although this
step carries me to the line of statutory rules and Department etiquette.
You may be willing to assent to this formulation of the involved
question: Has the license of the Secretary of War been supplanted or
modified by later legislation or the action of the local authorities
thereunder?
I have heretofore quoted certain provisions of the Porto Rican act
and of a supplemental law, which show that along with scrupulous care by
Congress to reserve to itself, or the President, the power to annul
local laws and to disapprove franchise grants, an intent is nevertheless
manifest to commit to the Porto Rican government and legislative
assembly control of harbor margins and dock structures along with other
branches of local autonomy, in accordance with one of the fundamental
principles of this nation. The field or scope of this control is not,
however, accurately defined, and, so far as I am aware, no regulations,
established practice, nor modus agreed upon by the respective
authorities are in existence, by which, on the one hand, "harbor shores,
docks, slips, and reclaimed lands" (sec. 13), describing the Territorial
jurisdiction, and, on the other, "harbor areas and navigable waters"
(Id.), indicating the Federal reservation of control, are clearly
delimited. As this section of the statute is not fairly before me under
your reference, I shall not attempt, and, indeed, am not permitted, to
construe and settle its meaning. In any case it seems dubious whether
such national control as may possibly extend within established harbor
lines in the ports of Porto Rico, is to be exercised through the
particular agency and forms prescribed by an earlier law, which halts
that agency at established harbor lines, and can include this different
situation only by force of a certain inconsistent analogy and inference.
But even if the precise intent of Congress and the exact line between
National and Territorial control be regarded as clear, so as to confer
upon the Porto Rican government jurisdiction in general over such
structures, so located, after May 1, 1900 (sec. 41 of the Porto Rican
act), that result would be no means determine the rule in this
particular case. I pass, then, to the underlying point suggested by the
question which I have volunteered, viz, the effect of an ordinance of a
subsequent civil government upon such precedent exercise of the war
power as the license herein granted.
In the case of New Orleans v. Steamship Co. (20 Wall., 387), it
appears that under the military occupation of New Orleans during the
Civil was a lease of water-front property was made to a steamship
company by city authorities appointed by the commanding general. The
lease granted exclusive rights for a term of ten years, upon payment of
an annual rental, and the company expended a large sum of money upon
improvements specified in the lease. Seven months after the execution of
the lease, an order of the commander forbade the military city
authorities to grant rights extending beyond the establishment of civil
government, and less than two months later the city government was
transferred to the proper civil authorities. A month thereafter, these
authorities undertook to remove by force a part of the company's wharf
property. In the consequent proceedings brought by the company for an
injunction and damages, the argument was pressed for the city that the
military government had no power to lease property held in trust by the
city for public use; that whatever rights or powers the military
authorities possessed terminated with the termination of hostilities.
But the Supreme Court sustained the refusal of the lower court to admit
the order, subsequent to the lease, restricting the power of the
military government of the city, and held (p. 394) that--
In such cases (of conquests of territory) the conquering power has a
right to displace the preexisting authority, and to assume to such
extent as it may deem proper the exercise by itself of all the powers
and functions of government. It may appoint all the necessary officers
and clothe them with designated powers, larger or smaller, according to
its pleasure. It may prescribe the revenues to be paid, and apply them
to its own use or otherwise. It may do anything necessary to strengthen
itself and weaken the enemy. There is no limit to the powers that may be
exerted in such cases, save those which are found in the laws and usages
of war. These principles have the sanction of all publicists who have
considered the subject. * * *
"It can hardly be doubted that to contract for the use of a portion
of the water front of the city during the continuance of the military
possession of the United States was within the scope of their authority.
But conceding this to be so, it is insisted that when the military
jurisdiction terminated the lease fell with it. We can not take this
view of the subject. The question arises whether the instrument was a
fair and reasonable exercise of the authority under which it was made.
A large amount of money was to be expended and was expended by the
lessees. The lease was liable to be annulled if the expenditures were
not made and the work done within the limited time specified. The war
might last many years, or it might at any time cease and the State and
city be restored to their normal condition. The improvements to be made
were important to the welfare and prosperity of the city. The company
had a right to use them only for a limited time. The company was to keep
them in repair during the life of the lease, and at its termination they
were all to become the property of the city. In the meantime the rental
of $8,000 a year was to be paid. * * *
"We think the lease was a fair and reasonable exercise of the power
vested in the military mayor and the two boards, and that the injunction
awarded by the court below was properly decreed. The jus post liminium
and the law of nuisance have no application to the case.
"We do not intend to impugn the general principle that the contracts
of the conqueror touching things in conquered territory lose their
efficacy when his dominion ceases.
"We decide the case upon its own peculiar circumstances, which we
think are sufficient to take it out of the rule."
So here it seems to me that this valid exercise of the war power by
the direct personal action of the Secretary of War, not operating
through subordinates, is not displaced nor revoked by the action of the
local authorities, proceeding under a power which, in its application to
these circumstances, and in its implied effect, is solely a matter of
inference from the apparent intent of Congress in the Porto Rican act.
No subsequent curtailment of your power appears, and, indeed, the later
restriction in the New Orleans case was not permitted to influence the
previous action and the rights founded thereon. The rules imposed by
section 3 of the resolution of May 1, 1900, supra, upon the grant of
franchises by the Executive Council, obviously do not extend to the
antecedent license granted by the Secretary of War.
I know of no other authority than your own to determine whether the
license is a fair and reasonable exercise of the power conferred upon
you. Certainly this proposition is true in the present situation of the
case and the state of existing law. The revocable character of the grant
constitutes a less extensive privilege than the definite term in the
case cited. As your right to revoke is clear, I can not doubt that you
can revise the terms of the license for the benefit of the United States
or the Territory, if, in the changed condition of affairs, you now deem
its conditions disadvantageous or unreasonable respecting either
government.
Finally, I am scrupulous to point out that it is for you alone to
determine whether the indications of the intent of Congress in the
legislation reviewed are so clear as to lead you, by revoking the
license, to surrender to such local control as may be legal, the
jurisdiction over this wharf, upon such settlement with the licensee, on
behalf of the United States or Porto Rico, as you may deem necessary or
advisable. My opinion simply is, based on the decision in New Orleans v.
Steamship Co., that so long as you do not determine that question,
committed to your discretion, or until Congress may definitely pass upon
the matter, the license granted by you is not void, nor, so to speak,
functus officio. My ultimate answer to your question, therefore, is
that, while section 10 of the river and harbor act of 1899 applies to
the navigable waters of Porto Rico, the rebuilding of the wharf in
question, so long as the license is unrevoked, is subject to your
control and supervision, in accordance with the principles embodied in
the license, or upon such modifications of its terms as you may choose
to impose.
Very respectfully,
P. C. KNOX.
NAVAL COURT-MARTIAL-- ATTESTATION OF SENTENCE; 23 Op.Att'y.Gen.
550, October 11, 1901
The death of one of the members of a general court-martial after
sentence had been imposed, but before he had appended his signature to
the sentence, as required by article 52 of the Articles for the
Government of the Navy (sec. 1624, Rev. Stat.), does not render the
sentence void. It is sufficiently authenticated if attested by the other
members of the court.
DEPARTMENT OF JUSTICE,
October 11, 1901.
The SECRETARY OF THE NAVY.
SIR: I have received your request for an opinion upon the question
whether the judgment of a general court-martial sentencing Edward
Farrell, landsman, United States Navy, on July 5 last, to confinement
for one year for desertion, is or is not sufficiently authenticated.
The question arises from the fact that after the sentence was imposed
one of the members of the court was taken sick and died without having
appended his signature to the sentence.
It appears that the Department returned the record to have the
signature appended, and the president of the court indorsed the
following:
"Since the record in the case of Edward Farrell, landsman, was ready
for signature, Lieutenant-Commander Cresap has been off duty because of
illness, with small possibility of speedy recovery."
It further appears that a second effort was made to obtain the
signature, and that the physician attending the member of the court who
died decided that he was in no condition, either mentally or physically,
to sign any papers at all.
Article 52 of the Articles for the Government of the Navy (sec.
1624, Revised Statutes), provides that--
"The judgment of a court-martial shall be authenticated by the
signatures of the president and of every member who may be present when
said judgment is pronounced, and also the judge-advocate."
This provision concerning authentication is embraced in the British
Naval Laws, from which many of ours have been borrowed. The British
article is as follows:
"If the prisoner be found guilty of a breach of any of the articles
of war established by law, the court shall consider and determine on the
punishment proper to be inflicted in conformity therewith.
The judge-advocate shall draw up the sentence accordingly, being careful
to specify therein the charge, or substance of it; and the same shall
be signed by every member of the court, by way of attestation,
notwithstanding any difference of opinion there may have been among the
members."
The purpose of the British and American articles is doubtless the
same. They are intended to direct the officers of the court to sign the
sentence, notwithstanding they may not have concurred in the decision,
in order that the sentence may be known with certainty to have been
correctly recorded. The article orders officers under military
discipline to sign the sentence. It does not say that the fact that such
a sentence has been pronounced must be taken as nonexistent, however
clearly it can be proven, if they or some of them are not in a position
to sign as directed.
I see no reason for believing it to be the intent of the law, that in
a case like the present, the trial and sentence should go for naught,
and, therefore, answer your question in the affirmative.
Respectfully,
P. C. KNOX.
CHINESE LABORERS-- RETURN CERTIFICATES; 23 Op.Att'y.Gen. 545,
October 10, 1901
Article II of the convention with China of December 1, 1894 (28
Stat., 1210), abrogates that portion of section 7 of the act of
September 13, 1888 (25 Stat., 476), which requires a returning Chinese
laborer after an absence from the United States of more than one year
and less than two to present with his return certificate a certificate
of the consular representative of the United States at the port of
departure for this country, showing that the holder has been unable to
return sooner by reason of sickness, etc., and provides that this
certificate of disability shall be issued by the Chinese consul at the
port of departure from this country.
A treaty duly ratified is as much a part of the supreme law of the
land as a statute.
The later expression of the lawgivers will replace preceding law if
inconsistent or repugnant even if there is not an express repeal.
Opinions of May 20, 1896 (21 Opin., 347), and May 26, 1896 (21 Opin.,
357), reviewed and approved.
DEPARTMENT OF JUSTICE,
October 10, 1901.
The SECRETARY OF THE TREASURY.
SIR: Your letter of September 28 submits for my opinion, in respect
to six Chinese laborers seeking to reenter the United States at the port
of San Francisco upon "return certificates" more than one year after
departure from this country, the question whether Article II of the
convention of 1894 repeals that portion of section 7 of the act of
September 13, 1888, which requires a returning Chinese laborer, after an
absence of more than one year and less than two (the ultimate time limit
of the right), to present with his return certificate a certificate of
the consular representative of the United States at the port of
departure abroad, showing to the satisfaction of the collector of
customs at the domestic port of arrival that the holder has been unable
to return sooner by reason of sickness or other cause of disability
beyond his control.
It seems that these Chinamen have presented proper certificates on
this point from the Chinese consul-general at San Francisco, and it is
contended on their behalf that certificates by the United States
consular representatives at the port whence the applicants departed from
the United States, as required by section 7 of the act of 1888, are
unnecessary, upon the ground that the treaty of 1894 is the later
expression of the legislative will, and that the requirement of the act
of 1888 is not operative.
There seems to be no question in all these cases that San Francisco was
the port of departure from the United States, and that the applicants
applied for the return admission there within the two years from the
date of their respective departures; and your inquiry implies that the
right of the applicants has been shown to the satisfaction of the
collector of customs, provided that the proper officer to certify to the
disabling cause of detention beyond the year is the consular officer of
China at the port of departure in this country, and not the consular
representatives of the United States at the foreign port of departure on
the return voyage.
The exact language of the two laws in question is as follows:
"Convention of December 8, 1894, Article II (28 Stat., p. 1210):
* * * "and such right of return to the United States shall be
exercised within one year from the date of leaving the United States;
but such right of return to the United States may be extended for an
additional period not to exceed one year in cases where, by reason of
sickness or other cause of disability beyond his control, such Chinese
laborer shall be rendered unable sooner to return, which fact shall be
fully reported to the Chinese consul at the port of departure, and by
him certified to the satisfaction of the collector of the port at which
such Chinese subject shall land in the United States." * * *
Section 7, act of September 13, 1888 (25 Stat., p. 476):
"The right to return under the said certificate shall be limited to
one year; but it may be extended for an additional period, not to
exceed a year, in cases where, by reason of sickness or other cause of
disability beyond his control, the holder thereof shall be rendered
unable sooner to return, which facts shall be fully reported to and
investigated by the consular representative of the United States at the
port or place from which such laborer departs for the United States, and
certified by such representative of the United States to the collector
of customs at the port where such Chinese person shall seek to land in
the United States." * * *
The principles controlling this inquiry may be briefly stated. A
treaty duly ratified is as much a part of the supreme law of the land as
a statute. The later expression of the lawgivers will replace preceding
law if inconsistent or repugnant, even if there is not an express
repeal. While repeals by implication are not favored, where a later law
entirely substitutes new provisions for the scheme of the earlier law,
it is displaced by the later statute. (Cherokee Tobacco v. United
States, 11 Wall., 616; Foster v. Neilson, 1 Pet., 314; Taylor v.
Morton, 2 Curt., 454; Murdock v. Mayor of Memphis, 12 Wall., 590.)
The rule is thus stated in United States v. Tynen, (11 Wall., 88):
"Even where two acts are not in express terms repugnant, yet if the
latter act covers the whole subject of the first and embraces new
provisions, plainly showing that it was intended as a substitute for the
first act, it will operate as a repeal of that act."
The force of this treaty and its effect upon other laws have been
considered by my predecessors. Thus, in respect to another provision of
this treaty, requiring an entrance certificate of a certain character
from Chinese not laborers, belonging to the permitted classes, it was
held (21 Opin., 347) that the treaty provisions in question are
self-executing and modify or repeal a prior statute with which they are
in conflict; the query being whether an entrance certificate from the
Government of China, as required by the act of 1884, or from the
government where the applicant last resided, as the treaty declared, was
proper and necessary. You will observe that the point there was very
similar to the one now presented, and the conclusion announced goes far
to rule the present question.
In 21 Opinions, 357, which also considers this treaty, it is nowhere
suggested that it was not instantly effective and is not self-executing
in all its parts (see also Id., 424); and such, from the requests of
your predecessor for these opinions, seems to have been the view and
practice of the Treasury Department.
In the first of these opinions Mr. Harmon, after reasoning from a
comparison of the phrase used in Article ii that the fact of unavoidable
detention shall be certified by the proper Chinese consul in this
country, uses the following language:
"The only other possible construction is that the phrase 'Chinese
consul at the port of departure' was intended to designate our consuls
at Chinese ports, but such construction would require an entire change
of the language used. When that meaning was intended, Article III shows
that the makers of the treaty know how to express it. * * * While the
language of the section you submit is not explicit, and the question
presented can not therefore be answered with entire freedom from doubt,
my opinion is that the officer to whom the facts of sickness or
disability are to be reported is the consul who represents the Chinese
Government at the place whence the laborer left the United States."
It will be observed that there is no reference in these opinions to
the act of 1888 as operative in this field. This leads me to another
reason for concurring in the conclusions reached by Acting
Attorney-General Conrad, and those indicated with some hesitation by Mr.
Harmon.
The act of September 13, 1888, was passed with reference to a treaty
between the United States and China then pending, which was never
ratified. It has always been doubtful whether any part of this act took
effect. Section 1 made it unlawful after the ratification of that treaty
for any Chinese person to enter the United States "except as hereinafter
provided." That would seem to make the entire act dependent upon the
treaty. Section 15 obviously was never operative, because it expressly
imposes the condition of ratification. The Federal courts in various
districts have, for the most part, held that sections 2 to 4 and section
15 have no field of operation, but that other parts of the act,
especially sections 12 and 13, are in force; and it must be conceded
that hitherto the right of appeal of Chinamen from judgments of
deportation under section 13 has been recognized by the courts and not
resisted by the Government. Notes to the Treasury Digest of the Chinese
exclusion laws, 1899, page 15, note 1, and to 2 Supp.Rev.Stat., page
141, note 1, state the uncertainty on the subject and cite the
decisions.
The latter note shows that the formal attitude of the Treasury
Department has been that the act of September 13, 1888, was "dependent
upon the ratification of the then pending treaty with China, which
treaty was not ratified."
The Supreme Court, in the case of Wong Wing v. United States (163 U.
S., 486, 488, 490), the court say:
But the act of September 13, 1888, was passed to take effect upon the
ratification of a treaty then pending between the United States and the
Emperor of China, and it is conceded that such treaty never was
ratified. * * * Without finding it necessary to say that there are no
provisions in the act of September 13, 1888, which from their nature are
binding on the courts as existing statements of the legislative will, we
are ready to hold that section 12 of that act can not be so regarded."
I do not undertake now to say that there are no portions of the act
which are not in force, but the current doubt whether it is at all
operative has an important bearing upon the present inquiry. For the
language of section 7 of the act of 1888 is followed so substantially in
Article II of the treaty of 1894, and yet with such express variation as
to the feature before us, that we are impelled to conclude that Congress
deliberated upon the very point and clearly determined it by
establishing that variation instead of the rule of the act. I therefore
hold that Article II of the treaty has thus far replaced and abrogated
section 7 of the act, and I so answer your question.
Very respectfully,
P. C. KNOX.
LEGISLATURE OF HAWAII-- INCREASE OF CIRCUIT JUDGES; 23 Op.Att'y.
Gen. 539, October 9, 1901
The power of the Territorial legislature of Hawaii is that conferred
expressly or by proper implication by the organic act organizing that
Territory (31 Stat., 141), that act standing in relation to the
legislature of that Territory much as the Constitution of the United
States does to Congress.
The grant of the power of legislation conferred by section 55 of that
act, within the limitation prescribed, confers the power to organize the
courts of that Territory, to fix their jurisdiction, and the number of
their judges.
This grant of power is not an abdication by Congress of any of its
own power to legislate for the Territory, but only a grant of such
powers as Congress does not itself choose to exercise. This limitation
forbids the exercise of such power whenever and to the extent that it
has been exercised by Congress in subsisting enactments.
DEPARTMENT OF JUSTICE,
October 9, 1901.
The PRESIDENT.
SIR: The legislature of the Territory of Hawaii having passed an act
increasing from two to three the circuit court judges of the first
circuit in that Territory, the question of its power to do so is raised,
and by you referred to me for my views, which I have the honor to
submit, as follows:
The power of the Territorial legislature of Hawaii is just that
conferred expressly or by proper implication by the organic act
organizing that Territory (31 Stat., 141), that act standing in relation
to the legislature of that Territory much as the Constitution of the
United States does to Congress.
By section 55 of that act it is provided "that the legislative power
of the Territory shall extend to all rightful subjects of legislation
not inconsistent with the Constitution and laws of the United States,
locally applicable."
This, of course, would confer the power to organize the courts of the
Territory, fix their jurisdiction, the number of judges, etc., within
the limitation prescribed. But this limitation forbids the exercise of
such power whenever and to the extent that it has been exercised by
Congress itself in subsisting enactments. This grant of power is not an
abdication by Congress of any of its own power to legislate for the
Territory, but only a grant of such powers as Congress does not choose
to itself exercise; and the act itself is the exercise of very much
legislative power, both general and in detail.
And to the extent that in this organic act and otherwise it has done so,
legislation is forbidden to the Territorial legislature, for the
limitation not inconsistent with the laws of the United States means
also not inconsistent with the organic law then being enacted.
But this organic act in itself says nothing as to the number of
judges of the circuit court in any judicial circuit. Section 81 vests
the judicial power of the Territory in "one supreme court, circuit
courts, and in such inferior courts as the legislature may from time to
time establish," and section 82 fixes the number of the members of the
supreme court; but the only enactment fixing the number of circuit
judges in any circuit is the statute of the Republic of Hawaii, adopted
and continued in force by this act of Congress.
There can be no doubt that Congress may adopt as its own for a
Territory an act already prescribed by another legislature, or that by
so doing the law thus adopted becomes and is a law of Congress just as
much as if enacted by it in hec verba. This has frequently been done in
other instances than this, notably in the adoption for Indian
reservations and Territories of portions of the laws of neighboring
States.
The laws of the Republic of Hawaii, which are thus adopted by
Congress as part of the law of that Territory, are thus referred to in
that act, section 1:
"The phrase 'the laws of Hawaii,' as used in this act without
qualifying words, shall mean the constitution and laws of the Republic
of Hawaii in force on the twelfth day of August, eighteen hundred and
ninety-eight, at the time of the transfer of the sovereignty of the
Hawaiian Islands to the United States of America.
"The constitution and statute laws of the Republic of Hawaii then in
force, as set forth in a compilation made by Henry M. Ballou under the
authority of the legislature and published in two volumes, entitled
'Civil Laws' and 'Penal Laws,' respectively, and in the 'Session 'laws'
of the legislature for the session of eighteen hundred and ninety-eight
are referred to in this act as 'Civil Laws,' 'Penal Laws,' and 'Session
Laws.'"
The first named of these volumes is the one to which I refer herein.
By that, page 455, chapter 80, under the head "Judiciary Department,"
also referred to and adopted in the organic act, the islands are divided
into five judicial circuits and their limits defined.
Section 1136, page 455, provides that--
"There shall be established in each of the judicial circuits of the
Hawaiian Islands a court with the powers and under the conditions
hereinafter set forth, which shall be styled the circuit court of such
circuit (as, for instance, the circuit court of the third circuit)."
"Section 1137. The circuit court of the first circuit shall consist
of two judges, who shall be styled first and second judges,
respectively, of the circuit court of the first circuit, either of whom
may hold the court."
"The circuit courts of the second, third, fourth, and fifth circuits
shall consist each of one judge, who shall be styled judge of the
circuit court of the circuit in which he is located (as, for instance,
judge of the circuit court of the third circuit)."
These laws provide, also, for the jurisdiction, powers, and duties of
these courts, and a code of civil procedure, and all the necessary
machinery for such courts; and it is believed that these laws, by their
adoption in the organic act of that Territory, are the only laws
organizing said courts or fixing the number of their judges. Their
adoption by Congress as part of the act organizing that Territory, and
the question whether they are subject to alteration by the Territorial
legislature, and to what extent, will be considered together, as both
matters are somewhat blended in that act.
If the law above quoted fixing the number of judges of the circuit
court in the first circuit was not adopted and continued in force by
this act of Congress, then there is no law fixing the number of such
judges; and in that case it is quite clear that the Territorial
legislature, under the legislative power so broadly conferred, might fix
such number. But it seems quite certain that the Hawaiian law referred
to is adopted and in force as part of the law of that Territory; and
this being so, the only remaining question is, whether it is subject to
alteration by the Territorial legislature.
Of course an act of Congress can not be modified or changed by a
Territorial legislature unless Congress has so provided, and I have no
doubt that it is within the competency of Congress, in providing a
Territorial government, in such matters as the organization of courts,
the number of judges, the method of procedure, etc., to provide that the
legislature may from time to time change that which Congress has at
first provided. I do not discuss this point. This brings us to the
question whether, in respect to the number of circuit judges, Congress
has in fact authorized the Territorial legislature of Hawaii to change
the number of judges in the first judicial circuit.
Section 6 of the act organizing this Territory (31 Stat., 142)
provides--
"That the laws of Hawaii not inconsistent with the Constitution or
laws of the United States or the provisions of this act shall continue
in force, subject to repeal or amendment by the legislature of Hawaii or
the Congress of the United States."
Section 7 repeals a large number of these laws.
"Section 81. That the judicial power of the Territory shall be vested
in one supreme court, circuit courts, and in such inferior courts as the
legislature may from time to time establish, and, until the legislature
shall otherwise provide, the laws of Hawaii heretofore in force
concerning the several courts and their jurisdiction and procedure shall
continue in force except as herein otherwise provided."
What is there besides the "jurisdiction and procedure" of courts to
which the very general words, "concerning courts," can apply except
their organization, the number of their judges, etc.? But whether there
be anything else to which this language can apply or not, it seems quite
certain that it does apply to these and that it operates to continue in
force the Hawaiian law establishing circuit courts and fixing the number
of their judges. But if it does so, it just as certainly, and by the
same language, makes such laws subject to legislative change, not in any
particular merely, but in all.
Again, section 83 provides--
"That the laws of Hawaii relative to the judicial department,
including civil and criminal procedure, except as amended by this act,
are continued in force, subject to modification by Congress or the
legislature."
It will be noted that "the judicial department" thus referred to is
the one the provisions of which establish the circuit courts and fix the
number of their judges, as I have quoted above; and it would seem
certain that, as to each of these sections of the act of Congress above
referred to, the power of legislative amendment or change is not limited
to any particular portion of that to which reference is made, but
extends to the whole subject.
For these reasons, I am of opinion that Congress left, and intended
to leave, this question of what number of circuit judges might from time
to time be needed in a particular circuit to the judgment and discretion
of the Territorial legislature, just as it did so many other matters,
but which are no more plainly expressed as subject to legislative
change.
The only question is, whether Congress, in adopting the Hawaiian law
as fixing the number of circuit court judges, adopted it permanently or
subject to change by the Territorial legislature; and where the
adoption and the provision for such change are with equal clearness
expressly stated in each of the same sentences, but one conclusion is
possible.
Indeed, it would be difficult to frame language more clearly
subjecting to legislative change the whole matter of "the laws of Hawaii
heretofore in force concerning courts and their jurisdiction and
procedure" and "relative to the judicial department"-- the one of which
fixes the number of judges-- and "all laws of Hawaii not inconsistent,"
etc. I know of no rule of construction which will refer this repeated
very broad and general language merely to some particular portions,
where the whole is so plainly expressed.
Congress seems to have adopted large portions of these Hawaiian laws
in a tentative, provisional way, to see how they would work in practice
under the new regime, leaving to the legislature, as to itself, the
power to make such changes as time and experience should prove to be
needed.
And it will be noticed that it is only these adopted laws, and not the
act of Congress itself, that the legislature is thus authorized to
change; and further, that these relate to matters which Congress might
well have confided to the legislature in the first place, if it had so
chosen, and it would seem that there are few subjects more suitably
referred to local legislation than that of the number of judges which
time and trial might show were necessary in the principal judicial
circuit of the Territory.
It has been said that as circuit judges are appointed by the
President, by and with the consent of the Senate, then if the
Territorial legislature can increase the number this would be to impose
a duty upon the President and Senate, which can not be done by such a
body.
If the legislature can create an office or increase the number of
officers, it is so simply because Congress has authorized it, and in
such case the office is just as much created by Congress as if it had
itself created it, and if any duty devolves upon the President and
Senate to fill an office created by Congress it does so just as much in
the one case as the other. The whole force of the objection goes to the
power of Congress to thus authorize the Territorial legislature, and
this I do not discuss. I have no doubt that Congress might have provided
if it chose that the supreme court and each circuit court should consist
of as many judges as the legislature should prescribe, and be appointed
by the President, by and with the advice and consent of the Senate, nor
have I any doubt that in such case the same duty-- if any exists in any
case-- of appointment and confirmation would devolve upon the President
and Senate as if the number had been fixed by Congress directly. And
just so in this case. The only question is whether Congress has in fact
authorized the legislature to increase the number of circuit judges, and
that I answer affirmatively.
Very respectfully
P. C. KNOX.
EXTRADITION-- PERSONAL EFFECTS TAKEN FROM PRISONER; 23 Op.Att'y.
Gen. 535, October 5, 1901
Under the usages which govern extraditions, property found upon the
person of a criminal at the time of his arrest, if obtained by the
commission of the criminal act of which he is charged, or if material as
evidence to prove such act, is generally surrendered with the person at
the time of the extradition.
The money taken from the person of C. W. F. Neely at the time of his
arrest in this country for offenses committed in Cuba, not having been
turned over to the authorities of that island at the time of his
extradition, may be delivered to the Secretary of War and by him to the
Military Governor of Cuba, with the understanding that it is to be
retained by the latter pending a judicial determination of its true
ownership.
If the request of the court of instruction of Havana for this money
is to be understood as an assertion of title to it, it can not safely be
surrendered in the absence of a formal adjudication in a civil
proceeding, to which Neely was a party, and as to which he had his day
in court.
DEPARTMENT OF JUSTICE,
October 5, 1901.
The POSTMASTER-GENERAL.
SIR: I have the honor to acknowledge the receipt of your letter of
the 28th ultimo, in which you request my opinion as to whether the chief
post-office inspector can surrender, on the request of the Secretary of
War, certain money which was taken from C. F. W. Neely at the time of
his arrest.
You state that Neely, formerly chief of the bureau of finance,
department of posts of Cuba, was arrested at Rochester, N.Y., on May 5,
1900, by J. C. Hayden, assistant chief of police of the city, who was
acting on the request of your Department. Upon search, there was found
upon his person the sum of $6,234.13 in United States money, checks
amounting to $228, and two old Spanish gold coins, supposed to be worth
at least $20 each. These effects were delivered to the chief post-office
inspector by Hayden, and have since been retained. The Secretary of War,
by letter dated September 20, 1901, requests you to deliver the money to
that Department in order that the military governor of the Island of
Cuba may transmit it to the court having proper jurisdiction. This
request is made at the instance of the judge of the court of instruction
of the eastern district of Havana, who, in a formal communication to the
Military Governor of the Island of Cuba, states:
"As the taking possession of said funds has been decided by this
court, I have the honor to address the present to you requesting that
you kindly request the Department of War of the United States to remit
same to be delivered to this court."
The communication of the judge of the court of instruction discloses
on its face that it is not a decree of court, but simply a formal
request for the surrender of the money. It recites however, that "the
taking possession of said funds has been decided by this court." You
have not forwarded me and I have no knowledge of any decree of a court
which has judicially determined the right of possession. I can not be
unmindful of the fact that Neely has not yet been tried on the criminal
charges, and I know of no judgment that has yet been pronounced in any
civil action against him. If there has been such a decision, I request
to be favored with a certified copy, for it might modify the conclusions
herein expressed. I would prefer to defer any opinion pending the
receipt of such information, but as the public interests may require
that early action be taken, I will advise you as to your general duties
and obligations in the premises.
This money was taken from Neely's person. Presumptively, therefore,
it belongs to him. He was arrested on criminal charges, and by
long-established custom his personal effects were taken from him for any
use they might be as criminal evidence. They were taken from him by the
assistant chief of police of Rochester, who is presumptively responsible
to Neely for their return if and when the reasons for their retention no
longer exist. As a matter of courtesy to the United States Government,
the said assistant chief of police turned over these articles to the
chief post-office inspector, and he can, therefore, look to this
Government to protect him in such surrender. If hereafter these personal
effects should no longer be needed for the purpose of criminal evidence,
and if the Government should fail to establish a title to them, an
obligation may arise on the part of the chief of police to return them
to Neely. Reciprocal courtesy to the State authorities requires that
this Government should do nothing to make such return impossible. I
assume, moreover, that the assistant chief of police holds the receipt
of your chief post-office inspector for the personal effects in
question, and your Department should, therefore, have in view its own
protection in considering the question of the surrender of this money.
Neely was extradited to Cuba, and under the general usages which
govern such extradition, property found upon his person at the time of
his arrest, if obtained by the commission of the criminal act of which
he is charged, or if material as evidence to prove such act, is
generally surrendered with the person at the time of the extradition.
At the time Neely was extradited, however, no such demand was made, and
the present request seems to be in the nature of a personal request
addressed by the judge of the court of instruction of the eastern
district of Havana to the military governor of the island of Cuba. If
the personal effects in question be needed for the purpose of evidence,
they should be sent to Cuba for production in court. But your Department
owes it to itself, as well as to the assistant chief of police, that the
surrender should be under such conditions as will insure its return, if
necessary. If, however, the request of the judge is to be understood as
an assertion of title to the personal effects in question, then I do not
think these personal effects can be safely surrendered in the absence of
a formal adjudication in a civil proceeding to which Neely was a party,
and as to which he had his day in court.
While I am not called upon to express more than a legal opinion, or
to advise with reference to administrative measures, yet I venture to
suggest that this money can be delivered by you to the Secretary of War,
and by him to the Military Governor of the Island of Cuba, with the
understanding that it be retained by the Military Governor of the Island
of Cuba pending a final decision as to its true ownership. If these
personal effects are needed as evidence in any civil or criminal actions
which may be pending against Neely in the Island of Cuba, they can be
produced by the Military Governor. If hereafter it be judicially
determined that the personal effects taken from Neely are in law the
legal property of the department of Cuban posts, the money can be
delivered by said Military Governor to the proper official connected
with that department. Receipts should, however, be taken which will
insure the return of said money to the Post-Office Department if the
circumstances of the case hereafter require such return.
Respectfully,
P. C. KNOX.
PAN-AMERICAN CONFERENCE-- UNITED STATES DELEGATES-- COUNSEL; 23 Op.
Att'y.Gen. 533, October 1, 1901
The acceptance of an appointment as counsel for the delegates of the
United States to the Pan-American Conference by a person who is engaged
as an attorney in prosecuting claims before the Spanish Treaty Claims
Commission, would not subject such person to the penalties prescribed by
section 5498, Revised Statutes. The penalties therein prescribed are for
the prosecution of claims against the United States by one who holds an
office or place such as is described in that section.
While the appointee would be subject to no penalty for accepting such
appointment, yet, if, while holding the place of such counsel, he should
engage in the prosecution of claims against the United States before
that Commission, or other tribunal, he would be subject to the penalties
therein prescribed.
While such person would not be an officer, as that term is there
used, he would come within the description of a person holding a place
of trust or profit under the Government of the United States.
The acts of June 6, 1900 (31 Stat., 637), and March 3, 1901 (31
Stat., 1179), making appropriation for the "expenses of the delegates to
the proposed international conference, and for incidental clerical
assistance," do not contemplate nor provide for the payment of the
expenses or compensation of counsel for the delegates to that
conference, the services to be performed by such counsel not being
"clerical" in character.
DEPARTMENT OF JUSTICE,
October 1, 1901.
The SECRETARY OF STATE.
SIR: I am in receipt of the note of the Acting Secretary of State,
dated September 24, 1901, requesting my official opinion in case your
Department should "appoint a gentleman who is engaged as an attorney in
prosecuting claims before the Spanish Claims Commission as counsel for
the delegates of the United States to the Pan-American Conference, would
such appointee, accepting the position as such counsel, be subject to
the penalties prescribed by section 5498, Revised Statutes of the United
States."
And I am referred also to two other acts as bearing upon the further
question of the mode and right of paying such counsel.
In reply, I have the honor to say that the acceptance of such
position would not subject the appointee to any penalty under the
section referred to. That section imposes no penalty for the acceptance
of an office or place by one who is engaged in the prosecution of claims
against the Unites States. The penalties there prescribed are for the
prosecution of such claims by one who holds an office or place such as
is described in that section.
But while the appointee would be subject to no penalty for accepting
the appointment, yet I am of opinion that if, while holding the place of
such counsel, he should at all engage in the prosecution of claims
against the United States before the Spanish Claims Commission or other
tribunal, or do any of the acts mentioned in that section, he would be
subject to the penalties there prescribed. That is, that while he may
not be an "officer" as that term is there used, yet I am of opinion that
as to both the intent and letter of the section, he comes within the
description of a "person holding any place of trust or profit or
discharging any official function under or in connection with any
executive department of the Government of the United States," and as
such is forbidden to prosecute or aid or assist in prosecuting claims
against the United States. The wisdom and policy of such a statute are
obvious, and the reasons which operate to forbid one holding an
important position in the Government to engage in the prosecution of
claims against it, with the opportunity, real or suspected, to bring the
influence of his position to bear in support of the claim he is
advocating are operative also in the case of one holding such a place as
that to which you refer.
With reference to the right and mode of paying such counsel, I am
referred to the appropriation acts of June 6, 1900 (31 Stat., 437),
sub-title "Department of State," and March 3, 1901 (31 Stat., 1179),
sub-title "Under the Department of State."
These acts appropriate "For actual and necessary expenses of
delegates to the proposed international conference of American States,
and for necessary clerical assistance, twenty-five thousand dollars."
Under the constitutional provision that "No money shall be drawn from
the Treasury but in consequence of appropriations made by law," it seems
clear that no money can be drawn for any particular purpose without
either an appropriation expressly for that purpose, or one that is
certainly broad enough to cover that purpose. The appropriation here is
expressly and specifically for two purposes only, "the actual and
necessary expenses of delegates * * * and for necessary clerical
assistance." Inasmuch as, independent of counsel, there would naturally
be required what is here properly described as "clerical assistance,"
and, as the duties of such counsel are not clerical, nor ordinarily
spoken of as such, it can not be fairly presumed that Congress intended
to here provide for the payment of counsel also, as well as of clerks.
The duties of the two are so essentially different that it can not be
presumed that Congress, in speaking of one, meant both. If both had been
in the mind of Congress, with the intention to provide for the payment
of both, doubtless it would have been so expressed.
I am therefore of opinion that the acts referred to make no provision
for the payment of counsel for the delegates of the United States to the
Pan-American Conference.
Respectfully,
P. C. KNOX.
LOTTERY-- BOND INVESTMENT SCHEMES; 23 Op.Att'y.Gen. 531, September
28, 1901
The principles which govern the Southern Mutual Investment Company
and "Claude Buckley's Perfect System," their workings and results,
differing essentially from those of the companies passed upon in the
opinion of September 7, 1901 (ante, p. 512), their contracts, taken in
connection with the additional terms and requirements imposed upon the
companies by the Post-Office Department, do not so depend upon chance as
to bring them within the operation of the anti-lottery statutes.
Statutes highly penal in their nature must be construed strictly, and
should not be applied to the business of a citizen unless such business
is certainly within their purview.
DEPARTMENT OF JUSTICE,
September 28, 1901.
The POSTMASTER-GENERAL.
SIR: I have the honor to acknowledge the receipt of your note of
September 26, 1901, in which you again request my official opinion as to
the legality, in respect to the use of the mails in their operation of
certain so-called bond-investment schemes.
In the opinion rendered by me on September 7, 1901, in response to
the request in your note of the 9th of August, I considered certain
cases there referred to, but did not consider those to which you now
refer, for the reason that I understood they were not presently existing
cases upon which your Department was then called upon to act, but were
merely proposed schemes presented for your advance ruling. But your
present note informs me that this is not the case, and I therefore now
consider the other two cases submitted.
These are the case of the Southern Mutual Investment Company, of
Lexington, Ky., and the case presented by Claude Buckley, of Louisville,
Ky., called "Claude Buckley's Perfect System," and which I understand is
now operated by one or more companies.
These cases, in regard to the contracts made, the principles that
govern them, their workings, and results, differ essentially from those
cases considered in my former opinion. In view of all that was said in
that opinion, both generally and specifically, with reference to
particular cases, it is not thought necessary or useful to restate here
the principles and considerations which govern the determination of the
question whether a particular business is within the prohibition of the
statutes as to the use of the mails.
It may be proper, however, to again refer to the rule that such
statutes, highly penal in their nature, must be construed strictly, and
should not be applied to the business of a citizen unless such business
is certainly within their purview, and to state that especially should
the use of the mails not be forbidden to any private business which is
not certainly within the prohibition of the statutes under
consideration.
I have examined the contracts which each of these companies makes,
and the terms and conditions attached thereto and a part thereof, and,
while standing upon these alone, I might be of opinion that one or both
of them were within the purview of these statutes, yet I have read also
your letter of instructions to the postmaster in each of these cases, in
which certain additional terms and requirements are insisted upon in
conducting said business, and to which I understand these companies
agree and promise to conform.
I quite concur in the wisdom and policy of and the necessity for such
additional conditions and requirements, and with these observed as parts
of the conduct and working of the business, I am of opinion that the use
of the mails in conducting such business is not and should not be
forbidden to any company whose business is thus conducted.
In a business so conducted I am unable to say that the payment or
reception of what is promised depends upon chance within the meaning of
these statutes; and, inasmuch as the returns promised to each investor
are not more than the money paid in by him and its legitimate earnings,
plus an equitable proportion of moneys from lapses, fines, and
penalties, no reason is perceived why the promises made may not be
performed from the business itself; and I see nothing fraudulent in
either plan when it is supplemented by the requirements of your letter
of instructions.
I have therefore to advise you that the mails may be used in the
prosecution of the business upon either of the two plans referred to
when conducted in accordance with the terms prescribed in your letter of
instructions to the postmaster with reference to that case.
Respectfully,
P. C. KNOX.
CHEROKEE INDIANS-- EXPORT TAX ON HAY; 23 Op.Att'y.Gen. 528,
September 20, 1901
Under section 16 of the act of June 20, 1898 (30 Stat., 495), the
Secretary of the Interior has authority to collect the tribal tax
imposed by the laws of the Cherokee Nation of Indians upon the
exportation of prairie hay from that nation.
But while that section forbids the payment to, or the reception by,
any other person than the authorized offiers or agents of the Indian
Department of the rents or royalties arising from the unappropriated
common public lands of that nation, it permits those who, under existing
regulations, have taken possession of such lands as would be their share
upon allotment, to use the lands thus occupied and to collect and
receive the rents therefor.
DEPARTMENT OF JUSTICE,
September 20, 1901.
The SECRETARY OF THE INTERIOR.
SIR: I have the honor to reply to your note of August 27, 1901, in
which you request my official opinion whether your Department has
authority, under existing laws, to collect the tribal tax imposed by the
laws of the Cherokee Nation of Indians upon the exportation of prairie
hay from that nation.
The situation is this: Under the right of self-government conferred
by Congress, the Cherokee Nation has its own constitution, government,
and laws, not inconsistent with the Constitution of laws of the United
States. By act of Congress, these laws are first approved by the
President. When so approved, they have, in all respects, the force and
effect of laws. This autonomy carries with it the unquestionable right
of taxation. Under this power the Cherokee Nation imposes a tax of 20
cents per ton upon all prairie hay shipped out of and beyond the limits
of that nation. (Laws of the Cherokee Nation, sections 374, 375.) In my
opinion, there can be no question of the right or power of that nation
to impose such a tax.
For reasons satisfactory to both nations, the United States collects
the tribal taxes imposed and the royalties and rents from the public
domain and deposits them in the United States Treasury to the credit of
the Indian Nation.
The power and right to do this, by and through the Interior Department,
is agreeably affirmed by the United States Court of Appeals, Indian
Territory, in Maxey v. Wright (54 S.W.Rep., 807), under existing
treaties and acts of Congress. While that decision was rendered with
reference to the Creek Nation, it is just as applicable to the Cherokee
Nation also, for similar treaties and laws exist as to that nation.
Part of the revenues thus collected by the United States for the
Indian Nation consists of rents and royalties arising from the public
domain of that nation, and which has not been allotted to individual
members of that nation; and section 16 of the act of June 28, 1898 (30
Stat., 495) provides the means for the collection of such revenues
through the Department of the Interior; and to this end it forbids the
payment to or the reception by any other person of the rents or
royalties arising from these public lands, and provides for their
collection by the Interior Department, and deposit in the Treasury to
the credit of the Indian Nation.
But allotment of these lands to the individual members of the nation
is contemplated and provided for; and this contemplates that, so far as
it can be done, the allotment to an individual, or for his wife and
minor children, shall embrace the land of which he or they are already
in possession, not exceeding the amount to which he and they may be
entitled in such allotment, and, in several respects, such persons, in
the occupancy of lands, not more than their share upon such allotment,
are treated as quasi owners of the land thus occupied, with the right to
control the same and receive its proceeds.
In accordance with this, section 16 of the act referred to, while it
prohibits individuals from receiving or paying rents or royalties
arising from the public lands of the nation except to officers or agents
of the Indian Department, it makes an exception in favor of those who
are in the occupancy of what they would be entitled to claim under the
allotment, and allows them to use and receive the rents and proceeds of
such lands, as if such act had not been passed.
This exception is as follows:
"Provided, That where any citizen shall be in possession of only such
amount of agricultural or grazing lands as would be his just and
reasonable share of the lands of the nation or tribe and that to which
his wife and minor children are entitled, he may continue to use the
same and receive the rents therefrom until allotment has been made to
him."
From this it will be readily seen that this section deals only with
what are the common public lands of the nation not occupied by
individuals as their share of the public domain, and provides that the
revenues from such lands shall be collected and paid into the Treasury,
while it permits those who have, under existing regulations taken
possession of the whole or a portion of what would be their share upon
allotment, to continue as before to use that of which they are so in
possession, and that the whole office of this section is to provide for
the collection by the Department of the Interior of the revenues from
the unappropriated common public lands of the nation, leaving those who
have appropriated and are occupying their respective shares to continue
to use the same and receive its rents.
And it will be further seen that this section has nothing whatever to
do with the imposition of local taxes by the Indian Nation or with the
exempting any citizen from their payment. The proviso simply recognizes
the quasi ownership of the individual in the share he has selected, but
leaves the property and its proceeds subject to local taxation, just as
in the case of other property. And the nation having imposed a tax upon
all prairie hay shipped out of the nation, that tax is just as
applicable to hay raised on lands such as are referred to in the proviso
of this section as in any other case, and would be so even if the
shipper was the absolute owner of the land on which the hay was raised.
I have therefore to advise you that neither section 16 of the act of
June 28, 1898, nor its proviso in anywise militates against the power of
your department to collect the tax in question.
Respectfully,
P. C. KNOX
IMMIGRATION-- DESERTING SEAMEN; 23 Op.Att'y.Gen. 521, September 10,
1901
Bona fide seamen have always been excepted from the operation of our
immigration laws, although not excepted therefrom by express language;
their inclusion in the class of alien immigrants can fairly be regarded
as beyond the intention of Congress.
An "alien seaman" is one who, in pursuit of and as a necessary
incident of his calling, temporarily enters this country and is awaiting
his departure; while an "alien immigrant" is one who enters the country
with the intention of remaining it it.
Only such seamen are excepted from the class of passengers upon whom
the head-money tax is imposed by the act of August 3, 1882 (22 Stat.,
214), and from the class of alien immigrants, as are seamen in good
faith and have no intention, by reason of their passage, to leave the
ship and make entry into this country.
Aliens who become seamen for the purpose of securing an entrance into
this country free from the barriers of the immigration statutes are none
the less alien immigrants, and may be deported if within the prohibited
classes.
This power to exclude carries with it the right to detain and examine
all seamen of a given vessel, if, in the judgment of the Secretary of
the Treasury, the execution of the immigration statutes requires it.
It is within the power of the Secretary of the Treasury to make such
examination and take such precaution as may be reasonably necessary to
prevent any alien immigrant, whether he be a sailor or not, from
entering this country in the sense that all immigrants enter it.
It is not the duty of the Attorney-General, and he can not, from the
meager facts submitted, determine the question of good faith or
intention on the part of the deserting sailors from the British
steamship Columbia, as to whether they came to this country pursuant to
their calling, intending to ship again, or as immigrants. That duty
rests with the Treasury Department.
DEPARTMENT OF JUSTICE,
September 10, 1901.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
March 28, 1901, inclosing a report to the commissioner of immigration at
San Francisco, Cal., in relation to the escape or desertion of eight
alleged seamen from the British steamship Columbia, and in which you ask
me to advise you, "whether alien seamen after discharge or desertion
come within the provisions of the immigration laws; and, furthermore,
whether in the present instance the seamen referred to were permitted to
land in violation of section 8 of the act approved March 3, 1891, and
section 4 of the act approved March 3, 1893."
I have also to acknowledge the receipt of your letter of April 2,
1901, in which you inclose certain correspondence with the collector of
customs at the port of San Francisco, Cal., and request me to advise
you, "whether discharged or deserting seamen are passengers within the
meaning of that term as used in the act approved August 3, 1882,
entitled 'An act to Regulate Immigration.'"
You ask me to consider this question in connection with that
submitted to me in your letter of March 28, 1901, herein before referred
to.
The status of seamen under the various immigration laws has been
determined by the judicial department of the Government, upon which the
responsibility for their interpretation finally rests. In the case of
United States v. Burke (99 Fed.Rep., 895) this question was considered
with great care by the circuit court sitting in the southern district of
Alabama. In that case a Norwegian vessel entered the port of Mobile with
a crew articled for a voyage to the United States and thence to Europe.
One of the crew, being an alien seaman, endeavored to obtain his
discharge at Mobile, but his application was refused. He deserted the
vessel, but under a threat of arrest returned to it. Subsequently he
again, without leave of the master and without a discharge, deserted the
vessel. Clearance was refused the vessel on the ground that the master
had violated the immigration statutes by not holding the seaman on his
return after his first absence. Judge Toulmin held that such clearance
could not be withheld, and that the seaman in question was not an alien
immigrant within the purview of the immigration statutes. He says:
"The legislation contained in the various statutes that have been
passed relating to immigration is clearly directed against the
immigration into this country of certain classes of persons who come in
with the intent to enter into and become a part of the mass of its
citizenship or population. Immigration is defined to be the entering
into a country with the intention of residing in it. The earlier
statutes merely prohibit contract laborers being brought in. The later
ones prohibit the bringing in of immigrants-- persons who come into this
country with the intention of remaining, of fixing a residence here, and
who are calculated to become a charge upon the country, or who are
unfit, on account of moral character, previous conviction of crime, or
disease, to be admitted as citizens.
Nothing in the scope of the statutes seems to contemplate, or can be
rationally held to contemplate, the prohibition of the bringing within
the country by vessels of their crews engaged under contracts made out
of the country, to labor on the vessels while approaching and while in
the ports of this country, and to sail again with the vessels from this
country."
He says, moreover:
"A consideration of the whole legislation on the subject of alien
immigration, of the circumstances surrounding its enactment, and of the
unjust results which would follow from giving such meaning to it as is
here claimed for it, makes it unreasonable to believe that Congress
intended to include a case like the present one. My opinion is that
these statutes do not contemplate the exclusion of the crews of vessels
which lawfully trade to our ports, and that they do not, in spirit or in
letter, apply to seamen engaged in their calling, whose home is the sea,
and who are her to-day and gone to-morrow; who come on a vessel into
the United States with no purpose to reside therein, but with the
intention when they come of leaving again on that or some other vessel
for the port of shipment or some other foreign port in the course of her
trade. To hold that these statutes apply to aliens comprising the bona
fide crews of vessels engaged in commerce between the United States and
foreign countries would lead to great injustice to such vessels,
oppression to their crews, and serious consequences to commerce."
Previous to this decision of Judge Toulmin, the Treasury Department
had ruled, in the case of the crew of the Lancashire (Treas. Dec.
21724), that alien seamen could, under exceptional circumstances, come
within the operation of the immigration statutes. In that case a foreign
vessel came to Mobile for docking and more complete repair. Besides her
ordinary crew she had engaged a large number of additional men at
nominal wages, and who, in shipping, "stipulated for discharge here in
the United States." In discussing the decision of your Department Judge
Toulmin said that these additional seamen-- "were plainly immigrants,
and properly treated as such, and, therefore, properly deported under
the ruling of the Secretary, and this, not because bona fide crews of
ships fall under the immigration laws, but because they were not a bona
fide crew of the ship."
Were I at liberty to disregard this authoritative interpretation of
the immigration statutes, I would yet feel constrained to say that the
reasoning of Judge Toulmin seems to me entirely sound, and that it would
be injurious to our commerce, and, therefore, to the public interests,
to hold broadly and without exception that seamen as a class are within
the purview of the immigration statutes. It is true that Congress has
not excepted them from the express language of these statutes, but in
the practical administration of these laws they have always been
excepted, and their inclusion in the class of alien immigrants would
lead to consequences so destructive to legitimate commerce that such
inclusion can fairly be regarded as beyond the intention of Congress.
It is important, however, to remember that the salutary immigration
statutes can not be defeated by intending immigrants shipping as
sailors. Judge Toulmin recognized this in the decision referred to by
expressly approving the ruling of your Department in the case of the
Lancashire. Aliens who become seamen on vessels for the purpose of
securing an entrance into this country free from the barriers of the
immigration statutes are none the less alien immigrants, and can be
treated as such. In my judgment it is not important whether the master
of the vessel who ships them was in collusion with them, or know of
their purpose to escape. Only such seamen are excepted from the class of
passengers upon whom the head money tax is imposed, and from the class
of alien immigrants, as are seamen in good faith and have no intention
by reason of their passage to this country to leave the ship and make
entry into this country. In the practical administration of the law it
may be difficult to determine whether such seamen have secured their
discharge from the vessel, or have deserted from it on their arrival at
an American port for the purpose of obtaining such entry.
They may have escaped or deserted only for the purpose of shipping on
another vessel which is outward bound, and with no intention of
abandoning their seafaring occupation. To prevent a violation of the
immigration laws in the manner indicated is a question of practical
administration as to which it is not possible to lay down legal
principles, and the character of which is beyond the province of this
Department to determine. As my predecessor, Attorney-General Griggs,
pointed out in an opinion rendered you on May 8, 1899 (22 Opin., 460),
the authority given you by sections 2 and 3 of the immigration law of
1882, to "establish such regulations and rules and issue from time to
time such instructions not inconsistent with law as he shall deem best
calculated to protect the United States and immigrants into the United
States from fraud and loss, and for carrying out the provisions of this
act," shows that, "by these and other provisions of law it is made clear
that Congress, aware of the practical impossibility of establishing in
advance by inflexible orders of its own all the rules and methods that
so indefinite and complex a business, entangled as it was with that of
carrying passengers, would demand, intended to vest in the Secretary
power to make and apply such as would from time to time be shown by
experience to be necessary and convenient."
It does not follow that because aliens are seamen that they are free
from such examination and inspection as you have either required or may
hereafter require by regulation. By the immigration statutes Congress
intended to exclude certain classes of undesirable immigrants from
entrance into this country, and the law should be interpreted so as to
effectuate this object.
As was said by Attorney-General Miller, in an opinion given your
Department December 29, 1890 (19 Opin., 706):
"The power of Congress to prescribe the conditions under which
foreigners may enter this country is plenary, because it has the power
of absolutely excluding them (Chinese Exclusion cases, 130 U.S., 531).
The existence of such a power implies the ancillary power of detaining
all persons, whether they are citizens of the United States or not, a
reasonable length of time until their citizenship may be established."
By similar reasoning it is in your power to make such examination and
take such precaution as may be reasonably necessary to prevent any alien
immigrant, whether he be a sailor or not, from entering this country in
the sense that all immigrants enter it. As I have said, an alien
immigrant, who is of the prohibited classes referred to in the
immigration statutes, does not escape their operation because he ships
as a seaman. If he ships as such seaman in good faith and comes cum
animo revertendi he is not within the prohibited class, because his
entry into our ports is only of a temporary character, and is tolerated
from considerations of convenience and the necessities of commerce. If,
however, it be shown to your satisfaction that such alien has shipped to
this country simply as a convenient means to make entry here or to avoid
the operation of the immigration statutes, then he becomes subject to
their operation as fully as any other alien immigrant, and if within the
prohibited class, can be deported. Thus a convict, a polygamist, or a
person with a contagious disease can not obtain entrance to this
country, exempt from the salutary provisions which exclude others of his
class, simply because he has shipped as a seaman. The power to exclude
an alien immigrant who comes to this country as a seamen carries with it
the right to detain and examine all seamen of a given vessel if, in your
judgment, the execution of the immigration statutes requires it.
The question, therefore, is necessarily one of practical
administration, and has been committed by Congress to your sound
judgment and discretion.
I have used the expression "make entry" advisedly, in order to
distinguish the entry into this country of those designated in general
terms as "alien immigrants" from the temporary presence of alien sailors
who have arrived here in the pursuit of their calling and are awaiting
their departure. In a literal sense the latter have entered the country,
but it is obvious that when they seek admission here of a temporary
character only, and as a necessary incident of their calling, they do
not enter this country in the sense with which alien immigrants pass our
territorial boundaries.
With these general observations, let me refer to the particular case
upon which you submit your request for an opinion. In the case of the
British steamship Columbia it appears that some eight alien seamen of
that vessel, after deserting her, libeled her for unpaid wages, and
thereupon, in order to sail, the representative of the owners of the
ship paid to the attorneys for the members of said crew the amount due
them for wages. They were never regularly discharged. This meager
statement of fact does not show whether the sailors in question came to
this country in pursuit of their calling as seamen in good faith and
without any purpose of entering this country as immigrants. They may
have left the ship by reason of dissatisfaction, and with the intention
of again shipping as seamen on the first outward ship and without any
purpose of abandoning their calling. It is not my duty, and I could not
determine this question of good faith or intention from the meager facts
submitted to me. I am satisfied, however, that it is within your power
to detain and examine such alien seamen, and to deport them, if you are
satisfied that they intend to remain within this country. You are not
obliged to remain inactive when so easy an entrance through our
immigration barrier is being effected.
Replying to the inquiry in your letter of April 2, 1901, I think the
liability of these alien seamen to pay the head money under the act of
August 3, 1882, depends upon the same question of intention, and must be
dealt with accordingly as a matter of fact to be decided in accordance
with the evidence of each particular case. If they shipped as seamen as
a convenient method of securing passage to this country, and for the
purpose of entering therein as other alien immigrants, then they are
passengers and subject to the capitation tax. But if they shipped with
the intention in good faith to continue their occupation as seamen, and
with no intention to make entry into this country, then they are not
passengers and are exempt from the tax in question.
Respectfully,
JAMES M. BECK,
Acting Attorney-General.
LOTTERY-- BOND-INVESTMENT SCHEMES; 23 Op.Att'y.Gen. 512, September
7, 1901
Where a scheme proposes, on account of certain investments by many
persons, to return to each something which, as to its certainty, amount,
or value, is dependent, not upon the earning or producing power of the
investment, nor upon business probabilities or expectations, but upon
contingencies over which the parties to the transaction have no control
and which they can not forecast, such a scheme has in it, and is
dependent upon, the elements of chance within the meaning of sections
3929 and 4041, Revised Statutes (26 Stat., 466).
Where the operators of a scheme or plan induce others to invest
therein upon the promise that upon their doing so and making certain
stipulated payments they shall receive a specified return, and it is
known by such promisors, or it is so apparent that it ought to be known
by them, that if such investors comply on their part and continue to
make the stipulated payments all can not receive the promised return;
or where such promise of return is absolute, but its performance and the
ability of the company to perform is known by it to depend upon a
continually increasing accession of new investors, or upon the lapses
and consequent forfeitures of former ones or both; or where payments to
previous investors are promised at a profit far beyond what their
investments can or are expected to earn, and are made, mainly, from
moneys paid in by later investors upon the same terms, with no other
provision for the ultimate payment of subsequent investors; or where
such promise is absolute but its performance and the ability of the
company to perform are known to depend to a considerable extent upon the
broken promises and consequent forfeitures of other investors, such
schemes are fraudulent within the meaning of these statutes.
Nor is it material, in this respect, that in either of said supposed
schemes the business is so successful that the time when the fraud in
the scheme will find its victims is delayed indefinitely, so long as it
is certain that the time will come sooner or later.
These cases distinguished from guessing contests.
DEPARTMENT OF JUSTICE,
September 7, 1901.
The POSTMASTER-GENERAL.
SIR: I have the honor to respond to your note of August 9, 1901,
requesting my official opinion whether mail matter relating to certain
so-called bond-investment schemes, referred to in your note, is mailable
under the provisions of sections 3929 and 4041, Revised Statutes, as
amended by the act of September 19, 1890.
The statutes forbid the use of the mails for mail matter for the
promotion or operation of, or "concerning any lottery, so-called gift
concert, or similar enterprise offering prizes, dependent upon lot or
chance, or concerning schemes devised for the purpose of obtaining money
or property under false pretenses," or "any lottery, gift enterprise, or
scheme for the distribution of money or of any real or personal property
by lot, chance, or drawing of any kind," or concerning "any other scheme
or device for obtaining money or property of any kind through the mails
by means of false or fraudulent pretenses, representations or promises;"
and the question is, whether the concerns to which your note refers, or
either of them, are of the character thus described.
Your note refers to three companies, which will be considered here.
The Industrial Mutual Deposit Company of Lexington, Ky.; The Insurance
Security Company of Louisville, Ky.; and the United States Mutual
Investment Company of Lexington, Ky.
While these companies differ somewhat from each other, in the details
of conducting their business, yet the same general rules are common to
all of them, as is also that which determines their character as to
legality under these statutes.
The question of what is meant as the element of chance which will
bring any business dependent upon it within the ban of these statutes,
and also what is meant by those provisions relating to obtaining money
or property by false pretenses, or false or fraudulent pretenses,
representations, or promises, have been so often discussed in Opinions
of this Department, the decisions of courts, and the rulings and
Opinions in your Department that it is not necessary to review the mater
here.
Without attempting any comprehensive or exhaustive definitions of
these matters, it is sufficient for the purposes of this opinion to say,
upon principle and authority, that, where a scheme proposes, on account
of certain investments by many persons, to return to each something
which, as to its certainty, amount, or value is dependent, not upon the
earning or producing power of the investment, nor upon business
probabilities or expectations, but upon contingencies, over which the
parties to the transaction have no control, and which they can not
forecast, such a scheme has in it and is dependent upon the elements of
chance within these statutes.
And where the operators of a scheme or plan induce others to invest
therein upon the promise that upon their doing so and making certain
stipulated payments they shall receive a specified return, and it is
known by such promisors, or it is so apparent that it ought to be known
by them, that if such investors comply on their part and continue to
make the stipulated payments all can not receive the promised return;
or, where such promise of return is absolute, but its performance and
the ability of the company to perform is known by it to depend upon a
continually increasing assession of new investors, or upon the lapses
and consequent forfeitures of former ones, or both; or, where payments
to previous investors are promised at a profit far beyond what their
investments can or are expected to earn, and are made mainly from moneys
paid in by later investors upon the same terms, with no other provision
for the ultimate payment of subsequent investors; or, where such
promise is absolute, but its performance and the ability of the company
to perform are known to depend to a considerable extent upon the broken
promise and consequent forfeitures of other investors; such a scheme is
fraudulent within the meaning of these statutes.
Nor is it material in this respect that in either of said supposed
schemes, or similar ones, the business is so successful that for a
considerable time new investors continue to come in, so that from their
moneys all earlier ones receive the promised return; so that the time
when the fraud in the scheme will find its victims is delayed
indefinitely, so long as it is certain, as it is in all such cases, that
such time will come, and may come sooner or later, dependent upon
contingencies which neither the promisors nor investors can either
control or forecast.
I am not an actuary and shall not attempt any detailed analysis of
the workings of either of these plans, but will take these mainly as
they are stated in your letter and the memoranda to which it refers.
The company first mentioned, the Industrial Mutual Deposit Company,
issues certificates of membership with several coupons attached, for
which the purchaser pay 5 cents for each coupon and agrees to pay 5
cents weekly for each unredeemed coupon for one hundred and four
consecutive weeks.
In return the company promises to pay each purchaser, upon the
redemption of the coupons, $1.60 for every $1 paid by him to keep the
coupons in force less 10 cents for each coupon, and to redeem the whole
within or at the end of one hundred and four weeks. No coupon is
eligible for redemption until eight weekly payments have been made on
it.
The company redeems coupons weekly after the eighth week at an
arbitrary value fixed by the schedule indorsed on the certificate, which
value is at a profit many times greater than the money invested can, or
is expected to earn, which value varies each week and the profit
constantly decreases with the time the coupon has run, so that a coupon
redeemed at the end of the eighth week will have a profit of about 200
per cent per annum; while at the end of the one hundred and fourth week
the redemption will be at the rate of about 60 per cent per annum.
Coupons are selected each week for redemption by three different
methods, but, by none of which is it at all possible for anyone, when he
purchases his certificate and coupons, to tell, even by a broad
approximation, when his coupons will be redeemed, or therefore their
value when redeemed.
These three weekly redemptions are each made from its own approximate
fund; the first of which consists of 20 per cent of the weekly payments
on coupons; the second, of 10 per cent of such weekly payments; and
the third of which consists of 15 per cent of such weekly payments. Each
of these funds is exhausted each week by such redemptions of coupons.
The reserve fund of 20 per cent of such weekly payments is the only
fund which has any earning power or can be invested; and this, with its
earnings, is the only fund that can be relied upon for the payment of
such coupons as are not thus redeemed by these weekly redemptions at the
end of one hundred and four weeks.
Each of the other two companies issues certificates with coupons
attached, for each of which coupons, the purchaser pays 25 cents per
month-- in one company, for one hundred and twenty months, and in the
other, for one hundred and twenty-nine months; and, in each, monthly
redemptions of coupons are made at a value arbitrarily fixed by a
schedule indorsed on the contract; and which has no reference to
earnings, but the profit is several times as much as the investment can,
or is expected to earn.
In one of these companies, this value is fixed upon the basis of 1 1/4
per cent per month compounded monthly. These monthly redemptions are
made from a fund for that purpose, consisting of a certain percentage of
the monthly payments on coupons, and is exhausted at each redemption,
and in each, there is a small reserve fund which, with its income, is
used to pay coupons which remain unpaid after the one hundred and
twentieth or one hundred and twenty-ninth monthly redemptions, and in
each of the three cases, default in weekly or monthly payments, forfeits
the contract and all money paid on it.
While in each of these companies the mode of selecting coupons for
redemption differs from those in the case first mentioned, and somewhat
from each other, yet in each the same uncertainty and impossibility of
determining when a coupon will be paid, and, therefore, its then value
or profit, exists as in the first case, and there are certain
fundamental features that are common to all.
In each case the periodical redemptions are made, not from the money
invested or its earnings, but from moneys paid in each week or month by
later investors upon the same terms, and who in turn take their chance
of being paid from moneys of still later investors.
In each case each investor is promised a return vastly greater than
his investment can or is expected to earn. Indeed, in the periodical
redemptions earnings cut no figure and are not used at all.
The amount of value of each return depends upon the time when it is
made, the largest profits going with the earliest payments, and this
time can not be determined, even approximately, when the contract is
made.
As it will require at each weekly or monthly redemption much more
than the money of one investor appropriated to that purpose to pay each
previous one, it follows that the number of newcomers must constantly
increase at a high ratio (approximately doubling) in order to keep up
the fund for such redemptions.
This would be the case were it not for lapses; and it can hardly be
expected that in a business paying, while it lasts, such enormous
profits, there should be so many voluntary forfeitures of money already
paid in as to prevent the necessity for a constant increase at a high
ratio of new investors; and sooner or later such progressive increase
must necessarily cease, and then the end comes, with nothing with which
to pay the thousands who are dependent solely upon the money of
newcomers.
Under each of these plans persons similarly situated-- that is, have
paid their money upon the same terms-- will receive different and
unequal returns; and this dependent upon contingencies which neither
party can either control or foretell.
If all the investors comply with the contract on their part-- stay in
and make the stipulated payments-- it is impossible that the company can
perform what it has promised, which is that, if each investor will
continue to make the stated payments, each shall receive the promised
return. Indeed, it is understood that much reliance is had upon broken
promises for the means of the company to perform its own. It is not
understood that either of these companies has any considerable capital
stock, property, or means from which payment of its obligations could be
enforced, but that its sole dependence for the means to make periodical
redemptions is the money paid in by newcomers during each weekly or
monthly period, and the lapses of that period; and for ultimate
redemption at maturity, this reliance is solely or mainly upon the
"reserve" and its income. This consists, in the different companies, of
20 per cent, 25 per cent, and 25 per cent of the sums periodically paid
in on coupons.
There is one feature of these cases which curiously illustrates the
uncertainty of, and the impossibility of determining when a coupon will
be paid, and, therefore, the value of the prize. While the periods of
redemption run through one hundred and four weeks, one hundred and
twenty months, and one hundred and twenty-nine months, respectively, and
the coupons are few in number-- in one case, six-- yet in each case it
is contemplated that they will not all be redeemed in this period, and
provision is made for their payment from the reserve fund.
In the case of that company issuing six coupons to each certificate,
redemptions are made monthly for one hundred and twenty months, yet the
mode of selection for redemption makes the selection so very precarious
and undeterminable that no one, not even the company, can tell whether
all of these six coupons will be redeemed in one hundred and twenty
months, or which ones will be, or the time when.
And herein, and in the uncertainty in the other cases, lies the chief
incentive. Each hopes to be the lucky man, just as in other games of
chance. And this case where six coupons are not redeemed in one hundred
and twenty monthly redemptions, is another case where "many are called,
but few chosen" though each hopes to be, and this is the incentive for
his investment.
The prize in these cases is obvious. It is the large return that goes
with the early payment, and, when this time of payment depends upon
chance, it is simply of course that the prize does also.
It makes no difference as to the lottery nature of these concerns,
that a purchaser may think that, from an examination of the books, the
past and present business of the company, with its past and present
increasing membership, the lapses, etc., he can approximate the time
when his own coupons will be paid-- just as many a man thinks he can
tell by calculation or otherwise what number in a lottery will draw a
prize-- so long as that time in fact depends upon contingencies, the
results of which can not be controlled or foreknown.
These cases differ materially from those guessing contests which have
been considered by this Department, where the prizes are not given for
an accurate guess, but to the nearest ones. In those cases my
predecessors and I held that they were not within the purview of the
statutes under consideration, because inquiry, knowledge, statutes,
experience, judgment, and skill were such factors in, and aids to the
estimates as to remove those cases from the domain of mere guess or
chance.
These cases are different. For example, the purchaser of contract No.
1000, in order to know when its six coupons will be redeemed, must know
what will be the amount of each monthly redemption fund for ten years to
come; and he must know, not only what will be the monthly lapses for
that period, but also the numerical order of such lapses.
It is possible that a man may think that, from his examination of the
books of the company, its past and present business, the constantly
increasing number of its investors, and the number and order of lapses,
he can say that all these conditions will continue for the next ten
years, and that he can tell, therefore, when his coupons will be paid.
Just as many a man thinks he can figure out what number in a lottery
will draw a prize or how to beat some other gambling game; but the fact
still is that the whole matter is entirely beyond human forecast, and
its determination is not aided by all the knowledge he can acquire or
any skill or judgment he can exercise.
Indeed, the actuary of the company could no more forecast this than
could the purchaser without inquiry.
There are other lottery features in these plans, but if these are
such we need not notice others.
To call these cases fraudulent, without qualification, might be
unjust, as their promoters may intend no fraud, and may believe that all
the promises of these companies will be performed, and therefore I use
the term only in its legal signification, as embracing cases in which
promises, however honestly made, can not or will not be performed, and
their non-performance will work a fraud upon some one.
Neither in this nor the previous branch of the inquiry am I unmindful
that penal statutes should be construed strictly, and should not be
applied to the business of a citizen unless such business is certainly
within their purview, and that where doubts in this respect exist they
should be resolved, if possible, in favor of the liberty and business of
the citizen, and I have examined these questions with this in mind.
But with reference to each of these three companies I am constrained
to say:
First. That it makes promises to each investor which, if each
complies with the contract, on his part, can not be performed.
Second. It takes the money of one investor to pay another, and with
no provision for the ultimate repayment of those whose money is thus
taken.
Third. It promises to pay from the business large profits, which are
not earned nor expected to be earned in the business, and with no
capital or property for such payment.
Fourth. It makes absolute promises of periodical payment, when it is
known that their performance and the liability to perform them depend
upon contingencies which the promisor can neither control nor foretell.
Fifth. It depends upon the broken promises of some investors for the
means with which to pay others, and the extent of this is a contingency
known to be beyond the control or forecast of the promisor.
Sixth. As it will require much more than the money of one investor to
make the specified periodical payments to each previous investor, it
will require an accession of newcomers, constantly increasing at high
progressive rates in order to make such payments; and it is obvious
that this can not continue indefinitely, but that the end must come
sooner or later; and when it does come, then the more successful the
business up to that time the greater and more widespread will be the
loss.
And I am constrained to say, also, that in these respects the plans
and business of these companies are fraudulent within the meaning of
these statutes.
Specifically, therefore, I answer your question by advising you that
as to the element of chance and that of fraud, these companies are each
within the purview of the statutes referred to.
Respectfully,
P. C. KNOX.
CHINESE CITIZENS OF HAWAII-- PASSPORT; 23 Op.Att'y.Gen. 509, August
29, 1901
All Chinese persons who, on August 12, 1898, were citizens of the
Republic of Hawaii, became, by virtue of section 4 of the act of April
30, 1900 (31 Stat., 141), citizens of the United States.
The provisions of sections 4075 and 4076, upon the Secretary of State
the authority to issue passports to citizens of the United States, are
not in terms mandatory, and that officer may, in his discretion, either
grant or withhold a passport as the public interests may require.
DEPARTMENT OF JUSTICE,
August 29, 1901.
The SECRETARY OF STATE.
SIR: I have the honor to acknowledge the receipt of your letter of
August 24, 1901, inclosing the application of one Ng. Faun, of Honolulu,
Territory of Hawaii, for the issuance of a passport to him as a citizen
of the United States.
It appears that on July 29, 1892, the applicant, then a subject of
China, was admitted to citizenship in the Kingdom of Hawaii; and it
further appears, from the letter of the Acting Governor of the Territory
of Hawaii, that on August 12, 1898, said Ng. Faun was a citizen of the
Republic of Hawaii.
You request my opinion as to whether it is your "duty to issue a
passport to Ng. Faun."
Your obligations in the matter are defined by sections 4075 and 4076
of the Revised Statutes, which provide that:
"The Secretary of State may grant and issue passports, and cause
passports to be granted, issued, and verified in foreign countries by
such diplomatic or consular officers of the United States, and under
such rules as the President shall designate and prescribe for and on
behalf of the United States."
It is further provided that:
"No passport shall be granted or issued to or verified for any other
persons than citizens of the United States."
Your inquiry thus presents two questions: First, is Ng. Faun a
citizen of the United States. Second, if he be such a citizen, is it
your duty to grant him the passport for which he applies.
I answer the first question in the affirmative. Section 4 of the act
of Congress of April 30, 1900, provides:
"That all persons who were citizens of the Republic of Hawaii on
August twelfth, eighteen hundred and ninety-eight, are hereby declared
to be citizens of the United States and citizens of the Territory of
Hawaii."
This comprehensive language includes Chinese citizens of Hawaii,
unless they are excluded by express language or necessary implication
from the privileges of citizenship by other portions of said act.
Whatever doubt may be suggested in this connection by section 101 of
said act, was resolved by my predecessor, who, in two opinions given to
the Secretary of the Treasury on January 16, 1901, expressly decided
that Chinese persons who were citizens of the Republic of Hawaii on
August 12, 1898, became, by virtue of the section of the act already
cited, citizens of the United States.
I am informed that the same conclusion was reached by Judge Estee, of
the United States district court for the Territory of Hawaii, in the
cases of the United States v. Ching Tai Sai and United States v. Ching
Tai Sun.
The second question suggested by your inquiry must be answered in the
negative. The act of Congress which defines your duty in the matter of
the issuance of passports expressly says "the Secretary of State may
grant and issue passports." The provision, therefore, is not in terms
mandatory, and I know of no law which gives to the citizen a right to a
passport.
Attorney-General Hoar, in an opinion dated June 12, 1869 (13 Opin.,
89, 92), said:
"I do not understand that the granting of passports from your
Department is obligatory in any case, but is only permitted where it is
not prohibited by law."
In a later opinion of Attorney-General Taft (15 Opin., 117), it was
held that the right of a naturalized citizen to a passport was "just as
obligatory upon the Department of the Government charged with this
matter as if he were a native-born citizen intending to go to the same
country."
I do not understand this language, however, as intending to decide
that the issuance of a passport is a matter of obligation, but that no
just distinction can be made between a naturalized citizen and one of
native birth.
Substantial reasons exist for the use by Congress of the word "may"
in connection with authority to issue passports. Circumstances are
conceivable which would make it most inexpedient for the public
interests for this country to grant a passport to a citizen of the
United States. For example, if one of the criminal class, an avowed
anarchist for instance, were to make such application, the public
interests might require that his application be denied.
Without expressing any opinion as to whether a passport should be
granted to Ng. Faun, I advise you that it may, in your discretion, be
granted or withheld.
Respectfully,
P. C. KNOX.
SECRETARY OF THE TREASURY-- COMPROMISE; 23 Op.Att'y.Gen. 507, August
24, 1901
The Secretary of the Treasury has no power to compromise a suit
brought against a collector of internal revenue for the recovery of
taxes claimed to have been illegally collected.
The power given the Secretary by section 3229, Revised Statutes, to
compromise cases arising under the internal-revenue laws, extends only
to suits commenced by the Government to recover taxes; while the ampler
power of compromise given him by section 3469, Revised Statutes, is
limited to claims in favor of the United States.
Except as modified by the statutes herein cited, the power to
determine whether a compromise should be made of pending litigation,
would seem to rest with the Attorney-General, such suits being
necessarily under his control and subject to his direction.
DEPARTMENT OF JUSTICE,
August 24, 1901.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
July 22 with reference to the offer of compromise which the plaintiffs
have made in the case of the Coca-Cola Company v. H. A. Rucker,
Collector of Internal Revenue, which you request me to advise you as to
your power to accept or decline such offer.
It appears that this suit was brought to recover the sum of
$10,858.76 which the Coca-Cola Company claims to have been illegally
exacted from it by the defendant as collector of internal revenue. The
case was tried in the United States district court for the northern
district of Georgia, and a mistrial resulted through the inability of
the jury to agree. The plaintiffs thereupon offered to compromise their
claim if the Government would refund one-half of the taxes, and you now
request my opinion as to your power to accept such offer if, in your
judgment, it is for the interest of the Government to make such
compromise.
In my judgment, you are without power in the premises. It is true
that Revised Statutes, section 3229, provides for the settlement of
cases arising under the internal-revenue laws, but it is obvious that
the section refers to suits commenced by the Government to recover
taxes. Under Revised Statutes, section 3469, an ampler power is given to
the Secretary of the Treasury to compromise claims, but such claims are
limited to thos "in favor of the United States." I know of no statute
which authorizes you to compromise a suit against the United States.
Except as modified by the statutes already cited, the power to determine
whether compromises should be made of pending litigation, would seem to
rest with this Department, as the suits are necessarily under my control
and subject to my direction. As was said by my predecessor, in 22
Opinion, 491-494:
"Nevertheless, it is advisable to add, under the circumstances, that
the primary, broad, and general control by the Attorney-General of suits
in which the United States is interested, conferred by the statutes and
established by decisions of the Supreme Court, of which the Confiscation
Cases (7 Wall., 454) may be mentioned, fully authorizes such disposition
of pending litigation of the Government, including the class of cases
which embraces the one before us, as seems to him meet and proper. He
exercises superintendence and direction over United States attorneys and
general supervision over proceedings instituted for the benefit of the
United States, and to him is necessarily intrusted, in the exercise of
his sound professional discretion and because of the nature of the
subject, the determination of many questions of expediency and propriety
affecting the continuance or dismissal of legal proceedings.
(1 Opin., 482, 486.) He may absolutely dismiss or discontinue suits in
which the Government is interested; a fortiori he may terminate the
same upon terms, at any stage, by way of compromise or settlement."
Without expressly deciding whether I am authorized to compromise an
adverse claim against the Government under this general power to conduct
its litigation, I am clearly of opinion from an examination of the
papers that the present suit should not be compromised, but that the
United States attorney should be instructed to press the case to a final
decision. If these duties have been illegally exacted, they should be
repaid in full; and if, on the contrary, their exaction be lawful, no
part thereof should be paid to the plaintiffs. The responsibility of
deciding whether these duties have been lawfully exacted seems to rest
with the judicial department of the Government.
I have instructed the United States attorney accordingly.
Respectfully,
JAMES M. BECK,
Acting Attorney-General.
SECRETARY OF WAR-- POWER TO SUSPEND HARBOR IMPROVEMENTS; 23 Op.
Att'y.Gen. 504, August 24, 1901
The Secretary of War has discretionary authority, under the act of
June 3, 1896, (29 Stat., 213), and subsequent acts making appropriations
for the construction of a tidal canal in Oakland Harbor, California, to
suspend the work on such improvement when the suspension will best inure
to its ultimate completion; but he would not be justified in suspending
the work if the only purpose was to delay its completion with the
intention of abandoning it.
A mere doubt as to the wisdom of carrying out a public work
authorized by Congress, does not justify its suspension, and a refusal
to complete it. Until such act is repealed, it must be assumed to be the
deliberate and continuing expression of the will of Congress, and
respected as such.
DEPARTMENT OF JUSTICE,
August 24, 1901.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge the receipt of your letter of
the 21st instant, in which you ask me to advise you with reference to
your power to suspend the prosecution of certain public work in Oakland
Harbor, California, which work had been authorized under the act of June
3, 1896 (29 Stat., 202, 213), and subsequent legislation.
It appears from your letter that by the act in question Congress
provided:
"Improving harbor at Oakland, California: Continuing improvement,
under existing project, twenty thousand dollars: Provided, That
contracts may be entered into by the Secretary of War for such materials
and work as may be necessary to complete said improvement, to be paid
for as appropriations may from time to time be made by law, not to
exceed in the aggregate six hundred and sixty-six thousand dollars,
exclusive of the amounts herein and heretofore appropriated."
It being impracticable to complete the work within the limit fixed,
the sundry civil act of June 4, 1897 (30 Stat., 11), modified the above
legislation by providing that contracts could be made "to prosecute the
improvement under existing project."
You state that the existing project, at the date of the legislation
of 1896, included the construction of a tidal canal connecting San
Antonio Creek (Oakland harbor) and San Leandro Bay. This project had
been recommended by a board of engineers in 1874.
It also appears that Congress, in making further appropriations in
1898 and 1900 for the improvement of Oakland Harbor, specifically
referred to the "existing project" as the object of such appropriation,
and your Department has already expended upon this tidal canal the sum
of $480,000, and a contract for its further prosecution under existing
appropriations is now awaiting your approval, which provides for work
estimated to cost about $270,000.
On June 24, 1901, the Chief of Engineers received the following
dispatch from Hon. T. E. Burton, chairman of the River and Harbor
Committee of the House:
SAN FRANCISCO, CAL., June 21,
1901.
"GENERAL GILLESPIE,
Chief of Engineers, Washington, D.C.
"Twelve members of committee (river and harbor) after examination of
proposed tidal canal, Oakland Harbor, unanimously and earnestly
recommend that approval of contract signed here last Monday be withheld.
It seems a wasteful and probably dangerous expenditure. Whole subject
should be reconsidered by Congress with the assistance of more adequate
information. Local engineers agree * * * Will write more fully * * *
"T. E. BURTON."
Upon these facts you ask me the following question:
"Under the act of June 3, 1896, hereinbefore cited, making
appropriations for the construction of works of river and harbor
improvement, has the Secretary of War authority to further suspend the
prosecution of the work therein provided for, of completing Oakland
Harbor 'under existing project?'"
An appropriation for a public improvement carries with it as a
necessary implication a direction that the work shall be done, and the
executive department has no power, in the absence of statutory
provisions giving it discretionary authority, to decline to execute such
work. Except where otherwise provided, the time for the commencement of
such work and that required for its completion are necessarily committed
to the sound discretion of the executive department of the Government,
and in the exercise of such discretion, work once commenced may be
suspended if in the judgment of the executive department such suspension
will best insure the ultimate completion of the work. The suspension of
the work for a legitimate object connected with its ultimate completion
must not be confounded with such suspension whose purpose is a refusal
to carry on the work further.
A mere doubt as to the wisdom of carrying out a public work authorized
by Congress would not justify its suspension and a refusal to complete
it.
Replying, therefore, to your question, I do not disaffirm your
authority to suspend the prosectuion of the public work authorized by
the act of June 3, 1896, if in your judgment the ultimate completion of
the work requires such suspension at this time, but I do not think that
you would be justified in thus suspending it if your only purpose was to
delay its completion until Congress should have the opportunity to
reconsider its own deliberate act and possibly repeal it. Until such act
is repealed, it must be assumed to be the deliberate and continuing
expression of the will of Congress, and respected as such.
Respectfully,
JAMES M. BECK,
Acting Attorney-General.
ARMOR PLATE-- ROYALTY-- HARVEY PROCESS; 23 Op.Att'y.Gen. 495, August
23, 1901
The Secretary of the Navy entered into a contract with the Carnegie
Steel Company for the furnishing of armor plate, the contract providing
that if the Carnegie Company should be "required" to pay royalty for the
use of the Harvey face-hardening process in the manufacture of armor
plate under its contract, the United States would reimburse it for the
amount so paid. The Carnegie Company, by reason of its contract with the
Harvey Company, was estopped from denying the validity of the Harvey
patent. It used, as it is claimed, the Harvey process in the manufacture
of the armor plate, and, having paid the royalty thereon, presents its
claim for reimbursement.
The Government denies the validity of the Harvey patent, and contends
that no distinctive feature of the Harvey patent was used. A suit is
pending in the Court of Claims which will determine these questions.
Held:
1. That if the Harvey patent be valid, it may properly be urged that
the Carnegie Company, being estopped from denying the validity of the
patent, was therefore "required" to pay the royalty.
2. That the Secretary of the Navy should withhold his approval of the
claim until the question of the right of the Harvey Company to collect
royalty from the Government has been judicially determined in the
pending suit.
3. The claim of the Bethlehem Steel Company for reimbursement for
royalty paid, being based upon a contract similar to that of the
Carnegie Company, the Secretary should likewise withhold his approval of
the claim of the Bethlehem Company.
Opinion of March 14, 1901 (ante, p. 422), reconsidered and
reaffirmed.
DEPARTMENT OF JUSTICE,
August 23, 1901.
The SECRETARY OF THE NAVY.
SIR: I have the honor to acknowledge the receipt of your letter of
March 29, 1901, in which you return the papers relative to the question
of withholding payment upon voucher No. 10, in favor of the Carnegie
Steel Company, Limited (hereinafter referred to as the Carnegie
Company), as royalty for the use of the Harvey process in the
manufacture of nickel-steel armor plate, and in which you state that you
return the papers, together with certain additional papers, at the
request of the attorney for the Carnegie Company, with the request on
your part that I shall reconsider the matter and advise you whether I
adhere to the opinion previously expressed by me on March 14, 1901.
I have also to acknowledge the receipt of your letter of August 14,
1901, in which you transmit a letter from the same attorneys, who also
represent the Bethlehem Steel Company (hereinafter referred to as the
Bethlehem Company), and who now make a similar claim for the approval of
a voucher for royalty paid by the Bethlehem Company to the Harvey Steel
Company (hereinafter referred to as the Harvey Company), for the use of
the Harvey process, and in which they request that these papers be
considered by me in connection with the claim of the Carnegie Company
above referred to.
As the two claims arise under similar contracts, and are believed to
involve substantially the same question, I will dispose of them
together.
The doubt suggested in your original request for an opinion was,
whether payment could be made "with due regard for the Government's
interests in view of the pending litigation between the Government and
the Harvey Steel Company with respect to the validity of these patents."
And you, therefore, asked my opinion as to the right of your Department
"under all the circumstances to withhold its approval of the voucher
referred to." On March 14, 1901, I advised you that you had the right to
withhold such approval "until the legal question of the right of the
Harvey Steel Company to collect royalty from the Government, involved in
the pending suit, should be finally adjudicated."
At the request of the attorneys for the Carnegie Company and the
Bethlehem Company, I have carefully reexamined the papers filed with me
in both matters, and have heard an oral argument by said attorneys on
behalf of their clients.
After due consideration, I adhere to the opinion previously
expressed. The right of the claimants to reimbursement depends upon a
clause in their contracts, by which it was provided that if they were
"required to pay royalty for the use of the face-hardening process as
applied to armor under this contract, the party of the second part (the
United States) will reimburse the party of the first part the amount so
paid, provided that such royalty does not exceed one-half of one cent
per pound of the face-hardened armor delivered to the party of the
second part under this contract."
The question as to the liability of the United States to make such
reimbursement seems to be primarily one of construction, and turns upon
the fact whether the claimants were "required to pay" the royalties in
question. The exact meaning of the expression can only be determined in
the light of all the circumstances under which the contract was entered
into, and I would not care to express any opinion as to its true
interpretation unless a statement of such facts were submitted by you to
me. I, therefore, express no opinion as to the liability of the
Government to reimburse the two steel companies for the royalties which
they claim to have paid the Harvey Company, and will confine this
opinion to the single question whether you have the right to withhold
the approval of the vouchers, which are submitted in connection with
their respective claims, pending the decision of the Court of Claims in
the case of the Harvey Company v. United States.
It appears from the papers submitted to me that, on April 12, 1893,
the United States made a contract with the Harvey Company, by virtue of
which the Navy Department acquired the right to use the inventions
described in the Harvey patents in the treatment of armor plates to be
used in the construction of vessels then authorized, or which might
thereafter be authorized by Congress. By this agreement the United
States agreed to pay the Harvey Company a royalty at the rate of
one-half of 1 cent a pound upon all finished plates.
On November 23, 1894, the Chief of the Bureau of Ordinance
recommended that, "No further royalties be paid for the use of the
Harvey process upon armor for vessels that may hereafter be authorized
by Congress." In making this recommendation he stated that the claims
upon which the Harvey process were founded, and which distinguished it
from others employed for many years in the cementation of steel, were
two, which he particularizes, and that neither was, as a matter of fact,
used by the Government in the manufacture of armor for naval vessels.
On September 27, 1895, the Chief of the Bureau again made his
recommendation to discontinue the payment of the royalties, on the
additional ground that the process covered by the Harvey patent was
known over thirty years before such patent was obtained, and such patent
was, therefore, invalid.
On November 6, 1895, the then Secretary of the Navy, referring to the
suit then pending between the Bethlehem Company and the Harvey Company
to recover royalties for the alleged use of the Harvey process, decided
that the Department should await the decision of the court before paying
further royalties. Since this decision I understand that your Department
has declined to pay these royalties on two grounds, first, that the
process used by the Government, or its contractors, in the manufacture
of armor plate was not covered by the Harvey patents in any essential
feature of the process; and secondly, that the Harvey patents were
invalid for want of novelty.
It further appears that on March 24, 1897, an agreement was executed
between the Harvey Company and the Carnegie Company, whereby the Harvey
Company granted to the Carnegie Company a license under its patent "to
practice the process in the manufacture of armor plates, and to
manufacture the product described and claimed in said letters patent
during the full term of said patent."
This contract, after providing for the payment of certain royalties,
provides, inter alia, as follows:
"Provided always, that the said licensee shall not be liable to pay
to the said Harvey Steel Company any royalty in respect to armor plates
made and sold by the licensee to any Government to which the said Harvey
Steel Company may have granted or may hereafter grant a license to use
the said Harvey process, and which the said Government has a right to
make under its license. But in case any such Government shall hereafter
refuse to pay to the said Harvey Steel Company, or its assigns, the
royalty or consideration for such license, for any reason, except as
specified therein, and in case due notice of such refusal shall
thereupon be given, in writing, to the said The Carnegie Steel Company,
Limited, then and in that event the licensee herein shall not thereafter
make any new contract with such Government to manufacture any armor
plates of the kind covered by this agreement for such Government,
without either the written consent of the licensor, or itself paying the
rate of royalty stipulated in said Government license, on the plates
manufactured under said new contract.
"In case the Carnegie Steel Company, Limited, should itself pay the
royalty stipulated to be paid by the Government of the United States,
then, and in that event, the said the Carnegie Steel Company, Limited,
shall be subrogated to the rights of the Harvey Steel Company for the
amount of such royalties, so paid to the Harvey Steel Company, who shall
thereupon, on the written request and at the expense of the Carnegie
Steel Company, Limited, commence and prosecute with due diligence a suit
against the United States Government to recover the royalty due under
the said Government license on any armor made for it by the Carnegie
Steel Company, Limited, which the said the Carnegie Steel Company,
Limited, may have paid, and, in case of recovery thereof, shall pay over
to the said the Carnegie Steel Company, Limited, the amount of such
recovery, less any expense of said suit then unpaid."
It is provided, moreover:
"If a dispute shall arise between the parties hereto upon the
question whether or not any process or manufacture, or any armor plates,
are or are not covered by the claims of said patent, or either of them,
or whether royalty shall be paid by the licensee upon plates so made,
then and in that event, if and so long as the licensee shall contend
that any process of manufacture or any armor plates are not covered by
either of the claims of said patent, or are not such that royalty should
be paid thereunder therefor, this license shall not involve any
obligation on the part of the licensor, to prosecute any suit under said
patent No. 460262, as against any manufacture or armor plates, so being
made by unlicensed parties, and the licensee shall thereafter, as to
such methods of manufacture, or armor plates, not to be entitled to any
right, to the exclusion of others, under section twelfth hereof, but it
shall retain all such exclusive rights as to all methods of manufacture
and armor plates which it shall admit in writing to be covered by either
of the claims of said patent, or which it shall continue to pay for
hereunder.
"Eighth. The said licensee hereby covenants and agrees that during
the continuance of this license, or if this license shall be revoked in
accordance with the terms of the fifteenth clause hereof, it will
respect the said letters patent, and will not itself infringe or
contest, nor assist any person in infringing or contesting the validity
thereof, and will not contest any extension, renewal, or reissue of said
patent No. 460262 on any ground which might at the present time be set
up against said letters patent."
It is further provided as follows:
"Seventeenth. The said licensee hereby agrees to submit to a final
decree sustaining the validity of said letters patent No. 460262 in a
suit to be commenced by filing a bill in the United States circuit court
for the eastern or western district of Pennsylvania; and to an
injunction therein against any use of the invention recited in said
letters patent No. 460262, except under license from the owner of said
patent."
In accordance with the last-quoted clause of the agreement, a suit
was brought in the circuit court of the United States for the third
circuit, and the western district of Pennsylvania, against the Carnegie
Company, and by the consent of the Carnegie Company the court entered a
decree on October 5, 1897, which sustained the validity of the letters
patent, and granted an injunction enjoining the defendant "from using
the process claimed in the first claim of said letters patent No.
460262, or making or vending to others any armor plates embodying the
invention of the second claim of said letters patent No. 460262, as
heretofore done by it, except under license from the owner of the
patent, or from otherwise infringing either of said claims of said
letters patent in any way whatsoever."
This decree further recites that the defendant had "settled with the
complainant for any and all past infringement and costs, and taken a
license under said letters patent."
Under these circumstances the Carnegie Company, being referred to as
the party of the first part, and the United States referred to as the
party of the second part, executed the contract of June 3, 1898, for the
manufacture of armor plate for the battle ships Illinois and Wisconsin.
Said contract contained the following clause:
'Fifth. The party of the first part, in consideration of the
premises, hereby covenants, and agrees to hold and save the United
States harmless from and against all and every demand or demands of any
nature or kind for or on account of the adoption of any plan, model,
design, or suggestion, or for or on account of the use of any patented
invention or article which has been or may be adopted or used in or
about the manufacture or production of said armor plates and
appurtenances, or any part thereof, under this contract, and to protect
and discharge the Government from all liability on account thereof, or
on account of the use thereof, by proper releases from patentees, or
otherwise, and to the satisfaction of the Secretary of the Navy:
Provided, That if the party of the first part is required to pay royalty
for the use of the face-hardening process as applied to armor under this
contract the party of the second part will reimburse the party of the
first part the amounts so paid, provided that such royalty does not
exceed one-half of one cent a pound of face-hardened armor delivered to
the party of the second part under this contract."
Subsequently, the Harvey Company brought suit on June 23, 1898,
against the United States in the Court of Claims, No. 21110, alleging a
breach of the contract of April 12, 1893, and claiming a sum equal to
the amount of royalty at the contract price, which suit is still pending
and undetermined.
Under the contract of June 3, 1898, armor plate was manufactured by
the Carnegie Company and hardened by some process, the exact nature of
which is not disclosed in your communication. I assume it is the process
theretofore used on the other armor plate, to which reference has been
made, and as to which the Government contended that it did not utilize
any distinctive or essential feature of the Harvey patent. The Harvey
Company, however, claimed that it was hardened by the Harvey process,
and accordingly, on February 7, 1899, presented to the Carnegie Company
a bill for $8,024.45 for royalties claimed to be due upon said armor
plates, and this bill was paid by the Carnegie Company on April 12,
1899, and you are now asked to approve a voucher for the reimbursement
of the Carnegie Company, and you request my opinion as to your right to
withhold your approval of such voucher.
The Government contends that the process employed in hardening these
armor plates is not covered by the Harvey patents; and in the second
place, that the patents are invalid. If the only question were as to the
validity of the patents, it could be urged with some force that by the
license of March 24, 1897, the Carnegie Company is estopped from
disputing the validity of the Harvey patents, and is, therefore,
"required" to pay these royalties.
It is not necessary to decide this question at this time, for if the
first contention of the Government be sound and the process used by the
Carnegie Company in hardening these plates is not the process covered by
the Harvey patents, then it would not be the subject of the agreement of
March 24, 1897, and the Carnegie Company was not "required" to pay
royalties thereunder. This is the very question at issue in the pending
litigation between the United States and the Harvey Company, behind
which latter company the Carnegie Company stands as beneficial plaintiff
to the extent of the royalties paid by it, for the Carnegie Company is
"subrogated to the rights of the Harvey Steel Company for the amount of
such royalties," and the Harvey Company "on the written request, and at
the expense of the Carnegie Steel Company, Limited," must commence and
prosecute with due diligence a suit against the United States to recover
the royalty due under the said Government license, and must pay over the
royalties thus recovered to the Carnegie Company. Whether recovery is
sought in the pending case in the Court of Claims for the particular
royalties, for which you are now asked to approve a voucher, is not
important. The question involved is the same, and if the Harvey Company
be successful in this suit, and the royalties comprised in the disputed
voucher be not recoverable in the pending suit, the Harvey Company is
obliged to bring a new suit for such royalties for the benefit of the
Carnegie Company, and the prior decision would unquestionably be
controlling. It is obvious, therefore, that to pay these royalties is
not merely to prejudge the question at issue in the present litigation,
but in effect to concede the entire claim. In my judgment, therefore,
you are justified in withholding your approval of this voucher.
It is evident that the Government desires to have the question of the
validity of the Harvey patents, and the exact process covered by them,
judicially determined, and it should not be defeated in this purpose by
the ingenious agreement into which its contractors and the Harvey
Company entered. I, therefore, adhere to the opinion previously
expressed that you are justified in withholding such approval, to the
end that the questions involved may be judicially determined.
This conclusion is not affected by the act of June 3, 1899, which
appropriates certain money for armor plates, and inter alia, for
"royalty for steel face-hardening process not to exceed one-half cent
per pound, and which can not be made use of without the payment of
royalty." The attorney for the claimants contends that this is a
specific direction on the part of Congress to pay these royalties
without regard to the pending litigation. I can not concur in this view.
On the contrary, it seems to me that Congress has explicitly confined
the appropriation for royalties for the use of such process as "can not
be made use of without the payment of royalty." In view of the dispute
between the Government and the Harvey Company, which was presumably
known to Congress, the conclusion is reasonable that by the use of these
words Congress intended to appropriate moneys for the payment of
royalties, if it were determined that the process could not be used
without the payment of such royalties. There is no reason to believe
that Congress intended to prejudge the controversy then pending in the
Court of Claims, or to pay royalties which the Executive Department did
not regard as due.
The claim of the Bethlehem Company arises under similar contracts,
and upon a similar state of facts. For the reasons already given in
disposing of the Carnegie Company's claim, I also advise you that you
are justified in withholding your approval of its voucher.
Very respectfully,
JAMES M. BECK,
Acting Attorney-General.
LOTTERY-- GUESSING CONTESTS; 23 Op.Att'y.Gen. 492, August 19, 1901
The offering of prizes by a newspaper to those who make the nearest
estimates of the number of paid admissions to the Pan-american
Exposition at Buffalo, from the day of opening to the day of closing, is
not in violation of section 3894, Revised Statutes, as amended by the
act
The words "dependent upon lot or chance," as used in that section,
exclude estimates which are based upon mental calculation, even though
the factors which enter into such calculation may be uncertain and
matter of conjecture.
The opinion of Attorney-General Miller of October 31, 1890 (19 Opin.,
679), and of Attorney-General Griggs of September 4, 1900 (ante, p.
207), reaffirmed.
DEPARTMENT OF JUSTICE,
August 19, 1901.
The POSTMASTER-GENERAL.
SIR: I have the honor to acknowledge the receipt of your letter of
August 8, 1901, in which you request an opinion as to whether the use of
the mails in advertising a so-called "Guessing contest" is a violation
of section 3894 of the Revised Statutes, as amended by the act of
September 19, 1890. In your letter you set forth at length the nature of
the guessing contest in question by reciting an advertisement of it, by
which it appears that the Detroit Journal proposes to give to its
subscribers 1,000 cash prizes, aggregating $15,000, the prizes to be
distributed in varying amounts among those who make the nearest
estimates of the number of paid admissions to the Pan-American
Exposition at Buffalo, from the day of opening, May 1, to the day of
closing, October 31, inclusive. As I understand the scheme, the estimate
can be made and sent at any time before the last day of the Exposition,
but three special prizes are offered for estimates prior to August 15,
September 15, and October 15, respectively.
You refer me to an opinion rendered by Attorney-General Miller on
October 31, 1890, in which he held that a guessing contest, advertised
by the Cincinnati Enquirer of a similar nature was held to be without
the operation of the lottery laws, and you ask me whether I adhere to
the opinion thus given by this Department. You state that:
"The result (of this opinion) has been most unfortunate. Guessing
contests without number are constantly in operation through the mails,"
and add:
"It is the settled opinion of the officials of this Department who
are at all familiar with the operations of these so-called guessing
contests that they are almost as vicious and demoralizing in their
effects as drawings or raffles. They constitute a great and growing
abuse in themselves, and lead, moreover, to countless direct violations
of the law."
If the opinion of my distinguished predecessor be sound it is not
important whether these guessing contests are or are not demoralizing in
their consequences, or whether they mislead any into the belief that
lottery schemes are permissible. Unless plainly forbidden by law, the
remedy is with Congress and not with this Department. The only
questions, therefore, seem to be, whether the present scheme differs in
principle from that upon which Attorney-General Miller's opinion was
predicated, or whether, if the two contests be identical in principle, I
am prepared to say that my predecessor was in error.
In this connection I may call your attention to an opinion which has
apparently escaped your attention, and which was rendered to you by my
predecessor, Attorney-General Griggs, on September 4, 1900. In
requesting that opinion you then asked him by letter dated October 2,
1899, to review the opinion of Attorney-General Miller, to which
allusion has been made. The facts upon which you asked for such review
disclosed a similar guessing contest, in which prizes were offered to
those who could make the nearest estimate of the majority of the
successful candidate for President at the next Presidential election.
As this Department then advised you, the scheme was far more vicious in
its tendencies than that upon which Attorney-General Miller passed, for
the prizes were much larger, and in other respects the scheme had many
of the allurements and characteristics of a lottery. Nevertheless,
Attorney-General Griggs was unable to distinguish in principle between
the two contests, and was of opinion that such an estimate depends upon
"calculation, foresight, knowledge, inquiry, and information," and that
"the trained observer of political events is far more likely to
approximate the number than one who has not studied election statistics
or past political struggles."
He therefore concluded that as it was-- "impossible to distinguish
the case in principle from that which was the subject of
Attorney-General Miller's opinion, and, as the case is not free from
doubt, and as questions of doubtful construction of criminal statutes
should be resolved in favor of the liberty of the subject, I am
constrained to adhere to the opinion of my distinguished predecessor."
I can not see that the present contest differs in principle. It is
true that an estimate of the number of paid admissions at the Buffalo
Exposition must be, to some extent, dependent upon chance, as an exact
estimate is almost impossible. As Attorney-General Miller said:
"In a certain sense and in a certain degree, perhaps, any prediction
as to human action may be said to be dependent upon chance-- that is to
say, it is in some measure dependent upon circumstances, the happening
of which can not be anticipated or foretold with any degree of
certainty."
But, in view of the fact that experience and study were no
inconsiderable factors in making an approximate estimate, he did not
think that it was "dependent upon chance" within the meaning of the
lottery statutes.
Similarly, Attorney-General Griggs, while appreciating that an exact
estimate was beyond the power of human calculation, yet recognized that
its accuracy would be affected by "calculation, foresight, knowledge,
inquiry and information."
These considerations seem to me to apply equally to an estimate of
paid admissions to an exposition. The contestant would necessarily be
assisted by a careful inquiry into the conditions which affect the
number of admissions, as the population of Buffalo, its transportation
facilities, its proximity to populous centers, the prosperity of the
times, the attractiveness of the exposition, the interest of the public
in it, and other considerations too numerous to be mentioned.
Moreover, the estimate could be in part based upon actual admissions
into the exposition prior to the latest day for sending in estimates,
and the law of averages would thus be taken into consideration.
Such estimate, therefore, while necessarily dependent in may respects
upon chance, is likewise affected by the intelligent calculation of a
thoughtful observer.
I agree with my predecessors that a fair construction of the words,
"dependent upon lot or chance" excludes estimates which are based upon
mental calculation, even though the factors, which enter into such
calculation, may be uncertain and matters of conjecture. The drawing of
a lot, or the throw of the die are purely dependent upon chance, for no
mental operation can aid in estimating the result. Congress, in my
judgement, intended to prevent the distribution of prizes by such means.
As penal statutes must be construed strictly, I am unable to reach the
conclusion that the giving of prizes as a reward for superior
intelligence in estimate, is within the purview of the statute. And this
conclusion can not be affected by the demoralizing tendencies of such
contests, to which you refer. This Department can only execute laws. It
can not make them, and the remedy, if any be required by the public
interests, must rest with the legislative department of the Government.
Respectfully,
P. C. KNOX.
EXECUTIVE COUNCIL OF PORTO RICO-- FRANCHISES-- EXEMPTION FROM
TAXATION; 23 Op.Att'y.Gen. 490, August 14, 1901
The delegation by Congress to the Executive Council of Porto Rico by
the thirty-second section of the act of April 12, 1900 (31 Stat., 83),
of the power to grant franchises respecting the public utilities of that
Island, did not confer upon it the other sovereign power of taxation,
including the authority to exempt from taxation.
The power to grant franchises and the power to tax are different and
distinct things. The power of taxing or of exempting franchises from
taxation can not be regarded as in any sense incidental to that of
granting franchises, and is by the act of April 12, 1900, delegated to
the Legislative Assembly of Porto Rico.
The action of the Executive Council, therefore, in so far as it
attempts to exempt from taxation the property of a company which it has
granted a franchise, is void, and the President should not approve such
a franchise.
DEPARTMENT OF JUSTICE,
August 14, 1901.
The SECRETARY OF STATE.
SIR: I have the honor to acknowledge the receipt of your letter of
the 31st ultimo, transmitting two certified copies of a "franchise,"
granting to the Compania de los Ferrocarriles de Puerto Rico, the right
to extend its railway lines between certain points in Porto Rico; also
a copy of a letter from Mr. Wenceslao Borda, jr., addressed to the
President on the 29th ultimo, stating his objections, as a Porto Rican
Taxpayer, to the grant.
You request my advice touching the approval of the grant by the
President under section 2 of the joint resolution of May 1, 1900, and
the return of the papers, which are herewith inclosed.
I advise that the "franchise" in question be not approved by the
President.
Upon examination of it I find, on page 7, and in section 5, that the
Executive Council has undertaken to exempt the company and its property
from all taxation, the exemption in section 5 being for the period of
twenty-five years.
These exemptions the Executive Council was not authorized to make.
Congress delegated to it, by section 32 of the Organic act of Porto
Rico, the sovereign power to grant franchises respecting the public
utilities of the Island, such as railroads, telephones, telegraphs, and
the like. Congress did not delegate to it the other sovereign power of
taxation, including the authority to exempt from taxation. This was
delegated to the Legislative Assembly of Porto Rico.
The two powers are different and distinct things. That of taxing or
exempting from taxation can not be regarded as in any sense incidental
to that of granting franchises.
It is familiar law that a power to grant public property or rights
must be strictly construed and can not be held to imply more than its
affirmative language imports, and that there is a presumption against an
intent to part with or impair an important sovereign power or to
authorize a body intrusted with delegated powers to do so.
I am clearly of opinion, therefore, that the Executive Council has,
in the matter of these exemptions, which are obviously important
considerations in the "franchise" or contract in question, invaded the
province of the Legislative Assembly, and that the proposed exemptions
are void.
Respectfully,
P. C. KNOX.
CHINESE-- ENTRANCE INTO HAWAII; 23 Op.Att'y.Gen. 487, August 12,
1901
There is nothing in the Resolution of Annexation of the Hawaiian
Islands (30 Stat., 750), nor in the Organic Act which provides a
government for that Territory (31 Stat., 141), nor in any law of
Congress, which would prevent the entrance into those Islands of
Chinese, now legally resident in the United States and holding
certificates of registration provided for by the acts of May 5, 1892 (27
Stat., 25) and November 3, 1893 (28 Stat., 7).
The "further importation" of Chinese forbidden by the Resolution of
Annexation is immigration from countries other than the United States.
The question of the right of such Chinese persons to return to the
United States from the Hawaiian Islands, not decided.
DEPARTMENT OF JUSTICE,
August 12, 1901.
The SECRETARY OF THE TREASURY.
SIR: It seems from your letter of July 31, that certain Chinese
persons, legally resident in the United States, are about to depart from
this country to enter the Territory of Hawaii, and thereupon you
propound to me the following question: Is there any statutory provision
to prevent the entrance into the Territory of Hawaii of Chinamen, now
legally resident in the United States and holding certificates of
registration provided for by the acts of May 5, 1892, and November 3,
1893?
The certificates of registration or of residence referred to are
those which Chinese laborers must, and other Chinese persons may, obtain
under the acts mentioned as evidence of their right to be and remain
within the United States. These certificates give no right to Chinese
persons who leave the United States to reenter after temporary absence.
For Chinese laborers may not now enter the United States at all, nor
even reenter after residence here unless they come within Article Ii of
the treaty of 1894, which imposes in addition to registration certain
other conditions, including the production of the "return certificate"
therein mentioned.
And other Chinese persons, of the permitted classes, such as merchants,
are not entitled to reenter because of their registration certificates
(if they have elected to register), but because under the Lau Ow Bew
decision (144 U.S., 47), holding that a returning merchant is not
required to produce the entrance certificate of the act of 1884, their
commercial domicile here has not been forfeited by temporary absence.
Of the fact of this domicile a registration certificate would amount to
a kine of evidence, but is not the evidence now specifically required by
law (section 2, act of 1893, supra). I remark, parenthetically, that the
old registration and return certificates, or certificates of identity,
for laborers, of the acts of 1882 and 1884 (section 4 of both acts) have
been abolished since the act of October 1, 1888, except so far as
reinstated under a new form and certain limitations by the convention of
1894 (Chinese Exclusion Case, 130 U.S., 581; 21 Opin., 68). So that a
registration certificate under the acts of 1892 and 1893 appears clearly
to be only the requisite warrant of a Chinese laborer who is in the
United States to be and remain here.
"The right to be and remain within the United States carries with it
the right to pass into any part of the United States." (22 Opin., 353,
357). Does this liberty of passage embrace the Hawaiian Islands, which
now constitute an organized territory of the United States?
The resolution of annexation of the Hawaiian Islands provides that:
"There shall be no further immigration of Chinese into the Hawaiian
Islands, except upon such conditions as are now or may hereafter be
allowed by the United States; and no Chinese, by reason of anything
herein contained, shall be allowed to enter the United States from the
Hawaiian Islands."
This law had the effect of extending our Chinese laws to the Hawaiian
Islands (22 Opin., 249), with a special limitation thereof to further
immigration into those Islands, and a special prohibition of entry into
the United States therefrom (22 Opin., 353).
The effect of the opinion cited is to rule that "immigration" is
restricted to the original entry and does not apply to reentry (Id.,
359). Now, by a parity of reasoning and a necessary inference, and
because of the language of the resolution, which I have quoted, it seems
to me that the "further immigration" forbidden is that from other
countries than the United States. This is shown by the special
prohibition in this country "to come from any foreign port or place"
(act of July 5, 1884, sec 1), would otherwise exclude Chinese coming
from the Hawaiian Islands. Consequently, because of the specific
prohibition, I think the converse entry of Chinese into Hawaii from the
United States is allowable so far as the resolution is concerned, not
being covered by the ban on further immigration.
The organic act for the government of Hawaii (31 Stat. 141, sec.
101) made local registration of the Chinese who were in the Hawaiian
Islands when the act took effect, under the above stated acts of 1892
and 1893, a requisite to legal residence in the Islands, and carried out
the special prohibition of the resolution by providing:
"That no Chinese laborer, whether he shall hold such certificate or
not, shall be allowed to enter any State, Territory, or district of the
United States from the Hawaiian Islands."
It will be noted that section 101 declares that until the expiration
of the period of one year allowed for registration, such Hawaiian
Chinese, "shall not be deemed to be unlawfully in the United States if
found therein without such certificates." It is evident that the word
"therein" refers to the Hawaiian Islands.
To my mind the only fair conclusion from the foregoing laws, and
especially under the inference drawn from the italicised words just
quoted, is that all Chinese persons who have a right to be in the United
States, as evidenced by valid certificates of residence or registration,
are entitled to pass from the United States to the Hawaiian Islands, and
to be protected while there by their registration certificates as they
would be in any organized Territory of the continental and integral
domain of the United States.
It is clear, beyond question, from the language of the resolution and
the act, that such certificates would give them no right to repass to
the United States from the Hawaiian Islands.
The question of the right of return, however, I am not called upon to
pursue. I, therefore, intimate no impressions of the possible right of
return of Chinese persons not laborers, or of Chinese laborers who meet
the conditions specified in the treaty of 1894, notwithstanding the
proviso of section 101 of the Organic act for Hawaii. Furthermore, I
desire to limit strictly my views of the liberty of passage of Chinese
persons throughout the different portions of the United States to the
case presented, which submits the question as affecting this particular
territory and as controlled by the special laws cited.
I have the honor to answer your question in the negative. I return
the papers herewith.
Very Respectfully,
P. C. KNOX.
CHINESE EXCLUSION LAWS-- RETURNING MERCHANT-- READMISSION; 23 Op.
Att'y.Gen. 485, August 12, 1901
A Chinese person, resident in the United States, and member of a firm
engaged in the manufacture of cigars within the United States and of
selling the cigars so manufactured, who, having temporarily left the
United States, desire readmission, is a returning merchant in the sense
in which that word is used in the treaty and the laws relating to the
exclusion of Chinese, and, as such, is entitled to readmission into this
country.
The true theory is, not that all Chinese persons may enter this
country who are not forbidden, but that only those are entitled to enter
who are expressly allowed to do so.
The fact that a bona fide Chinese merchant is also a manufacturer,
makes him non the less a merchant within the meaning of the treaty and
the laws referred to.
DEPARTMENT OF JUSTICE,
August 12, 1901.
The SECRETARY OF THE TREASURY.
Sir: Your letter of July 31 duly presents for my opinion the
question "whether a member of an enterprise engaged in the manufacture
or preparation of goods for sale may be considered a merchant in the
sense in which that word is used in the treaty and laws in relation to
the exclusion of Chinese, where the mercantile part of such business,
either wholly, or in part, is the selling of the goods so manufactured."
It seems that the Chinese person in this case is a member of a firm
at San Francisco, whose principal business is the manufacture of cigars,
the firm occupying a fixed place of business and selling as merchandise
the product of their manufacture, as all or part of the commercial side
of their business.
The question is raised by the application of this Chinese person for
readmission to this country as a returning merchant.
Although the applicant has been a resident of the United States and
domiciled therein for several years, and is now seeking to return to his
home, business, and property, and although he may not be a laborer, I do
not think a manufacturer, as such, is entitled to admission to the
United States, because the executive construction of the laws, including
the opinion of the Department, holds that the law explicitly defines the
permitted classes, and that no other classes are entitled to admission.
"The true theory is not that all Chinese persons may enter this
country who are not forbidden, but that only those are entitled to enter
who are expressly allowed." (22 Opin., 130, 132).
But I am not disposed to think that a bona fide merchant is any the
less a merchant because he is also a manufacturer. It is understood that
the firm sells as merchandise the product of their own manufacture. It
does not appear that the applicant performs any manual labor which is
not within the permitted exception of such as is incident to his
merchant character, or incident to his manufacturing activities as
tributary to the merchant character. Upon this point your own letter and
the accompanying papers show nothing regarding manual labor by the
applicant, other than such as is fairly part of his functions as a
merchant.
The language of the law is: "A merchant is a person engaged in
buying and selling merchandise, at a fixed place of business, which
business is conducted in his name, and who, during the time he claims to
be engaged as a merchant, does not engage in the performance of any
manual labor, except such as is necessary in the conduct of his business
as such merchant." (Sec. 2, act of November 3, 1893; 28 Stat., 8).
I find nothing in the case which excludes the applicant from this
category.
It has been ruled, as to the requirement that the business shall be
conducted in the name of him who claims to be a merchant, that this does
not make the appearance of his name in the firm designation or formal
title the sole response to the test (Lee Kan v. United States, 15 U.S.
Appeals, 576). The definition by the law is "broad enough to protect
every man legitimately engaged in that industry, and narrow enough to
prevent the designation being used as an instrument of fraud by
laborers." (Ibidem.)
A familiar and close analogy is suggested by the term "merchant
tailor." In any such case the distinction between "laborer" and
"merchant" must depend upon the bona fides and actual facts shown.
As the applicant here conforms substantially and fairly to the letter
of the statutory definition, and certainly to its reasonable meaning and
spirit (Lee Kan v. United States, supra), I have the honor to answer
your question in the affirmative.
I return herewith the inclosures of your letter.
Respectfully,
P. C. KNOX.
POSTAL CLERK-- DEFALCATION-- LIABILITY OF SURETY; 23 Op.Att'y.Gen.
476, August 10, 1901
Where a postal clerk has given the bond required by section 3 of the
act of June 13, 1898 (30 Stat., 440), the condition of the bond being
that the principal shall faithfully discharge all duties and trusts
imposed on him either by laws or by the rules and regulations of the
Post-Office of the United States, and shall faithfully account for and
pay over to the proper official all money that shall come to his hands,
the surety upon such bond is liable to the full amount thereof, for the
entire amount of money stolen by the clerk so bonded.
In such case the liability of the surety is fixed by the condition of
the bond, and is not affected by the fact that by section 3926, Revised
Statutes, as amended by the act of February 27, 1897 (29 Stat., 599),
the Government limits its liability for the loss of any first-class
registered letter to an amount not exceeding $10.
The Government, as intrusted with a commodatum, so to speak, by the
sender of a letter, and as parens patriae, is justly and legally
entitled to pursue its remedies against the thief, not only under the
criminal law and by the administrative method of search and seizure and
recovery, but through the civil tribunals as well.
The liability of the principal is the liability of the surety, and
the Government occupying the field of mail transportation to the
exclusion of all others, and inviting the fullest possible use of its
facilities, is morally bound to recover from a dishonest official or his
surety, the entire amount of his embezzlement, and is equally bound in
conscience, as the statute recognizes, to return to the owner of a
registered letter the entire amount thus recovered.
DEPARTMENT OF JUSTICE,
August 10, 1901.
The POSTMASTER-GENERAL.
SIR: Your letter of March 15 informs me that a certain clerk in the
registry division of the New York City postoffice stole from a
registered letter the sum of $2,000, of which $1,597 was afterwards
recovered from him. He confessed his theft, and another similar theft;
was arraigned, pleaded guilty, and was sentenced to imprisonment. The
bond of the surety company, which was given for the faithful performance
of his duties, provides that the principal shall faithfully discharge
all duties and trusts imposed on him either by law or by the rules and
regulations of the Post-Office Department of the United States, and
shall faithfully account for and pay over to the proper official all
money that shall come into his hands, etc.
Upon a demand by the Government for the payment by the surety company
of the difference between the amount actually lost by this man's
dishonesty and the sum recovered from him, the company declined to
comply, tendering at the same time in settlement the sum of $20, being
$10 for each of the two letters rifled by the clerk, on the ground that
its liability is limited by the amount of the indemnity payable by the
Government to the sender or owner of a letter, under the provisions of
the act of February 27, 1897 (29 Stat., 599).
The Post-Office Department holds, on the other hand, that the
registry clerk is liable to the Government for the entire amount of
money stolen by him; that the surety is responsible to the same extent;
that it is the duty of the Government to recover from the dishonest
official and his surety the amount of his embezzlement, and that the
Government is bound to return to the owner the amount thus recovered.
Upon this state of facts you desire to be advised as to the extent of
the liability of the surety company; and if I shall be of opinion that
the surety is not bound beyond the sum tendered you, you further ask to
be advised whether under the existing law a bond may be drawn by which
the surety company may be held responsible for the full value of
registered matter that may be stolen by a dishonest official, and if so,
you request that I will submit a form of bond that will bind the surety
to that extent.
In addressing myself to a reply, I have the honor to say that I have
given this subject careful attention, reserving it for the deliberate
reflection which is especially demanded, because in practical effect the
Government has become the sole arbiter and judge in this matter, and the
opinion now to be rendered will have the weight of a conclusive judicial
determination, so far, at least, as the interests of the surety company
in question are concerned.
The act of February 27, 1897 (29 Stat., 599), amended section 3926,
Revised Statutes, and provides that the sender or owner of first-class
registered matter shall be indemnified out of the postal revenues for
loss in the mails.
This provision was confined to first-class matter, and the indemnity was
limited "in no case to exceed $10 for any one registered piece, or the
actual value thereof when that is less than $10, and for which no other
compensation or reimbursement to the loser has been made."
It is to be noted that both the original section and the amendment
state the purpose of registration to be "for the greater security of
valuable mail matter," and the indemnity covers losses in the mails
without respect to the cause of the loss. The vigilance and care
observed by the Government in the postal service is the inducement upon
which people employ the mails. The security, both when the Government
was under no legal liability and now when it is under a limited legal
liability, covers all known methods to prevent loss from negligence,
accident, or dishonesty. The Government occupies the field of mail
transportation to the exclusion of others, and invites the fullest
possible use of its facilities, even in that portion of the field which
other instrumentalities cover. The moral liability of the Government has
always been an element in the situation, and has helped to strengthen
the confidence with which people respond to the Government's invitation
to use its facilities. Consequently, both when the Government was under
no legal liability for loss, and now when its legal liability is
restricted to $10 for each first-class piece, it has always investigated
losses and sought to recover and restore to the owner the value lost, or
as much thereof as possible. The Government limits its legal
responsibility, but uses the utmost endeavor to find and restore a lost
piece of mail, and if the loss is not caused by a casual disappearance
or accident but is due to dishonesty and unfaithfulness, compels
restitution from the culprit and from those responsible for his faithful
service. I think there can be no doubt that this is and has been
historically the Government's attitude, and that it is the necessary and
right attitude.
But it must be conceded that the foregoing view of the responsibility
of the United States, in good faith and good morals, does not control
the legal liability of the surety company.
That must be determined by a proper construction of the language of the
contract, in the light of all the circumstances. And to bring the real
question into view, we may put this query: Should the contract be
construed irrespective on the one hand of the just duty to the owner of
the letter imposed on the Government by public policy and good faith,
and irrespective on the other hand of the limited liability to the owner
imposed by the Government in self-protection? To rebut the implication
thus suggested the argument advanced on behalf of the surety company
runs as follows: That the contract is one of indemnity or surety-ship
and not a covenant for liquidated damages; that the obligee under the
bond has seen fit to limit its own liability in respect to the concrete
thing involved, and hence can not call upon the obligor to respond in
any greater sum; that since the liability of the principal measures the
liability of the surety, and in a civil action the Government could only
recover from a dishonest clerk the amount for which it was liable to the
sender of the letter, the liability of the surety rises no higher than
this; and, finally, that the duty and obligation of the clerk being to
deliver the letter to the addressee and not to pay the money to any
official of the Government, the language of the bond "and shall
faithfully account for and pay over to the proper official, etc.," does
not properly cover such a case of theft. Authorities are cited to
sustain these propositions on which, however, it is not necessary to
dwell, because those branches of the argument to which they are chiefly
responsive may perhaps be granted, viz, that this is not a contract for
liquidated damages, and that a contract for indemnity must be limited to
the actual loss sustained by the obligee. It may be suggested that this
argument directs attention too exclusively to elements of the case which
are not vital, for the contract is not one of strict and narrow
indemnity, and whether it is called one of suretyship or fidelity
insurance, its meaning and purpose are clear, viz, to assure the
faithful performance of all the employee's duties, and the result, to a
plain understanding, is the assumption by the obligor of liability for
the consequences of all failures of the principal to perform his
obligations up to the amount of the principal sum named in the bond.
It is undoubtedly settled law that a surety can not be held liable
beyond the terms of his obligation, and that, in general, a guaranty is
merely a contract to indemnify upon a contingency and is in the nature
of a claim for unliquidated damages. But as I have endeavored to point
out, this is not a mere contract to indemnify, as for instance, are
those undertakings which agree to save harmless from all suits, actions,
expenses, and liability; but without reference to the legal liability
of the assured to other parties, and without language restricting the
instrument to indemnity for that liability, the contract broadly covers
all trusts and obligations imposed and must contemplate and include all
consequences of a breach of the plainly expressed condition. I think it
will be clear from the present consideration of the language of the law
and the bond, and in view of the well-known dealing and policy of the
Government toward its dishonest employees and those who are losers by
their dishonesty, that if the intention had been to limit the surety's
liability, the language of the instrument would have been different. For
it seems to me that the language used fully supports the Government's
contentions, and that there is nothing to prevent the Government from
binding the surety to the full extent claimed, which the language used
is apt and sufficient to do.
The statutes provide (section 3, act of June 13, 1898, 30 Stat.,
444), that such bonds to be given, for the better protection of the
interests of the Government, shall be conditioned for the faithful
discharge of all duties and trusts imposed either by law or the rules
and regulations of the Post-Office Department.
The language of the bond, as will be seen by the quotation, ante,
substantially follows the statutory phrases, and without doubt the
obligation assumed by the surety was the faithful discharge by the
Government's employee of all the duties and trusts imposed upon him.
I cite some of the postal regulations which are appropriate. They are
expressly given the force of law by the statute, and they are explicitly
recognized by the instrument before me.
I do this in order to show more exactly what the law and practice are,
what the knowledge of both parties embraced when the contract was made;
and, as well, to meet a certain doubt suggested that the Government is
without authority to act thus as a volunteer for the benefit of
strangers to the contract and to pay out the funds which may be
recovered.
Section 101 of the Regulations (Rev. Stat., sec. 4058), authorizes
the delivery to the owner of stolen money or property recovered.
Section 231 et seq. gives a summary remedy by attachment against a
defaulting or delinquent officer or employee of the postal service and
their sureties.
Section 1031 (which is Rev. Stat., sec. 3926 in its original form)
reminds us that the registry system was established for the greater
security of valuable mail matter; and section 1051, carrying out the
detailed scheme of protection (of which the taking of a bond is a later
step) requires those handling registered matter to be duly sworn-- that
is, sworn to perform their duties with fidelity (section 35).
I remark here that the words in the act of 1898, supra, "for the
better protection of the interests of the Government" are not to be
construed narrowly and so as to restrain the protection of bonds to the
Government's legal liability. Without attempting to define precisely the
extent and contents of the word "interests," so used, it is broader in
its scope than "liabilities." Presumably Congress would have used the
latter word if nothing more was intended, and it may safely be said that
faithful service, as well as legal liability, was one of the
Government's interests intended to be protected.
I may note further the purpose of inspection service, embracing mail
depredations particularly. The injunction to make reports is tributary
to this subject (Postal Regulations, sections 668 and 1134). The
authority to make seizures, which broadly covers any illegal
concealment, illustrates the extent of the Government's obligation, and
the method adopted to discharge that obligation. Various orders and
regulations (Order No. 763, December 5, 1899, sec. 1033 of Regulations)
indicate the Government's encouragement of registration, and Order No.
76 (p. 893, Postal Guide of January, 1900), amending section 1111 of the
Regulations, shows that extremely valuable registered mail, including
letters and packages containing large sums of money, is an ordinary and
fully authorized incident of the postal service.
It is now provided by section 1134 1/2 of the Regulations, that the
statutory indemnity for a loss will not be paid until the inspectors
report, after a proper investigation, that the registered piece or its
value is irrecoverable.
I have dwelt at some length on these rules in order to show the
well-established practice, running back, with minor differences, to the
beginning of the postal service, by which the Government avails of all
approved methods of guarding the mail, and recovering items lost or
stolen. The argument that the Government has its remedy under the
criminal law, and with the exercise of that and the collection of the
amount of the statutory indemnity in each case, exhausts its power and
its civil remedy, does not commend itself to me. However ingeniously in
the abstract this logic may appear, in practice the culprit is properly
made to respond and to restore to the fullest extent possible. I have no
fear in venturing the assertion that the Government as intrusted with a
commodatum, so to speak, by the sender of a letter, and as parens
patriae, is justly and legally entitled to pursue its remedies against
the thief, not only under the criminal law and by the administrative
method of search and seizure and recovery, but through the civil
tribunals as well, if it shall elect so to do. Since there can be no
question of the civil liability of the offender up to the amount of his
stealings, and since upon a breach of the bond the surety stands in the
culprit's shoes on the side of his civil liability up to the amount of
the maximum sum named in the bond, I conceive that the surety is
properly bound.
The thought that if this view is correct the offender is subject to
two demands for the same cause of action, that of the Government and
that of the owner of the letter, is another scrupulous and abstract
doubt which may be ignored, because in theory and in practice the sender
of the letter commits to the Government the whole series of consequences
which may arise from mailing, including the adjustments of rights and
pursuits of remedies.
It was stated in the charge to the jury in United States v. Jackson (29
Red.Rep. 503), that the control and custody of mail matter by the
Post-Office Department is the custody of the law for the benefit of the
person to whom it is addressed. I am not able to accept the view of the
case which requires the Government to step back on preferring a criminal
charge, which remits the sender of the letter to the fruitless right of
suing a discredited and bankrupt thief on the chance of bringing hidden
assets to light, and which dismisses the surety company, to whose
contract the owner is not a party, after the statutory liability of the
Government has been settled.
The case appears to me as follows: There is an evident necessity for
limiting the legal liability of the Government in the case of registered
mail. I do not pretend to determine what the responsiblity of the
Government employee is in case of loss, say through negligence, of a
registered letter containing value. The present case is, however, one of
not loss, but of theft. The primary question to be determined is whether
the employee is liable to the Government for the entire amount stolen by
him. If he is not, neither is his surety; but if he is, I think the
surety is also. In the determination of this primary question, we should
not be turned aside by the liability of the Government to the owner of
the letter, or the money contained therein. The surety company has
bound itself as surety that the clerk will discharge his obligations to
the Government. If the clerk steals a letter he is responsible to the
Government for the entire amount of money contained in the letter; that
responsibility constitutes his obligation, and is one of the duties and
trusts imposed upon him by law and the rules and regulations of the
Post-Office Department. I have no doubt that the Government is fully
entitled to recover the money from him, and I have no doubt, this being
so, that the surety on the bond is responsible to the extent of his
obligation to the Government, except as limited by the amount of the
principal sum named in the bond. This legal proposition is certainly
enforced by the view that the Government is morally bound to recover
from a dishonest official the entire amount of his embezzlement, and, of
course, is equally bound in conscience, as the statutes recognize, to
return to the owner of the registered letter the entire amount thus
recovered from its dishonest employee or from his surety.
I am unable to find any authorities which precisely cover the
particular point. I may, however, note one case. In German American Bank
v. Auth (87 Pa., 419), it was held that the sureties of a bank
messenger, who stole the bank's moneys under an opportunity which lay,
perhaps, outside of the scope of his employment, were nevertheless
liable on the general ground that the theft was a breach of the
condition of the bond that the messenger should conduct himself honestly
and faithfully. The court ignores the technical defense indicated, and
looks to the duty of the bank employee to act honestly, and to the
language of the bond, assuring honesty and faithfulness. "He was not
honest and faithful messenger, and therefore, the condition of his bond
was broken." So here, the technical defense, resting on a different
reason for disclaiming liability, and one quite as readily laid aside as
immaterial, must not prevent us from seeing the vital elements in this
case, which are the obligation of the employee to perform his duty
honestly and faithfully, the surety company's bond covering this
obligation by language of unmistakable meaning; and, finally, the
undoubted breach of the employee's obligation and the condition of the
bond.
Merely noting, then, the want of exact authorities and precedents, I
am of the opinion that the liability of the surety company in this case
is not limited by the amount of the indemnity payable by the Government
to the sender or owner of a registered letter lost in the mails.
This being my conclusion, it becomes unnecessary for me to answer
your further question respecting the proper form of bond, since the form
before me appears to be authorized by law, and to bind the surety beyond
the sum tendered for each of the stolen letters-- that is, to the extent
claimed by the Government.
Very respectfully,
P. C. KNOX.
COMMISSIONERS OF SOLDIERS' HOME-- VACANCY; 23 Op.Att'y.Gen. 473,
August 7, 1901
When the place of any chief of bureau named in section 10 of the act
of March 3, 1883 (22 Stat., 565), has been temporarily filled under
section 178, Revised Statutes, the person so temporarily acting may
perform the duties of such officer as a member of the board of
commissioners of the Soldiers' Home, just as he performs the other
duties of the officer in whose stead he is acting.
DEPARTMENT OF JUSTICE,
August 7, 1901.
The SECRETARY OF WAR.
SIR: I have the honor to reply to the note of the Acting Secretary
of War, dated July 29, 1901, asking my official opinion upon the case
there stated.
Section 10 of the act of March 3, 1883 (22 Stat., 564-565), provides
that--
"The Board of Commissioners of the Soldiers' Home shall hereafter
consist of the General in Chief commanding the Army, the
Surgeon-General, the Commissary-General, the Adjutant-General, the
Quartermaster-General, the Judge-Advocate-General, and the Governor of
the Home; and the General in Chief shall be shall be president of the
board, and any four of them shall constitute a quorum for the
transaction of business."
It appears that four members of this board are absent, and will be
for a considerable time, in the Philippines, thus leaving the board
without a quorum for the transaction of business, and the question
submitted is "whether the terms of sections 178 and 179, Revised
Statutes, taken in connection with section 10 of the act of March 3,
1883 (22 Stat., 565), authorizes the officers who succeeded to the
duties of the heads of bureaus above named, to sit as members of the
Board of Commissioners of the Soldiers' Home during the absence of the
heads of bureaus in question."
The previous section, 177, makes provision in case of the death,
resignation, absence, or sickness of the head of a Department; and
section 178 reads:
"In case of the death, resignation, absence or sickness of the chief
of any bureau or of any officer thereof whose appointment is not vested
in the head of the Department, the assistant or deputy of such chief or
such officer, or if there be none, then the chief clerk of such bureau
shall, unless otherwise directed by the President, as provided by
section one hundred and seventy-nine, perform the duties of such chief
or of such officer until a successor is appointed, or such absence or
sickness shall cease."
And section 179 reads as follows:
"In any of the cases mentioned in the two preceding sections, except
the death, resignation, absence or sickness of the Attorney-General, the
President may, in his discretion, authorize and direct the head of any
other department or any other officer in either department, whose
appointment is vested in the President by and with the advice and
consent of the Senate, to perform the duties of the vacant office until
a successor is appointed, or the sickness or absence of the incumbent
shall cease."
The real question, as applicable to the case in hand, is when the
chief of a bureau is, under Revised Statutes, section 178, temporarily
succeeded by another officer, to what class of duties does he thus
succeed? Does he succeed to and perform simply the duties of the absent
chief, which relate to that particular bureau, or does he succeed to and
perform all the duties of that chief, which devolve upon him as such
chief of the bureau? So far as other duties are personal to such chief
of bureau, the former is probably the case;
but so far as such other duties relate to the office which he holds, and
are to be performed by whoever holds that office, the case may be
different. For example, the Adjutant-General may hold also some other
office, distinct from that, and which he filled personally and not as
Adjutant-General. In such case the person who succeeded him temporarily
as Adjutant-General, would not, by virtue of that, succeed him in the
other office also; but, where the other office is filled and its duties
performed by whomsoever may be for the time being the Adjutant-General,
a different question is presented. In such a case it is the officer and
not the man who fills the other office and performs its duties. To
continue the same illustration, it is quite clear that in case of the
death or resignation of the Adjutant-General, his successor would be, at
once, a member of this Board of Commissioners, because that place
pertains to that office. It is difficult to see why the same rule should
not prevail in case of a temporary vacancy filled by one who exercises
all of the functions of Adjutant-General.
Using still the same illustration, it may be said also that, although
absent, the Adjutant-General continues to be such officer, and, as such,
he remains a member of this Board of Commissioners, while his official
duties are performed by another who temporarily fills his place and acts
in his stead, and who, in doing so, performs also the duties of the
Adjutant-General as a member of this board, just as he performs the
other duties of that office. This conforms to both section 10 of the act
of March 3, 1883, which requires the Adjutant-General to be a member of
this board, and with Revised Statutes, section 178, which provides that,
in the absence of such officer, his duties shall be performed by the one
appointed therefor, and I think this is the correct view of the matter.
The question is not free from difficulty, but, upon the whole, I am
of opinion, and so advise you, that when the place of any chief of
bureau named in section 10 of the act of March 3, 1883, above referred
to, has been temporarily filled under Revised Statutes, section 178, the
person so temporarily acting may perform the duties of such officer as a
member of the Board of Commissioners of the Soldiers' Home, just as he
performs the other duties of the officer in whose stead he is acting.
Respectfully,
P. C. KNOX.
ATTORNEY-GENERAL-- OPINION; 23 Op.Att'y.Gen. 472, July 30, 1901
The Attorney-General will not express an opinion upon a question
unless the request is accompanied by a definite statement of facts, and
the question of law upon which an opinion is desired is specifically
formulated.
DEPARTMENT OF JUSTICE,
July 30, 1901.
The SECRETARY OF THE TREASURY.
SIR: In reply to your communication of June 17, transmitting certain
correspondence with reference to the right claimed by Chinese persons
residing in this country to go to the Territory of Hawaii, and
requesting an expression of opinion upon the points involved therein, I
beg to say that it has been repeatedly held by my predecessors that when
a request is made for an opinion of the Attorney-General the question of
law upon which an opinion is desired should be specifically formulated,
and should be accompanied by a definite statement of facts, and the
Attorney-General can not investigate the papers in the case for the
purpose of ascertaining such facts.
(20 Opin., 614, 699, 711; 21 Opin., 201, 220, 506; 22 Opin., 342, 351,
498.) I must therefore decline to answer your request for an opinion in
the present case, and I have the honor to return herewith the papers
transmitted by you.
Very respectfully,
HENRY M. HOYT,
Acting Attorney-General.
SPANISH TREATY CLAIMS COMMISSION-- RECORDS-- CERTIFIED COPIES; 23
Op.Att'y.Gen. 470, July 30, 1901
Section 8 of the act of March 2, 1901 (31 Stat., 879), which provides
that all reports, records, or other documents now on file or of record
in the Department of State, or in any other department, or certified
copies thereof, relating to any claims prosecuted before the Spanish
Treaty Claims Commission, shall be furnished to the Commission upon its
order, vests in the head of that department a discretion to send either
the original papers or certified copies thereof, upon a request of the
Commission for certified copies of such papers.
That section does not confer upon the Commission an option to demand
certified copies of such papers or records instead of the originals.
DEPARTMENT OF JUSTICE,
July 30, 1901.
The SECRETARY OF STATE.
SIR: I have received your letter of the 26th instant, setting forth
that the Spanish Treaty Claims Commission has passed orders calling upon
the Secretary of State to furnish it certified copies of all reports now
on file in the Department in regard to certain claims before that
Commission specified in the orders.
It appears that the Commission desires to have certified copies
instead of originals, and that the Department desires to furnish
originals instead of certified copies; and my opinion is requested by
you on the question whether, under section 8 of the Spanish Claims act,
approved March 2, 1901, the certified copies must be furnished.
Section 8 reads as follows:
"That all reports, records, proceedings, and other documents now on
file or of record in the Department of State, or in any other
department, or certified copies thereof, relating to any claims
prosecuted before the said Commission under this act shall be furnished
to the Commission upon its order, made of its own motion or at the
request of the claimant, or of the attorney representing the United
States before said Commission."
That the design of section 8 is to recognize an option in the head of
a department to send copies instead of originals is conceded. But it
seems to be argued that, this option existing for the sole reason that
it might be important to retain originals, the section does not intend
to concede also an option to send originals and refuse copies;
consequently the Commission is intended to have the option to insist
upon copies.
But it does not follow that whatever right is not intended to be
conceded to the Secretary is given to the Commission; nor does it
follow that a broadly expressed option to furnish originals or copies
must be narrowed to confine it to a right to retain originals because
the reason for its being conceded concerned such retention. If, however,
the latter proposition were sound, the same logic would show that,
originals being always not only sufficient but preferable as evidence,
the power of the Commission to call for papers was not intended to
extend to insisting upon copies, since to do so would be beyond the
reason of the Commission's right to call for documents for use as
evidence.
Nor should the difficulty be overlooked that the same language which
seems to be relied on to confer upon the Commission a right to insist
upon copies speaks in precisely the same way of originals, which, it is
admitted, the Commission can not insist upon.
Section 8 is addressed to the Secretary and says what he is to
furnish, viz, records or copies certified. It is not addressed to the
Commission and does not, nor was there any reason why it should, specify
what should be the particular form of its order concerning the papers.
It purports to, and intends to, concede an option to the Secretary, and
it concedes it broadly, to furnish originals or copies. It leaves the
Commission's order to the presumption that it will get originals if it
can, and to the common practice in like cases. This practice is well
illustrated by the following printed formula of the Court of Claims:
"Comes not the plaintiff, by * * * his attorney, and prays the court
that a rule may issue requiring the honorable * * * to furnish to the
court copies of the following papers, or the original papers themselves,
as may be deemed most desirable by the honorable * * * ."
"You are hereby requested to furnish to the Court of Claims, that the
same may be used as evidence on the trial of the above-entitled cause
now pending in said court, any information or papers (or duly
authenticated copies of same if preferred,) supposed to be on file in
your Department, set forth in the accompanying rule allowed by the
court."
For these reasons, I am of opinion that obedience to a peremptory
order of the Commission to send copies instead of originals is not
required by section 8.
Respectfully,
P. C. KNOX.
ATTORNEY-GENERAL-- OPINION; 23 Op.Att'y.Gen. 468, July 20, 1901
It is neither advisable nor necessary for the Attorney-General to
render a decision upon any question involving a payment to be made by or
under the head of any executive department. Under section 8 of the act
of July 31, 1894 (28 Stat., 162, 208), the Comptroller of the Treasury
is charged with this duty, and his decision is made final as to all
executive officers.
DEPARTMENT OF JUSTICE,
July 20, 1901.
The SECRETARY OF THE TREASURY.
SIR: I am in receipt of your letter of July 10, 1901, referring to
the case of De Lima et al. against George R. Bidwell, in which a
decision in favor of the plaintiffs was handed down by the Supreme Court
of the United States May 27 last, and stating that A. S. Lascelles &
Co. make claim for refund of moneys paid as duties on sugar imported
from Porto Rico into the United States at the port of New York between
the date of the taking effect of the treaty of Paris and the going into
effect of the Foraker Act, which moneys were exacted by the collector at
the port of New York and paid by the importer under protest. You also
state that it has been shown to your satisfaction that these moneys were
exacted under color of the tariff act by the collector and by him paid
into the Treasury, and the amount thereof has been ascertained to your
satisfaction. You ask my opinion as to whether the Secretary of the
Treasury is authorized under section 24 of the Customs Administrative
act; section 3689; Revised Statutes; section 1 of the act of March 3,
1875, or, in fact, any other statute of the United States, to refund the
moneys collected to the claimants, and, if so, to what appropriation is
such refund chargeable.
Section 8 of the act of July 31, 1894, provides:
"The head of any executive department * * * 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 Comptroller of the Treasury
in passing upon the account containing said disbursement."
It was stated by Attorney-General Olney, 21Opinions, 182:
"This act makes it obligatory upon the Comptroller of the Treasury to
make a decision upon any account involving a payment to be made by or
under the head of any executive department, and it contemplates the
construction by him of statutes."
Also in 21 Opinions, 188, Mr. Olney, in declining to express an
opinion to the Secretary of the Treasury as to his right to refund
certain duties claimed to have been collected through mistake of law,
decided that this is one of those questions which can be asked of the
Comptroller, and in respect to which the Attorney-General should refrain
from advising.
My immediate predecessor, Mr. Attorney-General Griggs, in 22
Opinions, 583, likewise declined to advise the Secretary of the
Treasury, and in a careful opinion, in which he discusses the statute
and reviews the opinions of his predecessors, concludes in the following
language:
"If a claim is presented, the question of the legality of payment is
one exclusively for the Comptroller, whose decision thereon is, by
statute, made final as to all executive officers. It has been repeatedly
held by Attorneys-General that on questions of disbursement of money or
payment of claims * * * the Attorney-General should not render opinions,
especially in view of the fact that, if the matter is doubtful, it can
be referred to the Court of Claims for authoritative decision. (21
Opin., 530; see also 21 Opin., 178; Id., 181; Id., 188.)
Concurring in the views and reasons set forth by these authorities, it
is unnecessary and inappropriate for me to express my views more at
large or enter upon the merits of the question. I return the inclosures
of your letter herewith."
I am informed that the Comptroller of the Treasury has already passed
upon the questions submitted by you to me. This fact strengthens the
reasons given by my predecessors as to why it is inadvisable for the
Attorney-General to render opinions falling within the functions of the
Comptroller of the Treasury. Believing there is neither necessity nor
propriety in my expressing my own views upon the question submitted, I
must therefore decline.
Respectfully,
P. C. KNOX.
CIVIL SERVICE-- REINSTATEMENT; 23 Op.Att'y.Gen. 463, July 17, 1901
The third proviso of Rule IX of the civil service rules as amended
May 29, 1899, which provides that any person who has been separated from
the service by reason of a reduction of force specifically required by
law, may be reinstated without regard to the length of time he or she
has been separated from the service, does not authorize the restoration
thereto of a person who has been employed to do a particular service, to
be paid out of a specific appropriation, after the work which the person
has been employed to perform has been completed and the appropriation
therefor exhausted.
The reinstatement permitted by that rule is a reinstatement in the
same department or office and to the same branch of the service.
DEPARTMENT OF JUSTICE,
July 17, 1901.
The SECRETARY OF WAR.
SIR: I have received your letter of the 6th instant, asking my
opinion upon the question whether Miss Sarah E. Nolan, who was
discharged May 31, 1894, and has applied for reinstatement, comes within
the third proviso of Rule IX of the civil service rules as amended May
29, 1899, reading as follows:
"That subject to the other conditions of these rules, any person * *
* who has been separated from the service by reason of * * * a reduction
of force specifically required by law, may be reinstated without regard
to the length of time he or she has been separated from the service."
You say:
"Miss Nolan was appointed July 5, 1892, to the position of indexer of
Confederate archives and continued in service under the following
appropriations:
"Office of Publication of Records of the Rebellion: For the
preparation of a general card index of the books, muster rolls, orders,
and other official papers preserved in the Confederate archives office
and for the employment of such temporary expert services in connection
therewith as may be deemed necessary by the Secretary of War, such
experts to be appointed and selected by the Secretary of War from time
to time as the necessity therefor arises, $14,600, to continue available
until expended.'
"'Publication of official records of the War of the Rebellion. * * *
"'Index of Confederate records: For the preparation of a general
card index of the books, muster rolls, orders, and other official papers
preserved in the Confederate archives office, and for the employment of
such temporary expert services in connection therewith as may be deemed
necessary by the Secretary of War, all such experts in the Office of
Publication of the Records of the Rebellion to be placed under such
rules, regulations, and orders, in regard to employment, promotion, and
discharge, as are applied to other employees in the classified service
of the War Department, $14,600, to continue available until expended.'
"Miss Nolan was discharged on May 31, 1894, under the following
order:
"'WAR DEPARTMENT,
"'Washington, D.C., May 26, 1894.
"'Miss Sarah E. Nolan, indexer of Confederate archives, at $900 per
annum, in the Office of the Publication of Records of the Rebellion, is
hereby discharged, to take effect May 31, 1894, on account of reduction
of force, and is granted leave of absence until that date.
"By order of the Secretary of War:
"'JOHN TWEEDALE,
"'Chief Clerk.'"
"The records of the Department show that at the close of May, 1894,
there were about thirty-seven clerks employed on the work of indexing
Confederate archives, fourteen of whom were borne on the 'Index of
Confederate Archives' roll and paid from the above-cited appropriations,
the remaining twenty-three being employees carried on other rolls of the
Department and paid from other appropriations. On May 29, 1894, twelve
of these fourteen employees carried on the 'Index of Confederate
Archives' roll were transferred to the 'temporary expert' roll of the
War Records Office, and on May 31, 1894, the other two, of whom Miss
Nolan was one, were discharged. On June 1, 1894, the balance of the
appropriation was $4.24, and on June 30, 1895, this sum was turned into
the surplus fund of the Treasury. Subsequent to May 31, 1894, there were
no persons appointed on the 'Index of Confederates Archives' roll. This
work, however, was carried on until the end of June, 1894, by the
employees detailed for that purpose from several of the bureaus of the
Department, after which time the work was not further prosecuted."
Rule IX permits the reinstatement within a year of a person who has
through no delinquency or misconduct been separated from a position, the
reinstatement to be in the same Department or office and same branch of
the service; and there is a proviso that the position proposed to be
filled by reinstatement does not necessitate an examination involving
essential tests different from or higher than those involved in the
examination for original entrance to the position formerly held.
The rule then does away with the time limit in the case of the proposed
reinstatement of persons who have served in the military or naval
service in certain wars, etc., "and any person who has been separated
from the service by reason of a reduction of force specifically required
by law."
In view of section 4 of the act of August 5, 1882, which forbids the
employment of persons at the seat of government whose employment is not
authorized and payment specifically provided for by law, it would seem
that the two appropriations providing for the indexing of Confederate
papers should be understood as authorizing the employment of no persons
but the temporary experts mentioned in those appropriations. I assume
that whatever name was given to the position held by Miss Nolan, she was
selected by the Secretary of War as an expert in the business of
indexing Confederate archives.
That business, I am informed by the papers furnished me, was
completed in June, 1894; and as Congress doubtless contemplated some
peculiar qualifications for such experts, it may well be questioned
whether Rule IX, in providing for "reinstatement," can properly be held
to mean that a person who was found especially versed in Confederate war
history and especially skillful in the art of indexing, and was
temporarily employed in a very exceptional piece of work, was
afterwards, without examination as to qualifications therefor, to be
appointed to a position presumably altogether different.
But I lay no particular stress upon this point, since there are
others in which I place more confidence.
It is an important rule of construction that all the words of a law
shall if practicable be given effect, and another rule is that where the
language of the law is plain and its obvious meaning not absurd or
impracticable, we are to follow the language and leave the
responsibility upon the lawmaker. It is not the business of one who
construes the law to improve it by omission or addition.
The language of Rule IX seems to be of this character. Congress can
very well specifically require a reduction of force, and has sometimes
done so.
It could prescribe, in so many words, that the force in a bureau of the
Navy Department should be reduced from 100 employees to 75, or it could
provide by one law for a force of 100 employees and by a subsequent law
for a force of only 75 employees, which would constitute a sufficiently
specific requirement by law of a reduction of force.
I do not say that there are not several other ways in which there may
be a reduction specifically required by law. But it seems to me that
Congress, having in this case provided for the temporary employment of
experts from a fund of so many thousand dollars, to continue available
until expended, left a large discretion to the Secretary of War, under
which he might have employed one or two persons only at such
compensation as he saw fit, and that these persons might remain in the
service for a very long time, the length of which would depend
altogether upon the discretion of the Secretary.
Moreover, it seems to be straining the natural meaning of language to
say that if Congress should appropriate a thousand dollars for the
performance of a special task to last six months, the running out of the
employment at the end of six months would be a reduction of force. Yet
that would be more nearly a reduction of force required by law than
this, since there the law would undoubtedly require the termination of
the employment at the time fixed by it.
Undoubtedly, if an obvious purpose can be seen, the construction of a
law may usually be bent to the accomplishment of that purpose. And it
might be thought that the purpose here was to permit the reinstatement
of a person who, without any fault of his own, and merely for reasons of
public economy or some condition of the public business, has lost his
position. But Rule IX itself precludes this theory, since it expressly
provides that such a person may be reinstated within a year. Nor does
any other obvious purpose present itself to my mind, requiring any
modification of the natural meaning of the language used. The President
seems to have decided, perhaps upon a consideration of particular cases
brought to his attention, in which Congress had specifically required
the reduction of force, to extend the liberal provisions of Rule IX to
such cases. He may or may not have thought the case of a person
dismissed because of the indirect operation of a law of Congress equally
meritorious.
If he did, he may have nevertheless deemed it wise to avoid opening the
door in too wide and uncertain a way. All we can say here is that,
having used carefully selected words of restriction, which words have a
natural meaning, he meant what he said.
I am of opinion, therefore, that Rule IX does not include the case of
Miss Nolan.
Respectfully,
P. C. KNOX.
FORFEITURE OF COUNTERFEIT COIN; 23 Op.Att'y.Gen. 458, June 21, 1901
Section 4 of the act of February 10, 1891 (26 Stat., 742), which
authorizes the Secretary of the Treasury to seize and forfeit all
counterfeits of the coin of the United States, does not authorize the
Secretary to return to the person from whom such coin is taken, the
counterfeit or the value of the bullion it contains.
Under that section the Treasury Department has authority to seize
counterfeit coin, to decide that it is counterfeit, to determine that it
was unlawfully in possession of the party from whom taken, and to
forfeit it; and, after forfeiture, to direct in what manner it shall be
disposed of. No judicial condemnation is necessary.
Such seizure and forfeiture is not a taking of property without due
process of law within the meaning of the Fifth Amendment to the
Constitution. Counterfeit coin is neither property nor the subject of
property; it is the product of a felonious act, and outside the law.
The due process of law required by that amendment was never designed
to apply to such rights as a person unlawfully in possession of
counterfeit coin may have in it, but was intended for the protection of
substantial rights in lawful property.
DEPARTMENT OF JUSTICE,
June 21, 1901.
The SECRETARY OF THE TREASURY.
SIR: Section 4 of the act of February 10, 1891, "An act further to
prevent counterfeiting, etc." (26 Stat., 742), provides as follows:
"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 that the
Secretary of the Treasury may direct."
In your communication of February 22 you state that, under the
authority granted by this section, it has been the practice of the
operatives of the secret-service division to seize all counterfeits and
counterfeiting material found in the possession of unauthorized persons,
without discrimination as to the material of which the counterfeits are
composed, and that, following this practice, there were recently seized
82 counterfeit standard dollars, found in the possession of a New York
merchant, who, as an innocent holder, now demands the return of the
counterfeits, or the value of the bullion they contain, they being
composed of silver of an unknown fineness.
This demand, you state, has been denied by your Department upon the
following grounds:
"First. Counterfeit coins are not properly property which would
secure to their possessor the protection of a constitutional right.
"Second. That property which is forfeited to the United States, under
the law, can not be disposed of other than for the benefit of the United
States.
"Third. That the words 'and disposed of in any manner that the
Secretary of the Treasury may direct' do not give him the discretionary
power to mutilate and destroy the coin after 'forfeiture' and a return
of the metal to the innocent holder of the coin so forfeited and
destroyed."
After inviting my attention especially to the third proposition, and
advising me that you have been fortified in your position by an opinion
of the Solicitor of the Treasury, you request an expression of my views
as to whether or not the law applicable to the case stated has been
correctly interpreted by your Department.
I have given this matter careful consideration, and I am clear in the
opinion that you were right in denying the demand for the return of the
counterfeits or the value of the bullion they contained.
In opposition to the position taken by your Department, it is urged.
First. The bullion in the counterfeit coin is the subject of property
in a legal sense.
Second. In view of the provision of the Fifth Amendment to the
Constitution, the person in whose possession the counterfeits were
found, being an innocent holder, could not be deprived of his property
in the bullion contained in them, except by due process of law, that is,
by a judicial condemnation.
I can not conceive how a thing can be the subject of property in the
legal sense which a person can neither lawfully hold nor exchange nor
give away. Counterfeit coin is neither property nor the subject of
property; it is the product of a felonious act, and outside of the law.
It is impossible to separate the stamp from the bullion and say that one
is counterfeit and the other is not. The counterfeit coin is the whole
thing, and counterfeit coin is not the subject of property in the legal
sense.
But if in any sense counterfeit coin is the subject of property, the
provision of the statute is plain. This law provides that all
counterfeits of any of the coins of the United States 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. The statute commands the Secretary of
the Treasury to seize and forfeit counterfeit coin found in the
possession of an unauthorized person.
It is to be observed that when suspected coin are found in the
possession of any person, the only questions to be determined
preliminary to seizure and forfeiture are, first, are the coins
counterfeit; and, second, if counterfeit, has the person in possession
authority to have them. If the coins are counterfeit and a person
without authority is in possession, the command of the law is explicit;
they must be "taken possession of by an authorized agent of the Treasury
Department and forfeited to the United States." Both of the material
facts preliminary to seizure and forfeiture are facts which, in the
proper administration of the law, must be determined by the Secretary of
the Treasury. It is for the Secretary of the Treasury, through his
authorized agents, to determine whether coin is counterfeit or not, and
it is for him, through his agents, to determine whether the person in
possession of counterfeit coin, has authority to have it. It would not
be in the line of good policy or consistent with the dignity of the
Government, to leave the determination of either of these questions to
any other authority than the Treasury Department, to which is intrusted
the preservation of the integrity of the coin of the United States.
In the present case the facts are conceded, and the conclusion
follows irresistibly. It is conceded that the coins are counterfeit, and
it is conceded that the merchant, while he may have got them innocently,
had them in possession without authority and therefore unlawfully.
In view of this, the statute made it the duty of the Treasury Department
to seize them and forfeit them to the United States. If the matter were
referred to a court, a judgment of forfeiture would follow irresistibly
from the conceded facts of the case.
On the other hand, if the merchant who innocently came into
possession of the coins, had taken the position, either that they were
good, or that he had a right to their possession, it was open for him,
after seizure, to replevy them, and thus secure a judicial determination
of his right of property and possession. Not disputing either of the
facts essential to seizure and forfeiture, he naturally did not invoke
this plain remedy.
To counterfeit coin of the realm has always been a crime of the
highest grade. During Colonial times, it was high treason under the
English law, punishable by death, and a like penalty was imposed by our
statute passed by the First Congress. While the punishment has been
reduced, the necessity for stringent measures to preserve the purity of
our coin, has not ceased. Summary action is essential. Counterfeit coin
in possession without authority must be seized and forfeited, otherwise
its further circulation is possible. To require the Government to bring
a suit in court in order to forfeit a counterfeit coin is a proposition
which scarcely merits serious discussion. Such a requirement would
fatally impede the execution of the law. In the present case, the cost
of condemning the silver in the 82 counterfeit dollars, would far exceed
the value of the silver itself. And it is not usual to find as many as
82 counterfeit standard dollars in the possession of one reputable
merchant.
The rule laid down by the Supreme Court in Lawton v. Steele (152 U.
S., 133) is not inapplicable. Summary action, without the intervention
of judicial proceedings, is necessary here as there in order to effect
the object of the statute, which is in the highest sense beneficent.
The constitutional provision that no man shall be deprived of his
property without due process of law was intended for the protection of
substantial rights in lawful property, and was never designed to apply
to such rights as a person unlawfully in possession of counterfeit coin
may have in it.
To conclude, I believe that your Department had authority to seize
these coins, to decide they were counterfeit, to determine they were
unlawfully in possession, and to forfeit them. Such forfeiture inured to
the benefit of the United States and covered the bullion as well as the
stamp. After forfeiture, it is for the Secretary of the Treasury to
direct in what manner the forfeited thing shall be disposed of. He is
not obliged to reduce the coin to bullion and return it; nor to refine
the bullion, ascertain its value, and account for that. He may destroy
the counterfeit coin utterly if he deems it desirable, or he may dispose
of it as he sees fit, remembering that it has been forfeited to the
United States and must be disposed of for its benefit.
Respectfully,
JOHN K. RICHARDS,
Solicitor-General.
Approved:
P. C. KNOX.
CIVIL SERVICE-- PORTO RICO-- PHILIPPINES; 23 Op.Att'y.Gen. 458, June
18, 1901
There is nothing in the recent decisions of the Supreme Court (in the
Insular cases) that would modify the view taken by the Attorney-General
regarding the proposed amendment to the Civil-Service rules that every
applicant for examination for appointment to the executive civil service
of the United States in Porto Rico must be a citizen of the United
States or a citizen of Porto Rico; and that every applicant for
appointment to said service in the Philippine Islands must be a citizen
of the United States or a native inhabitant of said Islands.
DEPARTMENT OF JUSTICE,
June 18, 1901.
The PRESIDENT.
SIR: I have the honor to acknowledge receipt of your inquiry whether
there is anything in the recent decisions of the Supreme Court of the
United States that would modify the view taken by Mr. Griggs regarding
the following proposed amendment to the Civil Service rules:
"Every applicant for examination for appointment to the executive
civil service of the United States in Porto Rico must be a citizen of
the United States or a citizen of Porto Rico; every applicant for
appointment to said service in the Philippine Islands must be a citizen
of the United States or a native inhabitant of said islands."
The inquiry is answered in the negative.
Very respectfully,
P. C. KNOX.
MILITARY ASSOCIATIONS-- BADGES; 23 Op.Att'y.Gen. 454, June 14, 1901
The words "members of said organizations in their own right," as used
in the joint resolution of September 25, 1890 (26 Stat., 681), which
provides that the distinctive badges adopted by the military
associations of men who served in the armies and navies of the United
States during the various wars waged by the United States, may be worn
upon all occasions of ceremony by officers and enlisted men of the Army
and Navy of the United States, include all those who, under the rules of
these orders, were eligible for membership, either because of their own
service, or because of their kinship to one who had been in the service.
DEPARTMENT OF JUSTICE,
June 14, 1901.
The SECRETARY OF THE NAVY.
SIR: In response to the question submitted in your note of June 10,
1901, I have the honor to return the following opinion:
The joint resolution of Congress, approved September 23, 1890 (26
Stat., 681), reads as follows:
"That the distinctive badges adopted by military associations of men
who served in the armies and navies of the United States in the war of
the Revolution, the war of 1812, the Mexican war, and the war of the
rebellion, respectively, may be worn upon all occasions of ceremony by
officers and enlisted men of the Army and Navy of the United States who
are members of said organizations in their own right."
The question arises under the latter portion of this resolution,
which I have italicized as above, and is, specifically, whether this
includes those who are not members of such organizations by virtue of
any military or naval service actually rendered by them, but are such
members under the rules of those associations, because of their relation
to ancestors who had rendered such service, and raises the question what
is the meaning of the words "members of said organizations in their own
right."
If this was intended to limit the benefit conferred to those members
who actually participated in the wars named, and to exclude those who
are members of such associations by inheritance only, as it is called,
the expression is an unfortunate one, in that it neither expresses such
meaning nor clearly indicates those upon whom the benefit is conferred.
I am referred to the report of the Senate committee reporting the
resolution and recommending its adoption, from which it would appear
that it was the intention of that committee to exclude those who were
such members by inheritance. But, in construing an act of Congress, the
individual opinions of its members or its committees, on its passage,
are not considered as guides to its meaning, and the meaning of this
resolution must be determined from its language its subject-matter,
purpose, and attendant facts.
The War Department has given to this resolution the broad
construction which does not exclude those who are members of those
organizations by reason of their relation to an ancestor who was in
service in one of those wars; and it is desirable that in the two
coordinate departments to which it equally applies, there should be
harmony of construction.
The resolution as first introduced named specifically the military
organizations to which it applied, viz, "The Society of the Cincinnati,"
"The Aztec Society," "The National Association of Veterans of the
Mexican War," "The Military Order of the Loyal Legion of the United
States," and "The Grand Army of the Republic." There were also other
military organizations of similar character; and, to avoid an invidious
distinction, the resolution in its present form was substituted,
omitting all names, but referring generally to all of them, of which the
five named were the principal ones.
While these orders were composed, in the main, of those who actually
participated in the wars, out of which they grew, yet many, and perhaps
all of them, make eligible for membership therein certain of the male
kindred of those members who did so participate, and thus persons may be
members of such orders who never performed any military or naval
service.
But, it is believed that in none of them is there any such things as
membership by inheritance-- that is, where one can be or be entitled to
become a member by reason of his kinship to one who was a member or who
participated in such war; on the contrary, this provision simply
defines who may become members, and kinship merely makes one eligible
for membership if elected. And in order to this his patriotic and moral
character must conform to the standard adopted. Still, there may be and
are, such members who have performed no military or naval service in
either of the wars named; and the real question is, whether they are
excluded from the privilege given by this resolution, while it is
conferred upon those members of the same order who have seen such
service. Except the honorary membership, the members of these orders are
men who have seen serv ce in the wars named, and, in some cases, some of
their descendents. But it is apparent that those of either class, when
members at all, are as much members in their own right as the others.
Except as to the original founders, those who organized the order, they
all come in and become members by some form of election or choice. The
fact of military or naval service does not, per se, necessarily entitle
anyone to membership. Those of the first class are elected or chosen, in
part, because of their own services; those of the other class are
elected or chosen to the same extent because of the service of their
ancestors. But the reason for the selection or choice can not affect the
character of the membership. By the rules of the orders, one is eligible
for membership, because of one fact, and another equally eligible
because of another fact, and, when chosen, each is, and equally, a
member in his own right. Indeed, it is not perceived how one could be a
member in any other way. In any case it seems certain that this
expression is quite insufficient to mark any distinction between those
who have seen military or naval service and those who have not.
But, beyond this it is entirely certain that, by no legal
construction, can this resolution be held to refer only to members of
those orders who actually participated in one of the wars named, to the
exclusion of those members who did not.
The resolution authorizes officers and men now in the service, to
wear the badges of "military associations of men who served in the
Armies and Navies of the United States in the war of the Revolution, the
war of 1812, the Mexican war, and the war of the Rebellion," when they
"are members of said organizations in their own right."
By any rule of construction this must be so construed as to permit
its application to the very orders to which it expressly refers. But as
to those associations of men who served in the war of the Revolution or
the war of 1812 there are no members now in the service who served in
either of those wars; and, unless the resolution refers to those
members who saw no service, it is quite idle and unmeaning, so far as it
refers to those two orders. But, a fundamental rule requires such a
construction, if possible as will give effect and meaning to all the
language used. This can not be done, in this case, by holding that the
resolution refers only to members of those orders who are such by reason
of their own military or naval service.
The same construction must be applied also to the other orders, for
the same language applies to all of them, and the same construction is
necessary.
And, if anything may be worn in the Army and the Navy besides the
insignia of its present service, surely that may be which commemorates
the similar patriotic service of the ancestor of the wearer. It is well
for the Army and Navy of the United States, when their officers and men
take pride in the display of those mementoes which speak of the
patriotism and valor of those from whom they are descended, and no
construction that is not a necessary one, should be placed upon such an
act of Congress, which would forbid to a brave soldier or sailor the
display of tokens showing that he is descended also from a brave
ancestor.
It is not necessary here to determine who were intended to be
excluded as not being members in their own right; or whether the
expression referred, by its antithesis, to honorary or civilian members.
It is sufficient to hold that those who, under the rules of these
orders, were eligible for membership-- either because of their own
service, or because of their kinship to one who had been in the
service-- and were duly made full members, are members in their own
right, and are entitled to wear, on occasions of ceremony, the
distinctive badges of their respective orders.
Respectfully,
P. C. KNOX.
SPANISH RAILWAY AND TELEGRAPH CONCESSIONS-- CUBA-- PHILIPPINES; 23
Op.Att'y.Gen. 451, June 14, 1901
Opinions of July 26 and 27, 1900 (ante, pp. 181, 195), holding that
the concessions granted by Spain to certain railway and telegraph
companies in Cuba and the Philippines Islands are not binding as
contracts on the United States, Cuba, and the Philippines, or other
governments replacing Spain, reaffirmed.
DEPARTMENT OF JUSTICE,
June 14, 1901.
The SECRETARY OF STATE.
SIR: This Department received your letters of the 4th of January and
5th of February last, each inclosing one from the British embassy,
saying that the British Government was unable, for reasons stated, to
concur in the views of the Attorney-General, expressed in opinions of
the 26th and 27th of July, 1900, concerning the Manila Railroad Company
and certain cables in and near the Philippine Islands, and asking a
modification of those opinions.
The Secretary of War wrote this Department the 4th of February last
upon the same subject, stating that a report of Major-General McArthur,
of June 29 last, a copy of a letter of the Secretary of State, of March
26, 1900, and a copy of the letter or memorandum of the British
ambassador, were referred to the Military Governor of the Philippines
and the Philippine Commission for recommendation.
On the 21st of January the Secretary of War transmitted an
indorsement, dated December 20, 1900, by the Chief Signal Officer, upon
a copy of the report of the Military Governor, dated June 29, 1900, and
stated that a copy of this memorandum had been transmitted to the
Secretary of State.
On April 26 last, the Secretary of War sent to this Department a copy
of a communication from the Military Governor, dated the 16th of March
last, and on April 30 last, you sent me a copy of a personal note from
Lord Pauncefote, adverting to the claims made against this Government by
the Manila Railway Company, and expressing the hope that this Department
may, on reconsideration, arrive at conclusions agreeing with those of
the British Government.
All of these papers have received careful attention, and your request
for an answer to be communicated to the British ambassador would have
been complied with at an earlier date, but for the fact that it was
hoped that decisions of the Supreme Court, or action by Congress, or
both, would throw some additional light upon the question in which the
British Government is interested.
The British ambassador questions the correctness of the opinion of
the Attorney-General to the effect that that Spanish concessions granted
to certain companies "are not binding as contracts on the United States,
Cuba, the Philippines, or other governments replacing Spain," and
formulates the reasons of his Government as follows:
"There is, they consider, no warrant for the contention raised that
the obligations undertaken by Spain in relation to the companies in
question are divisible into those for the general benefit of Spain and
those exclusively for local benefit. To admit such a contention would,
in the opinion of His Majesty's Government, leave it open, in all cases
of conquest or concession, to the succeeding government to repudiate the
obligations of their predecessors on alleged grounds of motives, which,
even if they could be proved to have existed, can not affect the rights
of property secured to individuals or companies as a consideration for
executing works of local improvement. Such a contention is, in the
opinion of His Majesty's Government, contrary to the recognized
principles of international law."
In his letter sent to this Department on February 5 he adds to this:
"The opinion of July 26 had reference more particularly to the case
of the Manila Railroad Company, while the opinion of July 27 applied
exclusively to the case of the cable companies.
"Nevertheless, the same principle of international law governs both
cases, and I am desired by my Government again to press the claim of the
Manila Railroad Company, on the favorable consideration of your
Government.
"His Majesty's Government are advised that the company are entitled
to a recognition of the whole of their claim."
It is evident from these formal statements, and particularly the
latter, that what the British Government desires is that the
Attorney-General shall adopt the opinion that the concessions referred
to are, in all respects, binding, according to their terms, upon some
government as succeeding to the contract obligations of Spain.
I have examined the reasoning of my predecessor, and do not find it
incorrect. Neither do I think it necessary to give reasons in addition
to those already carefully set forth by him.
I am not aware of any principle of international law, concerning the
transfer of obligations entered into as considerations for "works of
local government" which precludes an inquiry into the question whether a
given work situated in a locality-- as all physical things must be-- is
a "work of local improvement.
It might similarly be suggested that works known to have been
contracted for by the imperial authorities, and used and controlled by
them for imperial purposes, must be conclusively presumed to be works of
imperial improvement.
Respectfully,
P. C. KNOX.
PORTO RICAN CUSTOMS REVENUES-- EXPENDITURES; 23 Op.Att'y.Gen. 450,
June 7, 1901
The act of March 24, 1900 (31 Stat., 51), which directs that certain
Porto Rican customs revenues "shall be placed at the disposal of the
President, to be used for the Government now existing and which may
hereafter be established in Porto Rico, and for other governmental and
public purposes therein, until otherwise provided by law," vests in the
Executive the power to place the disbursement of such appropriation
under the control of the "Administrative authorities" instead of the
"Executive Council."
DEPARTMENT OF JUSTICE,
June 7, 1901.
The SECRETARY OF STATE.
SIR: I have the honor to acknowledge the receipt of your note of May
31, 1901, inclosing a letter to the President from Hon. Charles H.
Allen, Governor of Porto Rico, dated May 7, 1901.
In this letter, Governor Allen asks that the order of the President,
dated April 23, 1901, allotting $500,000 from the appropriation made for
the benefit and government of Porto Rico, by the act of March 24, 1900,
be so modified as to direct the unexpended balance of that sum "to be
devoted to public and permanent improvements in Porto Rico, and other
governmental and public purposes therein * * * and to be expanded under
the supervision and subject to the approval of the Governor and the
administrative authorities of the island." The change proposed is the
substitution of the words "Administrative authorities" for the words
"Executive Council."
The reason for this is stated in the letter of the Governor, but is
not involved in your inquiry, which is, whether there is any statutory
objection to the proposed modification.
The act of March 24, 1900, directs that certain Porto Rican customs
revenues "shall be placed at the disposal of the President, to be used
for the government now existing and which may hereafter be established
in Porto Rico, and for the aid and relief of the people thereof, and for
public education, public works, and other governmental and public
purposes therein, until otherwise provided by law." And those revenues
are, by the act, appropriated to those specified purposes.
Within the above-specified purposes of that appropriation the
discretion of the President is absolute, not only as to the distribution
of this money to the different purposes named and the amount to each,
but also as to who shall, from time to time, have the supervision and
control of its expenditure.
Under this act, the President, by his order, on April 23, 1901,
allotted and set aside $500,000 of this appropriation "to be expended
for public and permanent improvements in Porto Rico, under the
supervision and subject to the approval of the Governor and Executive
Council of the Island."
This, by no means, exhausted the President's discretion as to who
should supervise and approve this expenditure, nor did it confer upon
the Governor or Executive Council any permanent right to continue to do
so, or beyond the pleasure of the President.
I have no doubt of the power of the President to make the proposed
modification of his order, if he sees occasion to do so.
Respectfully,
P. C. KNOX.
IMPORTATION OF COPYRIGHTED MUSIC; 23 Op.Att'y.Gen. 445, June 5,
1901
Paragraph 503 of the free list of the tariff act of July 24, 1897 (30
Stat., 196), merely provides when and under what circumstances the
articles therein specified are exempt from duty on importation, and does
not repeal or modify any part of the copyright law.
By sections 4964 and 4965, R.S., as amended March 3, 1891 (26 Stat.,
1109), the importation of any of the copyrighted articles enumerated
therein, including music, is made a penal offense, and consequently is
prohibited.
What is implied in a statute, is just as much a part of it as if
expressed.
DEPARTMENT OF JUSTICE.
June 5, 1901.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to reply to your note of May 29, 1901, in
which, after referring me to various sections of the Copyright act of
1891 and the Tariff act of 1897, you request my official opinion, in
substance, whether, notwithstanding the prohibitions of the Copyright
act, paragraph 503 of the free list of the Tariff act of 1897 authorizes
the importation of copyrighted music for the purposes and in the manner
specified in that paragraph.
The principal question is, whether the Copyright act forbids the
importation of copyrighted music. If it does, the second question would
be, whether paragraph 503 of the Tariff act authorizes what the
Copyright act forbids.
The Copyright act of March 3, 1891 (26 Stat., 1109), amending section
4956 of the Revised Statutes, provides that--
"During the existence of such copyright the importation into the
United States of any book, chromo, lithograph, or photograph, so
copyrighted, or any edition or editions thereof, * * * shall be, and is
hereby, prohibited."
"Except in the cases specified in paragraphs five hundred and twelve
to five hundred and sixteen, inclusive, in section two of the act
entitled 'An act to reduce the revenue and equalize the duties on
imports, and for other purposes, approved October first, eighteen
hundred and ninety,' and,
"Except in the case of persons purchasing for use and not for sale,
who import subject to the duty thereon, not more than two copies of such
book at any one time * * * which are hereby exempted from prohibition of
importation." (26 Stat., 1107, 1108.)
It was, of course, competent, in such acts to forbid the importation
of all such copyrighted articles, or to forbid the importation of only
some of them.
Whether the acts have done the one or the other must be determined by
inspection.
By Revised Statutes, section 4952, as amended (26 Stat., 1109), the
following articles may be copyrighted, viz, a "book, map, chart,
dramatic or musical composition, engraving, cut, print, photograph, or
negative thereof, or of a painting, drawing, chromo, statute, statuary,
and of models or designs intended to be perfected as works of the fine
arts," while by section 3 of that act, amending Revised Statutes,
section 4956, the prohibition of importation extends only to a "book,
chromo, lithograph, or photograph."
It is obvious, therefore, that Congress intended by this section to
prohibit the importation of only a small portion of the articles which
might be copyrighted, and equally apparent that the prohibition intended
and expressed is only of the four articles there named; and, if this
were the only prohibition, it is quite certain that it would not
prohibit the importation of copyrighted music nor musical compositions.
But, while this is the only express prohibition, it is not the only
prohibition of importation contained in the copyright act of March 3,
1891. By amended sections 4964 and 4965, Rev. Stat. (26 Stat., 1109),
the importation of any of the enumerated copyrighted articles is made a
penal offense. This can mean nothing less than the prohibition of what
is thus made penal; for what is implied in a statute, is just as much a
part of it as if expressed. The result is that, while by amended section
4956 the importation of only four kinds of copyrighted articles is
forbidden, with certain exceptions there specified, yet, by amended
sections 4964 and 4965, the importation of any and all copyrighted
articles is prohibited, including the second prohibition of the four
first named, and to second prohibition there is no exception at all,
unless the exceptions to cases in section 4956, extend also to the cases
in sections 4964 and 4965. Under this kind of legislation, it is
impossible to arrive at any satisfactory conclusion as to what Congress
really did intend by it.
I am of opinion, however, that the importance of all the copyrighted
articles mentioned in amended sections 4956, 4964, and 4965, is
prohibited, with the exceptions stated in amended section 4956.
And I am of opinion that these exceptions, though not so expressed,
apply alike to the prohibitions in all these three sections, so far as,
in their nature, they are applicable to articles mentioned in sections
4964 and 4965.
These exceptions are thus stated:
"Except in the cases specified in paragraphs 512 to 516, inclusive,
in section 2 of the act" of 1890-- the Tariff act.
"And except in cases of persons purchasing for use and not for sale,
who import subject to the duty thereon, not more than two copies of such
book at any one time, and except that in case of newspapers and
magazines not containing in whole or in part, matter copyrighted under
the provisions of this act, unauthorized by the author, which are hereby
exempted from prohibition of importation."
The effect of the first exception is to exempt from the prohibition
of importation the articles mentioned in paragraphs 512 to 516,
inclusive, of the Tariff act of 1890. It relates expressly to those
named articles, and it does not extend the exemption to any others, nor
to any others that may be included in the same or similar paragraph of
any subsequent act, and as music or musical compositions are not
included in these paragraphs 512 to 516, neither is exempted from the
prohibition of importation, nor does it become so by having one of the
articles named in paragraph 503 of the Tariff act of 1897. The exemption
referred expressly to articles in the tariff act of 1890, and not to
articles in the Tariff of 1897.
The other exception of prohibition of importation has relation, so
far as is important here, to books only, and not to music.
With relation to this and to some other portions of this opinion, I
am not mindful that music and musical compositions are sometimes in the
form of books, and are sometimes produced or reproduced by lithography,
or by a process of photography. But it is apparent that in these acts
the words "books," "lithographs," and "photographs" are used in their
ordinary and popular sense; and that the word "book," "lithograph," or
"photograph" was not understood or intended to include music or musical
compositions is apparent from the fact that, while mentioning these
three, the act in several instances expressly adds also musical
compositions as not being already provided for.
This term would have been without meaning and useless in the statute,
although several times used, if it were included in what is otherwise
expressed. When a general word or term is used, broad enough to include
another particular thing or species, but that other is also expressly
named in the same connection, it is presumed that this was done because
it was not understood or intended to be comprehended in the more general
word or term.
It is quite obvious, and is also the result of rules of legal
construction, that the words "book," "lithograph" or "photograph" were
not intended to include music or musical compositions. They are,
therefore, not within any exception to the prohibition of importation.
Littleton v. Oliver Ditson Co., 62 Fed.Rep., 597.
Paragraph 503 of the Tariff act of 1897-- as to the effect of which
you inquire-- has nothing whatever to do with the question submitted.
The object and office of a tariff act is to prescribe certain duties to
be levied upon certain imported articles, and to state what articles are
exempt from such duties. Unless expressly so provided, it has little or
nothing to do with authorizing the importation of foreign goods.
Generally, and unless expressly forbidden, the importation of goods from
one friendly nation to another is me ely a matter of common right and
comity, and does not require any special authorization by tariff laws or
otherwise.
Indeed, the Tariff act of 1897 does not profess to confer any right
of importation. As is usual in such statutes, its first section simply
provides that "there shall be levied, collected, and paid upon all
articles imported," etc., certain specified duties, and the free list
begins with the statement that, "unless otherwise specially provided for
in this act, the following articles, when imported, shall be exempt from
duty." Doubtless, if it were required, these would amount to an implied
permission to import upon the terms stated; but this is not at all the
object or purpose, nor is it at all necessary. Nor does the right to
import depend at all upon these provisions, but would exist equally
without them, and by the comity of friendly nations.
Paragraph 503, of the Tariff act of 1897, therefore simply provides
when and under what circumstances the articles there specified,
including music, are exempt from duty on importation, and does not
contradict, much less repeal, modify or abrogate any part of the
copyright act.
Your question is, therefore, answered in the negative.
P. C. KNOX.
LEAVE OF ABSENCE-- ARSENAL EMPLOYEES; 23 Op.Att'y.Gen. 443, May 10,
1901
The act of February 1, 1901 (31 Stat., 746), which grants fifteen
working days' leave of absence each year without forfeiture of pay
during such leave to every employee of the navy-yards, gun factories,
naval stations, and arsenals of the United States, includes all
employees, wherever they may be, who are engaged in connection with the
production or care of war materials.
It is the nature of the duties performed by the employee, and not the
place where performed, that constitutes the test as to their inclusion.
The term "arsenals of the United States Government," includes powder
and ordnance depots, the Gun Factory, and the National Armory.
An "arsenal," in its generic meaning. is "a place for the storage, or
for the manufacture and storage, of arms and all military equipment,
whether for land or naval service."
"Armory," comes literally within the definition of an arsenal, it
being "a place where arms and instruments of war are deposited for
safe-keeping."
"Powder and ordnance depots," are but convenient departmental
designations of depositaries of certain specific kinds of military
equipment.
DEPARTMENT OF JUSTICE,
May 10, 1901.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge the receipt of your letter
asking my opinion upon the construction of the act of February 1, 1901,
wherein it is provided--
"That each and every employee of the navy-yards, gun factories, naval
stations, and arsenals of the United States Government be, and is
hereby, granted fifteen working days' leave of absence each year without
forfeiture of pay during such leave: Provided, That it shall be lawful
to allow pro rata leave only to those serving twelve consecutive months
or more: And provided further, That in all cases the heads of divisions
shall have discretion as to the time when the leave can best be allowed
without detriment to the service, and that absence on account of
sickness shall be deducted from the leave hereby granted" (Public No.
28)-- your statement being that--
"Under the Ordnance Department of the Army are arsenals, powder and
ordnance depots, the Gun Factory, and the National Armory, and civilian
employees in the service of the Ordnance Department under ordnance
officers acting as inspectors at the works of private establishments
having contracts with the Government-- " and your question, whether said
act includes only the employees at the establishments designated by the
War Department as arsenals and the Gun Factory or does it also include
employees of the powder and ordnance depots, the National Armory, and
civilian employees in the service of the ordnance department at works of
private establishments having Government contracts.
In my opinion the act covers the employees of all the departmental
divisions of the Ordnance Department to which your letter refers.
I think those establishments which are not designated are included in
the words "arsenals of the United States Government." The evident
legislative intent was to extend the benefits of the act to a
distinctive class of Government employees, and this intent is
effectuated by giving to the word "arsenals" its generic meaning, to
wit: "a place for the storage or for the manufacturing and storage of
arms and all military equipment, whether for land or naval service." An
"armory" comes literally within the definition of an arsenal, it being
"a place where arms and instruments of war are deposited for
safekeeping," and "powder and ordnance depots" are but convenient
departmental designations of depositaries of certain specific kinds of
military equipment.
As to employees of the Ordnance Department assigned to duty at
factories fabricating Government war materials, it is my opinion the
nature of their duties and not the place where performed constitutes the
test as to their inclusion. The act is not limited to employees at but
covers employees of the desig4ated and included establishments.
Therefore such employees of the Ordnance Department, wherever they may
be, who are engaged in connection with the production or care of war
materials, are in my opinion entitled to the benefits of the act.
Very respectfully,
P. C. KNOX.
DUTY-- REFUND; 23 Op.Att'y.Gen. 442, April 9, 1901
Where a customs entry was made in June, 1900, and additional duties
levied and collected thereon were remitted by the Secretary of the
Treasury on the ground of a manifest clerical error, but at the time of
the remission such duty had been paid into the Treasury, Held: That
under section 24 of the Customs Administrative Act (June 10, 1890; 26
Stat., 140) the Secretary of the Treasury has authority to refund out of
an appropriation for that purpose the additional duties which accrued by
reason of a manifest clerical error an entry, within a year from the
time of their payment. The authority to refund in such case is a
necessary consequence of the authority to remit.
Opinion of Attorney-General Harmon of March 13, 1896 (21 Opin., 320),
distinguished.
DEPARTMENT OF JUSTICE,
April 9, 1901.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your
communication of March 22, in which you express a doubt as to your
authority to refund additional duties arising under section 32 of the
act of July 24, 1897, under the following circumstances: A certain
customs entry was made in June, 1900. Additional duty, amounting to
$50.91, accrued thereon and was remitted by you on the ground of
manifest clerical error. Thereafter it was discovered that the
additional duty had been paid and covered into the Treasury.
Section 32 aforesaid, amending section 7 of the Customs
Administrative Act, permits the remission of additional duties in cases
arising from a manifest clerical error, and then provides that such
additional duties shall not be refunded in case of exportation of the
merchandise or on any other account, nor shall they be subject to the
benefit of drawback.
Section 24 of the Customs Administrative Act authorizes the Secretary
to refund out of a permanent, indefinite appropriation an excess of
money paid to or deposited with a collector as ascertained by final
liquidation in any case of unascertained or estimated duties or payments
made upon appeal, and also permits the Secretary to correct manifest
clerical errors in entry or liquidation at any time within one year of
the date of entry. And the district court of the United States for the
southern district of New York has recently decided in the case of United
States v. Gray, not yet reported, that such additional duties ar" to be
treated in precisely the same way as a balance of regular duties.
Your doubt appears to be referable to the fact that said section 32,
after permitting the remission of additional duties where there is a
manifest clerical error, directs that they shall not be refunded in case
of exportation or on any other account. But the words italicized must, I
think, be held to imply the exception of the ground of manifest clerical
error which the law has just granted as a reason for relief. As the
right, therefore, to refund has been expressly recognized by section 24
of the Customs Administrative Act on regular duties, and the
appropriation therefor is in existence, and it has been held judicially
that additional duties are to be assimilated in treatment to regular
duties, I beg to advise you that the additional duties herein, which
accrued by reason of a manifest clerical error upon an entry within a
year of the present time, may be legally refunded by you. In other
words, under the facts and laws stated, you have, in my opinion, the
authority to refund as a necessary consequence of the authority to
remit.
The opinion of my predecessor of March 13, 1896 (21 Opin., 320), does
not affect this case, because, as will be observed, that opinion refers
to penal duties, and cites section 7 of the Customs Administrative Act
in its original form, which did not provide that additional duties
should not be construed to be penal, as is now the law under the
amendment to said section made by the act of July 24, 1897. The prior
opinions to which the opinion of March 13, 1896, refers, as will be
noted on inspection, do not materially influence the present question
either on the facts or with respect to the laws applicable.
Very respectfully,
JOHN K. RICHARDS,
Acting Attorney-General.
MOUNT VERNON RELICS; 23 Op.Att'y.Gen. 437, April 8, 1901
The Mount Vernon relics (so called) which were removed from Arlington
by the military authorities of the United States in 1862 for
safekeeping, and are now deposited in the Smithsonian Institution, are
the private property of George Washington Custis Lee, they having passed
to him under the will of his grandfather, George Washington Parke
Custis, upon the death of his mother, Mary Ann Randolph Lee.
The Government having taken possession of these articles solely for
their safe-keeping, and never having acquired title to them, the
President has the power to return them to their rightful owner. Their
restoration now is quite as much within the scope of Executive authority
as has been their preservation.
DEPARTMENT OF JUSTICE,
April 8, 1901.
The PRESIDENT.
SIR: About October, 1857, George Washington Parke Custis, a grandon
of Mrs. Martha Custis, afterwards Martha Washington, died at Arlington,
Virginia, leaving an only child and daughter, Mary Ann Randolph Lee,
wife of Robert E. Lee, and several grandchildren. His will, executed
March 26, 1855, contained, among other provisions, the following:
"I give and bequeath to my dearly beloved daughter and only child,
Mary Ann Randolph Lee, my Arlington house estate, in the county of
Alexandria, and State of Virginia, containing eleven hundred acres, more
or less, and my mill on Four-mile Run, in the county of Alexandria, and
the lands of mine adjacent to said mill, in the counties of Alexandria
and Fairfax, in the State of Virginia, the use and benefit of all just
mentioned, during the term of her natural life, together with my horses
and carriages, furniture, pictures, and plate, during the term of her
natural life.
"On the death of my daughter, Mary Ann Randolph Lee, all the property
left to her during the term of her natural life I give and bequeath to
my eldest grandson, George Washington Custis Lee, to him and his heirs
forever, he, my said grandson, taking my name and arms.
"My daughter, Mary A. R. Lee, has the privilege by this will of
dividing my family plate among my grandchildren; but the Mount Vernon
plate altogether, and every article I possess relating to Washington,
and that came from Mount Vernon, is to remain with my daughter at
Arlington house during said daughter's life, and at her death to go to
my eldest grandson, George Washington Custis Lee, and to descend from
him, entire and unchanged, to my latest posterity."
In accordance with the directions contained in this will, the
articles relating to Washington, which came from Mount Vernon, remained
at Arlington until early in 1862, when their presence there was made
known to General Irvin McDowell by an old servant of the Lee family, to
whom her mistress, when leaving, had intrusted the key of one of the
cellar rooms in which they were packed. This room having been broken
open, and the safe-keeping of the articles thus endangered, the faithful
servant properly laid the matter before General McDowell, who was in
command. Realizing that under the circumstances Arlington was not a safe
place to keep articles of such historical value, and as he stated at the
time, being "interested only in their preservation," General McDowell
communicated the facts to General S. Williams, Assistant
Adjutant-General, in a letter dated January 7, 1862, with the suggestion
that they be placed in the Patent Office or the Smithsonian Institute
(see H.R. Rep. 36, 41st Cong., 2d sess.). In response he was informed 0y
a letter from General Williams, dated January 13, 1862, that the
Secretary of the Interior had "kindly consented" that they might be
placed "for safe-keeping in the National Patent Office," and was
directed to send them there.
In 1870, upon the suggestion of the Commissioner of Patents, these and
other relics of Washington were removed to the Smithsonian Institution.
There they still remain.
No steps were ever taken by the Government to divest the title of
Mrs. Lee and her son to these relics, nor does it appear that the
Government ever claimed ownership to them, as captured or abandoned
property, or upon any ground.
In February, 1869, just before the close of President Johnson's term,
Mrs. Lee applied for the restoration of the relics. The request was
delivered to the President in full Cabinet meeting by Mr. Browning, then
Secretary of the Interior, who afterwards stated to a committee of
Congress that, upon being read, every member of the Cabinet agreed that
the request of Mrs. Lee should be complied with, and it was so ordered.
Before the transfer was effected an inquiry was ordered by the House of
Representatives, and all further proceedings ceased. (H.R. Rep. 36, 41st
Cong., 2d sess.)
In the next House, the disposition which ought to be made of these
relics was the subject of a report by the Committee on Judiciary, which
reached the following conclusion (H.R. Rep. 36, 41st Cong., 2d sess.;
ordered printed March 7, 1870):
"These articles were the property of Mrs. Lee for her natural life,
to be transmitted as heir looms to her posterity. Mrs. Lee is the
daughter and only child of George Washington Parke Custis, who was the
grandson of Mrs. Martha Custis, afterwards Martha Washington, wife of
the "Father of His Country." She became possessed of Arlington house and
estate under her father's will. That estate and these relics belonged to
Mrs. Lee and not to her husband, He. R. E. Lee. The Federal Government
never attempted by any legal proceedings to divest her title. The title
appears, therefore, to be still in her alone. In the judgment of your
committee the possession ought to be transferred to her."
In October, 1870, Robert E. Lee died, and in November, 1873, he was
followed by his wife, whereupon her son, George Washington Custis Lee,
succeeded to the title to Arlington and the Mount Vernon relics, under
the will of his grandfather. After an unavailing application to Congress
for compensation, George Washington Custis Lee brought suit to recover
the Arlington estate, which the Government had seized during the civil
war and devoted to public use as a military fort and a national
cemetery. He relied upon his title under the will of his grandfather.
The defendants, agents of the Government, relied, first, upon a title
based on a tax sale, and later, after the United States had intervened,
upon the asserted lack of jurisdiction in the courts to pass upon the
acts of the President in seizing Arlington and devoting it to public
uses. The case was carried to the Supreme Court and finally decided in
1882 (U.S. v. Lee, 106 U.S., 196). The tax title was held invalid, and
upon the question of jurisdiction, the Supreme Court, speaking for Mr.
Justice Miller, said (p. 219):
"It is not pretended, as the case now stands, that the President had
any lawful authority to do this, or that the legislative body could give
him any such authority except upon payment of just compensation. The
defense stands here solely upon the absolute immunity from judicial
inquiry of everyone who asserts authority from the Executive branch of
the Government, however clear it may be made that the Executive
possessed no such power. Not only no such power is given, but it is
absolutely prohibited, both to the Executive and the Legislative, to
deprive anyone of life, liberty, or property without due process of law,
or to take private property without just compensation."
So the title under the will was sustained, and as a result the
Government subsequently purchased Arlington.
Application is now made to you by George Washington Custis Lee for
the return to him of the Mount Vernon relics, which he inherited under
the same will that transmitted the title to Arlington, and you request
my opinion upon the question whether he is the owner of these articles,
and if so, whether you have power to deliver them to him.
Let the material facts in this matter be conceded and the law of the
case is plain.
And all the material facts appear to be conceded. It is conceded that
the Mount Vernon relics belonged to Martha Washington's grandson. It is
conceded that he left them by his will to his daughter for life and then
absolutely to his eldest grandson, the claimant. It is conceded that the
Government never took any steps to divest the title thus transmitted,
and it does not appear that in any valid way it attempted to assert any
title of its own. General McDowell did not seize the relics as captured
or abandoned property. They were turned over to him for safe-keeping by
the servant in whose care they had been left. "Interested solely in
their preservation," he received them for safe-keeping. For the same
purpose the Secretary of the Interior "kindly consented" that they might
be placed in the Patent Office, and for the same purpose the Government
has retained possession of them to this time. It follows that the relics
are the private property of George Washington Custis Lee, which he has
never been deprived of by due process of law, and to the possession of
which he is justly entitled under the law.
The remaining question is whether, as Chief Executive, you have the
power to deliver these articles to their rightful owner. I think you
have. Your predecessor took possession of them during a time of war,
when the person in whose care the owner had left them was unable to
protect them, and when they were consequently exposed to the risk of
destruction. Being of great historical value and of common interest to
all the people, the President naturally and patriotically intervened for
their preservation. But now that the need for such protection has
ceased, and the owner requests their return, I believe the President has
power to restore them to the person entitled under law to their
possession. Their restoration now is quite as much within the scope of
Executive authority as has been their preservation.
Respectfully,
JOHN K. RICHARDS,
Acting Attorney-General.
TREATY-- EXTRADITION-- HABEAS CORPUS; 23 Op.Att'y.Gen. 431, March
27, 1901
Under article 3 of the treaty of extradition of 1890 (26 Stat.,
1509), between the United States and Great Britain a person who, under
the provisions of that treaty, is extradited for an offense and upon
trial is acquitted, can not be again arrested and tried upon some other
charge until he first shall have had an opportunity of returning to the
country from which he was surrendered.
Underwood, an American citizen, having been extradited from Canada in
1897 on a charge of murder committed in Texas, was tried and acquitted
and immediately rearrested on two charges of robbery committed prior to
his extradition, was tried, found guilty, and sentenced to sixteen
years' imprisonment in the penitentiary of Texas. Upon demand of the
British Government for his release, Held: That, the prisoner being an
American citizen, and having taken no legal steps to invoke the
provisions of that treaty, no international obligation exists on the
part of the United States to secure, on demand of the British
Government, the release of Underwood, regardless of any action which he
might take on his own behalf to secure his release on habeas corpus.
The question involved is a legal one and respects the legal rights of
the prisoner under the extradition treaty; his remedy, therefore, is a
legal one; and, under the circumstances of this case, there are no
steps which may appropriately be taken by the Executive in order to
fulfill the obligations of that treaty.
DEPARTMENT OF JUSTICE,
March 27, 1901.
The SECRETARY OF STATE.
SIR: I have the honor to acknowledge the receipt of your letter of
February 7, inclosing, for my consideration and for advice to you on the
subject, a copy of a protest from the British ambassador upon a supposed
violation of Article III of the treaty of extradition of 1890 between
this country and Great Britain in the case of Edward Underwood, an
American citizen, who was extradited from Canada in 1896 on a charge of
murder, who was acquitted and immediately rearrested on two charges of
robbery committed prior to his extradition, was found guilty thereon,
and was sentenced in 1897 by the criminal district court of Harris
County, Tex., to a term of sixteen years' imprisonment in the
penitentiary of that State, which sentence was, on appeal to the court
of criminal appeals of that State, duly affirmed.
You state that if I "should hold with the British Government that
Underwood's neglect to invoke the provisions of Article III of the
treaty can not operate to prevent His Majesty's Government from
insisting that those provisions be carried out," you "would be glad if
appropriate steps were taken to fulfill the obligations of the treaty on
the part of this Government."
There can be no doubt, in view of the affirmative restriction of
Article III of the treaty of 1890, that an extradited criminal may not
properly be tried for an offense not named in the warrant of
extradition.
Under the language of the treaty of 1842, which contained no such
affirmative restriction, and under sections 5270, 5272, 5275, Revised
Statutes, it was determined by a majority of the Supreme Court, after
careful consideration, Mr. Justice Miller delivering the opinion of the
court:
"That the weight of authority and of sound principle are in favor of
the proposition, that a person who has been brought within the
jurisdiction of the court by virtue of proceedings under an extradition
treaty, can only be tried for one of the offenses described in that
treaty, and for the offense with which he is charged in the proceedings
for his extradition, until a reasonable time and opportunity have been
given him, after his release or trial upon such charge, to return to the
country from whose asylum he had been forcibly taken under those
proceedings." (United States v. Rauscher, 119 U.S., 407, 430; and see
also Moore on Extradition, vol. 1, pp. 254, 272.)
Mr. Justice Gray's concurring opinion (119 U.S., p. 433) applies
aptly to the present case, because the "affirmative restriction in the
treaty" upon which the learned justice's concurrence was based
manifestly exists in this case. Mr. Chief Justice Waite's dissenting
opinion states the opposed view, namely, that a fugitive from justice
has no absolute right of asylum, "and if he can be got back within the
jurisdiction * * * whose laws he has violated, he may be proceeded with
precisely the same as if he had not fled, unless there is something * *
* in the way in which he was got back to prevent." Chief Justice Waite
finds nothing in the treaty of 1842 with Great Britain "which says
anything about what shall be done with (surrendered criminals) after the
delivery has been made. It might have provided that they should not be
tried for any other offenses than those for which they were surrendered,
but it has not." So that the only ground of dissent in the case of
Rauscher, namely, the silence of the treaty upon this particular point,
is absent from the present case, for the treaty is express upon that
point.
It is hardly, therefore, worth while to point out that the criminal
in this case is a citizen of the United States and not a subject of
Great Britain, and that the crime of robbery for which he was tried and
convicted, like the crime of murder, for which he was extradited, is an
extraditable crime under the tenth article of the treaty of 1842; in
both of which respects the case differs from the case of Cosgrove v.
Winney, 174 U.S., 64. Nevertheless, and notwithstanding the crucial fact
that Underwood appears to have been retained in custody by the
authorities of Texas after he had been acquitted of the offense for
which he was extradited, and was not given an opportunity to leave the
country before his trial and conviction of the offenses for which he is
now suffering imprisonment, I am unable in the existing circumstances to
concur in the view of the British ambassador that the matter at the
present stage is one of international obligation, and that the remedy
which His Majesty's Government appears to have against the technical
violation of this international obligation seems to exist regardless of
any action which the prisoner might take on his own behalf.
The question at issue is judicial in its nature. It respects the
legal rights of the prisoner under the extradition treaty, which is part
of the law of the land. It may be duly raised now in the State courts or
in the Federal courts upon writ of habeas corpus. The prisoner does not
seem to have interposed this defense at any stage of his trial or on
appeal (although he was fully competent and entitled to do so), and
since his sentence took effect he does not appear to have made any
application whatever for the writ of habeas corpus in order to test the
question. This Department, recognizing the propriety of the
considerations of international comity disclosed by the case, will
facilitate in every proper way the judicial settlement of the question,
and to that end will acquiesce in the issuance of a writ of habeas
corpus on behalf of the prisoner, if it shall be deemed advisable by him
or by those interested in his case, to apply for the same to a Federal
court. And, further, so far as it may be proper to do so, I shall, by
suggestion or recommendation, move the State authorities to pursue the
same course in case such an application for habeas corpus should be made
to a State and not a Federal court.
Even if in the abstract the full extent and effect of the view of His
Majesty's Government could be admitted, I am aware of no means by which,
without the judicial proceedings, the prisoner could be released and
withdrawn from the custody of the State of Texas.
I may add that the views which I have just expressed are founded upon
the opinion in United States v. Rauscher, supra, pages 430-431, namely:
"In Great Britain the control of such matters would undoubtedly be
recognized by any court to be in the Crown, but in this country such a
proposition is, to say the least, not unaccompanied by serious
embarrassments. The principal we have here laid down removes this
difficulty, for under the doctrine that the treaty is the supreme law of
the land, and is to be observed by all the courts, State and national,
'anything in the laws of the States to the contrary notwithstanding,' if
the State court should fail to give due effect to the rights of the
party under the treaty, a remedy is found in the judicial branch of the
Federal Government, which has been fully recognized. * * * If the party,
however, is under arrest and desires a more speedy remedy, in order to
secure his release, a writ of habeas corpus from one of the Federal
judges or Federal courts * * * will bring him before a Federal tribunal,
* * * and if it be well founded, he will be discharged. * * * State
courts also could issue such a writ, and thus the judicial remedy is
complete, when the jurisdiction of the courts is admitted. This is a
complete answer to the proposition that the rights of persons extradited
under the treaty can not be enforced by the judicial branch of the
Government, and that they can only appeal to the executive branches of
the treaty governments for redress."
I have the honor, therefore, to advise you that I know of no steps
appropriate to be taken by the Executive in order to fulfill in the case
of Underwood the obligations of the treaty in question, except through
the judicial proceedings which I have herein suggested.
Very respectfully,
JOHN W. GRIGGS.
ATTORNEY-GENERAL-- OPINION; 23 Op.Att'y.Gen. 431, March 26, 1901
The Attorney-General will not render an opinion upon questions which
involve the payment of money by the Treasury Department. That duty, by
section 8 of the act of July 31, 1894 (28 Stat., 208), is imposed upon
the Comptroller of the Treasury.
Former opinions (see 21 Opin., 178, 181, 188, 530; 22 Opin., 581)
affirmed.
DEPARTMENT OF JUSTICE,
March 26, 1901.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge the receipt from you of certain
papers relating to the claim of J. M. Ceballos & Co. for payment for the
transportation of 393 persons from the Philippine Islands to Spain,
under a contract with your predecessor dated March 4, 1899, with your
request that I render to you an opinion as to the same and as to the
amount, if anything, due J. M. Ceballos & Co. upon said claim.
I respectfully call your attention to section 8 of the act of July
31, 1894 (28 Stat., 208), which provides that "the head of any Executive
Department may apply for, and the Comptroller of the Treasury shall
render, his decision upon any question involving payment to be made by
him or under him, which decision, when rendered, shall govern the
Auditor and Comptroller of the Treasury in passing upon the account
containing said disbursement."
By the invariable rule of this Department, opinions are not rendered
by the Attorney-General upon questions which may under this statute be
presented to the Comptroller. (See 21 Opin., 178, 181, 188, 530; 22
Opin., 581.)
The papers are accordingly returned in order that they may, if
desired, be transmitted to the Comptroller of the Treasury for his
opinion thereon.
Very respectfully,
JOHN W. GRIGGS.
BURIAL EXPENSES OF PENSIONER; 23 Op.Att'y.Gen. 428, March 26, 1901
The word "person" as used in the act of March 2, 1895 (28 Stat.,
964), includes a municipal corporation, and authorizes the payment by
the Secretary of the Treasury, from the accrued pension of a deceased
pensioner, of such sum as may be necessary to reimburse a municipal
corporation for the expenses it incurred during the last sickness and
for the burial of a deceased pensioner, who died not leaving sufficient
assets to meet such expenses.
DEPARTMENT OF JUSTICE,
March 26, 1901.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your note of
March 8, 1901, with its inclosure, asking my official opinion whether
the word "person," as used in the act of March 2, 1895 (28 Stat., 964),
includes a municipal corporation.
The case under which the question arises is this: The town of Dover,
Me., makes claim upon the Treasury Department for reimbursement of the
expenses paid by it of the last sickness and burial of Sara C. Cook,
late a pensioner, who died there, leaving an accrued pension sufficient
for such reimbursement. The deceased left no minor child nor any other
available assets for such expenses. It appears that the deceased, during
her last sickness, was furnished by the town with pauper relief, upon
application of the board of overseers of the poor, and the burial
expenses were thus paid.
The statute of that State provides that towns shall do this, in case
of destitute persons having a settlement in such town.
The act of March 2, 1895, above referred to, so far as is important
here, provides, as to accrued but unpaid pensions of a deceased
pensioner, that, "if no widow or child survive such pensioner * * * no
payment whatsoever of their accrued pension shall be made or allowed,
except so much as may be necessary to reimburse the person who bore the
expense of their last sickness and burial, if they did not leave
sufficient assets to meet such expense."
It is quite settled that the word "person" in a statute may in some
cases, and in others may not, include artificial persons-- corporations,
private or municipal. Whether it does or not, in a particular case, will
generally depend upon the subject-matter of the statute, the context,
and especially upon the purpose and object of the statute. If there is
nothing in the context to indicate whether the word is used in a
restricted sense as applicable to natural persons only, or in its broad,
generic sense, as including also artificial persons, we look especially
to the object and purpose of the enactment; and, if we find that these
have relation to artificial persons as well as to natural ones, and if
there is the same reason for the statute in respect to both classes, we
conclude that it refers to both. It is a familiar rule of construction,
and one of the most important and useful, that a statute is to be
construed with reference to its manifest purpose and object, and so as
to accomplish these. Tested by this rule, the meaning of the section
referred to is fairly certain.
The purpose of this portion of the section is to reimburse, to the
extent and in the manner provided, from what would be the property of
the pensioner, if living, the expenses paid for his last sickness and
burial. And this purpose can have little regard for the question who the
person is, who has paid the expenses, or whether it was a natural or
artificial person, or, if a corporation, whether private or municipal.
The whole object is accomplished when, from what would have been the
pensioner's property if living, these expenses are repaid, and equally
so, whether the person who originally defrayed them was a natural person
or a municipal corporation. And it can make no difference in this
respect, or with the purpose of the statute that, upon grounds of public
policy, it was made the duty of such municipality to thus provide for
the destitute.
This section expressly, as do the pension laws generally, treats accrued
unpaid pensions as the property of, and belonging to, the pensioner,
though paid but quarterly. They would be his absolute property, a part
of his estate and liable for his debts, and that this section provides,
in a case like this, that, after the pensioner's decease, the accrued
pension shall not be paid at all, except to reimburse the person who has
defrayed the expenses of the last sickness and burial; so that the
section appropriates so much of what would be the property of the
pensioner, if living, to reimburse the payment of these last expenses.
The section recognizes that the accrued pension is so far the property
of the pensioner that it should be applied to reimburse the payment of
those expenses which humanity and public policy require should be paid
by someone. In this view, it can make no difference who, or what kind of
person it is who first pays these expenses, or whether this payment was
dictated by humanity or by the requirement of public policy. The simple
fact is, they were paid, and the section recognizes the propriety of
reimbursement.
In addition to this, section 1, Revised Statutes, provides that--
"In determining the meaning of the Revised Statutes, or of any act or
resolution of Congress passed subsequent to February 25, 1871, * * * the
word person may extend and be applied to partnerships and corporations."
* * *
The word "corporations" may include municipal as well as private
corporations. Hence the word "person" may apply indifferently to either.
But while the word "person" may include a municipal corporation, yet,
whether it does so in a particular case, may depend upon the context,
the subject-matter of the act, and the object and purpose of the
statute.
In this case, I am of opinion that the word "person," as used in the
section referred to, includes a municipal corporation.
Respectfully,
JOHN W. GRIGGS.
SPANISH TELEGRAPHIC CONCESSIONS-- INFRINGEMENT-- CUBA; 23 Op.Att'y.
Gen. 425, March 18, 1901
As a matter of power, it is within the legitimate function of the War
Department to maintain a telegraph line between Santiago and Havana,
Cuba, and to transmit private messages over it, although the transaction
of business of that nature may be in conflict with the vested rights of
the International Ocean Telegraph Company.
In the maintenance and operation of such line, the military officers
of the United States in Cuba are exercising a war power under a military
occupation of territory wrested by arms from a belligerent.
The question whether the business of the International Ocean
Telegraph Company is therby injuriously affected in contravention of its
concession is one, the authority to determine which, is not vested in
the Attorney-General.
DEPARTMENT OF JUSTICE,
March 18, 1901.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge receipt of your communication
of October 12, 1900, in which you request my opinion upon a state of
facts arising as follows:
"The International Ocean Telegraph Company maintains and operates a
cable between the United States and Cuba. This company claims the
exclusive right of telegraphic communication between the United States
and Cuba, continuing until January, 1906, by virtue of a concession from
the Spanish Government dated December 5, 1866, and May 13, 1867.
"The United States and Haiti Telegraph and Cable Company maintains
and operates a cable from New York ;city to Haiti.
"The French Cable Company maintains and operates a cable from Haiti
to Santiago, Cuba, under a concession granted by the Spanish Government.
This cable was constructed and operated prior to the American
occupation.
"The Signal Service Corps, U.S.A., constructed an overland telegraph
line between Santiago and Havana, which line is now being operated as a
common carrier of telegraph messages.
"By mutual agreement the lines of the United States and Haiti
Telegraph and Cable Company and the French Cable Company are now
operated as a continuous line, and transmit messages between New York
and Santiago, Cuba, via Haiti.
"On arrival in Santiago, Cuba, messages destined for Havana or
elsewhere in Cuba are tendered to the persons in charge of the overland
telegraph line operated by the United States military authorities, by
whom they are accepted and transmitted upon payment of the rate charged
the general public.
"The acceptance and transmission of such messages by the overland
telegraph line enables the cable companies operating the cable between
the United States and Cuba, via Haiti, to compete with the International
Ocean Telegraph Company for messages passing between the two countries.
"The International Ocean Telegraph Company insists that said practice
constitutes an infringement of the terms of the concession granted the
French Cable Company and also a violation of the concessionary rights of
the International Ocean Telegraph Company.
"Application is now made by the International Ocean Telegraph Company
to the Secretary of War, for an order sufficiently comprehensive to
prevent said competition and alleged violation of right. The questions
upon which I have the honor to request your opinion are as follows:
"1. What action, if any, is incumbent upon the Secretary of War under
the foregoing conditions?
"2. If the premises present a condition requiring action by the War
Department, in what form and to what extent shall the action be taken?"
The claim of the International Ocean Telegraph Company to an
exclusive right of telegraphic communication between the United States
and Cuba has been under consideration in this Department on two former
occasions.
(See 22 Opinions, 408, 514.) In the opinion rendered to the Secretary of
War under date of June 15, 1899, referring to the Spanish concession to
the International Ocean Telegraph Company, it was declared that that
company produces a grant which, upon its face, gives them an exclusive
right for a period which has not expired. No opinion was expressed by
this Department as to the ultimate validity of the concession, but its
validity was recognized prima facie sufficiently to entitle it to
protest against action on the part of the War Department or of the
President which would tend, by infringement of its granted vested
rights, to injure its business.
The present question relates to the action of the military
authorities of the United States, who are now exercising governmental
control over the Island of Cuba. As a mere matter of power, it is within
the legitimate function of the War Department to maintain the
telegraphic line between Santiago and Havana and transmit messages over
it, even although the transaction of business of that nature by the War
Department may be in conflict with the vested rights of the
International Company. That would, however, be because, in the
maintenance and operation of such line, the military officers of the
United States in Cuba are exercising the war powers under a military
occupation of territory wrested by arms from a belligerent. That is a
very different thing, however, from deciding whether, as a pure question
of legal right, the business of the International Company is thereby
injuriously affected in contravention of its concession. Under the facts
stated, it is not possible for me to say whether the maintenance of the
line between Santiago and Havana by the United States authorities, and
the carrying of private messages, is or is not necessary or convenient
for the War Department in its conduct of the government of the Island,
and I am therefore unable to advise you what action, if any, is
incumbent upon the Secretary of War under the conditions stated. I
observe, however, among the papers submitted to me, a report upon this
subject by the Military Governor of Cuba in which he recommends that the
transmission of private messages intended for the United States, and the
reception of private messages derived from the United States be
discontinued, and no reason is suggested to me why such a course should
not be pursued.
I am aware that on a former occasion the validity of the concession
to the International Ocean Telegraph Company was assailed. Its
concession, however, appears to be regular on its face, and the power
necessary to inquire into and determine conclusively whether that
concession is void for reasons not appearing on the face thereof, is not
vested in this Department, and no decision on that question is intended.
Very respectfully,
JOHN W. GRIGGS.
COURTS-MARTIAL-- witnesses-- fees; 23 Op.Att'y.Gen. 424, March 16,
1901
The act of March 2, 1901 (31 Stat., 940), which provides that a
person who, being duly subpoenaed to appear as a witness before a
general court-martial of the Army, willfully neglects or refuses to
appear, or refuses to qualify as a witness, or to testify or produce
documentary evidence which he may have been legally subpoenaed to
produce, shall be deemed guilty of a misdemeanor, requires that the
legal fees of such witnesses shall be first duly paid or tendered in
order to lay the foundation for a prosecution under that act.
A mere statement in the subpoena, signed by the judge-advocate of the
court-martial, to the effect that the United States tenders or
guarantees the payment of the authorized fees, is not a sufficient
compliance with that act to support a prosecution thereunder.
DEPARTMENT OF JUSTICE.
March 16, 1901.
The SECRETARY OF WAR.
SIR: By an act of Congress approved March 2, 1901, it is provided:
"That every person not belonging to the Army of the United States
who, being duly subpoenaed to appear as a witness before a general
court-martial of the Army, willfully neglects or refuses to appear, or
refuses to qualify as a witness or to testify or produce documentary
evidence which such person may have been legally subpoenaed to produce,
shall be deemed guilty of a misdemeanor, for which such person shall be
punished on information in the district court of the United States: * *
* Provided, That this shall not apply to persons residing beyond the
State, Territory, or District in which general court-martial is held,
and that the fees of such witness, and his mileage at the rates provided
for witnesses in the United States district court for said State,
Territory or District shall be duly paid or tendered said witness."
After calling my attention to this measure, you request my opinion as
to whether it is necessary, in order successfully to prosecute a person
subpoenaed under the provisions of this act, who refuses to obey the
subpoena, that the fees of such witness shall have been actually paid or
tendered to him at the time of the service of the subpoena; or whether
a statement in the su0poena, signed by the judge-advocate of the
court-martial, to the effect that the United States tenders and
guarantees the payment of the authorized fees is a sufficient compliance
with said act to support a prosecution thereunder.
I am clear in the opinion that the fees of the recalcitrant witness
must have been actually paid or tendered to him at the time of the
service of the subpoena, in order to lay the foundation for a
prosecution under this act. The act so provides, and its provisions must
be strictly followed. The guarantee of fees is neither the payment nor
tender of such fees.
Respectfully,
JOHN W. GRIGGS.
ARMOR PLATE-- ROYALTY-- HARVEY PROCESS; 23 Op.Att'y.Gen. 422, March
14, 1901
The Navy Department may rightfully withhold its approval of the
voucher providing for the payment to the Carnegie Steel Company of the
sum of $8,024.45, claimed as royalty for the use of the Harvey process
in the manufacture of armor plate for naval vessels under the contract
of 1898, until the right of the Harvey Steel Company to demand and
collect from the Government a royalty for the use of the same process is
determined in the suit pending in the Court of Claims.
DEPARTMENT OF JUSTICE,
March 14, 1901.
The SECRETARY OF THE NAVY.
SIR: In your communication of the 8th instant you inclose for my
information a letter, dated the 14th ultimo, from the attorney for the
Carnegie Steel Company, requesting payment to that company of the sum of
$8,024.45, as royalty for the use of the Harvey process in the
manufacture of armor plate for naval vessels, under the contract of June
3, 1898, the bill for this amount having first been presented to the
Navy Department by the Carnegie Steel Company on April 1, 1899.
Attached to this letter is a report (second indorsement, dated February
26) of the Bureau of Ordnance, setting forth the reasons why, in its
opinion, payment of the sum named should not be made, and in this report
and in your letter reference is made to the suit of the Harvey Steel
Company against the United States, No. 21111, filed in the Court of
Claims, December 3, 1898, to recover the sum of $61,600, as royalty for
the use of the Harvey process in the manufacture of certain armor plate
for naval vessels, and attention is directed to the report and papers
filed therein.
In view of the questions involved in the suit mentioned, you state
that your Department is in doubt as to whether it can, with due regard
for the Government's interest, make payment of the royalty to the
Carnegie Steel Company as requested, and you therefore ask my opinion as
to the right of the Navy Department, under all the circumstances, to
withhold its approval of the voucher providing for such payment until
the determination by the courts of the Harvey Steel Company's suit.
I beg to say, that I have carefully examined the proceedings and the
papers to which you refer and that I am clear in the opinion that the
Navy Department has a right, under all the circumstances, to withhold
its approval of the voucher providing for the payment to the Carnegie
Steel Company of the sum mentioned, as royalty for the use of the Harvey
process in the manufacture of armor plate for naval vessels, until the
legal question of the right of the Harvey Steel Company to collect
royalty from the Government, involved in the pending suit, shall be
finally adjudicated.
The Navy Department has taken the position that the Harvey Steel
Company has no right, under its patents, to demand and collect from the
Government a royalty for the use of the face-hardening process employed
in the manufacture of armor plate. Whether the Navy Department is right
in this or not, can only be properly determined by the courts. A change
in the method of collecting the royalty can not satisfactorily settle
the right to it. The Navy Department may rightfully insist that neither
directly nor indirectly shall any royalty be paid until the right to the
royalty be judicially determined.
Respectfully,
JOHN W. GRIGGS.
CUSTOMS DUTIES-- BONDED WAREHOUSE-- FOREIGN WAR VESSELS; 23 Op.
Att'y.Gen. 418, March 9, 1901
Section 15 of the act of July 24, 1897 (30 Stat., 207), does not
permit the withdrawal, free from internal-revenue duty and the
requirements relating to revenue stamps, of liquors from bonded
manufacturing warehouses, for consumption aboard of war vessels of
foreign nations.
The withdrawal of goods from such a warehouse for consumption on war
vessels of foreign nations, would not be an exportation of such goods
within the meaning of the act of 1897.
The privilege granted to foreign vessels of war in our ports, under
section 2932, Rev. Stat., of purchasing supplies from the public
warehouses, duty free, when that privilege is reciprocated in the ports
of such foreign nation to our own national vessels, is limited to the
purchasing in the bonded warehouses of supplies deposited therein
pending withdrawal for consumption. The duty referred to, from which
supplies so purchased shall be free, is the import duty.
DEPARTMENT OF JUSTICE,
March 9, 1901.
The SECRETARY OF THE TREASURY.
SIR: Your letter of December 4, 1900, presents for my consideration
a question of law which arises upon an application to you by the Crown
Distilleries Company. This application seeks permission to withdraw from
a manufacturing warehouse merchandise manufactured therein, for the
purpose of sale and delivery to foreign vessels of war for use on board
such vessels, and alleges that such withdrawals and deliveries should be
deemed an exportation which shall be exempt from internal duty and from
requirements relating to revenue stamps, under section 15 of the act of
July 24, 1897.
The question of law arising upon this application is thus framed by
you, namely: Whether articles can be withdrawn as supplies from bonded
manufacturing warehouses under existing law for consumption aboard war
vessels of foreign nations.
You do not present to me a statement of facts, in accordance with the
established rule upon request for opinion (19 Opin., 396; 20 Opin.,
270; 21 Opin., 220; 22 Opin., 342), but I waive that objection in this
instance, since the crucial facts are clearly and necessarily implied,
and merely remark that, obviously, it must be assumed that the foreign
war vessels affected are lying in ports of the United States, and that
the merchandise here involved is distilled spirits which have been
conveyed as raw materials, in due conformity to law, into manufacturing
warehouses and there have been legally manufactured into some other form
of spirituous liquor, such as cordials, bitters, etc.
Section 2982, Revised Statutes, grants to foreign vessels of war in
our ports the privilege of purchasing supplies from the public
warehouses, duty free, when that privilege is reciprocated in the ports
of the foreign nation to our own national vessels. The "public
warehouses" thus referred to are the bonded warehouses in which imported
merchandise is deposited in bond pending withdrawal for consumption, and
the duty referred to, from which supplies so purchased shall be free, is
the import tariff. The Treasury Department has construed section 2982 as
limited to the withdrawal of supplies from such customs bonded
warehouses, and has held that bonded manufacturing warehouses are not
bonded warehouses within the meaning of the provisions of law relating
to the bond and warehouse system of which section 2982 is a part. (T.D.
13250, 13536, 18868.)
Section 15 of the Dingley tariff act of 1897 permits, with certain
restrictions, articles manufactured of materials subject to
internal-revenue tax and intended for exportation, without charge or
stamp for internal duty, to be manufactured in manufacturing warehouses
and to be exported duty free under Treasury regulations.
Section 3433, Revised Statutes, providing for similar manufacture for
export, is incorporated in section 15 of the act of 1897 so far as
applicable to the warehouses and conditions therein contemplated.
It thus appears that the only question presented is whether goods
withdrawn from these manufacturing warehouses for consumption on war
vessels of foreign nations would be "exported" within the meaning of
these provisions of the act of 1897.
My opinion is that the words "exported" and "exportation" may not
include deliveries of supplies to foreign war vessels in our ports
without doing violence to language. It is true that the fundamental idea
in exportation is the severance of goods from the mass of things
belonging to this country (17 Opin., 579; 21 Opin., 501), and the
purpose of the law, in many particulars referring to exportation, is to
reach the assurance that the goods shall not be consumed here. But the
notion of uniting the goods to the mass of things belonging to some
foreign country is also involved, and that is hardly satisfied by
consumption in our ports or on the high seas simply because the vessel
belongs to a foreign nation. While "exportation" is a term the extent of
which can not be rigidly defined for every case, and under the existing
law and regulations sometimes requires proof of landing abroad, and
under other circumstances is satisfied by proof of clearance of the
vessel for a foreign port and proof of landing abroad is waived, yet
there is nothing in the law under consideration to indicate that less
than intention to ship abroad and actual shipment to a foreign port to
reach there the general foreign market, which is the object of all such
provisions in our statutes, will satisfy the law.
I notice that it has been repeatedly held by your Department that
articles manufactured from imported materials, as well as imported goods
unchanged in condition, if consumed on board of vessels, would not be
exported within the meaning of the drawback laws (T.D. 9733, 13536,
18668, 19434). The word "exportation" in section 30 of the Dingley Act,
allowing a drawback on the exportation of articles in the manufacture of
which imported materials are used, doubtless should be defined by
reference to sections 3043-3047, Revised Statutes, relating to drawback
and requiring proof of landing abroad.
By analogy, it is pertinent to suggest that section 15 of the Dingley
Act must be read in conjunction with section 3433, Revised Statutes,
which is expressly incorporated in section 15, and in connection with
other provisions of the law relating to exportations free of duty or tax
(sections 2979, 3043-3047, 3330, Revised Statutes; articles 1045-1065,
Customs Regulations, 1899), which contemplate a shipment with intent to
land abroad as a necessary element in the meaning of "exportation" when
used in these laws.
But without dwelling on the more technical considerations involved,
and conceding that the principle of assured removal from consumption in
this country free of tax or duty, in order to increase the market for
our goods, and with a view to international comity, embraces the case of
supplies which are manufactured in this country and are delivered to
foreign war vessels quite as clearly as such supplies which are
imported; nevertheless the law has carried this principle into effect
in the latter case, and has not done so in the former case. It is a
well-established rule, having few exceptions (Union Ins. Co. v. United
States, 6 Wall., 759; McKee v. United States, 164 U.S., 287), that it
is not permissible to add to, change, or subtract from the words of a
law under the guise of construction: "No mere omission, no mere failure
to provide for contingencies which it may seem wise to have specifically
provided for, justify any judicial addition to the language of the
statute." (United States v. Goldenberg, 168 U.S., 95, 103). In the same
line with this principle is the weight of the rulings of your
Department, which are entitled to much consideration, and hold
generally, as I have stated, that exportation requires shipment abroad
with intent to land on foreign soil, and demand often that proof of
landing as well shall be made.
I do not understand that you are informed that the privilege desired
by these applicants is reciprocated toward vessels of war of the United
States in any foreign ports; and such mutuality appears to be the basis
of any like privilege in our own laws and in the laws of other nations.
I may also remark that if Congress had desired and intended to grant
the privilege in question, it might have been granted by language free
from doubt, such as that used in section 14 of the Dingley Act, by which
section 16 of the act of June 26, 1884, relating to supplies for
American vessels, was amended. That section of the act of 1884, as
amended, closes with the following words: "But no such articles shall
be landed at any port of the United States." This clause is all that is
necessary where mere assurance against consumption in this country, and
not of exportation to a foreign country, is required.
Accordingly, I hold that articles may not be withdrawn from bonded
manufacturing warehouses, under existing law, as supplies for war
vessels of foreign nations.
Very respectfully,
JOHN K. RICHARDS,
Acting Attorney-General.
NATIONALIZATION OF PORTO RICAN VESSELS; 23 Op.Att'y.Gen. 414, March
5, 1901
Section 12 of the act of June 26, 1884 (23 Stat., 56), which provides
that consular officers rendering official services to American vessels
and seamen, shall furnish the master of every such vessel with an
itemized statement of such services performed, and make a report thereof
to the Secretary of the Treasury, and for such services shall receive
from the Treasury Department the same compensation that they would have
received prior to the passage of that act, applies equally to services
rendered to nationalized Porto Rican vessels.
The ninth section of the Porto Rican Organic act of April 12, 1900
(31 Stat., 79), provides for the nationalization of all vessels owned by
the inhabitants of Porto Rico on April 11, 1899. Such nationalization
placed those vessels upon the same footing as all other privileged
American vessels, and conferred upon them the benefits of the act of
1884.
The opinion of February 19, 1901 (ante, p. 400), answers the second
inquiry, and it is therefore affirmed.
DEPARTMENT OF JUSTICE.
March 5, 1901.
The SECRETARY OF THE TREASURY.
SIR: I have received your letter of the 19th of January, in which
you say:
"Section 9 of the act to temporarily provide revenue, etc., for Porto
Rico authorized the Commissioner of Navigation to make regulations for
the nationalization of Porto Rican vessels; and by instructions dated
November 24, 1900, the Commissioner framed regulations under which the
vessel in question and other vessels similarly circumstanced, became
entitled 'to the documents and to the privileges of a vessel of the
United States, on compliance with the laws not locally inapplicable,
regulating the documenting of vessels of the United States.'
These regulations were formally approved by this Department, and are now
in force.
"In view of the foregoing, and of the disposition which the act of
April 12, 1900, regarding Porto Rico, makes of the customs, revenues,
etc., levied for the government of the Island, this Department is in
doubt whether it should be required to act regarding such fees as
provided for in the case of vessels of the United States, by section 12
of the act of June 26, 1884 (18 Opin., 99, 234), or in regard to relief,
as provided for by law in the case of seamen on vessels of the United
States. (Consular Regulations, 1896.)
"I will thank you for your opinion upon those points."
In an opinion of the 19th ultimo, the second of your two questions
has already been answered.
The other question, as to whether section 12 of the act of June 26,
1884, which provides that consular officers rendering official services
to American vessels and seamen, shall provide the master of every such
vessel with an itemized statement of such services performed, with the
fee prescribed in the tariff of consular fees for each service, and make
a detailed report to the Secretary of the Treasury of such services and
fees, and that the Secretary of the Treasury shall allow consular
officers who are paid from fees such compensation for said services as
they would have received prior to the passage of that section, applies
in the case of services by consular officers to the Porto Rican vessels,
will now be answered.
Section 12 begins by abolishing the charging and collecting of fees
by consular officers for official service to American vessels and
seamen. It takes care, however, that consular officers whose
compensation was derived from such fees shall receive the same amount of
money as before, but from the Treasury of the United States instead of
from individuals.
It is suggested in your letter that the fact that the provision of
the Porto Rican Organic act, dated April 12, 1900, to the effect that
the duties and taxes collected in Porto Rico under the provisions of
that act, and those collected in the United States upon articles of
merchandise coming from Porto Rico, shall be used for the government and
benefit of Porto Rico, etc., raises a doubt whether the Treasury of the
United States should pay the consuls for services to Porto Rican
vessels.
This suggestion seems rather to point at a matter of policy or
general justice than at the rules of construction applicable to the
language used by Congress.
If Porto Rican vessels are intended to be nationalized, and this
means that they are to be American vessels, then the special provision
as to utilizing tariff and other charges for the benefit of Porto Rico
can not prevent the application of section 12 of the act of 1884.
Section 9 of the Porto Rican act provides:
"That the Commissioner of Navigation shall make such regulations,
subject to approval of the Secretary of the Treasury, as he may deem
expedient for the nationalization of all vessels owned by the
inhabitants of Porto Rico on the eleventh day of April, eighteen hundred
and ninety-nine, and which continued to be so owned up to the date of
such nationalization, and for the admission of the same to all the
benefits of the coasting trade of the United States; and the coasting
trade between Porto Rico and the United States shall be regulated in
accordance with the provisions of law applicable to such trade between
any two great coasting districts of the United States."
The Hawaiian Organic act, dated April 30, 1900, expressly provides
that the Hawaiian Islands shall be known as the Territory of Hawaii, and
section 3 says:
"That a Territorial government is hereby established over the said
Territory, with its capital at Honolulu, on the island of Oahu."
Section 98 is as follows:
"That all vessels carrying Hawaiian registers on the twelfth day of
August, eighteen hundred and ninety-eight, and which were owned bona
fide by citizens of the United States, or the citizens of Hawaii,
together with the following-named vessels claiming Hawaiian register,
Star of France, Euterpe, Star of Russia, Falls of Clyde, and Wilscott,
shall be entitled to be registered as American vessels, with the
benefits and privileges appertaining thereto, and the coasting trade
between the islands aforesaid and any other portion of the United
States, shall be regulated in accordance with the provisions of law
applicable to such trade between any two great coasting districts."
The act for the government of Alaska, passed in 1868, contains a
provision, carried into the Revised Statutes as section 4140, as
follows:
"The Secretary of the Treasury may make such regulations as he may
deem expedient, for the nationalization of all vessels owned by actual
residents of the Territory of Alaska, on the twentieth day of June,
eighteen hundred and sixty-seven, and which continued to be so owned up
to the date of such nationalization."
Under this last-named act, Alaskan vessels have always been treated
as American vessels or vessels of the United States, with full rights
and privileges.
Hawaiian vessels under the other statute have been of course treated
in the same way.
It is impossible to ignore the similarity of language used in the
cases of Alaska and Porto Rico, and, so far as the coasting trade is
concerned, in the cases of Hawaii and Porto Rico, or to doubt that
Congress had these older laws in view when using the word "nationalize."
Such being the case, I think it clear that nationalize--
"nationalization"-- in the Porto Rican act does not mean nationalize as
Porto Rican vessels, but nationalize as United States vessels, and that
nationalize means to put the vessels upon the same footing as Hawaiian,
Alaskan, and all other privileged American vessels.
As I said in the opinion above referred to concerning seamen of Porto
Rico, etc., while section 9 of the Porto Rican Organic act contains no
express mention of any vessels except those owned by inhabitants of
Porto Rico on April 11, 1899, I think the intent of the act is not
confined to them.
I am of opinion, therefore, that Porto Rican vessels are brought
within the benefits of section 12 of the act of 1884, by force of the
word "nationalization," used in the Porto Rican Organic act, especially
in view of section 14 and the general scope of that law, which certainly
treats Porto Rico as a country belonging to the United States, and one
whose people would hardly be expected, when in foreign ports, to be
discriminated against in such a manner as the care and assistance of
American consular officers.
And if there is no distinction made as to the performance of the
services to these and other vessels, neither is there any distinction
made as to the compensation of consuls for performing such services.
Your second question is accordingly answered in the affirmative.
Respectfully,
JOHN W. GRIGGS.
PRESIDENT-- NAVAL OFFICERS-- NOMINATIONS FOR ADVANCEMENT; 23 Op.
Att'y.Gen. 413, March 1, 1901
The President has power to nominate for advancement, and to submit
such nomination to the Senate for confirmation, temporary officers of
the Navy recommended by the Sicard Board for advancement for especially
meritorious services, although at the time of such nomination such
officers may have been honorably discharged from the naval service.
Such nomination is, in effect, if approved by the Senate, a nunc pro
tunc advancement of the officer. It is of a date and operates at a time
when the officer was in the temporary service of the Government, and is
not open to the objection that it amounts to the advancement of an
officer who is no longer in the service.
DEPARTMENT OF JUSTICE,
March 1, 1901.
The PRESIDENT.
SIR: It appears from the inclosures in your communication of the
28th ultimo, that the board (known as the Sicard Board) appointed by the
Navy Department's order of August 30, 1898, for the purpose of examining
into and reporting upon the records of officers of the Navy, with a view
to determine whether officers rather than those who had already been
recognized were entitled to reward for especially meritorious service,
recommended for advancement certain temporary officers of the Navy,
along with certain officers of the permanent establishment.
At the date of the nomination of the officers of the permanent
establishment for advancement in accordance with the recommendation of
this board, the temporary officers also recommended for reward had been
honorably discharged from the naval service. The Secretary of the Navy
deems it advisable that the nomination of the temporary officers be
submitted to the Senate, if this can be done under the law, and you
therefore submit the question whether you can nominate for advancement a
temporary officer of the Navy after his honorable discharge therefrom.
I have given this matter such investigation and consideration as the
limited time at my disposal has permitted, and, while the conclusion I
have reached is not free from doubt, I am disposed to think that you
have the necessary power to carry out the recommendation of the board.
The nominations submitted in each instance provides for an advancement
on the list of officers appointed for temporary service, as of the date
of July 3, 1898, for eminent and conspicuous conduct in battle, and
contains the proviso that such advancements shall be effective only to
the date of the honorable discharge of the officer named and shall not
operate to restore him to the naval service.
The nomination, therefore, in each case, is in effect, if approved by
the Senate, nunc pro tunc advancement of the officer. It is of a date
and operates at a time when the officer was in the temporary service of
the Government. It is not, therefore, of necessity open to the objection
that it amounts to the advancement of a person who is no longer in the
service.
Respectfully,
JOHN W. GRIGGS.
VOLUNTEER OFFICERS-- RELATIVE RANK-- SERVICE; 23 Op.Att'y.Gen. 406,
February 27, 1901
The relative rank of officers in the military service of the United
States, under section 1219, R.S., must be determined by reference to the
time of muster in, and not from the time of enrollment.
The acts of May 26, 1898 (30 Stat., 420), July 7, 1898 (30 Stat.,
721), and March 3, 1899 (30 Stat., 1065), did not impliedly amend that
section nor change the military system of the United States.
This supplemental legislation was in the nature of a recognition of
an equitable claim to reimbursement for services which were rendered
after enlistment and before muster in or acceptance of their
commissions, and has reference only to volunteers under the act of April
22, 1898 (30 Stat., 361).
Implied repeals of laws are not favored. Where the true construction
of later legislation is doubtful, the doubt should be resolved against
any construction which revolutionizes existing systems of
administration.
Opinion of September 22, 1900 (ante, p. 232), modified.
DEPARTMENT OF JUSTICE,
February 27, 1901.
The SECRETARY OF WAR.
SIR: I have the honor to state that on September 22, 1900, I
rendered to you an opinion, in compliance with your request therefor, as
to the relative rank of certain army officers therein referred to. That
opinion is now returned to me from your Department with communications
to you from the Judge-Advocate-General and the Chief of the Record and
Pension Office, by which it appears that your previous letter of
September 12, 1900, which requested my official opinion in the matter,
failed to state all of the facts and considerations applicable to the
question. Your letter in effect asks me to review my opinion of
September 22, 1900, and I shall do so not only because you request it,
but also because I am satisfied, upon a full consideration of the
matter, that your previous request for an opinion was not accompanied
with sufficient data to enable me to advise you with reference to the
question involved.
In my opinion of September 22, 1900, I held that under Revised
Statutes, section 1219, the volunteer officers received into the
military service of the United States under the acts of Congress therein
and herein referred to, were in the military service of the United
States as commissioned officers from the time of their enrollment in
that service, and not merely from the time of their actual muster in or
acceptance of commissions in that service, and were, therefore, entitled
to have their service from the time of such enrollment considered in
fixing their relative rank.
I have reconsidered this opinion in the light of the additional
information furnished me in your letter with its inclosures, and, as I
have reached a different conclusion from that set forth in my previous
opinion, I will again review the acts of Congress applicable thereto.
Revised Statutes, section 1219, provides that--
"In fixing relative rank between officers of the same grade and date
of appointment and commission, the time that each may have actually
served as a commissioned officer of the United States, whether
continuously or at different periods, shall be taken into account. And
in computing such time, no distinction shall be made between service as
a commissioned officer in the Regular Army and service since the 10th
day of April, 1861, in the volunteer forces, whether under appointment
or commission from the President or from the governor of a State."
The question turns upon the construction of the verb "served." It
seems clear that the word "served" in this section is used in the same
restricted and technical sense with which the word "service" is used in
connection with our military system. As to when such service commences
there can be no question. As you state, every department of the
Government which has had occasion to construe this word has, by
long-continued and uniform decisions and practice, held that, in case of
volunteer officers commissioned by the governors of States, their entry
into the military service of the United States dates from their muster
in; and in case of volunteer officers appointed by the President, by
and with the advice and consent of the Senate, their service dates from
their acceptance of their commissions and oath of office. There are
substantial reasons for this construction of the word "service." The
enrollment of a person for service in the Volunteer Army is only a
declaration of his intention to enter such service. He may, or may not,
actually enter the service by formal muster in; he may refuse to be
mustered in after enrollment, and it has been decided by your and this
Department that if he does so he does not thereby become a deserter.
Again, if he is willing to enter the service, he may, for various
reasons, be rejected by the officer in charge of the muster in, and if
rejected he has never been actually or constructively in the service of
the United States Army. In other words, to give a citizen the status of
a United States soldier in the Volunteer Army his consent and that of
the United States are both necessary, and the formality which marks this
agreement of the two parties to the contract, and the commencement of
the obligations thereunder, is the muster in, an old institution, which
is a part of our military system we inherit from England. The muster in
fixes the time of the commencement of the military service, and the
muster out marks the termination of such service.
It is clear, therefore, that unless the section of the Revised
Statutes heretofore quoted has been amended by supplementary
legislation, the relative rank of officers must be determined by
reference to the time of muster in, and not from the time of enrollment.
The only supplementary legislation which has any bearing upon the
question is contained in the following acts of Congress:
The act of May 26, 1898, provides that--
"The pay and allowance of such of the volunteers as are received into
the service of the United States under the act of Congress approved
April twenty-second, eighteen hundred and ninety-eight, and the acts
supplemental thereto, shall be deemed to commence from the day on which
they joined for duty and are enrolled at the battalion, regimental, or
State rendezvous."
The act of July 7, 1898, to amend the act of May 26, 1898, provides
that--
"The pay and allowance of all officers and enlisted men of the
volunteers received into the service of the United States under the act
of April 22, 1898, and the acts supplemental thereto, shall 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."
The army appropriation act of March 3, 1899, provides--
"For pay of the company commissioned officers in each regiment of the
special immune regiments their salaries from the time each organized
company reported at rendezvous as a company for service until said
officers were commissioned; and for pay of the regimental commissioned
officers their salaries from the time the regiment was mustered into
service until said officers were commissioned."
The question involved in your request for an opinion, therefore, is,
whether such acts of Congress, which make pay and allowances date from
the period of enlistment, constitute an implied repeal of Revised
Statutes, section 1219, and alter so much of our military system, as it
has prevailed from the beginning of the Government, which marks the
muster in as the commencement of military service.
In my previous opinion I advised you that such supplementary
legislation did thus change the military system and impliedly amend the
section of the Revised Statutes cited. But upon a fuller consideration
of the matter, and in the light of the additional information which you
have sent me, I am now of the opinion that it does not.
What was the purpose of the supplementary legislation referred to?
This can only be gathered from the words employed, which, however, must
be read and interpreted in the light of the circumstances which caused
the legislation.
At the outbreak of the Spanish-American war, the President called for
volunteers, and in response to such call the governors of many States
offered military organizations, composed in whole or in part of State
militia, for muster into the United States service. Such organizations
were subsequently accepted on the same footing as that of other
volunteers, except that they were permitted to come in a body and retain
their original organization. Many other patriotic citizens also
volunteered for service, and, as the result of the necessarily hurried
preparations for an unexpected war, a period of substantial duration
intervened between the period of enrollment and the period of muster in.
During such interval such volunteers were practically, although not
technically, in the service of their country. They awaited the
convenience of the Government to submit themselves to physical
examination and to be mustered in.
They had left their various avocations, and were necessarily obliged to
be ready to submit themselves to such examination at any time. This
period of probation of necessity withdrew them from their ordinary
pursuits, and gave them an equitable claim to compensation, at least, on
the part of such as finally passed the physical examination and were
formally accepted by the mustering officer. Notwithstanding this purely
equitable, and in no sense legal, claim, their pay would not have
commenced, under the existing military system, until they were accepted
by the United States Army and were mustered in, or, in case of officers
appointed by the President, until they accepted their commissions and
took the requisite oath of office. If this were not so, there was no
occasion whatever for the supplementary legislation alluded to, and
their pay and allowances would have commenced from the period of
enlistment, if such enlistments mark the beginning of technical service.
Recognizing this equitable claim to compensation or reimbursement,
Congress has, at times, given such volunteers who were finally mustered
in, compensation to cover the interval of probation. In the
communication of the Judge-Advocate-General to you it is stated, in this
connection:
"There are cases almost without number in which not only individuals
but whole organizations have been paid, under acts of Congress specially
authorizing their payment, and sometimes without any such special
authority, for longer or shorter periods during which they were not in
the United States service under a muster in or any other equivalent act
done with a view to accepting them into the service of the General
Government or making them part of its military establishment."
He instances the case of the Pennsylvania "emergency" troops of 1862,
which numbered over 20,000 officers and men, who were paid by the
General Government, although they were never recognized as being a part
of the military establishment of the United States.
He also mentions the fact that by special legislation Congress has
repeatedly recognized such an equitable claim by various laws known as
"remuster laws" for the relief of volunteer officers who rendered
service under their commissions, but who were not mustered in until
later, and cites the joint resolution of July 26, 1866, and of July 11,
1870, and the acts of June 3, 1884, February 3, 1887, and February 24,
1897.
I am of the opinion that the supplementary legislation of 1898 and
1899, already quoted, was in the nature of the same recognition of an
equitable claim to reimbursement for services which were not rendered
while in the technical service of the army, but were rendered while
awaiting entry into such service.
It remains to inquire-- and that is the real question involved in
your request for this opinion-- whether these acts must be given a
broader construction, and must be held to change the military system of
the United States with reference to the beginning of military service,
and to repeal so much of Rev. Stat., section 1219, as in effect makes
the relative ranking of officers turn upon the period when they were
mustered in. It is clear that if these acts had any such intention, they
have not expressly said so. They do not purport to be legislation for
the purpose of changing the period of service, or in any wise altering
the existing practice with reference to the period of military service.
If Congress had intended to alter the uniform practice in this respect,
with all of its many far-reaching consequences with respect to the
relative rank of officers and claims for pensions, to which the
Judge-Advocate-General makes allusion, I can not but think that it would
have manifested such intention by some language. Implied repeals of laws
are not favored, and where the true construction of the later
legislation is doubtful, the doubt should be resolved against any
construction which revolutionizes existing systems of administration.
The construction of this supplementary legislation is not free from
doubt. There is some force in the suggestion that Congress in providing
that "the pay and allowance of all officers and enlisted men of the
volunteers received into the service of the United States shall 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," may have meant thereby to provide that in future the
period of service should be deemed to commence from the time of
enrollment, and this because it is not usual to give pay and allowances
where no service is rendered.
But the force of this suggestion is materially lessened when it is
remembered that such gratuities-- or such legislative recognition of an
equitable claim for reimbursement, as I prefer to call it-- had
previously been given by Congress prior to the Spanish-American war
without any suggestion that thereby the military system of the United
States, with respect to the commencement of military service, was in any
wise modified.
There is another reason which seems to me to lessen the force of the
suggestion. The supplementary legislation alluded to only has reference
to volunteers under the act of April 22, 1898. It, therefore, negatives
the suggestion of any general change in the existing military system of
the United States, for it does not apply to officers or soldiers who had
enlisted under any other act than the one mentioned. Is it reasonable to
suppose that Congress meant by the supplementary legislation to provide
one system of military service for volunteers of the Spanish-American
war, and another system for all other soldiers whatever? If Congress
had intended a sweeping change in the existing military system, it is
fair to assume that it would have made it applicable to all soldiers,
or, at least to all who might enlist in the future. And the fact that
the legislation is limited to soldiers of a particular war, who enlisted
under a particular act of Congress, indicates that no change in the
system was contemplated, but only that pay and allowance should be given
from the period of enlistment on the ground that there existed this
equitable claim for reimbursement during the period of probation.
This seems to me the reasonable construction of the acts of May 26,
1898, July 8, 1898, and March 3, 1899, and I, therefore, modify so much
of my opinion of September 22, 1900, as advises you that the officers
therein referred to were, in the interval between the enrollment and
muster-in or acceptance of their commissions, in the United States
service within the meaning of Revised Statutes, section 1219.
Respectfully,
JOHN W. GRIGGS.
AMERICAN SEAMEN-- FILIPINOS-- CUBANS-- PORTO RICANS; 23 Op.Att'y.
Gen. 400, February 19, 1901
Seamen born in the Philippine Islands, being persons whose civil and
political status is, by the treaty of peace with Spain (30 Stat., 1759),
declared to be a matter for the future determination by Congress, are
not citizens of the United States within the meaning of any statute
concerning seamen or any other statute or law of the United States.
The same thing is true, in a more obvious way, and with greater
force, of Cuban seamen.
A Porto Rican engaged in the occupation of a seaman in the American
merchant marine, including that of Porto Rico, is an American seaman
within the meaning of the statutes relating to relief by consuls, in
view of the provisions of sections 9 and 14 of the act of April 12, 1900
(31 Stat., 79), providing a civil government for Porto Rico.
All persons shipped in the United States on an American vessel have
been, according to the practice of the Government, treated as entitled
to relief under the laws relating to seamen.
A place at which vessels of the United States receive their character
as such, and where American shipping commissioners ship the crews of
such vessels, is to be regarded as a place such that a person domiciled
there and engaging in the occupation of a seaman on vessels of that
character, is an American seaman within the intent of the provisions for
the relief and protection, in foreign countries, of American seamen.
DEPARTMENT OF JUSTICE,
February 19, 1901.
The SECRETARY OF STATE.
SIR: I have received your letters inclosing communications from the
British ambassador at this capital and from the United States consul at
Marseilles, concerning Filipino and other seamen.
You desire my opinion concerning the status of Filipino seamen on
board British vessels arriving at the ports of the United States, in
order that British consuls may know whether they may be discharged at
such ports, and as to the status of Filipino, Porto Rican, and Cuban
seamen, in order that our consuls abroad may know what treatment to
accord them.
Cases recently argued in the Supreme Court of the United States and
now under consideration there involve in some respects the question of
the relations which Porto Rico and the Philippine Islands sustain to the
United States; and may, possibly, in their decision call for some
expression on the general subject of the civil status of the native
inhabitants of those islands. I do not, therefore, deem it necessary or
expedient to enter upon any general discussion of this subject in its
constitutional aspect. In the argument addressed by me to the court on
behalf of the Government in the cases referred to, I discussed the
subject at considerable length, asserting the principle that the
treaty-making power, under the Constitution, may acquire territory
without admitting the inhabitants to the rights and status of citizens
of the United States, and that by the Treaty of Paris the native
inhabitants of Porto Rico and the Philippine Islands were expressly
intended to be left out of the pale of United States citizenship, and
their civil status to be left to the future action of Congress.
As to the native inhabitants of the Philippine Islands, no action has
as yet been taken by Congress, and therefore those people remain in the
same condition, in this respect, as they were when the treaty was
ratified.
The act for the temporary government of Porto Rico did not make the
native inhabitants of that island citizens of the United States, but
defined them to be citizens of Porto Rico.
It may be taken, therefore, as undisputed that the executive, the
treaty-making, and the legislative branches of the Government, regard
these native inhabitants, both as to Porto Rico and the Philippines, as
not vested with the rights or admitted to the status of citizens of the
United States in a domestic sense.
With the correctness of this view, and this course of executive and
legislative action, I fully agree; and until that view is judicially
declared to be erroneous, all official action by the Executive
Departments should conform to the same course heretofore followed.
Referring, therefore, to the questions suggested by the British
ambassador and our consul at Marseilles, I have to say:
1. That seamen born in the Philippine Islands, being persons whose
civil and political status is by the treaty, which is the latest
expression of the supreme law of the land, declared to be a matter for
future determination by Congress, are not citizens of the United States
within the meaning of any statutes concerning seamen or any other
statute or law of the United States. That is to say, from the standpoint
of our Government they are not citizens of the United States in any
sense. They are persons who are not subjects of any foreign power, and
are, from an international standpoint, subjects of the United States, or
to use a term that has been suggested, "nationals." In a general way our
Government is responsible for them and to them; but whether a
government chooses to relieve or support individuals who are seamen, or
other individuals belonging in any way to the nation, is not a question
of international law, but of municipal law, which every government makes
to suit itself; and our laws make no provisions of that kind which are
intended to apply to these Filipino seamen.
2. The same is true in a more obvious way and with perhaps greater
force, if possible, of Cuban seamen.
3. In the case of Porto Rico, the situation is different. As to the
Porto Ricans, Congress has not been silent. It has passed an act
establishing a government in the Island, and in many ways affecting the
rights and duties of the Porto Ricans and their relations with the
United States. One section of the act declares (sec. 7):
"That all inhabitants continuing to reside therein who were Spanish
subjects on the eleventh day of April, eighteen hundred and ninety-nine;
and then resided in Porto Rico, and their children born subsequent
thereto, shall be deemed and held to be citizens of Porto Rico, and as
such entitled to the protection of the United States, except such as
shall have elected to preserve their allegiance to the Crown of Spain on
or before the eleventh day of April, nineteen hundred, in accordance
with the provisions of the treaty of peace between the United States and
Spain entered into on the eleventh day of April, eighteen hundred and
ninety-nine;
and they, together with such citizens of the United States as may reside
in Porto Rico, shall constitute a body politic under the name of The
People of Porto Rico, with governmental powers as hereinafter conferred,
and with power to sue and be sued as such."
The obvious intent of Congress is to stop short of making the Porto
Rican a citizen of the United States in the full sense of that phrase.
But it does not necessarily follow that the extension to Porto Rico of
the laws of the United States, provided for in section 14 of the organic
act, was not intended to extend to Porto Rican seamen of the statutes of
the United States concerning the relief of American seamen. Those
statutes contemplate citizens of the United States, or persons who have
declared their intention to become such (R.S., 2174), and foreigners
domiciled in the United States, or shipped in an American vessel in a
port of the United States, and presumed to be there domiciled, who act
as seamen on American vessels. Matthews v. Offley, 3 Sumn., 115.
The fact of actual or presumed domicile seems to be regarded as
effective, in the absence of full citizenship, to include a person
within the intent of the statutes relating to the relief of American
seamen. Other members of the crew of an American vessel, while part of
the crew and on the vessel, are protected by and subject to those laws
of the nation to which the vessel belongs, which it has a right to pass
upon the legal theory that the vessel is a part of that nation's
territory. But I do not understand that seamen who are actually members
of the crew of an American vessel are now in question. I held, in an
opinion of July 22, 1898, that vessels from Hawaiian ports were subject
to the tonnage tax upon arrival at American ports after the cession of
Hawaii, on the ground that Hawaiian vessels, having been foreign vessels
prior to the cession and when the statutes concerning the tonnage tax
were passed, did not, by the mere fact of cession, cease to be within
the purview of those statutes as foreign vessels.
Applying the same principle, the Filipinos, having been foreigners when
these statutes relating to the relief of American seamen were passed,
and the treaty of Paris, instead of purporting to apply those statutes
to them, having affirmatively declared that their civil rights and
political status were reserved for future action by Congress, can not be
regarded as within the intent of these statutes. Unquestionably they
were not when the statutes were passed, and, equally clearly, the treaty
did not intend to apply the statutes to them.
I am of opinion, therefore, that these statutes do not apply to a
Filipino domiciled in the Philippines, even when from on board an
American vessel; but I am inclined to think that a Porto Rican engaged
in the occupation of a seaman in the American merchant marine, including
that of Porto Rico, is an American seaman within the meaning of the
statutes relating to relief by consuls.
It appears from the Consular Regulations that hitherto those entitled
to relief have included "foreigners regularly shipped to an American
vessel in a port of the United States;" seamen who are citizens of the
United States regularly shipped anywhere in an American vessel, those
who have declared their intention to become citizens being treated as
such citizens. Whether or not it was merely because of a presumption
that a man shipped in a port of the United States was domiciled in the
United States, the foreigner shipped in the United States seems to have
long since acquired a settled status with regard to these relief
statutes; so that all persons shipped in the United States on an
American vessel have been, according to the practice of the Government,
treated as entitled to relief.
This being the practice, Congress, in the act creating a government
for Porto Rico, may be regarded as having intended to make American
seamen of Porto Ricans who in Porto Rico become a part of the American
merchant marine. Section 14 of that act declares that the statutory laws
of the United States not locally inapplicable are to have "the same
force and effect in Porto Rico as in the United States."
That this included the laws concerning vessels of the United States,
concerning shipping commissioners, and the shipping and discharge of
seamen, is clearly to be inferred from section 9 of the same statute,
both from what it says and from what it omits to say. That section
provides that the Commissioner of Navigation shall make regulations" for
the nationalization of all vessels owned by the inhabitants of Porto
Rico on the eleventh day of April, eighteen hundred and ninety-nine, and
which continued to be so owned up to the date of such nationalization,
and for the admission of the same to all the benefits of the coasting
trade of the United States; and the coasting trade between Porto Rico
and the United States shall be regulated in accordance with the
provisions of law applicable to such trade between any two great
coasting districts of the United States."
Nothing is said of vessels subsequently owned by inhabitants of Porto
Rico, nor is anything said about Porto Rican vessels engaged in foreign
trade; but unquestionably it was not intended to nationalize vessels
owned on a particular date and leave unnational, vessels that might
thereafter be owned by inhabitants of Porto Rico, or to admit Porto
Rican vessels to the specially privileged home trade and not to the
foreign-going trade. Section 14 was supposed to provide for all this.
Giving a liberal construction to the statute, I think it may be said
that a place at which vessels of the United States were to receive their
character as such, and where American shipping commissioners were to
ship the crews of such vessels, was regarded as a place such that a
person domiciled there, and engaged in the occupation of a seaman on
vessels of that character, would be an American seaman within the intent
of provisions for the relief and protection in foreign countries of
American seamen.
Perhaps I should add that the good offices of our consuls can very
properly be extended to the Filipinos and Cubans.
Very respectfully,
JOHN W. GRIGGS.
SECRETARY OF THE TREASURY-- REMISSION OF PENALTY; 23 Op.Att'y.Gen.
398, February 18, 1901
The Secretary of the Treasury has authority, under section 5293, R.
S., to remit the penalty imposed on a national bank for its failure to
make a timely return of its liability for the special tax levied under
section 2 of the act of June 13, 1898. (30 Stat., 448.)
The words "any revenue laws," found in that section, authorize the
remission of a penalty under the internal-revenue laws as well as under
the customs-revenue laws.
Opinion of Attorney-General Brewster of July 28, 1882 (17 Opin.,
433), concurred in.
DEPARTMENT OF JUSTICE,
February 18, 1901.
The SECRETARY OF THE TREASURY.
SIR: By your letter of January 30 you inform me that the National
Bank of Germantown, Pa., has applied to you for remission, under section
5293, Revised Statutes, of a penalty of 50 per cent imposed upon said
bank under section 3176, Revised Statutes, because of its failure to
make timely return of its liability for the special tax levied under
section 2 of the war-revenue act of 1898; and you ask my opinion on the
question whether the Secretary of the Treasury has authority under
section 5293, Revised Statutes, to remit the penalty incurred by said
bank, which amounts to the sum of $600. It seems that there was no
intentional negligence or attempt to defraud on the part of the bank.
Section 5293 authorizes you remit--
"First. If the fine, penalty, or forfeiture was imposed under
authority of any revenue law, and the amount does not exceed one
thousand dollars."
It is true that most, if not all, of the laws from which section 5293
was drawn refer to customs duties and customs-revenue laws. For
instance, section 16 of the act of July 18, 1866 (14 Stat., 182), from
which the present first subdivision of section 5293 was particularly
derived, refers to penalties accruing under the revenue laws. There can
be no doubt that this expression in that act refers to the customs laws.
But the language of the said subdivision which I have quoted, and which
must be presumed to have been intentionally recast, is universal,
referring to any revenue law. That provision occurred as the fourth
clause of the said section in the original edition of the Revised
Statutes, and was transposed so as to be the first clause or subdivision
in the edition of 1878. No act passed by Congress since December 1,
1873, appears to affect the broad meaning of the phrase as it exists in
the law or to present any discrepancy therewith. (Act of February 27,
1877, 19 Stat., 240, 253; prefatory note or certificate to Rev. Stat.,
2d ed., 1878.) I am of the opinion that the words "any revenue law"
include the internal-revenue laws as well as the customs-revenue laws.
The opinion of my predecessor, Mr. Brewster, to which you refer (17
Opin., 433), in my judgment rules this question, and I concur in its
reasoning and conclusion.
I may add, upon the point that the additional tax is a penalty, the
suggestion that section 7 of the customs administrative act, as amended
by the act of July 24, 1897, plainly indicates that where an additional
duty is clearly intended not to operate as a penalty, Congress is
careful to say so.
I have the honor to advise you that in my opinion you have the
authority under section 5293, Revised Statutes, to remit a penalty of
the character incurred by the National Bank of Germantown.
I return herewith the inclosure of your letter.
Very respectfully,
JOHN W. GRIGGS.
DRAWBACK-- LINSEED; 23 Op.Att'y.Gen. 395, February 16, 1901
Linseed, which was imported into the United States while the act of
October 1, 1890 (26 Stat., 567), was in force, but was not withdrawn
from warehouse until the act of August 27, 1894 (28 Stat., 509), went
into effect, duties being paid under the later act, and the linseed
manufactured into oil cake and exported while the act of 1894 was still
in force, is entitled to drawback under the provisions of section 22 of
the act of 1894 (28 Stat., 551).
DEPARTMENT OF JUSTICE,
February 16, 1901.
The SECRETARY OF THE TREASURY.
SIR: On June 6, 1894, the National Lead Company, imported into New
York, by the steamship Armenia, a cargo of linseed, which was entered
for warehousing, but not withdrawn for consumption until the act of
August 27, 1894, went into effect. Accordingly, duties were levied and
collected under the following paragraph of that act (28 Stat., 523):
"206. Flaxseed or linseed, poppy seed or other oil seeds, not
specially provided for in this act, twenty cents per bushel of fifty-six
pounds."
The act under which the duties were paid contained the following
provision respecting drawback (28 Stat., 551):
SEC. 22. 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."
While the act of 1894 was in force, the imported linseed was used in
the manufacture of oil cake, which was exported, and a claim for
drawback made under the provision just quoted.
The question you submit is, whether the National Lead Company is
entitled to the drawback claimed, in view of the fact that the act of
October 1, 1890, which was in force when the linseed was brought into
the port of New York, contained the following provision in the paragraph
prescribing the duties on linseed (26 Stat., 586):
"285. Flaxseed or linseed, poppy seed and other oil seeds, not
specially provided for in this act, thirty cents per bushel of fifty-six
pounds; but no drawback shall be allowed on oil cake made from imported
seed."
Did the prohibition of this proviso attach to the linseed when it
arrived in the port of New York, so as to prevent an allowance of the
drawback under the succeeding act of 1894?
While it may be true that, in a certain sense, the linseed was
imported on June 6, 1894, the day the vessel reached port, it is certain
it was not imported on that day so as to subject it to the duties
imposed by the act of October 1, 1890, which was then in force.
The linseed was in the custom-house and under the control of the
officers of the Government until after the act of October 1, 1890, was
repealed and the act of August 28, 1894, went into effect, and the
duties were, therefore, properly leviable under the latter act.
(Hartranft v. Oliver, 125 U.S., 525, 528; United States v. Goodsell
Company, 78 Fed.Rep., 806.)
There is manifest justice in the rule that imported goods shall be
subject only to such duties as are leviable by the law in force when the
owner or importer takes possession of them. The existing rule that
duties shall be leviable at the time when the goods are withdrawn for
consumption but follows the doctrine laid down by Chief Justice Marshall
in the early case of Pennington v. Coxe, 2 Cranch, 33, in which it was
held that internal-revenue taxes on refined sugar accrued not at the
time when the sugar was produced, but when it was sent out from the
factory.
The duties on the imported linseed were not levied under paragraph
285 of the act of 1890, but under paragraph 206 of the act of 1894, and
I am unable to perceive how a limitation which was a part of the former
paragraph can, after its repeal, operate to defeat a claim for a
drawback of duties paid under the latter paragraph.
The act of 1894 changed the policy of the Government with respect to
drawback on oil cake made from imported linseed. It repealed the act of
1890, and paragraph 285 thereof, and the prohibition of that paragraph,
and in lieu thereof provided, in paragraph 206, for new rates of duty on
imported linseed, and inferentially, in section 22, for drawback on
imported oil cake made therefrom. Such being the case, is it a fair
presumption that the act of 1894 recognizes two classes of linseed
dutiable under the act, one entitled to drawback and the other not,
dependent "upon the time of arrival in port, although such time neither
gave possession to the importer nor determined the rate of duties to be
paid? I can see no just ground for such discrimination. It seems to me
clear that by the act of 1894, Congress intended to grant the right to a
drawback to all who, having paid duties under the act on imported
linseed, used it in making oil cake, and shipped the oil cake abroad.
The drawback provision in section 22 was intended to encourage the
manufacture of imported material for sale in the foreign market.
The case of the Cunard Steamship Company v. United States, 25 Court
of Claims, 428, is in point. That case arise out of the importation of
coal by the Cunard Company in June, 1886, at which time the law gave the
company the right to a drawback on imported coal used for fuel on its
vessels. By an act which went into effect July 1, 1886, the right to a
drawback on imported coal used as fuel on vessels was limited to that
used on vessels of the United States. The steamship company did not take
its coal out of bond until after July 1, 1886. The court held that no
vested right to the drawback accrued upon the importation of the coal.
The right did not arise until the coal was withdrawn in that case the
privilege to a drawback no longer existed.
If no right to a drawback existed in that case while the coal was in
bond, no permanent disability to collect drawback attached in this. The
right to drawback, under the act of 1894, arose in this case when the
oil cake made from the imported linseed was exported. At this time the
act of 1890 was no longer in force. The duties had been paid, the
linseed manufactured into oil cake, and the oil cake exported under the
act of 1894, and the claimant is entitled to a drawback under the
provisions of the same act.
Respectfully,
JOHN K. RICHARDS,
Solicitor-General.
Approved:
JOHN W. GRIGGS.
CONTRACT-- EQUITABLE INTEREST IN REALTY; 23 Op.Att'y.Gen. 392,
February 12, 1901
The United States entered into an agreement with C. for the purchase
of a tract of land, not including buildings, at a price named per acre,
a portion of which land C. owned and was to convey to the United States,
he expressly agreeing that if the balance of the tract could not be
purchased by the United States within the price named per acre, then he
would pay all expenses of a condemnation proceeding to acquire the same,
which might be in excess of the price agreed upon. The condemnation
proceedings cost more than the price named, and the excess was deducted
from the amount otherwise due C. for the portion of the tract conveyed
by him. Held, That the title to the buildings acquired by the United
States as a result of the condemnation was a bare legal title, and that
it is held in trust for C.
This equitable interest may be purchased by the United States from
the appropriation for "Barracks and Quarters" made by the act of May 26,
1900 (31 Stat., 205), which authorizes not only the construction of the
buildings therein mentioned, but also the purchase instead, of suitable
buildings already constructed.
DEPARTMENT OF JUSTICE,
February 12, 1901.
The SECRETARY OF WAR.
SIR: I have the honor to respond to your note of December 21, 1900,
with its inclosures, in which you request my official opinion upon the
claim of Henry T. Clarke for the value of certain buildings on the land
known as the "Zucker" tract, being part of the lands of Fort Crook
Military Reservation.
The case is this: The Government, desiring to acquire certain lands
for this military reservation, the claimant, Henry T. Clarke, of Omaha,
Neb., on July 29, 1889, made to the Secretary of War a written
proposition, which, so far as is material here, was, in effect, that he
would sell to the United States a portion of the required land, and
would obtain for the United States the remainder required, at a price
not greater than $132.50 per acre, provided that, if this latter portion
could not be purchased at a reasonable price, the Secretary would
proceed to condemn the same, in which case Mr. Clarke agreed to pay all
the amount of such condemnation and costs in excess of $132.50 per acre.
But the proposition contained the stipulation that the proposition did
not include the buildings on these lands.
This proposition, as accepted, was, as far as is material here,
modified so that Mr. Clarke was to furnish all the land for the sum of
$66,666.66; but with the same stipulation as to condemnation, if
necessary.
On September 7, 1889, in accordance with this arrangement, Mr.
Clarke and wife conveyed to the United States all the land included in
the above proposition, except the "Zucker" tract of 43.08 acres, for the
consideration expressed in the deed of $61,400; but, in accordance with
the understanding of the parties, he excepted the buildings from the
conveyance; and, in pursuance of the agreement between the Secretary of
War and Mr. Clarke, as stated in the above proposition, the "Zucker"
tract was condemned in proceedings instituted by the United States for
the purpose, and the title to the land was thus acquired by the United
States; but, in accordance with the understanding, all the condemnation
money for the land thus condemned, and the buildings thereon and the
costs, amounting in all to $8,657.48, was paid by the United States and
deducted from the $66,666.66, for which Mr. Clarke had agreed to obtain
the whole land, leaving but $58,009.18, which was the total amount in
fact paid to Mr. Clarke, instead of the $61,400 stated in the deed.
The question thus arises, who is the legal and equitable owner of the
buildings on this "Zucker" tract, after these condemnation proceedings?
This proposition, when accepted, was, in legal effect, the agreement
of Mr. Clarke to procure for the United States all the lands referred to
for the sum of $66,666.66, with the stipulation, as to a portion
thereof, that if it could not be purchased at a fair price, then the
United States should condemn it and Mr. Clarke would pay what this cost;
but, with the further stipulation, as to all the tracts, that the land
only, and not the buildings, was to pass to the United States.
The effect of this, as to the lands which Mr. Clarke himself owned,
was to leave the title to the buildings thereon in Mr. Clarke as before;
and this was the effect of the reservation in his deed. The title to
the buildings did not pass.
But, as to the "Zucker" land, Mr. Clarke did not own the buildings,
and no exception or reservation of them was made in the proceedings, but
the title to the land, including buildings of a permanent character,
passed to the United States.
This was the necessary legal effect of the proceedings, leaving the
question whether the United States thus took the title to the buildings
absolutely and for its own benefit, or for the benefit of Mr. Clarke, to
be determined by matters outside of those proceedings. And, when we
consider the facts disclosed in this case and the acts of the parties
under the agreement evidently reached by the Secretary and Mr. Clarke,
there is little room to doubt that the legal title to the buildings,
thus acquired, was held for Mr. Clarke.
There appears to be no dispute, and there would seem to be no room
for any, that these proceedings were instituted and carried on by the
United States, in compliance with the understanding to that effect,
between the Secretary of War and Mr. Clarke, and as stated in his
proposition, and for the purpose of obtaining the title in the manner
and upon the terms therein stated. Upon no other ground could any
portion of the amount involved in that condemnation have been charged to
Mr. Clarke or deducted from the amount to be paid to him, as he would
have had no concern with it. But, as there is no controversy as to this,
the point need not be elaborated.
But for this agreement with Mr. Clarke, the condemnation and
appropriation of this "Zucker" tract would have given to the United
States both the legal and equitable title to all the buildings thereon
which were permanent, or fixtures. Even with this agreement, they did so
as to all the world except Mr. Clarke. As to him, the United States took
the naked legal title to the buildings, but, under this arrangement, the
whole equitable and beneficial ownership was in Mr. Clarke, and the
naked legal title of the United states was held in trust for him. For,
it is quite clear that whether the title to this tract should ultimately
be acquired directly from Mr. Clarke, or by the condemnation
proceedings, the buildings were not to pass.
Assuming that the condemnation proceedings were such as to vest in
the United States a valid legal title to the land, and, therefore, to
the buildings, then the purchase of this outstanding equity would vest
the whole estate and title. And, if the United States desire to acquire
this full title, I see no reason why it may not do so in the manner
suggested.
I do not think the fact that the legal title to these buildings is
already in the United States constitutes any objection to its purchase
of the equitable and beneficial title of Mr. Clarke.
But, while this is so, it is proper to add that this right of Mr.
Clarke to the buildings is but the right to remove or sell them. He can
not occupy them by himself or by a tenant, for this would be to occupy
lands of the Government, to which he has no right. He was bound to
remove the buildings whenever required to do so, and their value to him
was, for these reasons, much less than it would have been had they been
situated where he could occupy or lease them.
What effect these considerations should have upon the price to be
paid in case the Government desires to purchase, is left to your
Department.
The remaining question is, whether these buildings may be purchased
and paid for from the current appropriation for "Barracks and Quarters"
in the act of May 26, 1900.
I quite agree with the Comptroller of the Treasury, to whose letter
you refer me, that, waiving the question of title, the act warrants such
purchase. I am of opinion that the first portion of the clause of that
act, making an appropriation for "Barracks and Quarters," authorizes not
only the construction of the buildings therein mentioned, but also the
purchase instead, when it can be done, of suitable buildings already
constructed in a suitable place. And this question is answered in the
affirmative.
As requested, I return herewith the papers transmitted with your
note.
Respectfully,
JOHN W. GRIGGS.
FORTIFICATIONS ACT-- RANGE FINDERS-- PORTO RICO; 23 Op.Att'y.Gen.
390, February 6, 1901
The appropriation contained in the fortifications act of May 25, 1900
(31 Stat., 183, 184), for the installation of range and position
finders, may be used for the installation of these instruments in Porto
Rico.
The object of this act is to provide fortifications and works of
defense for the United States, and the appropriations therein made,
except where expressly limited to some particular locality, are
available for proper works of defense of the character specified,
wherever the United States exercises its sovereignty or jurisdiction,
and where that sovereignty may need to be defended.
DEPARTMENT OF JUSTICE,
February 6, 1901.
The SECRETARY OF WAR.
SIR: I beg to acknowledge receipt of your communication of 4th
instant, by which you transmit to me a communication from the Assistant
Comptroller of the Currency relative to the question whether the
appropriation contained in the fortifications act of May 25, 1900 (31
Stat., 183-184), for the installation of range and position finders, may
be used for the installation of range and position finders in Porto
Rico, and you request my opinion upon that question.
As I understand it, your desire that, in accordance with the
suggestion of the Assistant Comptroller, I shall advise you whether
Porto Rico is "a part of the United States" within the meaning of the
act of Congress above referred to, that officer having expressed to you
the opinion that if that question be answered in the affirmative, then
there is no reason why the appropriation may not be used for the
purposes indicated in the island of Porto Rico.
An examination of the appropriation act referred to does not disclose
to me the necessity of determining any such question as is suggested in
the letter of the Assistant Comptroller. The act is not limited in its
operation to any particular territory, and does not require, either
directly or indirectly, that the moneys appropriated in general
language, without designation of specific locality, shall be expended
only within territory which is to be considered as "a part of the United
States" in any sense in which those words may be used. The object of the
act is to make appropriations for fortifications and other works of
defense for this nation. Except as limited by the express terms of the
act, where special local appropriations are made, it would seem to me
that the appropriations are applicable to proper works of the character
specified anywhere in the United States exercises its sovereignty or
jurisdiction, and where that sovereignty may, under any circumstances,
need to be defended. Porto Rico is territory belonging to the United
States. The United States desires to and will defend it. The
construction of works of defense in Porto Rico would be a proper subject
of appropriation by Congress, and I see nothing in the act to restrict
or restrain your discretion to expend the particular item of
appropriation referred to in any place under the jurisdiction and
subject to the sovereignty of this nation.
It is unnecessary to go into a discussion of the question that may be
supposed to lie beneath the phrase "a part of the United States," for
whether Porto Rico is or is not a part of the United States in all
senses in which that phrase may be used, it is undoubtedly within the
sovereignty and protection of the United States, and therefore within
the proper scope and purpose of the act referred to.
Very respectfully,
JOHN W. GRIGGS.
ALIEN LABOR-- LACEMAKERS; 23 Op.Att'y.Gen. 381, January 28, 1901
The immigration clearly forbidden by section 1 of the act of February
26, 1885 (23 Stat., 332) is that brought under contract to perform
manual labor or service; and manual labor includes both skilled and
unskilled labor.
The case of the Church of the Holy Trinity v. United States, 143 U.
S., 457, considered. The proper distinction, founded on this case (id.,
463), is that between manual labor, including the mechanical trades, on
the one side, and the professions on the other.
Alien lacemakers, if not entitled to admission into this country
under some provision contained in the above-named act, or acts
supplemental thereto, should be excluded as manual laborers, skilled or
unskilled, who have come to this country in order to perform labor or
service.
A "draftsman," who is described as a "lacemaker," seems to be one who
is so closely connected with the particular trade as to be a member of
it, just as a molder or designer of molds appears to belong to the
metal-casting trade.
"Design" refers to manufactures as well as to the fine arts, and the
test of the individual's industrial character may depend upon the nature
of his designs or the conditions and methods of its application to
manufacture.
DEPARTMENT OF JUSTICE,
January 28, 1901.
The SECRETARY OF THE TREASURY.
SIR: Your letters of January 10 and 11 present for my opinion the
question whether certain alien lace makers who have lately arrived at
the port of Philadelphia should be refused a landing by the immigration
authorities on the ground that they have come to this country in
violation of the alien contract labor laws. You state that the question
has arisen in view of language of the Supreme Court in the case of the
Church of the Holy Trinity v. United States (143 U.S., 457), it being
contended on one hand that this opinion narrows the application of said
laws to aliens coming to the United States to perform manual labor, and
on the other that the opinion simply decided that an alien clergyman
engaged abroad to perform duties of his calling in this country is not
within the statute, and that the more enlarged declarations of the
opinion are mere dicta.
I am thus apprised that I am not to consider other grounds which are
submitted on behalf of these aliens and on which they may or may not be
entitled to admission, whatever the character of their labor or service,
and whatever the real or supposed scope of the decision in the Trinity
Church case. Those grounds would depend largely, if not altogether, on
the facts before you or within your reach, and present for careful
consideration the claims that there was no contract or agreement made
previous to the migration of the aliens, and that their engagement was
to perform skilled labor upon a new industry.
(Sec. 1 and 5 of said act.)
You describe the applicants as "lace-makers." In the specification of
the various individuals contained in the argument on behalf of the
applicants I note only one who might be thought prima facie to fall
within the professional or artistic category rather than that of
laborers or artisans, however skilled. That one is the "managing
draughtsman;" or, to include another possible exception, the "two lace
draughtsmen" as well. But in my practical ignorance of what duties or
functions are performed by such "draughtsmen," whether as manager or
assistants, I must accept your designation of lace makers as embracing
this entire group of people. I may, however, suggest that while in
certain professions the designation of "draughtsman" aptly indicates a
member of the profession, or one within its novitiate, and while the
line between the professional and mechanical classification is often
difficult to draw, a "draughtsman" in the present connection seems to
describe one who is so closely connected with the particular trade as to
be a member thereof, just as a molder or designer of molds appears to
belong to the metal-casting trade. "Design" refers to manufactures as
well as the fine arts, and the test of the individual's industrial
character may depend upon the nature of his design or the conditions and
method of its application to manufacture. (See "design," with note on
"school of design," and "designer" (2), in Century Dictionary.) Nor does
this suggestion require the broad conclusions that all designers are
members of the trades for which they design. Some of them may lie well
within the artistic and professional line, and be entitled to the
protection of the act's exempting proviso.
Now, if the Trinity Church decision, even in its "general
declarations," goes no further than to hold that the statute embraces
manual labor alone (as your statement implies), I think there can be no
doubt that the present case is within the prohibition of the law, and
that it would not be necessary to seek to hold that case strictly to the
exact point decided. For however skilled the workman may be, however
high the intelligence requisite in the handicraft, lace-makers in the
organized industry are certainly engaged in manual labor.
And this is true, although in some aspects such work as lace making,
especially when "handmade," is an "art;" and the general description of
manual laborers applies to those who are masters of the trade as well as
to those who are less advanced or in the apprentice stages, for the
"mechanical arts" aptly describe and include most manufacturing
industries. Therefore we must examine more critically the Trinity Church
decision to learn whether it has the effect of entitling the applicants
herein to enter this country; and if it has not that effect it will be
neither necessary nor proper to endeavor to determine how far particular
language used may be regarded as obiter dictum.
It is undoubtedly true that the precise point decided was that a
contract for the services of a Christian minister residing in another
country was not within the intention of the legislature and therefore
not within the statute. And it is undoubtedly true, on the other hand,
that the opinion finds--
"That the title of the act, the evil which was intended to be
remedied, the circumstances surrounding the appeal to Congress, the
reports of the committee of each House, all concur in affirming that the
intent of Congress was simply to stay the influx of this cheap unskilled
labor."
It is this phrase, then, "cheap unskilled labor," which has arrested
attention and prompted inquiry, rather than the words "manual labor,"
which are used to indicate the broad tendency of the decision. Now, this
finding of the Supreme Court is unquestionably extensive and unqualified
in its import. But while it refers inter alia to a report of a House
committee, in which the lowest type of foreign labor was especially in
view, it cites also a Senate report in which the expression "labor and
service"-- as used in the final enactment, without qualification, by the
word "manual"-- was construed "as including only those whose labor or
service is manual in character." This obviously did not refer to the
lowest grade of labor alone. Furthermore, while the force of the word
"unskilled" apparently carries the import of the quoted finding over a
case like the present, so far as the word "cheap" is concerned that
adjective may appropriately be applied to the rewards of labor abroad as
compared with the United States, whether the grade of the labor be high
or low.
Thus, Senator Blair, chairman of the Senate committee which reported the
bill, said (Cong. Rec., vol. 16, part 2, p. 1624):
"The bill does not aim to prohibit the natural flow of immigration
from any other land to the United States, * * * but it does undertake to
prohibit the efforts * * * to introduce * * * the cheap and servile
labor of foreign lands and * * * the skilled labor of other countries,
because that labor, as we know, can be commanded at very greatly reduced
wages as compared with what we pay the working people in our own
country."
As to the force of the word "unskilled," I do not think it was
intended by the court to defeat generally the plain implications of
other portions of the law to which I shall presently refer, but was used
to characterize the phase of the evil which was chiefly but not solely
in the mind of Congress. For instance, the doubt of the Senate committee
was whether the expression "labor and service" might be too broad
without the word "manual;" not whether skilled manual labor as well as
unskilled manual labor should be included in its scope. The counsel for
the United States in the case necessarily strove for the broadest
construction of the unqualified phrase "labor and service," but was not
specially concerned with manual labor, and still less with the
distinction between skilled and unskilled manual labor. The court, on
the other hand, in excluding a clergyman from the prohibition,
strikingly emphasized its restrictive conclusion by pointing out the
general and most evident, but not necessarily the exclusive, purpose of
the law. In showing that the remedy did not extend to a clergyman's
case, the court forcibly shows that a clergyman was not within the evil,
but certainly did not decide that the remedy does not extend precisely
as far as the evil. In its interpretation of the statute the court
studied the evil and found that it "guides to an exclusion of this
contract from the penalties of the act." So far, then, it is proper to
suggest the famous caution of Chief Justice Marshall in Cohens v.
Virginia, 6 Wheat., 264, 399:
"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
these 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. Other 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."
But it is also to be remembered that the broad and guiding principle
decided in the Trinity Church case, extending doubtless beyond the
particular application, is announced in the following terms:
"Obviously the thought expressed (in the title) reaches only to the
work of the manual laborer as distinguished from that of the
professional man. No one reading such a title would suppose that
Congress had in its 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." (143 U.S., 463.)
The proper distinction, then, founded on the Trinity Church case, is
that between manual labor, including the mechanical trades, on the one
side, and the professions on the other. The act itself now fully
recognizes this distinction, although in its original form it did not
include the learned professions in this recognition. The principle was
again interpreted and the distinction applied in United States v. Laws,
163 U.S., 258.
I must also remark that the decision in the Trinity Church case
finally rested "beyond all these matters"-- that is, the title of the
act, the evil to be remedied, etc.-- upon the religious character of the
American people, by reason of which no purpose of action against
religion can be imputed to any American legislation. Thus it seems that
the reasoning of that opinion is directed to the single conclusion
decided, and that it was not intended to determine as a conclusive
judgment of the court the broadest result suggested.
Now it is the fact that the contract-labor law was originated by the
American Window Glass Workers' Association. No other trade or calling
requires more skill than members of that craft. The records of Congress
show that the organized glass workers, iron and steel workers, textile
workers, printers, etc., representing the highest and best paid forms of
skilled labor, united in an urgent appeal to Congress for protection
against the unfair and injurious competition which threatened to reduce
the standard of American wages in general, and which had caused disaster
and discontent in many parts of this country.
It could not, I think, be contended that even the highest type of
skilled mechanics, such as window glass workers and iron and steel
workers, are brain toilers, as that phrase is usually intended. Such
artisans are workers of brain and hand; they use their brains, and
mental capacity informs and directs the skill of the handicraftsman;
but the distinction is broad and obvious. The record of the proceedings
in Congress, which may be consulted, not to control the language used by
the opinions of individual legislators, but to show the situation "as it
was pressed upon the attention of the legislative body," and as
revealing "the contemporaneous opinion of jurists and statesmen upon the
legal meaning of the words themselves" (Church of the Holy Trinity, v.
United States, ut supra, p. 463; Wong Kim Ark v. United States, 169
U.S., 649, 699), indicates that the very point at issue was raised. An
amendment to section 5 of the act, which excepted artisans as well as
professional actors, etc., was rejected (Cong. Rec., ante, p. 1837).
Senator Morgan, in opposing the bill (id., p. 1632), shows that it was
fully understood to apply to a skilled artisan as well as to unskilled
labor, and refers to the numerous labor unions who supported the bill,
as if they included unions of skilled as well as unskilled laborers.
And on p. 1633 Senator Blair submits letters from organizations of
skilled workmen; while on p. 1635 Senator Sherman says that in voting
for the bill he will vote to prevent organized corporate importation of
"bought men" who come here and compete with our mechanics and miners;
"that is the intention of the bill."
The dictionaries are helpful in the inquiry. See the Century on the
words "labor," "laborer," and "manual;" for example, from definition 2
of labor:
"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. Nearly all work of both classes
is included in the phrase manual labor."
And note the contrast suggested between ordinary manual labor and
that requiring skill in the following sentence from Bacon's "Advancement
of Learning," quoted under the word "manual" in the Century. "I find
some collections made of agriculture and likewise of manual arts."
But the opinion of the circuit court of appeals in United States v.
Gay, 95 Fed.Rep., 228, quotes from the Trinity Church decision and,
commenting thereon, says:
"The history of its passage (the alien contract labor law) through
Congress is given, which shows clearly that Congress never intended to
include in the act skilled labor of any kind."
The opinion seems to hold that only a "common manual laborer" is
within the act; but I am not required to discuss that decision. It is
to be conceded that the correct result in the special case was reached;
for the Government acquiesced. It may be, on the other hand, that the
court's logic and its construction of the scope of the decision in the
Trinity Church case were pressed too far. That particular kind of case
is not before us now, and I need only suggest that there may be an
anomalous region between the line of manual labor and that of the
professions, in which are to be found occupations of certain superior
clerkly functions or involving taste and skill little short of art, the
status of which may be difficult to settle. Much of the same doubtful
situation is found in the Chinese-exclusion laws, in which the question
remains for conclusive decision whether an upper clerk or "buyer and
seller" or "assistant accountant," who is not strictly a laborer nor yet
a merchant, should be embraced in the exclusion expressly directed at
the one class, or admitted under the permission expressly (and perhaps
exclusively) granted to the other class and its cognate classes. It does
not, however, seem to me that there is any such dubious element in the
present case, and with that suggestion of my conclusion I pass to the
language of the statute upon which the question hinges.
The law considered in the Trinity Church case was the first section
of the act of February 26, 1885 (23 Stat., 332), which made it unlawful
in any way to encourage the migration of aliens under agreement "to
perform labor or service of any kind in the United States, its
Territories, or the District of Columbia." The decision proceeded partly
on the ground that the particular result was so absurd as to make it
unreasonable to believe that the legislators intended to include it.
Section 5 of that act, with which we are also concerned, provides as
amended (sec. 5, act March 3, 1891, 26 Stat., 1084; 6, act March 3,
1893, 27 Stat. 569):
" * * * 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; 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; nor to ministers of
any religious denomination, nor persons belonging to any recognized
profession, nor professors for colleges and seminaries * * * "
I observe that section 4 of the original act punishes by a fine and
imprisonment the master of any vessel who shall knowingly bring within
the United States "any alien laborer, mechanic, or artisan" who comes
under previous contract; and a similar implication is found in the
allowance of section 5 to skilled workmen who come to perform labor upon
a new industry, etc.
It is therefore in mu opinion not absurd or unreasonable to hold that
the prohibition of section 1 does include all persons who are in the
category of skilled or unskilled manual laborers, if not all persons who
are not fairly within the classification of the recognized learned
professions or the other specific exceptions named. The immigration
clearly forbidden is that brought under contract to perform manual labor
or service (United States v. Gay, 80 Fed.Rep. 254; Trinity Church case
as quoted, 143 U.S., 463), and manual labor includes both skilled and
unskilled labor.
I therefore have no hesitation in advising you that if the lacemakers
in question are not entitled to admission into this country on one of
the other claims brought forward, they should be excluded as manual
laborers, skilled or unskilled, who have come to this country in order
"to perform labor or service."
I return the inclosures of your letters herewith.
Very respectfully,
JOHN W. GRIGGS.
APPRAISEMENT-- UNDERVALUATION; 23 Op.Att'y.Gen. 377, January 25,
1901
Merchandise seized for violation of section 32 of the act of July 24,
1897 (30 Stat., 151, 211), should be appraised under the provisions of
section 13 of the Customs Administrative Act of June 10, 1890 (26 Stat.,
131, 136), and not under section 3074, Revised Statutes.
The customs administration provided by said act of June 10, 1890, is
a complete, uniform, and universal system, substituting exclusive
remedies for those previously in vogue.
The method of appraisement authorized by said section 13 is the
exclusive method to be employed on the civil side of customs revenue
administration, and applies to all cases where appraisement is involved,
and no question of criminality or fraudulent illegality arises prior to
appraisement.
The appraisement procedure in undervaluation cases which aims at the
levy of additional duties is none the less civil because forfeiture may
be incurred as a possible ultimate result.
Section 3074, Revised Statutes, may properly be held to refer to such
provisions as existed when the Revised Statutes took effect.
DEPARTMENT OF JUSTICE,
January 25, 1901.
The SECRETARY OF THE TREASURY.
SIR: Your letters of December 3 and December 18 present for my
consideration the question whether, at ports where there is but one
United States appraiser, it is necessary to have merchandise, seized for
violation of section 32 of the act of July 24, 1897, appraised by two
competent and disinterested citizens of the United States under section
3074, Revised Statutes, which provides that in all cases of seizure of
property subject to forfeiture for any of the causes named in any
provision of law relating to the customs, the value of which does not
exceed $500, it shall be appraised by two sworn appraisers at or near
the place of seizure, but if there are no such appraisers, then by two
competent and disinterested citizens of the United States, to be
selected for that purpose by the collector or other principal officer of
the revenue residing at or near the place of seizure.
Section 13 of the customs administrative act of 1890 provides that
the decision of the appraiser, or, at ports where there is no appraiser,
the certificate of the customs officer acting as such, of the dutiable
value of merchandise requiring to be appraised shall be deemed and taken
to be the appraisement of such merchandise, which, in the absence of an
application, either by the collector or the importer, for
reappraisement, shall be final and conclusive as to dutiable value
against all parties interested. But in case the importer is
dissatisfied, or the collector deems the appraisement too low, the
question of dutiable value is submitted to a reappraisement by one of
the general appraisers, and then may be taken for review, either by the
Government or the importer, before a board of three general appraisers,
whose decision upon such appeal or review is final and conclusive as to
dutiable value.
It is conceded that section 3074 properly applies to cases involving
illegal importation (secs. 2865, 3082, R.S.), but it seems that where
goods are regularly entered and become liable to forfeiture for
undervaluation, the Government's claim for forfeiture rests entirely
upon the advance in value by the appraiser or by the Board of General
Appraisers. Does section 3074 or section 13 of the customs
administrative act provide the rule or method of appraisement in this
latter case?
I think there can be no doubt that the laws finally consolidated and
embodied in the customs administrative act were intended to supplant the
earlier system, and that the method of appraisement provided by section
13 superseded the antecedent statutes and the generally antiquated
manner of appraisement by merchant appraisers. The description of "two
competent and disinterested citizens of the United States" contained in
section 3074 is evidently an accompaniment and relic of the merchant
appraiser system (see secs. 2609, 2930, 2973, R. S.), which is the main
obsolete, although sections 2609 and 2973 are still in the law, and
resort is occasionally had at certain ports to section 2609.
Section 2930, however, was expressly repealed by section 29 of the
customs administrative act.
Now Congress, in exercising its broad right relative to the revenue
to devise a general system, with summary features (Cary v. Curtis, 3
How., 236, 245; Cheatham v. United States, 92 U.S., 85, 88; Auffmordt
v. Hedden, 137 U.S., 310, 324), "has from time to time passed laws on
the subject of the revenue which not only provide for the manner of its
collection, but also point out a way in which errors can be corrected.
These laws constitute a system * * * " (Nichols v. United States, 7
Wall., 122, 130) which is universal (State Railroad Tax Cases, 92 U.S.,
575, 613) and complete (Auffmordt v. Hedden, ut supra).
The Nichols case, as cited, decided that cases arising under the
revenue laws are not within the jurisdiction of the Court of Claims, on
the ground suggested by the passage quoted; and it was decided in
Arnson v. Murphy, 109 U.S., 238, and Cheatham v. United States, ante,
that a certain antecedent right was taken away by acts leading up to the
customs administration act, and that the statutory remedy on that right
was exclusive (Schoenfeld v. Hendricks, 152 U.S., 691). In such a system
of laws the last expression of the legislative will, embracing the whole
field and consolidating and correlating previous statutes, must be
regarded as defining an integral scheme. The underlying principle is
restated and fortified by authorities in the Paquete Habana, 175 U.S.,
677, 685, viz:
"And it is a well-known rule in the construction of statutes, often
affirmed and applied by this court, that even where two acts are not in
express terms repugnant, yet if the later act covers the whole subject
of the first, and embraces new provisions plainly showing that it was
intended as a substitute for the first act, it will operate as a repeal
of that act."
I also observe that the title of the customs administrative act is
"An act to simplify the laws in relation to the collection of the
revenue."
I therefore think it has been established that the customs
administration provided by the act of 1890 is a complete, uniform, and
universal system, substituting exclusive remedies for those previously
in vogue.
Accordingly, it seems to me that whenever dutiable value of
merchandise subject to appraisement is involved, and no question of
criminality or fraudulent illegality arises prior to appraisement, the
appraisement is to be conducted according to section 13 of the customs
administrative act, and not according to section 3074, Revised Statutes.
This is the case under section 7 of the customs administrative act as
amended by the act of July 24, 1897, which chiefly contemplates
appraisement for dutiable value, although forfeiture as a penalty for
undervaluation may be a result. On the other hand, where the claim of
forfeiture is based upon a forged invoice or smuggling (sec. 2865), or
on fraudulent importation contrary to law, or concealment or sale after
such importation (sec. 3082), it is evident that appraisement for
dutiable value is not an element of the transaction. The phrase
"dutiable value" applies properly to importations regular on their face
and legal in all respects unless undervaluation should appear; and
undervaluation, while subject to additional duties or penalized, is
hardly criminal and is often consistent with innocence and unintentional
mistake. In short, the method of appraisement of said section 13 is the
exclusive method to be employed on the civil side of customs-revenue
administration; and the appraisement procedure in undervaluation cases
which aims at the levy of additional duties is none the less civil
because forfeiture may accrue or be incurred as a possible ultimate
result.
It is true that section 3074 speaks of property subject to forfeiture
for any of the causes named in any provision of law relating when the
Revised Statutes took effect. One of the later acts from which section
3074 is drawn limits the included laws "relating to the customs" by the
words "now in force" (sec. 11, act July 18, 1866, 14 Stat., 178, 180).
It is also true that section 3074 is not enumerated among the sections
of the Revised Statutes expressly repealed by section 29 of the customs
administrative act.
But it was necessary to save section 3074 as applicable to customs
causes of forfeiture other than those developed by the appraisement of
dutiable value; that is, to such causes as were criminal in their
nature ut supra; and the general repeal of inconsistent provisions by
section 29 is sufficient for the repeal pro tanto of section 3074.
There is clearly an unavoidable repugnancy, so far, between the earlier
and later law.
I may also suggest that a dissatisfied importer has a complete remedy
under section 13 aforesaid, which will ultimately bring his case before
a board of three general appraisers. The reason for the provision of
appraisement by two competent and disinterested citizens, founded on
motives of protection to an importer, thus ceasing in a case like the
present, the law itself falls to the same extent, in accordance with a
well-known maxim. Nor may the official character of the Government
appraisers, in contrast with the disinterested character of unofficial
citizens, be alleged as a reason for applying section 3074, because that
section itself obviously contemplates no such objection, and, indeed,
prefers "two sworn appraisers under the revenue laws" when there are
such at hand.
I have the honor, therefore, to respond to your request for an
opinion upon the question submitted, by holding that it is not necessary
to have merchandise seized for violation of section 32 of the act of
July 24, 1897, appraised "by two competent and disinterested citizens of
the United States," to be selected by an officer of the customs for that
purpose, because section 13 of the customs administrative act provides
the proper method of appraisement.
Very respectfully,
JOHN W. GRIGGS.
IMPORTATION OF COPYRIGHTED BOOKS PRINTED ABROAD; 23 Op.Att'y.Gen.
371, January 24, 1901
The importation of books copyrighted in the United States prior to
1891, and subsequently printed abroad, is not prohibited by section 3 of
the act of March 3, 1891. (26 Stat., 1106, 1107.)
The requirements and prohibitions of section 4956, as amended by said
act, took effect in general prospectively, and do not embrace in their
burdens (without regard to their benefits) a copyright obtained before
March 3, 1891.
The new parts or the changed portions of an amended law, unless
expressly applied, should not be held to diminish or injure vested
rights under the earlier law.
A law speaks from the date of its approval or from the future date
fixed to take effect, except so far as it is in terms retrospective.
Section 4959, as amended by the act of March 3, 1891, permits rather
than requires a revised edition of a book by foreign authors theretofore
published to be copyrighted.
Opinion of April 19, 1895 (21 Opin., 159), distinguished and
criticised.
DEPARTMENT OF JUSTICE,
January 24, 1901.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
December 15, 1900, which states that the American Book Company, of New
York, has applied to you for relief in the matter of an importation of
Liddell & Scott's Greek-english Lexicon, under detention at the port of
New York for supposed violation of section 3 of the copyright act of
March 3, 1891; that the copyright in the United States of the seventh
edition of the work issued in 1882 was owned by Harper & Brothers, of
New York; that the copyright of the present or eighth edition is owned
by the applicant under assignment from Harper & Brothers; and calling
my attention to an opinion of Solicitor-General Conrad (21 Opin., 159),
you request my opinion on the question whether the book, having been
copyrighted in this country prior to the act of 1891, is subject to the
prohibitive provision of section 3 of said act. You indicate that the
importation consists of the folded and unstitched sheets constituting
the parts of the copyrighted book, designed to be stitched and bound in
volumes in this country as the eighth edition, but not made from type
set within the limits of the United States.
Responding to your request, I have to say that this work, a standard
authority of English scholarship, in passing through its several
editions, has been revised, corrected, augumented, and improved with the
cooperation especially of American Greek scholars, and in the eighth
English edition a short note to the preface, signed with the initials of
Professor Liddell, and dated "Ascot, June, 1897," states that certain
slight corrections and additions have been inserted in the text, the
rest appearing in the addenda.
The copyright law, previous to the "international copy right act" of
1891 (26 Stat., 1106), gave the benefit of copyright only to citizens of
the United States or residents therein (Rev. Stat., sec. 4952). The law
of 1891 extended the benefit reciprocally to foreign authors and
artists, and also protected the printing industry in this country
(Opinion of January 19, 1901).
With these objects in view, section 3 of the act of 1891 (amending
section 4956, Revised Statutes) provided that the two copies of a
copyrighted book required to be delivered or mailed to the Librarian of
Congress shall be printed from type set within the limits of the United
States, and contained the following prohibition:
"During the existence of such copyright, the importation into the
United States of any book * * * so copyrighted, or any edition * * *
thereof, or any plates of the same not made from type set * * * within
the limits of the United States, shall be, and it is hereby,
prohibited."
The exceptions then specified are not material to this inquiry.
Thus it appears that the essential point to be determined is whether
these provisions of the international copyright act apply to the
copyright and the importation in question. I think not. A law speaks
from the date of its approval or from the future date fixed for it to
take effect, except so far as it is in terms retrospective. The general
rule is that a law is prospective in operation. (Sutherland on Statutory
Construction, sec. 133, and auth. cit.: Murray v. Gibson, 15 How., 421;
Harvey v. Tyler, 2 Wall., 328; Twenty Per Cent Cases, 20 Wall., 179;
Auffmordt v. Rasin, 102 U.S., 620; Chew Heong v. United States, 112
U.S., 536.) The copyright referred to in section 3 of the act of 1891 is
"such copyright" on a book, etc., "so copyrighted," in the enlarged
scope of the privilege and for the new purposes indicated, by perfecting
the right through the requisite delivery or deposit inter alia, "not
later than the day of publication in this or any foreign country." There
can be no copyright by virtue of the act of 1891 where the two copies
are not the production of domestic typesetting. This was not so under
the previous law. It was only necessary to deliver within ten days from
publication two copies of the work, without restriction as to the place
of typesetting or printing (sec. 4956, R.S., previous to amendment). It
is impossible to hold that a copyright obtained in 1882 should have
conformed to the requirements of the present law, or, failing to do so,
be held invalid and beyond protection now.
Such considerations are necessarily persuasive to my mind that the act
of 1891 looks to the future alone and not to the past as well, so far,
at all events, as concerns the requirements imposed upon a copyright
applicant or owner under the section we are discussing. Otherwise it is
necessary to conclude that a copyright in 1882 is now void or less
extensive than originally, because it did not or does not follow rules
which the law did not impose until 1891. As you perceive, I am assuming
as conceded that the Harpers' copyright of 1882 on the seventh edition
of the work was complete and legal, and was duly assigned to the present
owners.
But it may be argued, nevertheless, that the right should be
assimilated to the rules of the present law so far as possible, and
that, granting the copyright to be valid, importations under the
copyright should be prohibited unless made from type set within the
United States. Here the right vested in Harpers' assignees may be viewed
as conflicting with the protection to domestic labor extended by the
later law. I think, notwithstanding, that the rules of the earlier law
must cover this copyright in all respects during its life, unless
otherwise provided by additional legislation; for the status of a
copyright then in existence with respect to the new policy (in
copyright) of protection to American labor seems to have been a casus
omissus in the act of 1891. We must keep clearly in view vested rights
as well as the demands of a protective tariff or protective prohibitions
of importation.
Again, it may be suggested that a new copyright should have been
obtained under the act of 1891 for the eighth edition issued in 1897,
and not wholly a reproduction of the edition of 1882. But while the
eighth edition contains some corrections and additions, these appear to
be comparatively trifling in extent. Therefore, although the new matter
may lie outside copyright protection (assuming the unlikely case of
unauthorized reproduction of such portions of the work and an action for
infringement), it does not seem to me that these slight additions amount
to the "substantial changes" of section 4959 as amended by the act of
1891, which permits, rather than requires, a revised edition of a book
by foreign authors, theretofore published, to be copyrighted.
Indeed, that section implies that a new edition may not be copyrighted
unless there are "substantial changes." So that the new matter seemingly
does not require you to apply to the importation any other rules than
those applicable to the said seventh edition under the law existing in
1882, when there was no prohibition of importation of sheets printed
abroad from type not set within the United States. The maxim, "The law
does not care for trifles" may be suggested in this connection, and to
your practical determination would appear to be committed the question
when in fact such corrections and addenda carry a new edition over the
line of a substantial reproduction of the preceding edition.
I come now to Mr. Conrad's opinion (21 Opin., 159). He held--
"That section 3 of the act of March 3, 1891, applies as well to books
which have been copyrighted before as to those which have been
copyrighted since the passage of the act."
But this broad announcement must be understood to be restricted to
the special case before Solicitor-General Conrad, which was presumably
that of American owners of an American copyright obtained before the act
of 1891 on an American literary work, who were seeking under the act of
1891 to prevent the importation of an unauthorized foreign edition, the
remedy under the previous law being merely by way of forfeiture of the
infringing copies and damages (sec. 4964, R.S., before amendment). Mr.
Conrad's language is:
"The act is prospective only as to this new security (the prohibition
of importation) which it affords the owner of the copyright, and is not
prospective as to the books to which that security applies. He can not
claim indemnity for losses sustained by reason of such importation and
sale prior to the passage of the act; but while his copyright
continues, whether it was acquired before or since March 3, 1891, the
benefit of the act extends to him."
In other words, Mr. Conrad holds that the act of 1891 protects
copyrights obtained before its passage, subject to an exception or
limitation which he specifies, and does not consider whether its
corresponding burdens are or can be extended to such copyrights.
I am not prepared to say that certain benefits may not accrue to
anterior copyrights under any of the language of the act of 1891 or
subsequent copyright enactments, even if the burdens residing in the
present method of obtaining copyright to not attach. The language is
occasionally general (see first sentence of sec. 4966 as amended by act
June 6, 1897, 29 Stat., 481); in other places it is restricted by the
phrase "as provided in this act" and other such phrases (sec. 4964 as
amended by act March 2, 1895, 28 Stat., 965), which are similar in
effect to the expressions "such copyright" and "so copyrighted" noted
above from the present section 4956. But it can hardly be doubted that
the owner of an American copyright seeking to be relieved from the
necessity of typesetting in this country, on the ground that his
copyright was secured under a law which did not contain that
requirement, can not be heard to complain if he is remitted to his sole
remedy of forfeiture and damages under that law, and is denied the right
to prevent the importation of competing foreign editions under the very
provisions of the later law from which he escapes. This suggestion
unquestionably looks to the broad conclusion that such a copyright,
relieved from the burdens of the present law, also takes no benefits
thereby; but that general question is not before us, and, while I may
suggest some doubts respecting Mr. Conrad's opinion, I am not compelled
to overrule it, but merely to construe it as restricted to the case then
submitted and as not controlling the present inquiry.
On the conclusion which I reach, that the requirements and
prohibitions of section 4956 took effect in general prospectively, and
do not embrace in their burdens (without regard to their benefits) a
copyright obtained before March 3, 1891, I may cite one of the
authorities quoted in the opinion in question, namely:
" * * * the new parts or the changed portions (of an amended law) are
not to be taken to have been the law at any time prior to the passage of
the amended act. The change takes effect prospectively according to the
general rule."
(Sutherland on Statutory Construction, sec. 133.)
Such new law, unless expressly applied, should not be held to
diminish or injure rights vested under the earlier law.
I therefore answer your question by stating that the importation in
question is not subject to the prohibitive provision of section 3 of the
act of March 3, 1891, amending section 4956, Revised Statutes.
I return the inclosures of your letter, as requested.
Very respectfully,
JOHN W. GRIGGS.
CIVIL SERVICE-- PORTO RICO-- PHILIPPINES; 23 Op.Att'y.Gen. 370,
January 23, 1901
The attitude of the executive and legislative departments of the
Government has been, and is, that the native inhabitants of Porto Rico
and the Philippine Islands did not become citizens of the United States
by virtue of the cession of the islands by Spain by means of the treaty
of Paris.
The act for the temporary government of Porto Rico did not confer
Federal citizenship upon the inhabitants of that island.
DEPARTMENT OF JUSTICE,
January 23, 1901.
The PRESIDENT.
SIR: I have the honor to return herewith the various papers relating
to the proposed amendment to the civil-service rules which is intended
to govern applicants for examination for appointment to the civil
service of the United States in Porto Rico and the Philippine Islands.
I have read and considered the views of the different members of the
Civil Service Commission, as contained in these papers, and submit
herewith a draft of a rule which, in my judgment, ought to be adopted to
cover the case.
The undisputed attitude of the executive and legislative departments
of the Government has been and is that the native inhabitants of Porto
Rico and the Philippine Islands did not become citizens of the United
States by virtue of the cession of the islands by Spain by means of the
treaty of Paris.
It was not the intention of the commissioners who negotiated the treaty
to give those inhabitants the status of citizens of the United States.
The act for the temporary government of Porto Rico did not confer upon
the native inhabitants of that island Federal citizenship, but
denominated them citizens of Porto Rico.
In my judgment, the position thus deliberately assumed by the
executive and legislative branches of the Government violates no
constitutional provision, as I have contended in my arguments before the
Supreme Court in the cases recently discussed before that tribunal.
The language of the amendment I have recommended is so constructed as
to permit the native inhabitants of the Philippine Islands and the
citizens of Porto Rico to be admitted to examination and appointment in
the civil service in those islands, respectively, thus preserving a
consistency of construction by the executive department, but withholding
no actual right to which the inhabitants in question may be said to be
justly entitled with respect to the civil service.
I am, sir, very respectfully,
JOHN W. BRIGGS.
PRIZE-- REMISSION OF FORFEITURE; 23 Op.Att'y.Gen. 360, January 22,
1901
The President has authority to grant remission of forfeiture in cases
of prizes of war after the vessels have been condemned, but before the
prize money has been deposited in the Treasury of the United States.
His jurisdiction in these matters rests upon his pardoning power, as
defined in section 2, Article II, of the Constitution.
Congress can not abridge, modify, or condition the exercise of this
power. It is coextensive with the punishing power and extends to cases
of penalties and forfeitures, with a limitation that a fine or penalty
may not be remitted if the money has been paid into the Treasury.
If Executive clemency is to be exercised, it ought not to appear as a
finding of innocence.
The President's right to call for an opinion from the
Attorney-General is not limited to questions of law. Article II, section
2, clause 1, of the Constitution provides that he "may require the
opinion of the principal officer of each of the Executive Departments
upon any subject relating to the duties of their respective offices."
DEPARTMENT OF JUSTICE,
January 22, 1901.
The PRESIDENT.
SIR: I have the honor to acknowledge the receipt of your reference
to me in person and through the Secretary of State, respectively, of the
applications for Executive clemency in the cases of the prizes of war,
Adula and Benito Estenger, "for such consideration and action as may be
proper."
Two questions are involved in these applications as presented to me,
the first of which concerns your legal power to act, and the second of
which has regard to the proper exercise of your Executive discretion.
The first question is a question of law actually arising before you, and
calls for my professional opinion under the statutes; the second
question is presented, with strictness, to your personal discretion, but
may properly receive attention from me so far as to advise you of the
situation on which your discretion is to act. With this conception of my
functions in the matter I proceed to address myself to the subject.
1. The first question, therefore, is whether the President of the
United States has constitutional authority for the exercise of executive
clemency in prize cases in the present situation of these cases. Before
that legal proposition can be accurately examined it is necessary to
state briefly what are the facts relating to these vessels, and what is
the existing status of the prize litigation.
The Adula was an English vessel which had been chartered to a
Spaniard during the Spanish war and sailed from Kingston, Jamaica, for
Guantanamo, Cuba, among other Cuban ports, and was there seized for
breach of the blockade de facto established at Guantanamo by the
direction of the admiral commanding in those waters. The case was fully
argued and carefully considered on a voluminous record in the prize
court and the vessel duly condemned as prize of war. An appeal was then
taken to the Supreme Court of the United States, and after a full
argument by briefs and orally this condemnation was affirmed, which was
denied, so that there has been in the case a solemn and conclusive
judgment of condemnation. The vessel, however, was not sold, but was
delivered to the claimants upon a stipulation for value, which is now to
be enforced, and consequently no prize funds in the case have been
deposited in the Treasury of the United States as is required by the
Revised Statutes when a sale of the property has been made (sec. 4623,
R.S.).
The Benito Estenger was a Spanish vessel, but was sailing under the
English flag, after a colorable transfer from the Spanish owner to the
neutral, when captured off Cape Cruz, on the south coast of Cuba, on
June 27, 1898, and she was condemned in the court below as an enemy
property, and that condemnation was affirmed by the Supreme Court, three
justices dissenting (176 U.S., 568). But although the condemnation was
founded on the technical status of the vessel as enemy property, it was
shown that, while there was no breach of a blockade duly established,
she was engaged in illicit intercourse with the enemy after warning
given. In the case of the Benito Estenger, as in that of the Adula, a
release upon the giving of bond for value was allowed, and no prize
funds therefrom are on deposit in the Treasury of the United States, and
in lieu thereof the bond is immediately enforceable.
Now, in each of these cases the gist of the application before you is
that the vessel, her owner or owners, and charterer were innocent of any
intentional wrong-doing or offense against the United States.
Indeed, the claim is made that they were engaged in meritorious services
to the United States for the Cubans, which should have received
protection and immunity from this Government. That claim will be
examined infra when I lay before you the situation on the merits from my
standpoint as counsel for the Government and your adviser. It is
sufficient now to say that the entire course of the proceedings, ending
in conclusive condemnation, presupposed an offense against the United
States-- in the case of the Adula the offense by an enemy of carrying on
illicit trade and intercourse with an enemy's stronghold after warning.
This is the only ground upon which the applications could hopefully be
addressed to you, because your jurisdiction in the matter rests upon the
pardoning power as defined in section 2, Article II of the Constitution,
namely:
"The President * * * shall have power to grant reprieves and pardons
for offenses against the United States, except in cases of impeachment."
I conceive that there is no other basis of Executive power upon which
you could proceed in determining these applications, because, while the
power and prerogative of the crown in England, as in monarchial
countries generally, embrace a more ample measure of authority belonging
to the class which are called "prerogative powers," inherent in the
crown, the powers of the President of the United States in these
respects can not be enlarged by analogy to the powers of an English
king. So far as such powers have been preserved and vested by the
Constitution, "they are legitimate powers in the hand of the President.
But they are not prerogatives, * * * and they are to be exercised and
judged of as other granted powers and imposed duties are" (10 Opin.,
452). It is, hence, necessarily, the pardoning power which is to be
exercised, in cases like the present, and we have to look to the
language of the Constitution just quoted for the nature, extent, and
limits of the power conferred. In reference to this, it is well settled
that Congress can not abridge or modify or condition the exercise of
this power; that the power is coextensive with the punishing power, and
extends to cases of penalties and forfeitures, with a limitation that a
fine or penalty may not be remitted if the money has been actually paid
into the Treasury, in which case the amount of the penalty can not be
withdrawn from the Treasury without appropriation by act of Congress.
(8 Opin., 281; 20 Id., 330 and 668; Ex parte Wells, 18 How., 307; Ex
parte Garland, 4 Wall. 333; United States v. Klein, 13 Wall., 128; 4
Opin., 458; 6 Id., 393; 10 Id., 1; Knote v. United States, 95 U.S.,
149.)
The test, then, is whether the proceeds of a fine, penalty, or
forfeiture has passed into the Treasury of the United States. If not,
the pardoning power of the President may act upon it, and this view is
analogous with the decision in the Confiscation Cases (7 Wall., 454;
and see also United States v. Morris, 10 Wheat., 290; Dorsheimer v.
United States, 7 Wall., 166), in which it was determined in relation to
the interest of informers that a judgment of condemnation can have no
other effect than to fix and determine their interests as against the
claimant, should no remission take place, and that their right does not
become fixed until the receipt of the money by the collector or other
authorized depositary of the United States, or until the money has
actually been paid over as required by law. It is to be noted, however,
that the Confiscation Cases, enforcing this principle, and holding that
the Executive has full control of forfeiture proceedings in which the
Government is interested, and may dismiss absolutely a suit for the same
notwithstanding the intervening claims of informers, note a possible
exception in prize cases. (See also for a similar doubt, 6 Opin., 393,
406.)
Here, it is true, the proceedings have passed entirely beyond the
realm of litigation to condemn, and the rights of the captors to their
moiety of the net value of the prize, and of the Navy Pension Fund for
its moiety thereof (section 4752, R.S.) have become, so far as the
proceedings to condemn are concerned, fully vested.
Nevertheless, in the present cases, where, I conceive, offenses
against the United States clearly appear, in which the peculiar
situation exists that the prize fund has not yet been realized and paid
over to the Treasury of the United States because the bonds for the same
remain to be enforced, and upon the test making that result necessary
before the President's power of remission is exhausted, and upon the
other well-established rules regarding the extent of this power, I am of
the opinion that you have authority under the Constitution and laws to
grant the application in these cases if you deem it advisable.
By this opinion I do not desire to be taken as overruling the opinion of
my predecessor, Mr. Bates (10 Opin., 452), wherein he held that, in the
condemnation of a vessel in a prize court, no person is charged with an
offense, and so no person is in a condition to be relieved and
reinstated by a pardon, and that after a regular condemnation of a
vessel and cargo in a prize court for breach of blockade the President
can not remit the forfeiture and restore the property or its proceeds to
the claimant. I intend to express hereby no opinion whatever in regard
to the conclusions reached in that case, which, however, so far as the
facts appear, can plainly be distinguished from the cases in hand, for
it seems that the prize money there had already been appropriated and
distributed by law and therefore must have passed into the Treasury of
the United States.
2. You have, then, in my opinion, the power in question in the cases
now before you. It remains only for me to lay before you the aspect
which these applications present on the merits, to my mind, in order
that your discretion may be fully informed. My statement of views is
therefore not a legal opinion, nor advice by which you are to be
controlled, and my present function is fairly to be discriminated from
ordinary cases in which I am called upon to deliver an opinion.
Further, it is to be noted on this point that your right to call upon me
for an opinion is not necessarily limited by the provision of section
354 of the Revised Statutes, directing that the Attorney-General shall
give his advice and opinion upon questions of law whenever required by
the President, because the Constitution, in the provision heretofore
noted (Article II, section 2, clause 1), provides that "(the President)
may require the opinion in writing of the principal officer of each of
the Executive Departments upon any subject relating to the duties of
their respective offices."
I conceive that this provision is entitled to a liberal interpretation
and that the President, in relation to such a subject as this, which is
clearly embraced within the duties of the Attorney-General, may justly
call upon him for an opinion or advice in transactions which do not in
all respects present a question of law, and unrestrained by the
technical rule of the statutes and the strict practice upon the subject.
As bearing upon this subject, the following quotation from the opinion
of Mr. Cushing (6 Opin., 326), in which he discusses the proper
delimitation of the various branches of the Executive power and
functions, is apt:
"We find abundant evidence, both in the public archives and in the
printed correspondence and other writings of Washington and Jefferson,
that it was the practice in their time for the President not only to
call for written opinions of the Attorney-General, as at present, and to
advise orally or by informal correspondence with him and the three
Secretaries, but also to require of all these officers written opinions
upon critical subjects of Execution deliberation, as expressly provided
by the Constitution."
As I have stated above, the ground of the application in both cases
is the innocent and meritorious intent of the vessel owners. In the case
of the Adula it is claimed that she undertook her voyage for the purpose
of removing refugees and noncombatants out of Cuba; that the captain
was instructed by the owners to make no attempt to enter any Cuban port
without the consent of the United States naval authorities; that
without cargo she sailed for Guantanamo and was there seized; that the
suspicion of an unfriendly errand, previously entertained, has been
shown to be unfounded, and that a bare majority of the justices of the
Supreme Court have held that there was merely a technical violation of
the law of blockade. It is argued by the claimant that as the
declarations of the United States at the beginning of the war with Spain
made it clear that we undertook the war from motives of humanity, and
inasmuch as the United States had previously removed refugees from Cuba,
employing (as is alleged) or allowing on one occasion the Adula herself
to carry on this service, the United States will only properly show that
their humane and beneficent purposes were serious and sincere by
relieving from the penalty imposed the instrument which was seeking to
cooperate in those purposes.
Other grounds supposed to fortify the claim, more distinctly legal in
their nature and advanced at the argument in court, are again brought
forward, namely, that the United States forces held the harbor and
environs of Guantanamo and the surrounding country so completely that
there was in reality no blockade at all, and that in view of the
adoption by your proclamation of April 26, 1898, of the principles of
the declaration of Paris, with a preamble reciting that it was desirable
that the war should be conducted on principles in harmony with the
present views and recent practice of nations, the Adula should not be
considered as violating in any manner the blockade, unless she had
persisted in approaching after having been previously warned not to
enter. The views expressed by this Government during or soon after the
Napoleonic wars, and the views of modern French authorities, are cited
to show that, by the practice of modern nations, the neutral is entitled
to previous specific warning in each case not to enter the blockaded
port.
Finally, the claim rests upon the scope of the Executive function in
the matter, which always has before its view the principle that in the
international domain the judgment of a prize court is not final; that
the neutral State is not bound thereby, nor the belligerent State, whose
prize tribunals adjudge condemnation relieved thereby from
responsibilities incurred under the principles of international law;
and, as bearing upon the Executive function, the following passage from
the decision in the case of the Benito Estenger, supra, is quoted:
"Even if the circumstances may have justified liberal treatment, that
can not be permitted to influence our decision. It belongs to another
department of the Government to extent such amelioration as appears to
be demanded in particular instances."
Examining, now, these claims, I have to observe that the record
before the court in the Adula case was complete and satisfactory.
The case was carefully prepared and carefully and fully argued by both
sides throughout its entire course in the courts below and in the
Supreme Court. All of the points now presented to your Executive
discretion were made before the Supreme Court in substantially the same
form as now presented. These points, as the opinion of the Supreme Court
shows, were fully considered and disposed of by that opinion.
Furthermore, the record contains matters not adverted to in the opinion,
which oppose the claims made. It is evident that the Supreme Court gave
due weight to the evidence touching the asserted purposes of the voyage,
because the statement of the opinion is (176 U.S., 330) that the vessel
was "one employed in a commercial enterprise for the personal profit of
the charterer, and only secondarily, if at all, for the purpose of
humanity. Her enterprise was an unlawful one in case a blockade existed,
and both Solis and the master of the Adula were cognizant of this fact."
It is evident, further, that the quotation from the decision in the
Benito Estenger case is only applicable if the contention made by the
claimants of the Adula is first conceded, because the announcement that
it belongs to the executive rather than to the judicial department of
the Government to extend amelioration is based on the assumption that
the circumstances of the given case shall justify liberal treatment.
That is the very matter to be established in this case. I do not think
that it has been established. Under the circumstances of the case
disclosed by the record, and as affected by the general official history
of the Spanish war in that locality, it does not appear to me that the
claims have substantial merit, or that the owners should be relieved in
equity from the results of the condemnation adjudged. On both the facts
and the law the petition of the claimants is without valid foundation.
Their vessel had been employed and the agents or charterers had been
engaged in similar private enterprises upon like professions of the
objects thereof on various occasions during the war prior to the
seizure. They embarked in hazardous ventures, the character of which
they knew, and took the risks. The knowledge showing responsibility on
the final trip fully appears in the record. The neutral owners
disregarded the obligations of their national neutrality, and were
properly subjected to the penalty of prize law.
In the case of the Benito Estenger the claimant's petition submits as
ground for Executive clemency the contention that the claimant is and
was a Cuban sympathizer as distinguished from other Spanish subjects who
were loyal to Spain during the war, and the fact that the district court
and the Supreme Court, in condemning the vessel, stated that in such
case, if the distinction suggested exists in fact and is based on
services to the Cubans, or if for any reason the circumstances justify
liberal treatment, relief rests in the Executive and does not belong to
the courts. In this application also it is alleged that the purpose of
the voyage, ending in seizure and condemnation, was not to trade with
the enemy, but to serve the cause of humanity-- in this case by the
shipment of food stuffs to Manzanillo to supply the needy and starving
families of the insurgents. The claim indicates the view that the vessel
owner, though a Spanish subject and technically an enemy, being a Cuban
sympathizer and engaged in this asserted mission, was an ally of the
United States, and that it is inconsistent, harsh, and unjust to condemn
his property. And with the suggestion that he properly relied upon a
certain arrangement, which he is of opinion was consummated by him in
his capacity of ally with the United States consul at Kingston, Jamaica,
and through the latter with Admiral Sampson, which entitled him to
protection, are submitted, as establishing his status, certificates of
municipal officers at Santiago de Cuba showing that the claimant is a
citizen of standing who has been active in the civic affairs of that
municipality since the reorganization of its government under American
control, and certain other certificates of various other Cuban gentlemen
of consequence expressing the conviction that the claimant's standing as
a Cuban patriot, who rendered the services stated to the insurgents, is
undoubted.
But in this case, as in that of the Adula, I must note the fact that
the claims as now advanced were in substance passed upon by the Supreme
Court and determined adversely to the claimant, and if it shall be
considered that additional evidence vindicating, or tending to
vindicate, the claimant's status as a well-known and consistent Cuban
patriot, is presented, I have to observe that evidence which was before
the court in the shape of the original documents in the case, but which
was not touched upon in the opinion, made it clear beyond any real
question that the contentions of the claimant were not so well founded
in fact as to raise a substantial equity and justify relief from the
legal penalty imposed.
By reason of this I am bound to think that the Cuban gentleman who
support the claimant's petition have been unwittingly, or in a measure,
misled in reference to the specific facts involved in the case. I do not
intend to suggest that such support is due to any contrivance of the
claimant, because, in the doubtful aspect and issue of events at that
time in Cuba, as affecting individual subjects of Spain resident there
and their property rights, a man might honestly entertain sentiments of
sympathy with the Cuban cause, and be willing to carry those sentiments
into action, and yet, through inability to do so, or through failure of
the facts presented to measure up to the requirements of action
requisite to show service to our own Government or to the insurgents, a
case for the Executive interposition would not be established. At least,
in this case, apart from the claims advanced, or in contrast with them,
if the matter should be so regarded, the evidence contained in the
original documents and exhibits referred to, in addition to the evidence
of the printed record, shows such a state of facts and relations
regarding the claimant as to leave the petition without substantial
foundation. It follows, therefore, in the case of the Benito Estenger,
as in that of the Adula, that circumstances which may justify liberal
treatment by the Executive, referred to in the opinion of the Supreme
Court in the Benito Estenger case as quoted supra, do not exist, and the
condemnation being proper in law and without valid objection founded in
equity, the extension of Executive clemency, if guided by no other
considerations than those now before you, would not appear to be
justified.
As I have already remarked, these applications are necessarily
addressed to the pardoning power and presuppose offenses against the
Untied States. And yet, the ground brought forward is in effect, in both
cases, the entire innocence of the claimants of offense, or even of an
intention to commit an offense. The district court and the Supreme Court
of the United States have both found the acts of the claimants
inconsistent with innocence.
If they were guilty, as it is solemnly adjudged they were, there is no
ground upon which they are entitled to any clemency. They are to be
considered as having intentionally violated their rights and privileges
as trading vessels. Another point, therefore, to be borne in mind is
that the grant of clemency by act of Executive grace purely, if
determined by you, ought not to appear as mounting to a finding of
innocence. The contrary finding of an offense committed (if not of
guilt) is as fully established by the judgment of the Supreme Court as
if the court had affirmed a jury's verdict of guilty in a criminal
prosecution.
I remain, sir, very respectfully,
JOHN W. GRIGGS.
IMPORTATION OF FOREIGN BOOKS COPYRIGHTED IN THE UNITED STATES; 23
Op.Att'y.Gen. 353, January 19, 1901
The Secretary of the Treasury is authorized and it is his duty, under
sections 4956 and 4958, Revised Statutes, as amended by the act of March
3, 1891 (26 Stat. 1106), to refuse entry to importations of a book
printed in the original French from type not set within the United
States nor from plates made therefrom, where the copyright for the
United States was secured by the Paris publisher and afterwards by him
assigned to an American house.
A dramatic composition may be a book.
DEPARTMENT OF JUSTICE,
January 19, 1901.
The SECRETARY OF THE TREASURY.
SIR: Your letter of December 14, 1900, with its accompanying
documents, advises me that you are requested by the house of Brentano's,
New York, to issue the necessary instructions to prevent entry of Edmond
Rostand's L'Aiglon printed abroad in the original French from type not
set within the limits of the United States, nor from plates made
therefrom. It appears that a copyright for the United States has been
fully secured by the Paris publisher as proprietor, and that all rights
thereunder have been duly assigned by him to Brentano's; that,
nevertheless, importations of a Paris edition of the book, issued by the
same publisher and bearing notice of copyright in the United States,
have been made; and Brentano's invoke for their relief your authority
under sections 4956 and 4963, Revised Statutes, as amended by the act of
March 3, 1891 (26 Stat. 1106), or under section 11 of the tariff act of
1897 (30 Stat., 151, 207), relating to trade-marks.
Thereupon you request my opinion on the question whether these
importations are prohibited under the law. You do not state that the
importations are limited in the number of copies per invoice, or in
purpose or intended use, or with respect to the character of the
persons, individual or corporate, for whom they may be made. I remark,
further, as patent on the face of the papers, that Brentano's edition
also is in the French tongue and bears notice of American copyright;
and that the two editions are identical in text and similar in general
appearance and in cover and title page particulars. It should be
observed, however, that no simulation intended to deceive appears, nor
is it suggested that the foreign publisher-proprietor (the assignor, as
stated, of the United States copyright) has procured or connived at the
obnoxious importations.
Section 4956, Revised Statutes, as amended by the international
copyright act of 1891, supra, provides that--
" * * * during the existence of such copyright the importation into
the United States of any book, etc., so copyrighted, or any editions
thereof, or any plates of the same not made from type set * * * within
the limits of the United States, shall be, and it is hereby, prohibited,
except in the cases specified in paragraphs 512 to 516, inclusive, in
section 2 of the "Tariff act of 1890, and except in the case of an
importation subject to duty of not more than two copies of such book at
any one time, "for use, and not for sale," etc.:
"Provided, nevertheless, that in the case of books in foreign
languages, of which only translations in English are copyrighted, the
prohibition of importation shall apply only to the translation of the
same, and the importation of the books in the original language shall be
permitted."
The paragraphs cited from the tariff act of 1890 are contained in the
free list of that act, and admit free of duty, with certain limitations,
books, engravings, maps, etc., more than twenty years old, or imported
for the use of the United States, or of any educational, literary, or
religious institution, etc., or forming part of the household effects of
persons from foreign countries, and (par. 513) "books and pamphlets
printed exclusively in languages other than English." * * * (26 Stat.,
567, 604.)
Thus it appears that the main question in this case simply is whether
the freedom from duty granted on an importation of books printed
exclusively in languages other than English, under paragraph 513 of the
tariff act of 1890, which is specified as one of the exceptions to the
prohibition of importation under the copyright law of 1891, shall
operate so as to defeat the protection of copyright on a book in a
foreign language. The question, however, requires more accurate
delimitation. The rights of translation into English in this country or
elsewhere are not now involved; they are presumably in other hands. Nor
does it appear that the author or proprietor has made any disposition of
the rights here or abroad in other languages foreign to France. I do not
intend, therefore, to suggest by my formulation that the holder of an
American copyright on a work in French would be entitled to prevent the
importation, say, of a Spanish or German version, with both of which
nations we have reciprocal copyright relations. Such a claim, however,
would call up the scope and intent of the assignment of copyright and
the unqualified and exclusive right which is given to authors and their
assigns by section 4952, Revised Statutes, as amended by the act of
1891, "to dramatize and translate any of their works for which copyright
shall have been obtained under the laws of the United States," as well
as the possible effect of section 4956 and paragraph 513 in denying or
limiting copyright protection against competing importations.
The question before us, therefore, must be strictly restrained as
follows: Whether, by force of the specified exception to the
prohibition of importation in section 4956, an edition of a book written
in French, printed exclusively in that language, and wholly made abroad,
may be imported into this country, although the same literary
composition is copyrighted in the same language under the laws of the
United States and is wholly printed and made into a book in this
country.
It must be remarked that under the reciprocity provisions of section
13 of the copyright law of 1891 the protection of the act was extended
to citizens of France by Executive proclamation of July 1, 1891 (27
Stat., 981, 982). It must also be remarked that, although L'Aiglon was
copyrighted in the United States as a "dramatic composition" (no doubt
because the right of representation was expressly protected under that
term by section 4952 as amended), the work is none the less a "book,"
and is clearly covered by that word as used in section 4956 and
paragraph 513. While other language of the said section and the penal
provisions of the law (sec. 4963, as finally amended by act of March 3,
1897 (29 Stat., 694), by omitting or including in different provisions
the words "dramatic composition" with other associated terms, indicate
that the change of phraseology was intentional, and that a "dramatic
composition" Littleton v. Ditson Co., 62 Fed.Rep. 597; Ditson Co. v.
Littleton, 67 id., 905), I do not understand that the point has been
raised in this case, and I have no difficulty in concluding that this
"dramatic composition" at all events is a "book." Obviously it is such
by all literary and mechanical tests, and not the less so because the
record of copyright denominates it a "dramatic composition" and just as
much so under the American copyright as in the foreign edition which is
seeking free entry as a "book."
Furthermore, it necessarily appears that the two copies of the
American L'Aiglon required to be deposited in the Library of Congress
(sec. 4956) were printed from type set within the United States, which
the act requires in the case of a "book," etc., but not apparently or
expressly in the case of a "dramatic or musical composition" inter alia
(see Littleton v. Ditson Co., ut supra).
Brentano's publication, then, being entitled as a book under the
copyright to any protection which section 4956 may extend, we have to
inquire whether the protection in a case like the present is real and
effective or purely nugatory.
Does the law take away with one hand what it gives with the other?
Copyright is essentially an exclusive right. It is so denominated in
all the laws (act of May 31, 1790, 1 Stat., 124; act of Feb. 3, 1831, 4
Stat., 431; act of July 8, 1870, 16 Stat., 198, 212; sec. 4954, R.
S.). It is, in effect, defined in the statute itself (sec. 4952) as "the
sole liberty of printing, reprinting, publishing, completing, copying,
executing, finishing, and vending" a book, etc., "and in the case of a
dramatic composition, of publicly performing or representing it or
causing it to be performed or represented by others." "Copyright, under
the statute, is the exclusive right to publish a literary or artistic
work." (Pierce & Bushnell Mfg. Co. v. Werckmeister, 72 Fed. Rep., 54.)
I think there can be no doubt that the main purpose of the recent
amendments to the copyright laws was to extend to foreign authors and
artists, upon assurance of reciprocal privileges being granted to us by
foreign countries, the copyright protection which had previously been
restricted to citizens and residents of the United States. The history
of the legislation and of the long agitation on the subject conclusively
shows this. (Littleton v. Ditson, 62 Fed.Rep., 597; Putnam on The
Question of Copyright, p. 33, citing Report of Henry Clay in 1837, p.
40, p. 77; citing Report of House Committee on Patents in 1890, p. 148;
quoting from speeches in the Senate debate of 1891, et passim.) A
conjoint purpose was the protection of American labor, especially in the
printing trade. (Putnam, ut supra, pp. 52, 78, etc.) The views of
statesmen regarding a measure of legislation may properly be considered,
and while their statements are not admissible to control the meaning of
words in a law, nevertheless such statements are "valuable as
contemporaneous opinions of jurists and statesmen upon the legal meaning
of the words themselves." (Wong Kim Ark v. United States, 169 U.S., 649,
699; and see Am. Net and Twine Co. v. Worthington, 141 U.S., 468, 473,
474.)
It is a cardinal rule in construing a law that the evil or defect to
be remedied should be borne in mine, and that to effectuate the
intention, supposed repugnancies should be reconciled if possible, ut
res magis valeat quam pereat.
Examining the subject, then, in the light of such facts and principles,
it is evident to me that there is an essential difference between
paragraph 513 as quoted and the other paragraphs of the act of 1890
incorporated in section 4956, for in the latter paragraphs the exception
to prohibition of importation rests upon liberal reasons of polity and
involves a concession against exclusive rights both narrow in scope, and
meritorious as encouraging enlightened learning or operating on special
and restricted individual or corporate privileges. (Cf. the further
exception in section 4956 of two copies of a book imported at any one
time "for use and not for sale.") Whereas the former paragraph (513)
passes beyond this region, and, if construed as to the copyright laws
without qualification, demands the unrestricted free admission, for
ordinary commercial purposes as well as all other purposes, of all books
printed in foreign languages-- at least of all such books not obnoxious
under provisions like section 2491, Revised Statutes, and section 11 of
the tariff act of 1890. I can not believe that this is either the
intention or the result of the law. Accordingly I note that the final
proviso of section 4956 embraces the very point. Its language is:
"Provided, nevertheless, that in the case of books in foreign
languages, of which only translations in English are copyrighted, the
prohibition of importations shall apply only to the translation of the
same, and the importation of the books in the original language shall be
permitted."
Now, unless this proviso contains the needed relief, it may, indeed,
appear that a book in a foreign language can not be effectively
copyrighted in this country. For while an action for infringement would
doubtless lie against foreign conflicting editions as well as domestic
"pirated" editions, nevertheless, as to the former, prohibition of
importation is the first and most complete protection. The above
proviso, then, impresses me as operating directly (and perhaps
exclusively) on the exception in par. 513. It is an exception to the
exception and leaves the prohibition untouched in the case provided.
What is that case? I am not required to construe the force of the
proviso with respect to the other provisions of the tariff act embraced
in the exceptions.
As I have indicated, the circumstances and reasons moving to their
incorporation may leave them untrammeled by the proviso. But as to
paragraph 513, embracing, as it does, unlimited commercial importations,
the proviso in my opinion was intended to withdraw, and clearly does
withdraw, the allowance of importation of a book in the foreign original
language when there is an American copyright of the book in that
language; for the phraseology permits the importation of books in the
original language only when an English translation alone is copyrighted:
"in the case of books in foreign languages of which only translations
in English are copyrighted." In the case before us, while an English
translation also may be copyrighted, there is a valid copyright on the
original French version.
I find nothing in the decisions or in the regulations or previous
rulings of your Department expressing contrary views; hence I hold that
you have authority under section 4956, as amended, to refuse entry to
the importations in question, and I may add that you appear to be
required as well as empowered to do so under section 4958 as amended (22
Opin., 70). To hold otherwise, it seems to me, would be to strike down,
in large measure, the protection to foreign authors in consideration of
which reciprocal protection is extended to our authors abroad, and to
strike down to the same extent the protection to American labor, which
certainly constituted the joint intent and the main purpose of the law.
This result renders it unnecessary to examine, in respect to these
importations, the other grounds invoked by Brentano's for their
protection, which refer to the misleading notice of copyright on the
foreign edition and to the prohibition of importation in the penal
provisions of section 4963, as finally amended, "when there is no
existing copyright thereon in the United States;" and also refer to
considerations analogous to the principles of copyright drawn from the
law of trade-marks and unfair competition.
Very respectfully,
JOHN W. GRIGGS.
CITIZENSHIP OF CHINESE-- HAWAII-- AMERICAN REGISTRY; 23 Op.Att'y.
Gen. 352, January 16, 1901
Any Chinese person who was a citizen of the Republic of Hawaii on
August 12, 1898, and who has not since abandoned or been legally
deprived of his citizenship, is a citizen of the United States.
Such naturalized Chinese citizen may take the oath required by
sections 4131 and 4142, Revised Statutes, and have his vessel admitted
to registry as an American vessel, provided it carried an American
register on the 12th of August, 1898, and was at that time owned bona
fide by a citizen of Hawaii or of the United States.
DEPARTMENT OF JUSTICE,
January 16, 1901.
The SECRETARY OF THE TREASURY.
SIR: I beg to acknowledge the receipt of your letter of December 21,
with its inclosure, informing me that a native of China, naturalized at
Honolulu as a citizen of the Hawaiian Kingdom July 5, 1890, has made
application for the documenting of a schooner owned by him. The question
which you submit for my opinion is whether, in view of sections 98, 100,
and 101 of the act of April 30, 1900, relating to the Hawaiian Islands,
the applicant is a citizen of the United States, entitled to take the
oath that he is such required by sections 4131 and 4142 of the Revised
Statutes, and to have his vessel accordingly admitted to registry, it
being understood that she carried a Hawaiian register on the 12th day of
August, 1898, and at the time was owned bona fide by a citizen of Hawaii
and continued to be so owned until purchased by the applicant herein.
Section 98 of the act cited provides:
"That all vessels carrying Hawaiian registers on the 12th day of
August, 1898, and which were owned bona fide by citizens of the United
States or the citizens of Hawaii * * * shall be entitled to be
registered as American vessels with the benefits and privileges
appertaining thereto * * * "
On this situation I have the honor to say that I have this day
rendered to you an opinion upon the general question whether or not, in
view of the provisions of section 4 of the Hawaiian act of April 30,
1900, and notwithstanding the provisions of sections 100 and 101
thereof, a Chinese citizen of the Republic of Hawaii, as the applicant
here is denominated in the inclosure accompanying your letter, is a
citizen of the United States.
In accordance with the conclusion which I reached in that opinion, I
have now the honor to advise you again upon this general issue, as well
as in respect to the pending application, that any Chinese person who
was in fact a citizen of the Republic of Hawaii under its constitution
and laws on August 12, 1898, and who has not since that date voluntarily
abandoned his citizenship or legally been deprived thereof, is a citizen
of the United States.
By consequence, the applicant in the present case, if, having been
naturalized as a citizen of the Hawaiian Kingdom in 1890, he was as well
a citizen of the Republic of Hawaii on August 12, 1898, and has not
since lost the rights of citizenship then obtained, is entitled to take
the oath mentioned in the navigation laws as cited, and to have his
vessel admitted to registry as an American vessel.
Very respectfully,
JOHN W. GRIGGS.
CITIZENSHIP OF CHINESE-- HAWAII; 23 Op.Att'y.Gen. 345, January 16,
1901
Under the provisions of section 4 of the Hawaiian act of April 30,
1900 (31 Stat., 141), a Chinese person born or naturalized in the
Hawaiian Islands prior to the annexation of that Territory, and who has
not since lost his citizenship, is a citizen of the United States.
The wife and children of such naturalized Chinaman are entitled to
enter the territory "by virtue of the citizenship" of the husband and
father.
A Chinese child born in Hawaii in 1885, and taken to China by his
mother is entitled to reenter that Territory, where his father still
resides.
DEPARTMENT OF JUSTICE,
January 16, 1901.
The SECRETARY OF THE TREASURY.
SIR: Your letters of December 6 and December 10 request my opinion
upon the following questions of law relating to actual cases arising in
the administration of your Department:
1. Whether a person born in the Hawaiian Islands in 1885 of Chinese
parents, who are laborers, and taken to China with his mother in 1890,
is entitled to reenter the Territory of Hawaii, where his father still
resides?
2. Whether the wife and children of a Chinese person, who was
naturalized in 1887 in Hawaii and still resides there, are entitled to
enter that Territory "by virtue of the citizenship" of the husband and
father?
In the first case the Chinese person claims the right to enter the
Territory of Hawaii because he is a citizen of the United States and of
the Territory of Hawaii by reason of his birth in that territory; and
in the second case the Chinese persons claim the same right because the
husband and father is a citizen of the United States and of the
Territory of Hawaii by force of his naturalization under Hawaiian laws.
The exact question, then, upon which I have the honor to deliver to you
my opinion is, whether a Chinese person, born or naturalized in the
Hawaiian Islands prior to the annexation of that territory, is a citizen
of the United States; for I conceive that there can be no doubt under
existing law of the right of a citizen of the United States ano of his
wife and children to enter freely the Territory of Hawaii.
The joint resolution of July 7, 1898 (30 Stat., 750), providing for
the annexation of the Hawaiian Islands, contains the following
paragraph:
"There shall be no further immigration of Chinese into the Hawaiian
Islands, except upon such conditions as are now or may hereafter be
allowed by the laws of the United States; and no Chinese, by reason of
anything herein contained, shall be allowed to enter the United States
from the Hawaiian Islands."
The constitution of the Republic of Hawaii (sec. 1 art. 17) provided
that "all persons born or naturalized in the Hawaiian Islands and
subject to the jurisdiction of the Republic are citizens thereof." The
act of April 30, 1900 (31 Stat., 141), providing a government for the
Territory of Hawaii, declared (sec. 4) that "all persons who were
citizens of the Republic of Hawaii on August 12, 1898, are hereby
declared to be citizens of the United States and citizens of the
Territory of Hawaii. This discussion grants, as I understand it, that
the two Chinese persons whose personal or family rights are in question,
were citizens of the Republic of Hawaii on the crucial date, and does
not require me further to scrutinize and to determine their status under
the constitution and laws of that Republic.
I lay aside important questions suggested by this inquiry, which may
hereafter arise but are not now material, affecting the status and
rights of various classes of Chinese persons not born or naturalized in
the Hawaiian Islands prior to August 12, 1898, who may seek to enter
Hawaii or desire to remain there, or who may seek to enter the United
States from that Territory. Such questions, when they arise, will invoke
inter alia the joint resolution from which I have quoted, the laws
forbidding the naturalization of Chinese (sec. 14, act of May 6, 1882,
22 Stat., 53; Art. IV of the Treaty with China of 1894, 28 Stat., 1210;
secs. 5, 7, 100, of the act of April 30, 1900, supra), and the
permissive and restrictive provisions of section 101 of the act last
cited relative to "certificates of residence" for Chinese in the
Hawaiian Islands. As to these matters I express no opinion, because we
are concerned only with the definite class of Chinese persons who were
born or naturalized in the Hawaiian Islands prior to August 12, 1898.
The inquiry involves both the power and intention of Congress in
dealing with the subject. As to the power, in Wong Kim Ark v. United
States, 169 U.S. 649, decided several months before the adoption of the
resolution for the annexation of Hawaii, which deliberately determined
that a child born in the United States of Chinese parents who have a
permanent domicile in this country becomes at birth a citizen of the
United States, the court restated the inherent right of the United
States, acting through Congress, to exclude or expel aliens; and, in a
review of the exercise by Congress of the constitutional power "to
establish an uniform rule of naturalization," again recognized as
constitutional the denial of naturalization to Chinese persons, and, on
the other hand, showed that through treaty, or by authority of Congress,
certain classes of persons may be declared to be citizens.
"It is true that Chinese persons born in China can not be naturalized
like other aliens by proceedings under the naturalization laws; but
this is for want of any statute or treaty authorizing or permitting such
naturalization. * * * 'Chinese persons not born in this country have
never been recognized as citizens of the United States, nor authorized
to become such under the naturalization laws' (citing Fong Yue Ting v.
United States, 149 U.S., 716, and In re Gee Hop, 71 Fed.Rep. 274). * * *
A person born out of the jurisdiction of the United States can only
become a citizen by being naturalized either by treaty, as in the
annexation of foreign territory, or by authority of Congress exercised
either by declaring certain classes of persons to be citizens * * * or
by enabling foreigners individually to become citizens by proceedings in
the judicial tribunals, as in the ordinary provisions of the
naturalization acts. * * * The Fourteenth Amendment, while it leaves the
power where it was before, in Congress, to regulate naturalization,
etc." (169 U.S. 701, 702, 703.)
In American Insurance Co. v. Canter, 1 Pet., 511, 542, Chief Justice
Marshall, quoting the sixth article of the treaty of 1819 with Spain,
which admitted the inhabitants of the Spanish territory of Florida "to
the enjoyment of the privileges, rights, and immunities of the citizens
of the United States," says:
"This treaty is the law of the land, and admits the inhabitants of
Florida to the enjoyment of the privileges, rights, and immunities, of
the citizens of the United States. It is unnecessary to inquire, whether
this is not their condition, independent of stipulation."
It is to be observed that the power "to establish an uniform rule of
naturalization," vested in Congress by clause 4, section 8, Article I of
the Constitution of the United States, is an affirmative grant by virtue
of which Congress was authorized to displace conflicting State laws on
the subject. This grant can not properly be construed to limit the power
of Congress, under the authority "to make rules and regulations
respecting the territory belonging to the United States," to provide
diversely for individual or collective naturalization in territories
acquired, with a view to the special circumstances or needs of each
territory. Upon this principle proceeds the express application to
organized territories (sec. 2165, Revised Statutes) of the uniform rules
respecting individual naturalization through the courts. And on the same
principle depend the varying laws respecting both individual and
collective naturalization which have been enacted for certain
territories and classes of people (post, and sec. 100 of the Hawaiian
act cited). In other words, our ordinary naturalization laws are of
general but not universal application.
It never seems to have been supposed that the power to establish a
uniform rule of naturalization meant anything more than that individual
applications to become citizens by proceedings in judicial tribunals
should rest upon uniform authority and should follow the same forms
everywhere in the United States, and in the territories when the rules
should be extended and applied to them by Congress. It has never been
asserted that the language of this grant of power affected the right of
Congress to exclude or to admit certain classes of aliens by special or
collective provisions; or the right of the treaty-making power to
stipulate for the same results.
(See, for a stipulation denying naturalization, Article IV of the
Chinese treaty of 1894 ut supra.)
Accordingly, we find that the power of collective naturalization has
been frequently exercised by the President and Senate: In the treaty
for the cession of Louisiana, which agreed to admit the inhabitants to
the rights of citizens of the United States (Art. III, Treaties and
Conventions between the United States and other Powers, p. 331; The
Mayor of New Orleans v. Armas, 9 Pet., 223; opinion of Justice Catron
in Dred Scott v. Sandford, 19 How., 393, 525); in the treaty with Spain
of 1819 referred to in American Insurance Co. v. Canter, supra; in the
treaty of 1848 pp. 681, 685; People v. Naglee, 1 Cal. 232), which gave
Mexican citizens in the ceded territory the right of election to become
citizens of the United States, and made continuance in the Territory
after a year the exercise of that election; and in the Alaska treaty of
1867 (Art. III, Treaties and Conventions, etc., pp. 939, 941), which
conferred a similar right upon the inhabitants of Alaska, excepting
uncivilized native tribes.
Congress, also, has in many instances carried this power into effect.
In Boyd v. Thayer, 143 U.S., 135, holding that Congress has the power to
effect a collective naturalization on the admission of a State into the
Union, by reason of the necessary adoption as citizens of the United
States of those whom Congress makes members of the political community,
the court says:
"Congress, in the exercise of the power to establish an uniform rule
of naturalization, has enacted general laws under which individuals may
be naturalized; but the instances of collective naturalization by
treaty or by statute are numerous." (Id., 162.)
And, after reviewing such instances, the court cites the act of
February 8, 1887 (24 Stat. 338), making by its terms "every Indian
situated as therein referred to a citizen of the United States."
"By the annexation of Texas, under a joint resolution of Congress of
March 1, 1845, and its admission into the Union on an equal footing with
the original States, December 29, 1845, all the citizens of the former
republic became, without any express declaration, citizens of the United
States (citing 5 Stat. 798; 9 Stat., 108, and other authorities)."
(143 U.S., 169.)
Compare also the case of Osterman v. Baldwin, 6 Wall., 116, which
determined that the act of admission of Texas into the Union was an act
of naturalization operating retrospectively.
And, finally, the act organizing the Territory of Oklahoma (May 2,
1890; 26 Stat., 81), by its forty-third section, provided, on the one
hand, that a member of an Indian tribe in the Indian Territory might
apply to the United States court to become a citizen of the United
States; and, on the other hand, that a certain Indian confederation,
accepting lands in severalty, and selecting their allotments, "shall be
deemed to be, and are hereby declared to be, citizens of the United
States."
With respect to the intention of Congress in the present case, I can
not conceive that there is any doubt. The language of the Hawaiian act
(sec. 4) is that all persons who are citizens of the Republic of Hawaii
on August 12, 1898, are hereby declared to be citizens of the United
States and citizens of the Territory of Hawaii." This language is
positive and unqualified and leaves nothing to construe. Congress knew
the situation in the Hawaiian Islands as well as the situation in this
country, and understood the laws of the former republic in this country,
and understood the laws of the former republic which were continued,
repealed, or subjected to amendment, respectively.
It is worthy of remark in this connection that section 3 of the bill
to provide a government for Porto Rico, as introduced, declared that all
the inhabitants of that island, with a certain qualification and
exception, "shall be deemed and held to be citizens of the United
States." This provision was stricken out (see sec. 7 of the act, 31
Stat., 77, 79) before the bill became law. But in the Hawaiian case
Congress, after annexation, admitted the islands as a Territory,
established a Territorial government, and did not withhold or limit the
privilege of citizenship, which was within its competence to do, but
expressly granted that privilege to all persons who were citizens of the
Republic of Hawaii on the date fixed. Congress said a very plain thing,
and must be understood to have meant what it said.
In consideration of the foregoing authorities and reasoning I am
unable to agree with the conclusions upon this subject which the
Solicitor of the Treasury expresses in his opinions of September 1 and
December 4, 1900. The repugnancy which the Solicitor sees between
sections 4 and 101 of the Hawaiian act disappears, as he himself
suggests, upon the evident construction that section 101 applies and was
intended to apply only to those Chinese who were not citizens of the
Republic of Hawaii on August 12, 1898. In my opinion, considerations
drawn from the general Chinese-exclusion policy of the United States,
leading to the prepossession that this grant of privilege is difficult
to conceive or impossible to suppose, may not justly be invoked to
support a persuasion that Congress did not intend "to admit to the full
rights of citizenship a class of Chinese persons in a distant land who
if they had been domiciled in our midst could under no circumstances
ever have become citizens of the United States." Nevertheless this is
precisely what Congress did. And it must be observed on the suggestion
just quoted that while such Chinese persons being born in China would
not have been entitled entitled to naturalization in this country, on
the other hand, if born in the United States under a parental status, as
defined in the Wong Kim Ark decision, they would have been citizens of
the United States by birth through the force of that decision.
I do not think that the plain letter and meaning of the statute may
be overthrown by the reasoning upon which the Solicitor of the Treasury
relies, and I therefore answer both your questions in the affirmative,
assuming it to be conceded, however, on the facts stated by you, that
the Chinese persons in question, born and naturalized respectively in
the Hawaiian Islands, were in fact citizens of the Republic of Hawaii,
under the constitution and laws thereof, on August 12, 1898, and have
not since that date in any way abandoned or lost their rights as such.
I return herewith the inclosures of your letter.
Very respectfully,
JOHN W. GRIGGS.
WAR-REVENUE ACT-- BANKERS-- SURPLUS; 23 Op.Att'y.Gen. 341, December
27, 1900
The "undivided profits" or "profit and loss" accounts of banking
institutions are not taxable as surplus under section 2 of the
war-revenue act of June 13, 1898 (30 Stat., 448).
In enacting this law Congress meant to tax only the capital of a bank
in its strict technical sense under the banking laws; and in taxing
surplus, it meant the fund formally set apart by the authorized officers
of the bank as surplus, and not the undivided profits of the
institutions.
Opinion of February 4, 1899 (22 Opin., 320), reaffirmed.
DEPARTMENT OF JUSTICE,
December 27, 1900.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
June 7, 1900, in which you ask my opinion as to whether the "undivided
profits" or "profit and loss" account are taxable as capital and surplus
under section 2 of the act of June 13, 1898. It appears from you letter
that this question arises from two claims for refunds made respectively
by the Girard Trust Company and the Philadelphia Trust Company. In the
claim of the Girard Trust Company, the return shows that its capital is
$1,000,000, and its undivided profits, for 1898, were $2,635,298.99, and
for 1899, $2,617,439.74. In the claim of the Philadelphia Trust Company
the capital is given as $1,000,000, and the so-called profit and loss
account for 1898 was $2,157,325.84, and for 1899, $2,240,404, the two
last-mentioned amounts showing undivided profits to the amounts
mentioned.
You refer me to an opinion of this Department, dated February 4,
1899, in which I advised you that the section of the war-revenue act
above referred to had reference to "the capital of the bank and other
funds belonging to it, which, by law or the action of the bank
authorities, assumed the character of capital, and which the bank uses
in carrying on its business," and you ask whether the facts stated in
the present claims for a refund will "warrant the refunding of the
amount which these banks have paid on 'undivided profits' and in one
case and the 'profit and lott' account in the other case."
While the sentence from the opinion last quoted might seem to justify
the conclusion that undivided profits, or the profits represented by the
so-called profit and loss account, may "assume the character of capital"
and be taxable as such, or at least as surplus, yet the opinion as a
whole seems to me to negative such suggestion. The question then
submitted was as to whether the undivided profits of a national bank
were to be excluded from the capital and surplus of the bank in
estimating the amount of the special tax imposed by section 2 of the
war-revenue act, and this Department then reached the conclusion that
"the undivided profits of a bank are not surplus, and can not be
estimated under the law in question as a part of the bank's surplus."
The opinion defines the term surplus as "such amount as has been set
apart by a vote of the directors, or other authorized action of the
bank, to strength the capital." While in the sentence cited in your
reference is made to the "other funds" belonging to the bank "which by
law, or the action of the bank authorities, assumed the character of
capital, and which the bank uses in carrying on its business," yet the
expression "other funds" refers only to the surplus and the surplus had
already been defined as the amount formally set apart by action of the
board of directors, and, as has been shown, the opinion expressly
excluded undivided profits from such surplus.
As the general language used in the sentence from the opinion of
February 4, 1899, and quoted in your letter, has apparently lead to some
doubt in your mind as to whether undivided profits, if used as working
capital, become for purposes of taxation, either capital or surplus, I
have reexamined the question, and now reaffirm the opinion of February
4, 1899, as I have interpreted it. I am clearly of opinion that
Congress, in taxing capital, meant to tax only the capital of the bank
in its strict technical sense under the banking laws, and that, in
taxing surplus, it meant the fund formally set apart by the board of
directors as surplus in its restricted and technical sense in banking.
It is true that the word surplus, in its general and popular meaning,
would include undivided profits; for the excess of receipts over
disbursements is, in a certain sense, surplus or profits, but it could
be said, with equal force, that the profits of a bank are part of its
working capital if not distributed as dividends, and yet it can not be
contended that, for purposes of banking, undivided profits constitute a
part of the capital of a bank in the sense in which the word "capital"
is ordinarily and generally used. The national banking laws clearly
distinguish between surplus and undivided profits. By section 5199 of
the Revised Statutes, every national bank is prohibited from declaring
"an dividend until one-tenth part of the net profits of the preceding
half year have been carried to the surplus fund, until a surplus of
twenty per centum of the capital stock has been accumulated." In
determining whether the 20 per centum has thus been accumulated, it
could not be pretended that the undivided profits were to be added to
the fund formally known as surplus, and there is, therefore, a clear
distinction between such fund and undivided profits of a bank, for
nine-tenths of the profits may be excluded from the fund called
"surplus." It is clear, moreover, from the section cited that, in
addition to the capital, the bank must have the additional security of a
surplus of at least 20 per centum of the capital stock before dividends
are payable. This surplus fund, therefore, has the idea of permanence
and, while not capital in its restricted sense, yet "assumes the
character of capital." Undivided profits, however, have no necessary
permanence; the come to-day and may be gone to-morrow.
If the necessary surplus fund is in existence, the undivided profits are
immediately distributable among the stockholders in the form of
dividends. It is thus apparent that the word surplus means a distinct
and special fund, plainly recognized by statutes, and which must exist
independent of the fund called "undivided profits" as a condition for
the payment of dividends, and the Comptroller in requiring quarterly
reports from national banking institutions requires this distinction to
be observed. It is true that the present claimants are not national
banking institutions and have no "surplus" fund, but Congress did not
mean that the expression surplus should mean one thing when applied to
national banks and another when applied to State banking institutions or
trust companies. The only question, therefore, is whether Congress, when
it provided by section 2 of the revenue law of 1898, that bankers should
pay a special tax , and when it provided that, "in estimating capital,
surplus shall be included," meant surplus in the restricted and
technical sense with which Congress had used it in the national banking
laws and in which banking institutions of every kind use the term, or
whether Congress had reference to every form of excess of receipts over
disbursements, however evanescent and uncertain in character. The latter
construction would cause much confusion and uncertainty in the effort of
your Department to administer the law and would often lead to inequality
between banking institutions of the same class. Such construction should
be avoided. I am clear that Congress used the word surplus in its
technical and restricted sense, of a fund formally set apart and called
surplus by the authorized officers of the bank, and the previous opinion
of this Department, of February 4, 1899, is to be so understood.
Very respectfully,
JOHN W. GRIGGS.
CONSTRUCTIVE MUSTER; 23 Op.Att'y.Gen. 331, December 10, 1900
The first proviso of the act of February 24, 1897 (29 Stat., 593),
which provides for the constructive muster into the service of the
United States of certain persons who were appointed or commissioned to
be officers in the volunteer service during the rebellion, requires as a
basis of favorable action that there should have existed at the date
from which such person was to take rank a vacancy to which he could
legally have been appointed. No provision was made for the case of a
vacancy occuring after the date from which an officer was to take rank.
The word "vacancy" means a legal vacancy, one "to which he could be
appointed or commissioned" in accordance with the then existing law and
regulations.
The rank of an officer constructively mustered into the service under
the provisions of this act does not fluctuate with the changed
conditions of his command. He is such an officer de facto and de jure,
without limitation of time or condition, and is to be recognized as such
until he is promoted, dies, or is disposed of in some other manner
provided by law.
The third proviso requires that the command must not have been below
its minimum strength on the date from which he was to take rank by the
terms of his appointment.
The second proviso requires that a vacancy in the grade to which he
was appointed must have existed at the time of his appointment or
commission.
DEPARTMENT OF JUSTICE,
December 10, 1900.
The SECRETARY OF WAR.
SIR: I am in receipt of the note of the Acting Secretary of War, of
November 26, 1900, with its inclosures, requesting my opinion upon
certain questions therein referred to, and have the honor to reply.
The questions submitted have relation, mainly, to the construction to
be given to the act of February 24, 1897 (29 Stat., 593), and to the
recognition to be extended to certain army officers constructively
mustered into the service under the provisions of that act, and are as
follows:
(1) Does the first proviso of the act require that, as a basis for
favorable action in all cases, a vacancy should have existed at the date
from which a person was to take rank by the terms of his appointment or
commission, or will the occurrence of a vacancy on some subsequent date
satisfy the requirements of the law?
(2) Does the word "vacancy" as used throughout the act mean a legal
vacancy, i.e., one to which a person could have been appointed under the
existing law and regulations; or does ti mean a numerical vacancy,
i.e., an official position which was vacant but which could not be
filled at the time under existing law and regulations?
(3) Does the act require that a vacancy should have been continuous,
i.e., that it should have remained unfilled from the date on which an
officer is recognized as having been mustered into it until that officer
was actually promoted to a higher grade, was discharged from service,
died, or was otherwise disposed of as he would have been if he had
actually been mustered into service as of the grade in question? Or
does the act permit the recognition of a person for the period of a
temporary vacancy, or for the combined periods of two or more
disconnected vacancies? For instance, can a sergeant who was appointed
and commissioned a second lieutenant but not mustered as such, although
he performed the duties of the office from July 1 to 30, 1862, and
January 1 to 30, 1863, be recognized as a second lieutenant for those
periods, and as an enlisted man before, between, and after those
periods?
(4) Does the act require, in the case of a person appointed after
June 20, 1863, that the command shall have had the minimum strength on
the date from which such person was to take rank by the terms of his
appointment? Or can a person so appointed be recognized from the date
on which the command reached minimum strength, although it did not have
that strength on the date of his appointment or on the date from which
he was to take rank under it?
(5) Doest the act require, in the case of a person appointed after
June 20, 1863, that the command should have continuously maintained
minimum strength from the date on which recognition commences up to the
date on which the person was promoted to a higher grade, was discharged
from service, died, or was otherwise disposed of as he would have been
if he had actually been mustered into service as of the grade in
question? Or can a person be continuously recognized from the date on
which the command attained minimum strength, notwithstanding the fact
that such strength may not have been maintained continuously? Or must
it be held in such cases that recognition can be extended only for the
period or periods during which the command was above minimum strength?
(6) Does the condition as to the existence of a vacancy, imposed by
the second proviso of the act, require the existence of a vacancy at the
date of issue of an appointment or commission, or doest it require the
existence of a vacancy at the date fixed by the first proviso of the
act?
The act of February 24, 1897 (29 Stat., 593), the construction of
which is requested, is as follows:
"That any person who was duly appointed or commissioned to be an
officer of the volunteer service during the war of the rebellion, and
who was subject to the mustering regulations at the time applied to
members of the volunteer service shall be held and considered to have
been mustered into the service of the United States in the grade named
in his appointment or commission from the date from which he was to take
rank under and by the terms of his said appointment or commission,
whether the same was actually received by him or not, and shall be
entitled to pay, emoluments, and pension as if actually mustered at that
date: Provided, That at the date from which he was to take ranck by the
terms of his said appointment or commission there was a vacancy to which
he could be so appointed or commissioned, and his command had either
been recruited to the minimum number required by law and the regulations
of the War Department, or had been assigned to duty in the field, and
that he was actually performing the duties of the grade to which he was
appointed or commissioned; or if not so performing such duties, then he
shall be held and considered to have been mustered into service and to
be entitled to the benefits of such muster from such time after the date
of rank given in his commission as he may have actually entered upon
such duties:
Provided further, That any person held as a prisoner of war, or who may
have been absent by reason of wounds, or in hospital by reason of
disability received in the service in the line of duty, at the date of
issue of his appointment or commission, if a vacancy existed for him in
the grade to which so appointed or commissioned, shall be entitled to
all the benefits to which he would have been entitled under this act if
he had been actually performing the duties of the grade to which he was
appointed or commissioned at said date: Provided further, That this act
shall be construed to apply only in those cases were the commission
bears date prior to June twentieth, eighteen hundred and sixty-three, or
after that date when the commands of the persons appointed or
commissioned were not below the minimum number required by then existing
laws and regulations: And provided further, That the pay and allowances
actually received for the period covered by the recognition extended
under this act shall be deducted from the sums otherwise to be paid
thereunder.
"SEC. 2. That the heirs or legal representatives of any person whose
muster into service shall be recognized and established under the terms
of this act shall be entitled to receive the arrears of pay and
emoluments due, and the pension, if any, authorized by law, for the
grade to which recognition shall be so extended.
"SEC. 3. That the pay and allowance of any rank or grade paid to and
received by any military or naval officer in good faith for services
actually performed by such officer in such rank or grade during the war
of the rebellion, other than as directed in the fourth proviso of the
first section of this act, shall not be charged to or recovered back
from such officer because of any defect in the title of such officer to
the office, rank, or grade in which such services were so actually
performed.
"SEC. 4. That all acts and parts of acts inconsistent with the
provisions of this act be, and the same are hereby, repealed."
By its express terms, this acts applies only to officers whose
appointments or commissions are of date earlier than June 20, 1863, and
to cases of a later date "when the commands of the persons so appointed
or commissioned were not below the minimum number required by then
existing laws and regulations." The cases of dates earlier than June 20,
1863, will be first considered.
It will be observed at the outset, that the sole purpose of the first
section of the act is to provide, in the cases named, for a constructive
muster into the service, to take the place, and be in the stead of the
actual formal muster generally required by law and regulations, and,
when the law provides, as this one does, that a person "shall be held
and considered to have been mustered into the service of the United
States in the grade named in his appointment or commission," from a
certain date, such person, up on the happening of the contingencies
named, is, after said act, to be considered as mustered into such
service in that grade, to all intents and purposes, and with all the
incidents of such muster, and to have been as much an officer in that
grade as though actually and formally mustered in. The very object of
the section is to make the facts stated the equivalent of a formal
muster in, for the purpose of the recognition and benefits provided by
the act. It is not that he is to be considered as mustered in for some
purposes, but not for others. The language is general that he "shall be
held and considered to have been mustered into the service of the United
States, in the grade named," and this does not permit the interpretation
that he is thus mustered only for some purposes. Congress was quite
aware of the effects and incidents of a muster into the service of an
officer in a certain grade; and if it had not intended these effects
and incidents to follow the constructive muster it thus provided for,
doubtless it would have made other provisions. The importance of this
conclusion will be seen more especially as indicating the answer to some
of the questions submitted, as to the permanency of the recognition
given under this section.
What, the, are the conditions that must concur in order to the
constructive muster provided in this section?
Simply those named in the section, and those alone; for the act
deals only with the particular cases which it means. Whatever there is
on other cases making an equivalent of or substitute for actual muster,
fixing the status of an officer before or after muster, prescribing the
effects or incidents of such status or its continuance, is so by virtue
of other laws, regulations, or practice; and with such cases this act
does not deal, but, as already said, deals only with the particular
cases therein named.
Most of these requirements are plain and need no explanations, and
the others are fairly certain.
First. The first requirement of the first proviso is that "at the
date from which he was to take rank * * * there was a vacancy to which
he could be so appointed." Two questions are suggested as to this:
First, if there was no such vacancy at the date named, but there was one
shortly, or at a considerable time thereafter, may the officer be
considered as mustered from the date of such vacancy? And, second, is
the vacancy here mentioned a legal vacancy or a numerical one-- the
latter meaning where the number of officers allowed by law to a command,
is not full.
So far as any correct interpretation of the statute is concerned, the
first question must be answered in the negative. As is already said, the
act makes provision for only the particular cases it names, and it has
made no provision for the case of a vacancy occurring after the date
from which the officer was to take rank; and, by a familiar rule of
interpretation, where a statute states the facts or conditions upon
which another thing is to depend, this is exclusive of other facts or
conditions. And this conclusion receives mush support, if it be needed,
from the fact that, when Congress intended to provide for a case where
the specified condition first existed at a date later than that named,
it do so expressly, as in the case, in the same proviso, of an officer
entering upon the performance of his duties some time after the date
from which he was to take rank.
Had Congress intended the same thing in the same proviso in relation to
a vacancy, doubtless it would have said so in that case also.
But the proviso of the act of June 3, 1884 (23 Stat., 34), as to a
vacancy, is, as to this question, similar to the act of February 24,
1897; and I am informed that, under that act, it has been the practice
in your Department to recognize an officer as such from the date of a
vacancy occurring after his commission, although there was no vacancy
for him at the date of his commission. While I do not think this is a
correct interpretation of that act, yet if such practice existed it must
have been known and tacitly assented to by Congress. If such
construction were permissible under the earlier act, it might be also
under the present act; and, as stability of practice in that which
affects the status or grade of army officers is desirable, I am not
prepared to say that such practice, if it exists, should be
discontinued. Whether this should be done or not, is left to your
discretion. But, unless controlled by some existing practice, I do not
think that, as respects this requirement, an officer can be considered
as mustered unless there was a vacancy for him at the date from which,
by the terms of his appointment, he was to take rank.
As to the second question above, the vacancy mentioned is a legal
vacancy-- one "to which he could be appointed or commissioned" in
accordance with the then-existing law and regulations, one which might
then be filled consistently with existing laws and regulations.
Second. Then there is the requirement that the command to which he
was appointed, had either been recruited to the minimum number or
assigned to duty in the field. This requires no comment further than the
time here referred to is also the date from which the officer is to take
rank.
Third. And "that he was actually performing the duties of the grade
to which he was so appointed or commissioned." * * * This reference, in
the past tense, refers, as do the previous ones, to the date from which
he was to take rank, and the requirement is, that at that time, "he was
actually performing the duties of the grade to which he was so appointed
or commissioned."
But the language here used does not require that he should have been
then performing the duties of his grade in the particular command,
regimental or company, to which he was thus appointed. If he were at the
time performing the duties of that grade in any common, that satisfies
this requirement. The requirement is not that he shall have been in the
performance of the duties of the office to which he was appointed-- for
instance, colonel of the Sixty-seventh Regiment or captain of Company F
of that regiment-- but only that he was performing the duties of the
grade to which he was appointed. And this was also the case in the
remaining portions of this proviso relating to an officer being
considered as mustered from the time subsequent to that from which he
was to take rank, that "he may have entered upon such duties.
Fourth. While the first proviso makes the date from which the officer
is to take rank the time at which the conditions for his constructive
muster must exist, the second proviso changes this, as to the cases
there mentioned, and fixes "the date of issue of his appointment or
commission" as the time when, in the cases named, something other than
the actual performance of the duties of the grade shall take the place
of such performance, and provides that, in such cases the officer shall
be entitled to all the benefits of the act as if he had been actually
performing the duties of the grade "at that date," namely, the date of
his appointment. But he is entitled to this only in case "a vacancy
existed for him" in that grade at the time of his appointment. And this
vacancy is the same legal vacancy referred to earlier in the act, and is
one to which, consistently with the then laws and regulations, such
officer could have been appointed. But here, also, with reference to the
time when this vacancy must have existed in order to entitle the officer
to the benefits of the act, I hesitate to disturb an existing practice
of you Department, if there be any upon the subject, and refer to what I
have already said upon this subject.
Fifth, The third proviso limits the provisions of the act to cases
where the commission bears date prior to June 20, 1863, or those "after
that date when the commands of the persons appointed or commissioned
were not below the minimum number required by then-existing laws and
regulations."
The language of this proviso is peculiar. In the first part it limits
the application of the act to cases of "commissions," and in the latter
part speaks of persons "appointed or commissioned." All through the act
it speaks of "appointments or commissions," and makes provision for both
as though there might have been-- as doubtless there might-- valid
appointments not evidenced by any formal commission; and, by the
express terms of the act, it applies as well to persons "appointed" as
to those "commissioned." But the first part of this proviso would forbid
the application of any part of the act to persons merely "appointed,"
and thus contradict and nullify what is before expressly enacted, unless
we read it as including persons "appointed, or commissioned," as in the
other portions of the act, and this, I think is its proper construction.
Read in this way, the third proviso limits the application of the act
to the cases thereinbefore stated, where the appointments or commissions
bore date before June 20, 1863, and to those of a later date when the
commands of the persons appointed or commissioned were not below the
minimum number required.
The office of this proviso is to limit the application of the act to
the cases named in the proviso. It does not make any change in the
terms, conditions, or requirements of the previous portions of the act;
nor does the latter portion refer to any different time from that
previously stated with reference to the same matter. Hence, the time
here referred to, when the command must not be below the minimum
strength, is the date from which the officer entitled to the benefits of
the act under its previous provisions, and this may be, in one case, the
date from which he is to take rank as in the first proviso; or, in
another case, the date of issue of his appointment or commission, as in
the second proviso. And the second proviso changes the conditions and
requirements of the first only in so far that it makes imprisonment,
absence by reason of wounds, or being in the hospital because of
disability received in the service in the line of duty, the equivalent
of or substitute for being engaged in the performance of the duties of
his grade at the date of his appointment.
But, with reference to the time when the command must have been of the
minimum strength, as stated in the latter portion of the third proviso,
I refer also to what I have already said as to any practice in your
Department of giving recognition to an officer otherwise entitled, from
a date after that ofhis appointment, when his command has regained its
minimum strength.
Sixth. The remaining questions submitted relate to the continuance or
permanency of the recognition to which an officer may be entitled under
this act, and the answer is indicated in what I have already said. When
an officer is duly appointed or commissioned and mustered into the
service in a certain grade, he is, to all intents and purposes, such
officer defacto and de jure with all the incidents of such office, one
of which is, that he can not be removed from office except in accordance
with law, or regulations having the force of law; and when a statute,
speaking of an antecedent date, says that such duly appointed or
commissioned officer, who in fact lacks nothing but muster in to be such
officer de jure, shall be thereafter held and considered to have been
mustered in from a certain date, it in effect says that he shall be held
and considered as such officer from that date, and with all the
incidents of such office. Of course, such a statute can not relate back
so as to make one actually an officer at the date named, who was not one
at that date; but the statute, speaking in the present and future
tense, may sa, as this statute in effect does say, that now and
hereafter such person shall be held and considered as such officer, and,
when this is said without qualification, the meaning is as broad as the
language, and is that he shall be at all times to and considered while
or during the time of the existence or continuance of the conditions
named, but says that he shall be so held and considered without any
limitation whatever of time of conditions, and therefore we can not
attach any. If this were otherwise, then, in the case, for example, of a
sergeant appointed lieutenant January 1, 1862, in a company which on
February 1 was reduced below the minimum and regained it on March 1, we
might have the legally impossible anomaly of the same person a
lieutenant for one month, an enlisted man for the next, and a lieutenant
after, and all with but one appointment.
This can not be. The status or grade of an officer does not fluctuate
with the changes of his particular command, nor does the recognition of
such officer under the act in question; but just as in the case of an
officer actually mustered, he is to be recognized as of that grade until
he is promoted to a higher, dies, is discharged from the service, or
disposed of in some other way provided by law.
Respectfully,
JOHN W. GRIGGS.
ATTORNEY-GENERAL-- OPINION; 23 Op.Att'y.Gen. 330, December 6, 1900
Under the rules regulating the opinions of the Attorney-General, it
is necessary that the question of law presented should rest upon some
case actually arising in the administration of a Department, and that it
should be accompanied by a statement or finding of the facts involved.
DEPARTMENT OF JUSTICE,
December 6, 1900.
The SECRETARY OF THE TREASURY.
SIR: You letter of December 3 brings to my attention the apparent
conflict between section 3074, Revised Statutes, and section 13 of the
act of June 10, 1890, so far as affecting the proper method of appraisal
of merchandise duly entered and subsequently seized as subject to
forfeiture for violation of section 32 of the act of July 24, 1897, at
ports where there is but one United States appraiser; and thereupon you
request my opinion upon the question whether at such ports it is
necessary to appraise merchandise seized under section 32 aforesaid in
accordance with the provisions of section 3074, Revised Statutes,
notwithstanding the directions of section 13 of the act of June 10,
1890.
I regret that I am obliged to decline compliance with your request,
for the reason that under the rules regulating the opinions of the
Attorney-General it is necessary that the question of law presented
should rest upon some case actually arising in the administration of a
Department, and that it should be accompanied by a statement or finding
of the facts involved. (3 Opin., 421; 13 Opin., 332; 21 Opin., 506,
510; 22 Opin., 77.)
Very respectfully,
JOHN W. Griggs.
SCHOOL-HOUSES-- PORTO RICO; 23 Op.Att'y.Gen. 329, December 5, 1900
The act of April 12, 1900 (31 Stat., 77), entitled "An act
temporarily to provide revenues and a civil government for Porto Rico,"
etc., does not repeal, either expressly or by implication, and is not
inconsistent with, the act of March 24, 1900 (31 Stat., 51), which
appropriates, for the benefit and government of Porto Rico, the revenues
collected on importations therefrom prior to January 1, 1900.
The President may lawfully direct that a portion of the latter
appropriation be used for the purpose of erecting and equipping
schoolhouses in that island.
DEPARTMENT OF JUSTICE,
December 5, 1900.
The PRESIDENT.
SIR: I have the honor to acknowledge receipt of your request that I
would examine the communication addressed to you by the commissioner of
education of Porto Rico, under date of November 24, 1900, and the
request of the governor of Porto Rico and other officers of that
government, of the same date, that you allot from the fund provided for
in the act of March 24, 1900, the sum of $200,000 for the extension of
public education in Porto Rico, to be made available for the purpose of
building and equipping school-houses in different sections of the
Island, and in accordance with your request that I advise you as to the
legality of such desired action on your part, I have the honor to
report:
The act of March 24, 1900, above referred to, directed that the sum
of $2,095,455.88 should be placed at the disposal of the President, to
be used for the government then existing or which might thereafter be
established in Porto Rico, and for the aid and relief of the people
thereof, and for public education and public works and other
governmental and public purposes therein, until otherwise provided by
law.
Subsequently to the passage of the act referred to, Congress passed
the act of April 12, 1900, entitled "An act temporarily to provide
revenues and a civil government for Porto Rico, and for other purposes."
There is nothing contained in the latter act which, expressly or by
implication, repeals the appropriation made by the act of March 24, nor
is there anything in the temporary government act inconsistent with the
provisions of the prior act. Indeed, the act of March 24 looked forward
to a time when another form of government should be established in Porto
Rico, as was subsequently done, and expressly provided that the money
appropriated should be used for such government thereafter to be
established.
The object of the present requisition is within the terms of the act
of March 24. It is for public education, which is one of the specific
purposes enumerated. In my judgment, it is lawful for you to make an
order appropriating and disposing of money out of this appropriation for
the purpose of building and equipping school-houses in the Island of
Porto Rico. Such appropriation would be paid over to the treasurer of
the Island, and then be expended in conformity to the local laws of
Porto Rico governing the building and equipping of school-houses.
Very respectfully,
JOHN W. GRIGGS.
NAVAL Officers-- promotion; 23 Op.Att'y.Gen. 324, November 23, 1900
The expression, "wounds received in the line of his duty," found in
section 1494, Revised Statutes, which provides for the promotion of
officers of the Navy whose physical disqualifications do not
incapacitate them for other duties, means precisely what it says--
namely, wounds received in the line of duty-- and is not restricted to
any particular part of that duty, as to wounds received in battle or in
some hazardous enterprise.
An officer thus disqualified for sea duty, is eligible for promotion
if his wounds do not incapacitate him for other duties in the grade to
which he seeks promotion.
The words "other duties," in section 1494, Revised Statutes, refer to
duties other than duties at sea.
DEPARTMENT OF JUSTICE,
November 23, 1900.
The SECRETARY OF THE Navy.
SIR: I have the honor to acknowledge the receipt of your note of
November 15, 1900, inclosing a memorandum to your Department from the
Chief of the Bureau of Navigation, in which you ask my opinion whether
Mr. George Mullison, lieutenant (junior grade), U.S.N., is eligible for
promotion to lieutenant under the provisions of Revised Statutes,
section 1494.
The main facts as stated, are these:
Mr. Mullison in 1895, while on duty as an ensign on shipboard, was
seriously injured by the parting of an anchor chain, necessitating
amputation of a leg. As a result, he has since been unable to perform
any of the duties of his profession except on shore. Subsequently on
passing the required examination, he was promoted, under section 1494 to
the grade of lieutenant (junior grade); and the question is, whether he
is eligible for further promotion under this section.
Revised Statutes, sections 1493 and 1494, are as follows:
"SEC. 1493. No officer shall be promoted to a higher grade on the
active list of the Navy, except in the case provided in the next
section, until he has been examined by a board of naval surgeons and
pronounced physically qualified to perform all his duties at sea.
"SEC. 1494. The provisions of the preceding section shall not exclude
from the promotion which he would otherwise be regularly entitled any
officer in whose case such medical board may report that his physical
disqualification was occasioned by wounds received in the line of his
duty, and that such wounds do not incapacitate him for other duties in
the grade to which he shall be promoted."
Two questions are here involved: First, whether, as claimed by the
Bureau of Navigation, the "wounds" referred to in section 1494 are those
only received in battle or in some hazardous enterprise in the line of
official duty, or include wounds otherwise received in the line of duty;
and second, whether an officer thus incapacitated for duty on shipboard
is yet eligible for promotion if his wounds do not incapacitate him for
other duties of his profession in the grade to which he seeks promotion.
As To the first question, I am clearly of opinion that the expression
referred to in section 1494 means precisely what it so plainly says,
namely, "wounds received in the line of his duty," and is not restricted
to wounds received in any particular branch or portion of that duty.
Whatever reasons may have existed for making or not making a
distinction, in that regard, between wounds received in battle or some
other hazardous enterprise, and those otherwise received in the line of
duty, it quite suffices that the statute has made no such distinction,
and therefore we can make none. The statute is plain and unambiguous,
and therefore neither calls for nor admits of construction. It must be
read as it is written.
As to the second question, the meaning of the law is little less
certain when both sections are read together, as they must be. Section
1493 provides that, except in the cases mentioned in the next section,
"no officer shall be promoted to a higher grade on the active list of
the Navy" until he has been "reported physically qualified to perform
all his duties at sea."
Then section 1494 provides that through an officer be disqualified by
reason of "wounds received in the line of his duty," for certain
services, this shall not exclude him from promotion if "such wounds do
not incapacitate him for other duties in the grade to which he shall be
promoted."
Here is a case of "physical disqualification" for certain kind of
duties, but which does not "incapacitate him for other duties."
What, then, are the duties for which the officer is disqualified, and
what are the duties for which he is not incapacitated? When we read the
two sections together, the answer is plain. He is "disqualified to
perform all his duties at sea," as mentioned in section 1493, but he is
not incapacitated for the "other duties" mentioned in section 1494.
Reading both sections together, it is plain that the "other duties"
referred to are those other than "duties at sea," for there is nothing
else to which these words can refer. We have, then, the plain case of an
officer disqualified for "duties at sea," but not incapacitated for
"other duties," and this is just the case in which the statute says the
officer may be promoted.
Indeed, I understand that the decisions and practice of your
Department have been long and uniformly in accordance with the views
thus expressed.
In 1868 Passed Assistant Engineer Cooper lost a leg from having it
crushed in machinery while on duty on shipboard. Though incapacitated
for sea service, he was afterwards promoted, under this section 1494,
and performed satisfactorily the shore duties to which he was assigned.
In November, 1877, he was ordered before a retiring board, which found
that he was no incapacitated for active service, in the meaning of the
law, and, therefore, did not recommend him for retirement. Upon the
record of these proceedings President Hayes made this indorsement:
"This report and finding are approved. Mr. Cooper will not be retired."
This could have been only upon the ground that the officer, though
disqualified for "duties at sea," was not incapacitated for the "other
duties" mentioned in section 1494.
In 1895 Assistant Engineer Walter S. Burke, U.S.N., while on duty on
shipboard, had his arm crushed in the machinery, resulting in amputation
of the forearm. In August, 1896, upon examination for promotion, the
board found that, solely from the facts above stated, he was
disqualified for the performance of his duties at sea, but that he was
not incapaciated for the other duties of his profession in the grade to
which he sought to be promoted, and Mr. Burke was promoted accordingly.
A later case is that of Ensign Wilfred V. Powelson, U.S.N., who, in
1898, was so seriously injured in both legs, by falling through a hatch,
as to be physically disqualified for duty on shipboard, yet he was,
under this section, 1494, promoted to lieutenant (junior grade), the
board having found that his wounds did not incapacitated him for other
duties in that grade.
These cases sufficiently indicate the construction given by your
Department to these sections, and its practice thereunder; and I think
they are correct. Such decisions and practice should not be departed
from in the case of a particular officer, unless they are clearly wrong
or detrimental to the service, even if there were doubt as to their
correctness.
It is urged by the Bureau of Navigation that, while the promotion of
Ensign Mullison to lieutenant (junior grade) did not interfere with the
claims of any other officer for promotion, yet, as the number of
lieutenants in the Navy is limited by law, his promotion to that grade
would interfere with the claims of other officers. Doubtless it would,
and so, and to the same extent, would his promotion, if he were not
wounded. Where the number of officers of a certain grade is limited and
can not be exceeded, the promotion to that grade of one of several
equally eligible necessarily interferes with the claims of the others;
but it is not perceived that it does so any the more in case the officer
promoted is incapacitated, by wounds in the line of his duty, for all
the duties of that grade.
The real objection, if there by any, to the promotion of an officer
physically disqualified for duty on shipboard, is one which the Navy
Department or the Government, but not an expectant officer, however
deserving, might make, and that is that such promotion would, to a great
extent, prevent the service from receiving in that grade all the benefit
it would receive from the service of a sound man; and, as the number of
such officers is limited, the whole may be required for sea duty, and
the filing of one or more vacancies by promotion of men fit for shore
duty alone, might be detrimental to the service.
I am not called upon to express any opinion respecting these matters.
If the statute under consideration was ambiguous, and if it were clear
that such promotion of officers who are capable of only shore duty was
seriously detrimental to the service, this might be a reason for giving
another construction, if possible, to these sections. But the statute is
not ambiguous; and no rule of interpretation permits us to do violence
to its plain terms, in order to avoid what is, at best, only a remote
possibility, and one which Congress could not have overlooked in framing
these sections; and one which has not been a serious menace to the
service in the thirty and more years since this legislation was enacted.
But, all these considerations are exclusively in the discretion of
Congress. If it shall be found that, under existing laws and practice,
the number of officers of a certain grade, fit for sea duty, is not
adequate to the requirements of that branch of the service, Congress may
correct the evil by either increasing the number or requiring full
qualification in order to promotion.
But there are various duties other, and no less important, than those
on shipboard; and these, under existing regulations, must be performed
by officers of various grades. This being so Congress may well fill
these places from meritorious officers whose wounds received in the
service have incapacitated them for active duty at sea, and provide for
their promotion, in due course, as it has done. There is no reason why
an officer, wounded in the service, should not be promoted, as well as
his more fortunate brother, if there are duties in the higher grade
which he can satisfactorily and sufficiently perform; and this is
recognized in the sections under consideration.
Your question is therefore answered in the affirmative. Mr. Mullison
is, under the facts stated, eligible for promotion.
As requested, I return herewith the memorandum transmitted with your
note.
Respectfully,
JOHN W. GRIGGS.
FREE REGISTRY OF OFFICIAL Mail-- executive DEPARTMENT; 23 Op.Att'y.
Gen. 316, November 12, 1900
The second proviso of the third section of the act of July 5, 1884
(23 Stat., 158), which authorizes the registering without the payment of
a registry fee of any official letter or packet, by either of the
"Executive Departments, or Bureaus thereof," embraces a department
officer who, in the course of public business, is called temporarily to
discharge his official duties at some place away from the seat of
government; but such words do not embrace examiners, special agents,
inspectors, etc., of the various departments, who are located at points
outside of Washington, or are traveling throughout the country.
The opinion of Attorney-General Devens, of May 16, 1877 (15 Opin.,
262), commented on; and the opinion of Acting Attorney-General
Phillips, of August 2, 1884 (18 Opin., 49), affirmed.
DEPARTMENT OF JUSTICE,
November 12, 1900.
The POSTMASTER-GENERAL.
SIR: I have the honor to acknowledge the receipt of your letter of
October 15, 1900, in which you ask me to advise you whether official
mail matter can be registered elsewhere than at Washington without the
prepayment of the regular registry fee, under the provisions of the act
of July 5, 1884 (23 Stat., 158), which provides as follows:
Provided further, 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.
You state that your Department has always regarded that the free
registration of official mail matter by public officers was confined to
those located in the Executive Departments as Washington and to the
Public Printer, with the exceptions specifically authorized by Revised
Statutes 3927 and the acts of August 15, 1876 (1 Supp. R.S., 119), and
March 3, 1899 (30 Stat., 1021).
You also inclose a communication from the Acting Secretary of
Agriculture, dated the 1st ultimo, and a letter from the Chief of the
Division of Soils of the Department of Agriculture, dated September 28,
in which the question is raised by a matter now pending in your
Department. It seems from these inclosures that a field agent of the
Department of Agriculture had occasion to mail some valuable records of
the Department of Agriculture, and he sought to register them at some
post-office in New Mexico. The postmaster at the point of mailing
demanded payment of 8 cents for registration fee, and the field agent
paid it and included such disbursement in his account of expenses, and
the said payment was disallowed by the disbursing officer of the
Department of Agriculture, on the ground that official matter should be
registered without charge. The letter further states that the officers
of the Department of Agriculture have numerous occasions to register
matter, and that free registration thereof has been refused by
postmasters elsewhere than in Washington, under departmental directions
to demand prepayment for registration except in the case of census
matter.
Before answering your inquiry, let me first quote the statutes
bearing upon the matter of the free use of the mails by officers of the
Government, and the opinions of this Department with reference to the
extent of such privilege. Section 3915 of the Revised Statutes
provides--
"The Postmaster-General shall cause to be prepared a special stamp or
stamped envelope, to be used only for official mail matter, for each of
the Executive Departments; and said stamps and stamped envelopes shall
be supplied by the proper officer of said Departments to all persons
under its direction requiring the same for official use; and all
appropriations for postage made prior to March 3, 1873, shall no longer
be available for said purpose; and all stamps and stamped envelopes
shall be sold or furnished to said several Departments or clerks only at
the price for which stamps and stamped envelopes of like value are sold
at the several post-offices."
By the act of March 3, 1877, an act entitled "An act establishing
post-roads, and for other purposes" (19 Stat., chap. 103, p. 319), it is
provided--
SEC. 5. 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.
SEC. 6. That for the purpose of carrying this act into effect, it
shall be the duty of each of the Executive Departments of the United
States to provide for itself and its subordinate offices the necessary
envelopes; and in addition to the indorsement designating the
Department in which they are to be used, the penalty for the unlawful
use of these envelopes shall be stated thereon.
Following this act of Congress was the opinion of Attorney-General
Charles Devens, dated May 16, 1877, which held--
"That the word 'Department' here means Executive Department is
indicated by the language employed in the next section, requiring 'each
of the Executive Departments' (for the purpose of carrying the law into
effect) 'to provide for itself and its subordinate offices the necessary
envelopes;' and that the words 'bureau or office' mean a bureau or
office in such Executive Department is to be implied from the
requirement that the name of the Department shall appear on the letter
or package with that of the office or bureau.
"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 or offices in any of these Departments
which are constituted such by the law of its organization. The
Department, with its bureaus or offices, is in comtemplation 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 later;
but this does not make the office a part of the Department.
"As, then, the words 'bureau or office,' employed in the proviso, are
to be taken to signify a bureau or office in any of those Departments,
such bureau or office must be of the same locality, established at the
seat of government. The phrase 'subordinate offices,' occurring in the
next section, does not enlarge the signification of those words, but is
to be understood as referring to offices of the same description as are
included thereby." (15 Opin., 262-267.)
Subsequently, Congress passed the act approved July 5, 1884, being
"an act making appropriations for the service of the Post-Office
Department," etc. (23 Stat., 158), by which it is provided:
SEC. 3. That section twenty-nine of the act of March third, eighteen
hundred and seventy-nine (20 Stat., 362) be and it is hereby, amended so
as to read as follows:
"The provisions of the fifth and sixth sections of the act entitled
'An act establishing post routes, and for other purposes' approved March
third, eighteen hundred and seventy-seven, for the transmission of
official mail matter, be, and they are hereby, extended to all officers
of the United States Government, not including members of Congress, the
envelopes of such matter in all cases to bear appropriate indorsements
containing the proper designation of the office from which or officer
from whom the same is transmitted, with a statement of the penalty for
their misuse. And the provisions of said fifth and sixth sections are
hereby likewise extended and make applicable to all official mail matter
of the Smithsonian Institution: Provided, That any Department or
officer authorized to use the penalty envelopes may inclose them with
return address to any person or persons from or through whom official
information is desired, the same to be used only to cover such official
information, and indorsements relating thereto:
Provided further, 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, but where there is good reason to believe the omission to prepay
the full postage thereon was intentional, such letter or packet shall be
returned to the sender: Provided further, That this act shall not
extend or apply to pension agents or other officers who receive a fixed
allowance as compensation for their services, including expenses of
postage. And section thirty-nine hundred and fifteen of the Revised
Statutes of the United States, so far as the same relates to stamps and
stamped envelopes for official purposes, is hereby repealed."
In view of this act, the Secretary of the Treasury on August 1, 1884,
requested the opinion of this Department as to whether the second
proviso, providing for the free registry of "letters and packets,"
applied elsewhere than at the post-office at the seat of government.
Replying to this question, Acting Attorney-General S. F. Phillips said:
"Understanding a 'Department' as not extending to certain officers of
the Government-- such, for instance, as are excluded specifically and by
name in the opinion of the Attorney-General addressed to the
Postmaster-General May 16, 1877-- I advise you that a 'Department'
officer who, in the course of public business, is called temporarily to
discharge his official duties at some place away from the seat of
government, during such absence and for such duties comes within the
meaning of the words 'Executive Department or bureaus thereof,' as used
in the proviso to which you call attention; and therefore, if required
by such discharge to make use of the facilities of registry, may do so
without the payment of any fee."
This Department, in the opinion just quoted, recognized the scope of
its prior decision as to the restriction of postal privileges to
officers to the Government located in the city of Washington, but so far
qualified that decision as to say "that the exigencies of public
business often require that officers strictly departmental shall pass to
some other part of the country for its transaction.
Where such transaction is itself valid, it may be done with the aid of
any help thereto that Congress has devised therefor, in general terms,
as has been done here."
By an act approved May 21, 1890 (26 Stat., 116), it is provided "that
all mail matter, of whatever class, relative to the census and addressed
to the Census Office, to the Superintendent of Census, his chief clerk,
supervisors, or enumerators, and indorsed 'official business, Department
of the Interior, Census Office, Registered,' shall be transported free
by registered mail."
You state in your letter that "ruling of Acting Attorney-General
Phillips would apply to a large number of officers who are denominated
as examiners, special agents, inspectors, etc., of the various
Departments, who are located at points outside of Washington, or are
traveling throughout the country; and if they were accorded the
unlimited use of the registry system, they would probably resort thereto
in many cases where it is unnecessary, and thereby the practice would
become burdensome to the Department."
I do not understand the opinion of Acting Attorney-General Phillips
to go to the length thus suggested. On the contrary, I understand him
generally to affirm and follow the position theretofore taken by this
Department in the opinion of Attorney-General Devens, with this
modification only, that, if an officer of an executive department, or
bureau, whose permanent and official location is in Washington, whould
be called by the exigencies of public business to leave Washington, he
should not be denied, for the purposes of official business, the
privilege of free registry at points elsewhere than at the seat of
Government. I do not understand him to mean that subordinate officers of
the Government, who are permanently and regularly located elsewhere than
in Washington, have the privilege of free registration, and therefore
his opinion should not be understood, as suggested in your letter, to
apply to "examiners, special agents, inspectors, etc., of the various
departments, who are located at points outside of Washington, or are
traveling throughout the country."
It does apply to one "traveling throughout the country," provided that
his regular official office is at the seat of Government and that he has
temporarily left it on official business, and that the matter
transmitted by registered mail relates to the business of his office at
Washington. In other words, the Acting Attorney-General simply meant
that the mere fact that an officer whose regular office is at Washington
is required by public business to go to some other part of the country,
does not make him less entitled to a privilege as to official business,
which he would enjoy if at Washington. The opinion was expressly limited
to "a department officer, who in the course of public business, is
called temporarily to discharge his official duties at some place away
from the seat of Government." If, for example, the Comptroller of the
Currency had occasion to visit the city of New York in connection with
an insolvent national bank, and had occasion while there to transmit
important documents to his officer at Washington, he would be entitled
to register such matter at the post-office of the city of New York with
the same freedom as at the post-office of the city of Washington. But I
do not understand the opinion referred to to apply, for example, to a
pension agent in the city of New York, who is not temporarily, but
permanently, located elsewhere than at the seat of Government.
Had not this Department, in the opinion referred to, reached the
conclusion that this proviso in the act approved July 5, 1884, had a
more restricted application than the act itself, I should have felt
considerable doubt as to its true construction. The purpose of the act
was to extend and not to restrict the privileges of the mail. It
practically nullified the opinion of Attorney-General Devens by
extending the privilege of the free delivery of mail matter to all
officers of the Government, without regard to the location of their
offices. Did Congress intend to make the privilege of free registration
less than that of free mailing? Congress was evidently of opinion, with
reference to the ordinary mailing of matter free of postal charges, that
no sound reason existed why an official letter addressed by an officer
of the Government from New York to Washington should be made subject to
postal charges, while a similar letter, upon the same business, and sent
from Washington to New York should be sent free.
Similarly, there is some force in the suggestion that Congress may have
intended that the right of free registration by officers of the
Government should not depend upon their location in Washington, but upon
the nature of the office and the character of the business; and this
doubt was evidently in the mind of Acting Attorney-General Phillips when
he said that while the departments are "regardant as to Washington, yet
it seems that such quality is not absolute for all purposes."
The only consideration which seems to lead to a different conclusion
is that, in phrasing the proviso, Congress omitted the word "officers"
and returned to expression "Executive Departments or bureaus thereof,"
to which Attorney-General Devens, in the opinion already quoted, had
given an official construction. It is, therefore, not unreasonable to
suppose that by this choice of words Congress meant that, while the
privilege of ordinary mailing should be extended by the act of 1884 to
all officers, yet the free registration of official matter should be
confined to the Executive Departments or bureaus, which Attorney-General
Devens had construed to include such only as were "established at the
seat of Government." This conclusion is also sustained to some extent by
the supplementary legislation referred to in your letter, although, in
my judgment, it is not entirely convincing. As your Department has,
since the act of 1884, acted upon the latter construction of this
proviso, and as such construction was given to it by this Department in
the opinion of Acting Attorney-General Phillips, I prefer to adhere to
it, notwithstanding some doubt as to whether the proviso may not have a
more extended application.
The conclusion which he reached, therefore, that "a department
officer who, in the course of public business, is called temporarily to
discharge his official duties at some place away from the seat of
Government," during such absence and for such duties comes within the
meaning of the words "Executive Departments or bureaus thereof," is
hereby affirmed.
Very respectfully,
JOHN W. GRIGGS.
MEMBERS OF THE GENERAL BOARD OF ARBITRATION; 23 Op.Att'y.Gen. 313,
November 7, 1900
The members of the general arbitration board provided for by the
treaty of The Hague, who are to be appointed by the President, are not
officers of the United States whose appointments require confirmation by
the Senate.
Nor are they, in the ordinary acceptation of the term, persons
holding office. Their work is not only occasional, but contingent upon
an appointment by foreign powers to act as arbitrators in the settlement
of disputes between the nations so appointing them.
DEPARTMENT OF JUSTICE,
November 7, 1900.
The SECRETARY OF STATE.
SIR: I have received your request for an opinion, dated the 16th
instant, reading as follows:
"I will be obliged if you will give me your opinion as to whether the
members of the general arbitration board provided for by the treaty of
The Hague, who are to be appointed by the President, are officers of the
United States within the meaning of the Constitution, and as such
require to be nominated to and confirmed by the Senate."
The convention referred to by you as the treaty of The Hague was made
by the President and other chiefs of governments, at the conclusion of
an international conference proposed by the Czar of Russia, whose
principal object was to secure a reduction of the armaments of the
European powers.
Nearly all of the countries of Europe, and several others, were
represented at the conference by persons named by persons named for that
purpose, the President naming Andrew D. White and others, and most of
the delegates signed a series of articles concerning the arbitration of
international disputes which might arise in the future.
Among those articles I find the following language, which gives us
some general idea of the arbitration board to which you refer:
"With the end of facilitating the immediate recourse to arbitration
for international differences which fail fo diplomatic adjustment, the
signatory powers agree to organize a permanent court of arbitration,
accessible at all times and proceeding, in the absence of a contrary
stipulation of the parties, conformably to the rules of procedure
inserted in the present convention.
"The permanent court shall be competent for all cases of arbitration,
at least where there is no agreement between the parties for the
establishment of a special arbitral jurisdiction.
"Each signatory power will designate, within three months after the
date hereof, four persons at most, of a recognized competency in
questions of international law, enjoying the highest moral consideration
and willing to accept the functions of arbitrators.
"The persons so designated shall be inscribed, with titles, as
members of the court, on a list which shall be notified by the Bureau to
all the signatory powers.
"The members of the court are named for a term of six years.
"When the signatory powers wish to address themselves to the
permanent court for the arrangement of a difference arisen between them,
the choice of arbitrators called to form the tribunal competent to pass
upon that difference is to be made from the general list of members of
the court.
"The powers that have recourse to arbitration sign a special document
(compact), in which are briefly determined the objects of the delegation
as well as the extent of the powers of the arbitrators. The document
implies the engagement of the parties to submit in good faith to the
arbitral sentence."
The members of the arbitration board, or persons whose names are to
be placed upon the list above referred to, do not seem to me to be
officers of the United States in the ordinary acceptation of the phrase.
They are not expected to exercise any part of the sovereignty of the
United States; they are not expected to perform any functions in the
Government of the United States; they are not expected to attend to any
business such as would naturally be called business of the United
States. They are to serve, or they may possibly be called upon to serve,
when actually employed, two foreign nations that may select them and
authorize them to settle a dispute between those two nations.
Nor are they, in the ordinary acceptation of the term, persons
holding office. Nominally they may be appointed for six years, but they
may never actually exercise any functions at all. Their work is not only
occasional, but contingent upon what is practically an appointment to
act as arbitrators, to be received from foreign powers in the future.
While a treaty may be a law, and while it is unnecessary to assert
that no offices can be established by treaty within the meaning of
Article II, section 2, of the Constitution, yet it seems probable that
that section, in speaking of offices "which shall be established by
law," and adding that "Congress may by law vest the appointment of such
inferior officers, etc.," uses the word "law" rather in the sense of a
Congressional statute passed in pursuance of the power given to Congress
to pass all laws which shall be necessary to carry into effect the other
granted powers.
For these reasons, and others set forth in the opinion furnished you
on the 18th of August, 1898, concerning the appointment of Hon. William
L. Putnam as one of the two commissioners under the convention of
February 8, 1896, concerning claims growing out of seizures of vessels
in Bering Sea, I am of opinion that the members of the general
arbitration board are not officers whose appointment requires to be
confirmed by the Senate.
Respectfully,
JOHN W. GRIGGS.
CUSTOMS LAWS-- COWS-- HOUSEHOLD EFFECTS; 23 Op.Att'y.Gen. 310,
October 22, 1900
The term "household effects" as used in paragraph 504 of the act of
July 24, 1897 (30 Stat., 196), properly includes cows when kept for
household use.
That term includes not only those things necessarily kept within the
house, but comprises everything that contributes to the use or
convenience of a householder or ornament of the house.
The Attorney-General recommends that the ruling heretofore adopted by
the Treasury Department that cows are not "household effects," be
changed to hold that they are such effects.
DEPARTMENT OF JUSTICE,
October 22, 1900.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your note
October 10, 1900, in which you call my attention to section 2 of the act
of March 3, 1876 (18 Stat., 469), which directs, in substance, that no
ruling or decision of the Secretary of the Treasury giving construction
to any law imposing customs duties, shall be reversed or modified
adversely to the United States by that or any succeeding Secretary,
unless upon the opinion of the Attorney-General, recommending the same;
and the facts, to which this is apropos, you state substantially thus:
In 1887 your Department decided that "cows are not embraced in the
category of 'household effects,' which, by law, are free of duty," and
that, subsequently, the Board of United States General Appraisers has
decided that horses and dogs are "household effects," so that "the
question is not likewise classifiable as such effects," and you desire
my opinion whether, in view of these decisions, the former ruling of
your Department should not, as to cows, be changed.
Paragraph 504 of the act of July 24, 1897 (30 Stat., 196), provides
that--
"Books, libraries, usual and reasonable furniture, and similar
household effects of persons or families from foreign countries, all the
foregoing if actually used abroad by them not less than one year, and
not intended for any other person or persons, nor for sale"--
are, when imported, exempt from duty, and the question is whether
cows kept for household use, and under the circumstances stated in the
paragraph quoted, are embraced in this classification.
The legal meaning of the terms "furniture," "household furniture,"
"household goods," "household effects," etc., as stated in various
decisions and text-books, is much broader and more comprehensive than is
the popular idea of the meaning of those terms. For example, in England,
as early as 1763, it was held in Kelly v. Powlet (2 Ambler's Rep., 605)
that--
"Household furniture has as general meaning as possible. It is
incapable of definition. It is capable only of description. It comprises
everything that contributes to the use or convenience of a householder
or ornament of the house."
And in Cole v. Fitzgerald (1 Simon & Stuart, 189), decided in 1823, a
bequest of "household furniture and other household effects," was held
by the vice-chancellor to embrace "all property in the house and on the
premises intended for use, consumption, or ornament," and was construed
to pass to the legatee pistols, models, paintings, an organ, books,
wines and liquors, and a parrot.
It was added, with reference to a stack of hay on the premises: "If the
haystack was only for use, it would pass; if for sale, it would not
pass."
In Hooper's Appeal (60 Pa., 220) the term "household furniture" was
held to comprise "everything that contributes to the convenience of the
householder, or ornament of the house."
In Arthur v. Morgan (112 U.S., 495) the Supreme Court held that an
imported carriage which had been used abroad for one year by the owner,
who was a householder, was exempt from duty, as a "household effect."
Justice Blatchford, defining the opinion of the court, said:
"A carriage is peculiarly a family or household article. It
contributes, in a large degree, to the health, convenience, comfort and
welfare of the householder or of the family. The statute is not limited
to articles of household furniture, or to things whose place is
necessarily within the four walls of a house."
And the United States Board of General Appraisers has decided that
horses, carriages, harness, saddlery, and even dogs, are included under
the same general term "household effects," and, seemingly, with the
tacit assent of every department having authority to question the
correctness of such rulings, which were made under the authority of the
cases above cited, and other similar cases; and which rulings appear to
come within the principles of those cases.
Certainly, a cow, kept for such use, contributes quite as mauch to
the health, comfort, convenience, and welfare of a householder's family
as does either a horse, carriage, or dog; and if, as decided, these may
be imported free of duty, as "household effects," then a cow may be. A
cow is one of the most common and most useful articles of household
economy, and, if we are permitted to go outside of the house itself for
articles embraced in the very general term "household effects," it would
seem difficult to find one which contributes more, or more directly, to
the health, comfort, or welfare of the family, or one more appropriately
classed a family or household article.
In view of the principle contained in the decisions referred to, and
especially with a view to uniformity of decision in the administration
of the customs service, I recommend that the former ruling of your
Department in this behalf, be changed to one which will admit the
importation, free of duty, of cows, under the conditions of former
ownership and use abroad, and purpose of importation required by the
existing tariff act.
Respectfully,
JOHN W. GRIGGS.
STATE TOLL ON GOVERNMENT PROPERTY-- WHARFAGE CHARGES; 23 Op.Att'y.
Gen. 299, October 17, 1900
The State harbor commissioners of California are charged by the laws
of that State with the supervision and control of the wharves and
landings of the harbor of San Francisco, with the right to collect
dockage, wharfage, rent, or toll.
The imposition of a toll or charge by such commissioners on
merchandise, being the property of the United States, passing to or over
the wharves at San Francisco, is constitutional and valid; the charge
being for a service rendered, the Government is not entitled to such
service free of toll.
The same rule would apply to the charge of the Southern Pacific
Company, called a "State toll," if this charge was in fact an authorized
charge for the use of any part of the State's terminal system, including
the transfer railroad along the water front to the wharves.
Such toll or charge is not a tax upon or in respect of interstate,
traffic, nor a tax upon the instrumentalities and agencies of the
General Government, within the prohibitions of the Constitution, but is
a charge for the use of property and facilities furnished the Government
by the State of California.
DEPARTMENT OF JUSTICE,
October 17, 1900.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge the receipt of your
communications and references of July 2, July 11, and August 31, with
their indorsements and inclosures, which lay before me the following
facts, in substantial accordance with your own statements thereof,
namely:
On September 15, 1899, the quartermaster at San Antonio, Tex., issued
two bills of lading for certain Government property, live stock and
other freight, belonging to and en route with the Thirty-third United
States Volunteer Infantry from San Antonio to Manila via San Francisco.
The Southern Pacific Company (Pacific system), in addition to their bill
of transportation proper from San Antonio to San Francisco, rendered a
bill amounting to $5.30 for "Amount of State toll paid State of
California by Southern Pacific Company on shipments of horses and
property belong to the Thirty-third Infantry en route from San Antonio
to San Francisco, etc.," which is based upon a circular of the railway
company (No. G.F.O. 79, dated San Francisco, July 20, 1897), reading in
part as follows:
"TO AGENTS: State toll is collected on all west-bound freight
received at San Francisco, whether local or for export, and on all
east-bound freight forwarded from San Francisco to points west of Ogden,
Utah, El Paso, Texas, Albuquerque, New Mexico, and south of Portland,
Oregon, as follows, except when otherwise specified. * * * This in
addition to regular transportation charge. * * * Arrangements have been
made with the transfer company to pay State toll on exported freight
which it delivers to vessels at wharves in San Francisco."
The circular indicates that this State toll is separate from the
company's own transfer or switching charge between their depot and the
tracks, wharves, and depots on the water front at San Francisco.
An account, varying slightly from the company's bill, having been
stated by the chief quartermaster, Department of Texas, based upon the
published tariffs, including the circular referred to, that officer
suggested a doubt as to the right of a State to lay any impost or toll
on the property of the United States, and after intermediate
correspondence you advise me that the superintendent of the army
transport service at San Francisco paid the board of State Harbor
Commissioners the sum of $27.35 for tolls on 547 tons of merchandise
shipped on the Grant, which vessel carried the Thirty-third Infantry,
this charge being at the rate of 5 cents per ton on all merchandise
passing over the wharves under the commissioner's jurisdiction, and
being in addition to any tolls which may have been charged by the
Southern Pacific Company.
Upon this statement of facts you request my opinion upon the
legality, first, of the toll imposed by the State of California upon
Government property passing over its wharves, docks, and terminals;
and, second, of the toll imposed by the Southern Pacific Company , and
alleged by it to be a State toll.
In reply, it occurs to me to suggest that the State toll referred to
in the railroad bill is part of the State charges for the use of the
wharves and of the terminal facilities leading to them, and is included
in the sum of $27.35 paid by the superintendent of transports to the
State Harbor Commissioners. In other words, this sum was in addition to
any tolls which may have been charged by the railroad company, because
the latter may not yet have discovered that the State tolls had been
paid with respect to the merchandise for which they made the charge, and
therefore they are not entitled to collect it. Furthermore, the schedule
of rates of the Southern Pacific Company's circular and of the board of
State Harbor Commissioners is identical, and plainly seems to refer to
the same or connected service or facilities.
The solution as to the fact may not be so simple as this, but if it
should be so, of course no shipper, whether the Government or a private
party can be compelled to pay the same charge twice, and there would be
an end of the question in this case, because if the "State toll,"
whatever it means, has already been paid, the constitutional inquiry is
merely a moot question in the present instance. Or, on the other hand,
the railroad company's bill for State toll, while not included or paid
in the bill of the Harbor Commissioners, may be a legitimate charge for
use of a portion of the terminal services and facilities of the State
related to the wharves, the Harbor Commissioners' bill including only
State tolls or charges on the wharves, and the railroad company's bill
the State toll for passage over tracks leading to the wharves. The fact
about this is not yet clear.
On the whole, I think the fair deduction from your statements is that
the railroad charge is not a State tax upon or in respect of interstate
traffic which the company is endeavoring to shift, but is a charge for
the use of some portion of the State terminals which the company is the
agent to collect.
If this is correct, but one question in substance is presented, viz,
whether the wharfage tolls and related terminal charges of the State of
California are valid against the Government.
The initial suggestion is that a State has no right to lay any impost
or toll on the property of the United States. The idea thus seems to be
entertained that the United States, acting in the sovereign capacity and
for national purposes, is entitled to be exempted from all such charges
as are here involved. The general doctrine undoubtedly is that public
property is not subject to taxation. (1 Desty on Taxation, 34, 35, and
auth. cit.) It is a fundamental principle, of course, that the
instrumentalities and agencies of the General Government may not be
taxed by a State, and these include land, which is property, as many of
the instrumentalities and agencies of Government are. Beginning with the
leading case of McCulloch v. Maryland (4 Wheat., 316), these principles
have been well established. (Osborn v. Bank of United States, 9 Wheat.,
738; New York v. Commissioners of Taxes, 2 Wall., 200; Society for
Savings v. Coite, 6 Wall., 594; Dobbins v. Commissioners of Erie
County, 16 Pet., 435; Railroad Co. v. Peniston, 18 Wall., 5; McGoon v.
Seales, 9 Wall., 23; Van Brocklin v. State of Tennessee, 117 U.S.,
151.) But, just as it has been determined that the Government of the
United States has no right to use a patented invention without
compensation to the owner, under the constitutional provision that in
the exercise of the power of eminent domain it may take private property
for public use, but not without making just compensation therefore
(United States v. Burns, 12 Wall., 246; Cammeyer v. Newton, 94 U.S.,
225; James v. Campbell, 104 U.S., 356; Hollister v. Benedict Mfg. Co.,
113 U.S., 59; United States v. Palmer, 128 U.S., 262; Belknap v.
Schild, 161 U.S., 10), so it has been adjusted that the United States
Government is not entitled to have property or troops transported free
over a railroad, even where a land grant provided that the road shall
remain a public highway for the use of the Government free from all toll
or other charges for transportation, since that act did not include free
use of rolling stock (Lake Superior & M.R.R. Co. v. United States, 93
U.S., 442).
This principle fairly includes the Government use of State or municipal
wharf and harbor facilities. That is to say, the different kinds of
Government property affected in this case, while used for public service
and in sovereign and important operations of the Government, such as
required this shipment, are not instrumentalities or agencies which are
necessarily free from local charges for service or facilities generally
legitimate. Indeed, from Railroad Company v. Peniston (18 Wall., 5, 36),
showing that a tax upon property of agents of the United States does not
necessarily hinder the efficient exercise of their powers or discharge
of their duties, it seems to be a consequence that the same distinction
would apply to the Government itself, and that a charge upon Government
property which was not a tax upon the operations of Government or a
direct obstruction to the exercise of Federal powers would not
necessarily be invalid. This is also the conclusion to be drawn from
Railroad Company v. United States (93 U.S., 442); so that, while
Government property may not be taxed, nor Government instrumentalities
or agencies nor the operations of Government be obstructed or burdened
in any such way, if the Government is properly liable to pay charges for
transportation, a charge for service or facilities analogous to
transportation and connected with it would not be a tax and would not be
invalid on that score.
In this case, although the act of July 27, 1866, provided that
Congress might impose regulations restricting the charges for Government
service by the Southern Pacific Railroad Company, it does not seem that
Congress ever took any further steps for the regulation of such charges.
At all events, it nowhere appears that the charge was the railroad
company's rate for any service rendered or facility furnished by them.
Thus it seems that this inquiry regards only the validity under general
constitutional principles, on the one hand of the wharfage toll charged
at San Francisco, and on the other hand of the special charge of the
Southern Pacific Railroad Company under their circular, as imposed on
west bound freight received at San Francisco, whether local or for
export, and as a State toll due the State of California, irrespective of
the fact in both cases that the Government was the shipper.
1. The harbor rules, regulations, etc., which you submit (San
Francisco, 1889), with amendments, in reference to tolls and wharfage of
the same year, and the schedule of rates already referred to as
identical with that of the Southern Pacific Company's circular, show
that the State Harbor Commissioners are charged by the laws of
California with the supervision and control of the wharves and landings
of the harbor of San Francisco, with the right to lease the same and to
confer the power upon lessees to collect dockage, wharfage, rent, or
toll; to make and execute, throught subordinates, rules and regulations
for the stationing, anchoring, mooring, removing, or discharging of
vessels, and for the collection of tolls, wharfage, and dockage. Their
duties and powers include the usual and comprehensive authority given to
port wardens and harbor commissioners, and the statutory provisions
relating to them will be found collected in the political Code of
California (1897) under Article IX, sections 2520 et seq., and in the
Appendix to the same Code, pages 1035-1046.
As to the Harbor Commissioners' authority respecting charges, section
2524 of the Political Code cited above, providing for their control of a
portion of the bay of San Francisco, together with the improvements,
rights, privileges, easements, and appurtenances connected therewith,
enacts: * * * "And said Commissioners, in addition to a general control
over said premises, shall have authority to use for loading and landing
merchandise, with a right to collect dockage, wharfage, and tolls
thereon, such portions of the streets of the city and county of San
Francisco ending or fronting upon the waters of said bay as may be used
for such purposes, without obstructing the same as thoroughfares, * * *
and to fix and regulate from time to time the rates of dockage,
wharfage, cranage, tolls, and rents." * * *
The Commissioners are also authorized (but not directed) to modify
the rates of dockage and wharfage so as to produce a certain limit of
revenue, and thereupon to abolish the collection of tolls; and it may
be noted that apparently such modification has not yet been made. By the
same section it appears that all classes of water craft must pay
dockage, and that the charge for wharfage and tolls shall be a lien upon
all goods, wares, and merchandise landed upon any of the wharves, piers,
etc., of the described premises.
The commissioners are given authority to make reasonable rules and
regulations concerning the control and management of the property of the
State intrusted to them which are not inconsistent with the laws of the
State or of the United States. The purpose of the revenue collected
being to construct and maintain in repair the various harbor facilities,
the reasonableness of the rates is provided for by section 2526,
reciting that no greater amount of money shall in the main ever be
collected from dockage, wharfage, tolls, etc., than is necessary to
construct and keep in repair the various wharves and landings; and a
certain moderate exemption from tolls and wharfage is granted by section
2548, not involving any unjust or illegal discrimination.
The act of March 19, 1889 (Pol. Code, p. 1037), authorized the Harbor
Commissioners to construct railroads and bridges over the lands within
its jurisdiction along the exterior water front of San Francisco, and to
grant to all railroad companies receiving or delivering freight and
passengers within San Francisco, on equal terms, the right to use such
railroads; and the commissioners were also authorized to adopt
reasonable regulations respecting the passage of trains for the safe and
convenient use of the streets.
2. Upon the facts stated and the deduction from them which I have
made, I need not trace the history of the judicial development of the
commerce clause of the Constitution defining the limits of Federal power
and State authority over commerce, because the "State toll" obviously
does not fall under the head of a tax or or such regulation of commerce
by a State as is forbidden. No law of California is suggested or
discovered by which the railroad company is taxed in respect of such
traffic as this, nor does the railroad company appear to be imposing a
tax in its own or the State's behalf. So far as I can learn, both bills
in question are referable solely to the State laws respecting the
control and administration of the San Francisco water front.
I will now advert to the decisions involving charges for such
facilities as were furnished in this case.
3. Upon this subject I remark that the charges are not an impost
which is invalid as a State regulation of commerce, as were the "tolls"
involved in Lumber Company v. Patterson (33 Cal., 334). In general, the
validity of municipal or State wharfage charges has been sustained by
the Supreme Court on the ground that reasonable charges for the use of
property either on water or land are not as interference with the
freedom of transportation between the States secured under the commerce
power of Congress. In Packet Company v. Keokuk (95 U.S., 80), and in the
other similar cases which I cite, the charge was imposed upon vessels
mooring and landing at a municipal wharf, and the question of a tax
proportioned to tonnage was involved. In that case the court said: "It
has always been held that wharfage dues may be exacted, and it is
believed that they have been collected in ports where the wharves have
belonged to the State or a municipal corporation ever since the adoption
of the Constitution;" and approved the language of the opinion in Cannon
v. New Orleans (20 Wall., 577), holding that, ordinarily, there is no
hindrance to the recovery from any vessel landing at a wharf or pier
owned by an individual or by a municipal or other corporation of a just
compensation for the use of such property. The charge in the latter case
was held invalid, because it was not for wharfage or any service
rendered; and it was pointed out in the Keokuk case that while neither
a State nor a municipal corporation may impose a tax upon tonnage under
cover of laws or ordinances ostensibly passed to collect wharfage, a
clear distinction has always been recognized between wharfage and duties
on imports or exports or duties on tonnage, citing Cooley v. Board of
Wardens (12 How., 299).
In Packet Company v. St. Louis (100 U.S., 423, 429), the court,
commenting upon Packet Company v. Keokuk, say:
"We need not repeat the reasons there given for the distinction
between tonnage dues which the States are prohibited from levying
without the consent of Congress, and wharfage duties properly so called
imposed in good faith and to the extent only of fair remuneration for
wharf accommodations furnished for the convenience of trade and
commerce.
We adhere to the doctrines announced in that case. * * * The city was
not prohibited by the Federal Constitution from collecting the wharfage
fees in question as reasonable compensation for the use of its wharves."
See also Vicksburg v. Tobin (id., 430); Packet Company v.
Catlettsburg (105 U.S., 559); and Transportation Company v.
Parkersburg (107 U.S., 691). In Packett Company v. Catlettsburg the
court said:
"There is probably not a city or large town in the United States,
situated on a navigable water, where ordinances, rules, and regulations
like those of the town of Catlettsburg are not made and imposed by
authority derived from State legislation, and the long acquiescence in
this exercise of the power, and its absolute necessity are arguments
almost conclusive in favor of its rightful existence."
And in touching upon the question of the reasonableness of the
charges, and finding that they did not appear to be excessive when it
was considered that a wharf constantly needs care and repair, the
compensation of a wharf master, etc., the court said, "The money
collected is not taxes in any sense whatever."
Finally, in the case of the Gloucester Ferry Company v. Pennsylvania
(114 U.S., 196), it was held that freedom of transportation implies
exemption from charges other than such as are imposed by way of
compensation for the use of the property employed or for facilities
afforded for its use.
4. The California laws relating to the Harbor Commissioners speak of
dockage and wharfage or of dockage, wharfage, and tolls. These terms
have been defined. The case of People v. Roberts (92 Cal., 659, 664)
finds that wharfage is used in the Political Code in contradistinction
to the word "dockage," and says throughout the section (sec. 2524) the
word "wharfage" is used to designate the charge against merchandise for
the use of the wharves, while the word "dockage" is used to designate
the charge against vessels for the privilege of mooring to the wharves
or in the slips.
In Boyle v. Railroad (54 Pa. St., 310, 314), Mr. Justice Strong, then
justice of the supreme court of Pennsylvania, defined toll as follows:
"Toll is a tribute or custom paid for passage, not for carriage--
always something taken for a liberty or privilege, not for a service;
and such is the common understanding of th word. Nobody supposes that
tolls taken by a turnpike or canal company include charges for
transportation, or that they are anything more than an excise demanded
and paid for the privilege of using the way." (Quoted and approved in
Erie R.R. v. Pennsylvania, 158 U.S., 431.)
If there is any strict distinction between the use of the words
"wharfage" and "tolls" in the California statutes, which is not made
clear by any statement or authority that I find, it may be that wharfage
is the charge for the temporary occupation of piers or landings, and
tolls the charge for entrance upon and passage or transfer across them.
Or in this case, if I am right in my deduction that the "State toll" of
the Southern Pacific Company's bill is part of or connected with the
Harbor Commissioners' bill for wharfage, as, for instance, because it
relates to the transfer over a State railroad along the water front
authorized by the act of March 19, 1889, supra, then toll would be the
term for the charge for the privilege of using this way to the wharves.
In either aspect it is a charge for the use of terminal facilities, and
the propriety or legality of the charge would be as great, if not
greater, in the case of use or service from the land side as from the
water-- in the case of railroad companies and consignors thereby as well
as in the case of vessels and shippers thereon. This conclusion may also
be rested, in part, upon the State police powers, since the function of
the Harbor Commissioners embrace in many respects, under the California
laws, the public health, safety, and convenience.
5. I may refer to a point regarding discrimination. It is fairly
presumed that the circular of the Southern Pacific Company is authorized
by law or by agreement between the Harbor Commissioners and the company,
though authority of this nature is nowhere shown. This circular
indicates an exemption from the State toll for certain traffic, but as
it is to be collected on all west bound freight received at San
Francisco, whether local or for export, as the Government freight in
this case was of this class of freight and used the terminal facilities,
and as it is to be assumed that State toll is collected on freight,
whether local or for export, where the State facilities are actually
used, the abstract doubt referable to the exemption of freight of a
certain destination and presumably not using the State terminal
facilities may be ignored.
At all events the discrimination being not on west-bound but on
east-bound traffic, it seems that valid provisions of this circular or
tariff may stand under the principle of decisions respecting laws good
in part and bad in part. (Allen v. Louisiana, 103 U.S., 80; Presser v.
Illinois, 116 U.S., 252; Baldwin v. Franks, 120 U.S., 678; Field v.
Clark, 143 U.S., 649.) Yet the case of People v. Roberts (cited supra)
refers to section 5 of an act of the California legislature of March 17,
1880 (Stat., 1880, p. 32)-- so cited, but in the edition before me
(Sacramento, 1880), p. 11-- by which no wharfage is to be collected upon
commerce within the State. The decision in question found that the
exemption in favor of domestic commerce affected wharfage only and did
not include dockage, so that if tolls are to be distinquished from
wharfage, it would not include tolls; but if, under the view that tolls
and wharfage may mean the same thing in effect, merchandise loaded on a
vessel or car in San Francisco for the purpose of transportation to any
port or place in California, or merchandise thus shipped at any port or
place in that State and arriving at San Francisco, is exempted from the
charge imposed upon the Government in this case, then perhaps the proper
view is that since such charges for wharf and terminal facilities are
not taxes or regulations of commerce within the prohibition of the
tonnage tax or commerce clauses of the Constitution, no such
discrimination against interstate commerce as is forbidden appears, and
the exemption as to wharfage granted to trade within the State may be a
reasonable and proper exemption in the existing commercial situation,
within the competence of the State legislature.
Consequently, my opinion is that the toll imposed by the State of
California on merchandise, being the property of the Government passing
to or over the wharves at San Francisco, is constitutional and valid,
the Government not being entitled to such service free; and this view
applies also to the charge of the Southern Pacific Company, called by
them a State toll, if this charge was in fact an authorized charge for
the use of any part of the State's terminal system, including the
transfer railroad along the water front to the wharves, as one of the
facilities afforded by the State for the use of the wharves and
terminals.
I must add that it has appeared to be necessary for me in this
opinion to review and discuss at some length the statutes and decisions
of a State with whose laws and practice I am not conversant, contrary to
a recognized rule of the profession which refers the examination and
construction of State law to counsel experienced therein; but under the
circumstances it is proper that I should venture to construe laws which
affect the interests of the United States in a case actually arising,
and it is at times, as now, unavoidable that I should do so.
I return herewith all the inclosures of your communications as
requested.
Very respectfully,
JOHN W. GRIGGS.
BOARD OF CHARITIES-- DISTRICT OF COLUMBIA; 23 Op.Att'y.Gen. 287,
October 12, 1900
The Government Hospital for the Insane, The Washington Hospital for
Foundlings, the Columbia Institution for the Deaf and Dumb, and the
Freemen's Hospital and Asylum are each charitable or eleemosynary
institutions within the meaning of the act of June 6, 1900 (32 Stat.,
664), which creates a Board of Charities for the District of Columbia.
A charitable or eleemosynary institution is one created or existing
for the relief of the poor, or for the conferring of any gratuitous
benefit.
The Board of Charities has general supervision of these institutions,
and, under the order of the District Commissioners, has power of
investigation with the duty of submitting a report and recommendation to
Congress. With this exception, the powers and duties of the Secretary of
the Interior are unchanged by the act of June 6, 1900, and remain the
same as before its enactment.
DEPARTMENT OF JUSTICE,
October 12, 1900.
The SECRETARY OF THE INTERIOR.
SIR: Your letter of August 13 brings to my attention the act to
establish a Board of Charities for the District of Columbia, approved
June 6, 1900, and the question in view of its provisions as to the
relationship of the Secretary of the Interior to certain institutions
located in the District, namely, the Government Hospital for the Insane,
the Columbia Institution for the Deaf and Dumb, the Freedmen's Hospital
and Asylum, and the Washington Hospital for Foundlings. You inform me
that it is necessary that the Secretary's duties in the premises be
authoritatively determined, and cite the various laws and opinions of
Attorneys-General affecting these institutions, and request my opinion
"as to the duty of the Secretary of the Interior in respect to the
management of these institutions and the extent of his authority to
supervise and control the affairs of each and the expenditure of the
money appropriated for the support thereof."
I have the honor to say in response, in the first place, that the
field of the inquiry is so broad and general that I can not regard the
question in the form indicated as strictly a question of law which it is
incumbent upon me to answer, however much inclined I might otherwise be
to do so. The matter of your relations in general to these institutions,
of the effect upon these relations of the recent establishment of a
Board of Charities, of your duty in respect to the management of the
institutions and the extent of your supervisory authority over them,
appears to me to represent elements of a hypothetical nature, because
the definite problems which are, perhaps, to be anticipated may not,
however, arise, and elements within the field of your own executive
discretion regarding your duty, which it is not appropriate for me to
limit and define.
(21 Opin., 73; 22 id., 98.) Nevertheless, as various practical details
of administration of these institutions are constantly coming before you
for action, I think the situation may be viewed as presenting questions
actually arising in the administration of your Department, and that
these questions are susceptible of a legal aspect and expression. If
there were judicial questions-- questions of the courts rather than for
executive decision-- another reason would be manifest why they should
not be answered (20 Opin., 702; 21 id., 370; 22 id., 181); but this
does not appear to me to be the case. I may therefore frame the
questions which are included in your query as follows:
1. Are the four institutions named covered by the provisions of the
act establishing a Board of Charities in the District of Columbia?
2. If so, how far has the relationship of the Secretary of the
Interior to these institutions been modified?
If the Board of Charities act shall be found upon examination not to
apply to one or more of these institutions, it appears to me that the
prior state of the law and the opinions rendered under it and the
long-continued practice of the Interior Department upon the subject have
authoritatively determined your duties in respect to management and the
extent of your authority to supervise and control in such case, so far
as any definite point of doubt heretofore arising has made it necessary
for you to seek advice; and, except in reference to the Board of
Charities act, you appear to suggest no new points of doubt and no other
actual and practical question now before you for determination. While,
on the other hand, if the conclusion shall be that some or all of these
four institutions are included in the provisions of the Board of
Charities act, then the inquiry needs only to point out to what extent
and in what respect your previous relationship to the institutions has
been affected, without defining comprehensively your functions and
duties with respect to them.
It must be admitted, I think, that the questions which I have
undertaken to frame, as apparent on the face of your letter, although
not expressed therein, are not strictly or wholly questions of law. The
question, for instance, whether each or any one of the institutions
named is a charitable institution is a question perhaps of mixed fact
and law. But both the questions framed have a distinct legal import and
form and are important to be answered, and I therefore waive the
technical points in this case and dismiss any hesitation which I may
have felt on that ground.
The act to establish a Board of Charities for the District of
Columbia, approved June 6, 1900 (31 Stat., 664), provides that the said
Board of Charities--
"Shall visit, inspect, and maintain a general supervision over all
institutions, societies, or associations of a charitable eleemosynary,
correctional, or reformatory character which are supported in whole or
in part by appropriations of Congress, made for the care or treatment of
residents of the District of Columbia; and no payment shall be made to
any such charitable, eleemosynary, correctional, or reformatory
institution for any resident of the District of Columbia who is not
received and maintained therein pursuant to the rules established by
such Board of Charities, except in the case of persons committed by the
courts, or abandoned infants needing immediate care. * * * The officers
in charge of all institutions subject to the supervisions of the Board
of Charities shall furnish said board, on request, such information and
statistics as may de desired; and to secure accuracy, uniformity, and
completeness of such statistics the board may prescribe such forms of
report and registration as may be deemed to be essential. * * * The
Commissioners of the District of Columbia may at any time order an
investigation by the board, or a committee of its members, of the
management of any penal, charitable, or reformatory institution in the
District of Columbia; and said board, or any authorized committee of
its members, when making such investigation, shall have power to send
for persons and papers and to administer oaths and affirmations; and
the report of such investigation, with the testimony, shall be made to
the Commissioners.
* * * The said board shall make an annual report to Congress, through
the Commissioners of the District of Columbia, giving a full and
complete account of all matters placed under the supervision of the
board, all expenses in detail, and all officers and agents employed,
with a report of the Secretary, showing the actual condition of all
institutions and agencies under the supervision of the board, the
character and economy of administration thereof, and the amount and
sources of their public and private income. The said report shall also
include recommendations for the economical and efficient administration
of the charities and reformatories of the District of Columbia. The said
board shall prepare and include with its annual report such estimates of
future appropriations as will, in the judgement of a majority of its
members, best promote the effective, harmonious, and economical
management of the affairs under its supervision; and such estimates
submitted shall be included in the regular annual book of estimates. * *
* All acts and parts of acts in conflict with the provisions of this act
are hereby repealed."
The first point to be investigated is whether the four institutions
named in your letter are subject to the supervision of the Board of
Charities. The general supervision which they are to maintain embraces
all charitable, eleemosynary, correctional, or reformatory institutions.
It needs no argument to show that no one of these four institutions
is of a correctional, reformatory, or penal character. Are they
charitable or eleemosynary institutions? The definitions of these terms
in the modern dictionaries (the Century and the Standard) bring out the
beneficent purpose and the voluntary bounty bestowed. In the special
signification which is before us, the Century defines charitable as,
"pertaining to almsgiving, or relief of the poor; springing from
charity, or intended for charity; as, a charitable enterprise; a
charitable institution;" and to the same effect is the Standard.
And the Standard defines eleemosynary thus:
* * * "Existing for the relief of the poor; charitable; gratuitous;
as, eleemosynary institutions."
And the Century:
"1. Derived from or provided by charity; charitable; as, an
eleemosynary fund; and eleemosynary hospital.
"2. Relating to charitable donations; intended for the distribution
of alms, or for the use and management of donations and bequests,
whether for the subsistence of the poor or for the conferring of any
gratuitous benefit."
And an eleemosynary corporation is "a private charity constituted for
the perpetual distribution of the alms and bounty of the founder."
(Kent, quoted in the Century Dictionary, sub nomine "Corporation.")
So that, connected etymologically with words that denote pity and
good will, and meaning originally in reference to individual or
corporate donors the distribution of alms, the words as applied to
modern institutions have come to signify such as aid the poor, confer
benefits, and provide, from benevolent motives, care, remedial
treatment, or other alleviation for those who are in need of these
offices, as a matter of gratuitous bounty altogether in some cases, and
of bounty in part, even where beneficiaries are not indigent. Indeed, in
respect to the feature that only the corporation or institution with its
complete equipment could realize the alleviatory scheme in its full
extent, the benefit is a matter of bounty in a measure, in all such
cases.
Not to dwell further upon the tests in the matter, it seems to me
clear that the Government Hospital for the Insane, the Freedmen's
Hospital and Asylum, and the Washington Hospital for Foundlings are
charitable or eleemosynary institutions, by reason of the nature of the
benefits which they confer and of the gratuitous character of those
benefits, which, as shown by their titles and the laws cited in your
letter, are extended to the utterly helpless, to the indigent, and to
others who are properly the subject of the nation's bounty.
See, in relation to the Government Hospital for the Insane, among
other provisions, the act of March 8, 1858 (10 Stat., 682), establishing
the institution, its object being the most humane care and enlightened
curative treatment of the insane of the Army and Navy of the United
States and of the District of Columbia; see also Title LIX, chapter 4,
Revised Statutes; act of March 3, 1875 (18 Stat., 485).
See, in reference to the Freedmen's Hospital and Asylum, the act of
March 3, 1865 (13 Stat., 507), establishing a bureau for the relief of
freedmen and refugees; the act of March 2, 1867 (14 Stat., 485, 486),
making appropriation for schools and asylums of the Freedmen's Bureau,
from which legislation the Freedmen's Hospital and Asylum appears to
have sprung; and the act of March 3, 1871 (16 Stat., 495, 506), making
a distinct appropriation for the support of the present institution.
The act incorporating the Washington Hospital for Foundlings (April
22, 1870, 16 Stat., 92), shows its charitable character in section 5,
which states the object to be the founding of a hospital for the
reception and support of destitute and friendless children.
In reference to the Columbia Institution for the Instruction of the
Deaf and Dumb, it appears from an examination of the laws respecting it,
and of its annual reports, that its work is educational rather than
gratuitously charitable; that the education imparted embraces the whole
field of scholastic training, beginning with children in elementary and
secondary instruction, embracing teaching in industries and instruction
in speech and speech-reading to overcome the special defects of the
pupils, and going forward through graded courses up to college
preparation, and then carrying them through the higher branches in the
Gallaudet College until the right of graduation as bachelor of arts or
of science has been regularly earned.
Although perhaps no accurate conclusion can be drawn from the
classification of the laws in appropriation acts or elsewhere, because
it seems that institutions are placed under the heading of charities or
under other headings without much regard to exact distinctions, it
appears that this institution has not usually been classed with the
charitable or eleemosynary institutions of the District, and that
appropriations for its support have not (often or always) been made in
connection with those for institutions of that class.
Further, I learn from an authority on the subject that in the more than
100 schools for deaf-mutes which, are instructing 10,000 pupils or
upwards, and that those schools are everywhere regarded as purely
education institutions, though in a few States they have been connected
by law with boards of charities. I also learn that at a recent
convention of American instructors of the deaf, a resolution was adopted
calling attention to the confusion in the public mind as to the status
of schools for the deaf and blind, and resolving that the members of the
convention desire to put upon record their earnest hope that in all
future State legislation schools for the deaf and blind may be
classified with the educational forces of the State, and that their
misleading association with the penal, reformatory, and charitable
institutions of the various commonwealths may give way to such
enlightened public opinions as will demand that the instruction of the
deaf and blind shall form part of the school system of the State.
It is also to be observed that Congress very clearly recognizes and
emphasized the educational character of the Columbia Institution in the
act approved April 8, 1864 (13 Stat., 45), by which it was enacted that
the board of directors are empowered to grant and confirm such degrees
in the liberal arts and sciences as are usually granted and conferred in
colleges.
However, the existing state of the law, and the facts upon which it
appears to be based, must be regarded as well as the expert opinions
which consider that existing laws should be modifies. The benefits of a
hospital for surgical or medical treatment are not restricted to
indigent or defective classes, and the fact that some patients pay in
whole or part does not make it any the less a charitable institution.
There, it is true, the idea of treatment is involved; but the sick as
well as the poor, and not necessarily only the sick who are poor, have
always been embraced in the benefits of charitable foundations and
modern hospitals. There is no doubt a clear distinction between those on
the one hand who, by reason of indigence, or moral delinquency, or
mental deficiency, are the subjects of charity or reform because they
belong to the pauper and defective classes; and those on the other hand
who may not be indigent, but who, because of a purely physical defect,
congenital or resulting from illness, require special instruction and
training to develop normal faculties which otherwise would remain
dormant.
This instruction and training has so far taken the educational
direction, and any advances in remedial treatment, still perhaps in the
region of experiment, would doubtless be tributary to education.
Nevertheless, while the distinctions between an institution for the deaf
and dumb and a charity or reformatory are obvious, and should be
regarded in practical administration, it seems to me that the law
respecting the Columbia Institution, which alone I am to regard, views
the institution as charitable in part, and so far as to classify it
justly, for the purposes of the board of charities act, under charitable
and eleemosynary institutions.
In the first place, as was said by the Solicitor-General in 22
Opinions 1, 5, "the Government has substantially furnished the money to
build and run it." The act of incorporation (11 Stat., 161), which shows
that the primary purpose was the instruction of the deaf and dumb, and
at that time of the blind as well, provides for such deaf and dumb in
the District of Columbia as were of teachable age and in indigent
circumstances, and for the reception of deaf and dumb from the several
States and Territories on such terms as may be agreed upon with the
authorities of the institution; and the act of Amy 29, 1858 (id., 293),
extended the benefits of the institution to deaf and dumb children of
persons in the military and naval service of the United States upon the
same terms as such children belong to the District of Columbia. By the
act of February 23, 1865 (13 Stat., 436), the teaching of the blind was
no longer required, and provision made elsewhere for indigent blind
children. In the appropriation act of March 2, 1867 (14 Stat., 457,
464), it was provided that a certain number of deaf mutes residing in
the several States and Territories, applying for admission to the
collegiate department of the institution, shall be received on the same
terms and conditions as those prescribed by law for the residents of the
District of Columbia, at the discretion of the president of the
institution, and this privilege was twice enlarged by later acts.
Chapter 5 of Title LIX of the Revised Statutes, embodying the earlier
law relative to the institution, shows, I think, both the educational
purpose and the benevolent and charitable side of the scheme. The
subsequent appropriation acts which you cite show that the Government in
supporting the institution provides for books and illustrative
apparatus, and that the expenses of instruction in the collegiate
department are paid from the appropriations even when the pupils are not
indigent, and that the board of trustees, with the approval of the
Secretary of the Interior, are authorized to bear so much of the expense
of the support of the deaf mutes admitted from the several States and
Territories, when indigent and while in the institution, as they may
deem proper (e.g., act of March 3, 1883, 22 Stat., 603, 625; act of
March 2, 1889, 25 Stat., 939, 961; act of August 30, 1890, 26 Stat.,
371, 392.)
It often happens, of course, that universities, colleges, and schools
extend aid in various forms to poor and deserving students, and that the
benefits of the great foundations are not altogether paid for in money
by any students; but the distinctions in the case of an institution for
the deaf and dumb are, I think, obvious, and have been herein indicated
as to this institution, and I therefore conclude that the Columbia
Institution for the Deaf and Dumb, as well as the others named, is a
charitable institution within the meaning of those words as used in the
recent Board of Charities act.
How far has your relationship to these four institutions been by that
act modifies?
I do not propose to construe the act in general, but I may point out
what seem to me its salient provisions in the light of its purpose as
drawn from the history of the administration of charities in the
District. It is, I believe, commonly understood that the evil or defect
in the charitable work of the District heretofore has been a lack of
uniformity of supervision and of coordination or cooperation among the
various agencies of control and direction. This act seems to be the last
step in the efforts of Congress to remedy this defect.
How far the new Board of Charities has been clothed with power to this
end, and how far they will work out a perfected scheme are matters for
the future to determine. It is to be assumed, of course, that the
various institutions affected, while still continuing to perform their
functions through their own separate boards of direction heretofore duly
authorized to manage and conduct their various operations, will desire
and endeavor to cooperate with Congress and the Board of Charities in
the effort to work with the greatest possible effect and economy. The
diverse supervision or control which already exists, being in some cases
committed to the heads of departments and in others to the District
Commissioners, is not necessarily disturbed or affected in material
respects by this act. In brief, the act directs the Board of Charities
to visit, inspect, and maintain a general supervision over the
institutions described, forbids any payment to be made to such
institutions for any resident of the District who is not received and
maintained therein pursuant to the rules established by such Board of
Charities, with certain exceptions, and directs such institutions
subject to the supervision of the Board of Charities to furnish, on
request, information and statistics in such form as the board may deem
essential. The District Commissioners may order an investigation by the
board of the management of any such institution, and the board shall
report to Congress annually an account of all matters placed under their
supervision, including in their report their recommendations for the
economical and efficient administration of charities and reformatories
of the District, along with estimates for such future appropriations as
will best promote these objects.
It is not necessary to speculate upon the many matters, irrelevant to
your present inquiry, suggested by the act, as, for instance, the status
of an institution in reference to payments for residents of the District
before the the Board of Charities shall have established rules, or as to
the difference of the board's functions and powers when applied to
institutions which do, or to institutions which do not, receive a
definite payment per capita, or according to the service rendered in a
given case, for each resident of the District of Columbia received and
maintained; or as to the scope of the phrase "care or treatment" as
further defining the institutions included.
It is at least certain that the board is charged with the duty of
visitation and of general supervision over all the institutions
described, is clothes with a power of investigation in conjunction with
the Commissioners of the District, and is directed to report the results
of its work with its recommendations and estimates to Congress.
I am unable to discover how this situation interferes with or
substantially affects your previous relations to the four institutions
in question. My view is practically the same as that of Mr. Olney in his
opinion upon the relation of the Secretary of the Interior of the
Freedmen's Hospital and Asylum (20 Opin., 652), and I may slightly
paraphrase and apply his language to the present case, namely; with the
exception that the Board of Charities is given the general supervision
of these institutions, and, under the order of the District
Commissioners, the power of investigation with the duty of submitting a
report and recommendations to Congress, the powers and duties of the
Secretary of the Interior are unchanged by the act of June 6, 1900, and
remain the same as before its enactment.
I might properly close here, were it not for the fact that you
suggest other recent laws affecting all these institutions, indicating,
generally, transfers of supervision and control to other departments or
to the District Commissioners as the possible affect of the acts cited.
As to the Government Hospital for the Insane, the act of March 3,
1881 21 Stat., 458, 460), authorized the District Commissioners to visit
and investigate the management of the institution and to receive a
report of its receipts and expenditures, with the express proviso,
however, that the supervision of the Secretary of the Interior should
continue as theretofore. I think the proviso clearly indicates that your
jurisdiction over the institution continues, and if it were necessary to
add anything, the principle of Mr. Olney's opinion just cited plainly
covers the case.
As to the Columbia Institution for the Deaf and Dumb, its history and
status were carefully reviewed in 21 Opinions, 349; and 22 Opinions, 1,
in connection with an inquiry as to the applicability of section 3709,
Revised Statutes, relative to advertisement for proposals for supplies,
and by the latter opinion it was held that the institution is in the
Department of the Interior in the sense that its transactions are under
the supervision of the head of that Department, and that he has a
certain jurisdiction and responsibility regarding it.
It is true that since that opinion was rendered, under the act of July
1, 1898 (30 Stat., 597, 624), the directors of the institution have
control of the disbursement of all the appropriations by Congress for
its benefits, the accounts for which shall be settled at the Treasury
Department; nevertheless, other provisions of existing law, such as
section 441 of the Revised Statutes, and section 4868 requiring the
president and directors to report annually to the Secretary of the
Interior the condition of the institution, embracing many items of its
operations besides its receipts and disbursements, lead me to say that
the function of the Treasury in the premises appears to be confined to
its usual and appropriate duty of adjusting and settling accounts, and
that the enlargement of the control by the directors over the
disbursement of appropriations is to be explained by the view of 20
Opinions, 652, to which I have before referred. And in the case of the
Freedmen's Hospital and Asylum, no act seems to have been passed in the
least changing the situation or affecting the exact application of Mr.
Olney's opinion to that institution now, as well as when the opinion was
delivered in 1893.
As in the case of the Columbia Institution, the president and
directors of the Washington Hospital for Foundlings are required by the
law (16 Stat., 92) to report annually to the Secretary of the Interior
the condition of the institution. Although annual appropriations for its
support have uniformly been carried in the acts making appropriations
for the expenses of the government of the District of Columbia, and
although there may be, therefore, a certain relation not very clearly
defined between the institution and the District government, I think
that your supervision or jurisdiction over the institution, as past
practice has determined its nature and extent, remains substantially
unaffected, equally with the other institutions named, either by the
legislation cited which connects the District government with the
institution, or by the act of June 6, 1900, creating a Board of
Charities for the District of Columbia.
Very respectfully,
JOHN W. GRIGGS.
MILITARY ROAD-- PUBLIC LANDS-- WITHDRAWAL FROM SALE; 23 Op.Att'y.
Gen. 283, October 9, 1900
The appropriation by Congress of land for a military road and the
building of such road thereon, just as effectually withdraws and
excludes such land from sale as if it had been done in express terms.
The fact that patents have since been issued for lands through which
such road passes, without any reservation of the lands included within
the road, does not operate as a vacation of the portion of the road
within the patented lands, nor give to such owner a right to obstruct,
interfere with, or change the location of the road.
Congress having set apart a portion of the public domain for a
military road, and having constructed thereon such road, it is not
within the power of any other department of the Government to abandon,
vacate, or alienate the road, or the land on which it is constructed,
and a patent issued for such lands would, to that extent, be inoperative
and void.
Such a road, though within a State, is not subject to either State,
municipal, or private control, or interference in any way.
DEPARTMENT OF JUSTICE,
October 9, 1900.
The SECRETARY OF WAR.
SIR: By indorsement, October 2, 1900, upon the letter of the Chief
of Engineers to you, of September 29, 1900, you request my opinion upon
the question there presented.
That letter stated, in substance, that the military road between Fort
Washakie and Jacksons Lake, Wyoming, and thence across the forest
reserve to the Yellowstone National Park, is being obstructed, and, in
some cases, its location changed by private individuals; in some
instances, by bona fide legal settlers on surveyed lands; in others, by
persons having claims, of more or less validity, to tracts of the
unsurveyed lands of the Teton and Yellowstone Park reservations, and
that Captain Chittenden, in charge of that road, had caused notices to
be posted, at different points along that road, warning the people
against such interference with the road, as it is a Government road
under the control of the United States; and one question submitted is
as to the propriety of his action in so doing.
As to this, there can scarcely be a question. The road was built as a
military road, by the United States, under the authority of Congress
expressed in the sundry civil appropriation act of June 4, 1897, which
appropriates (30 Stat., 50)--
"For the construction of a military road from Fort Washakie, Wyoming,
by the most practicable route near the Wind River and to the mouth of
the Buffalo fork of Snake River, near Jacksons Lake, in Uinta County,
Wyoming, to be expended under the direction of the War Department, ten
thousand dollars, or so much thereof as may be necessary."
And the sundry civil appropriation act of June 6, 1900 (31 Stat.,
631), appropriates--
"For the repair, construction, and completion of the military road
from Fort Washakie to near Jacksons Lake, in Uinta County, Wyoming,
authorized by provision in the sundry civil appropriation act approved
June fourth, eighteen hundred and ninety-seven, ten thousand dollars."
The clear effect of this legislation is to make the road here in
question, a military road of the United States, under the exclusive
control of Congress, through such agencies as it may appoint; and it
will so remain until abandoned or vacated by the same authority which
created and controls it. It follows that, though within a State, this
road is not subject to either State, municipal, or private control or
interference in any way.
I am informed from the engineer's office in your Department that
some, at least, of the interference with this road is by individuals to
whom patents have been granted for some of the lands through which this
road passes, and who claim that because their patents make no
reservation on account of this road, they therefore convey the lands
occupied by the road within the granted limits and operate as a vacation
of so much of the road, or, in some way, give to such owners a right to
obstruct, interfere with, or change the location of the road as if it
were occupying without right a portion of their land.
Any such claim is an entirely mistaken one and is without legal
foundation. The road was built by Congress upon the public lands of the
Government as a military road, and is one of the means and
instrumentalities by which the business of the Government is carried on.
It is the creature of legislation, and can be destroyed by the
legislative power alone. Congress having thus set apart, appropriated,
and reserved this portion of the public domain for this road, and having
constructed thereon a military road of the United States, it is not
within the power of any other department of the Government to abandon,
vacate, or alienate the road or the land on which it was located; and
any patent issued by the General Land Office for lands through which
this road runs, which sould, by construction or otherwise, appear to
grant land occupied by this road, so as to give a right inconsistent
with the right of the Government to own, operate, and control this road,
would be to that extent inoperative and void, as being beyond the power
of that agency of the Government. The General Land Office is the proper
agent of the Government for the sale and conveyance of such of the
public domain as is for sale; but, when Congress has set apart and
appropriated a particular part of that domain for public uses and
purposes, it thereby just as effectually reserves and excludes such
portion from sale, as if it had done so in expressed terms; and in the
one case, as much as in the other, no sale of such portion can be made
except by authority of Congress.
We need not stop to consider here whether all such grants would not,
on general principles, be held to be subject to existing vested rights
of easement or otherwise, in the Government or in the public, for,
however that may be, the appropriation by Congress of this land for a
military road, and the building of such road thereon as effectually
withdraws and excludes the land from that which may be sold without the
express authority of Congress as in the case of any military
reservation, fort, or navy-yard.
Nor, need we consider here whether this exclusion from sale is of the
entire title to the land set apart for the road; or, whether in such
case the rule of the common law prevails, which gives to the owner of
the land through which a public road passes, the fee in the road bed
subject to the easement of the road; for no such question arises here,
the only question being of the right to interfere with the road itself.
The action of Captain Chittenden, the officer in charge of this road,
in posting along its line the notices warning the people to desist from
interfering with the road was unnecessary, as it is not necessary that
the Unites States should notify people not to meddle with its property;
but, however unnecessary, his action in this respect was, in my view,
eminently wise, discreet, and proper, as calculated to prevent
difficulties and trouble to the Government, and unpleasant consequences
to individuals, and was clearly within his legitimate province.
But, in case this warning of the officer in charge proves
ineffectual, and persons persist in interfering with the road, the other
question submitted by the Chief Engineer has relation to the course to
be pursued-- the remedy. This can not be answered in advance. In each
case the course to be pursued will depend upon the nature, facts, and
circumstances of the particular case, and may differ in different cases.
In such case, if the officer in charge can not control the matter
himself, or is in doubt as to the proper course to be taken, he may
consult the United States attorney for that district, who will advise
him and, if necessary, take the proper steps, as in other cases of
violation of law or interference with Government property.
Respectfully,
JOHN W. GRIGGS.
IMMIGRATION LAWS-- ALIEN RESIDENTS; 23 Op.Att'y.Gen. 278, October 8,
1900
In case an alien domiciled and residing in the United States ships on
a vessel for a round voyage from a port in this country in a capacity
other than that of seaman, no fine is incurred by the vessel or master,
under the act of March 3, 1893 (27 Stat., 569), if on such alien's
return he is not entered on an immigrant list as provided in the
statute.
Such persons are alien residents and not alien immigrants, within the
meaning of that act.
An alien immigrant is one who for the first time enters this country
with the intention of making it his home.
The fact that the steamship company which ships abroad horsemen who
intent to return fails to obtain the certificate required by Circular
No. 135, of 1899, does not preclude the admission of such returned
horsemen, of whose fundamental right to enter this country under such
circumstances, as resident aliens, the Secretary of the Treasury is
assured.
Former opinions reviewed.
DEPARTMENT OF JUSTICE,
October 8, 1900.
The SECRETARY OF THE TREASURY.
SIR: Your letter of September 26, inclosing a letter from the
collector of customs at New Orleans, La., dated September 18, advises me
that nine aliens who are reported to have shipped from New Orleans to
attend to horses transported to South Africa, under a guarantee of
return passage, and who were entered as returned horsemen on the
passenger list of an incoming steamer which arrived recently, I presume
at New Orleans, were not provided with the certificate described in
Circular No. 135, of 1899, nor did the master of the steamer produce the
consular list of immigrants provided for by the act of March 3, 1893.
Upon this state of facts you ask my opinion on the question whether,
in case an alien residing in the United States ships on a vessel for a
round voyage in a capacity other than that of seaman, a fine is incurred
under said statute if on the alien's return he is not entered on an
immigrant list as provided in that statute.
The act of March 3, 1893, which was adopted to facilitate the
enforcement of the immigration and contract labor laws of the United
States, requires, upon the arrival of any alien immigrants by water at
any port in the United States, the master of the vessel bringing said
immigrants to deliver to our immigration authorities a list or manifest
of such alien immigrants containing certain information relating to
them, including "the last residence."
This list is to be verified before the United States consul at the port
of departure by the master and the surgeon of the vessel, and if the
master fails to deliver to the inspector of immigration at the port of
arrival this list so verified, there shall be paid to the collector of
customs the sum of $10 for each immigrant qualified to enter the United
States concerning whom the required information is not contained in any
such list as provided, or said immigrant shall not be permitted to enter
the United States, but shall be returned like other excluded persons.
Circular No. 135 of 1899 provides for a certificate of identification
to be presented to the proper authorities at the port of arrival by
cattlemen returning to ports within the United States, which
certificate, duly signed by a commissioner of immigration, collector of
customs, or immigrant inspector, and viseed by the United States consul
at the foreign port of embarkation, entitled returning cattlemen to
admission into the United States without further examination by the
customs or immigration officers.
The question presented by these circumstances is imply whether these
returned horsemen, or other alien alien residents of this country
already duly domiciled here and similarly returning from such a round
voyage outward from and inward to this country, are included by the
terms of the act of 1893; and, if not, what effect upon their situation
the circular of 1899 produces. Whatever discriminations may be found in
the various circumstances under which aliens, residing in this country
for a greater or less time and returning to their foreign homes for a
temporary visit or for a longer sojourn, and then seeking to reenter
this country and resume their residence here, which prevent the broad
statement that the alien immigrants intended by the immigration acts
mean only those who are entering this country for the first time and
with an intention to settle here permanently-- whether as continuing
their alien status or as becoming citizens-- I am clearly of the view
that under the circumstances before the aliens' right of residence here,
which, it seems, was already obtained and established, was not
interrupted by the voyage out and back to this country so as to require
from the master of the vessel on their return the documents required
under the act of 1893.
The information to be contained in the manifest or list of the act of
1893 plainly shows, I think, that the law generally contemplates an
original entry into this country, and while not forbidding the inclusion
in the law of those who may truly be alien immigrants and yet not
literally be entering this country for the first time, I think in such a
case as the present the test of the meaning of the word "immigrant" as
generally meaning one who enters a country de novo contained in the
opinion of the Solicitor-General dated February 21, 1899, and approved
by me (22 Opin., 353), is to be applied; and, therefore, I answer your
question by stating my conclusion that in case an alien domiciled and
residing in the United States ships on a vessel for a round voyage, from
a port in this country, in a capacity other than that of seaman, no fine
is incurred by the vessel or master under the act of March 3, 1893, if
on such alien's return he is not entered on an immigrant list as
mentioned in the statute. I may enforce this view as applies to the
present case by reviewing other cognate decisions. In the opinion of the
then Solicitor-General, approved by my predecessor, Mr. Miller (20
Opin., 371), regarding certain immigrants who had temporarily resided in
the United States, had revisited their native land, and were there
convicted of crime and served out a sentence of imprisonment and then
returned to the United States, it was held that their former temporary
residence in this country did not exempt the applicants from the
provisions of the immigrations laws cited, the intent of which was to
exclude criminals from this country. In that opinion the definition of
the term "immigrant" was declined, because it was regarded as more
judicious to decide each case with reference to the particular
circumstances.
In the opinion of the Solicitor-General to which I referred above,
occurs this passage, which is characterized as expressing a "wholesome
doctrine" (22 Opinion., 353, 359):
"In other words, an alien resident is not an alien immigrant. Under
our alien immigration acts it has been held that an alien who has
resided in this country without becoming naturalized, and who departs
with the intention of returning, is not to be deemed an immigrant upon
his return, although he was an alien immigrant when he first entered the
country."
(Citing 51 Fed.Rep., 275; 63 Fed.Rep., 437.)
In my opinion of May 8, 1899 (22 Opin., 460), I reach the conclusion
relative to the act of March 3, 1891, that there is nothing in that act
of Congress to indicate that every person arriving in this country is
intended to be regarded as prima facie an alien immigrant; and while I
indicate therein, as I do in this opinion, that from all the legislation
reasons may be gathered for giving a broad meaning to the word
"immigrants," yet I hold that "aliens immigrating" are aliens, not
already domiciled in this country, coming to make it their home. So
that, as I have said, I do not think that the resident aliens in this
case are alien immigrants.
Of course I assume in this answer that the residence and domicile in
this country and the identity of such an alien are clearly established.
Circular No. 135 of 1899 (T.D. 21, 752) appears to me to be a
directory regulation, useful and convenient both for the Government and
returning cattlemen, and important to observe, so that the immigration
laws may not be evaded or laxly administered.
Referring again to 22 Opinions, 460, it was therein pointed out that
section 3 of the general immigration law of 1882, in conferring upon the
Secretary of the Treasury the right to establish regulations and rules
and to issue instructions, recognized that the legislation enacted was
for the purpose of protecting both the United States and immigrants into
the United States from fraud and loss, and it was also noted that
Congress, aware of the intricate and complex nature of the business of
immigration, intended to vest in the Secretary power to make and apply
such rules as would from time to time be shown by experience to be
necessary and convenient. I said further, in effect, in reference to a
different feature of the immigration laws, that the matter of practical
administrations was intended to be regulated by you, Congress not
desiring on the one hand that the entry of persons not entitled should
be given free scope, nor, on the other, that persons entitled to enter
should be unnecessarily restricted or delayed, which leads me to discuss
circular No. 135 as an expression of your practical administration,
which you may, in your discretion, when not forbidden by law, modify as
a permanent Department rule, or hold to be inapplicable, as a sine qua
non, in any given case appearing to you as bona fide and justly claiming
a right.
The note attached to the form of "cattleman's certificate" expressly
makes it the duty of the steamship company which ships abroad cattlemen
who intend to return, to furnish to the immigration authorities at the
port of departure from the United States such a certificate, duly filled
up, for each cattleman shipped, in order that the certificate may be
forwarded to the United States consul at the foreign port of destination
and departure for the Unites States. The provisions of this certificate,
which obviously apply to all returning cattlemen and not only to such as
are resident aliens, went into effect on December 1, 1899, and,
therefore, doubtless cover the cover the case before you. But, while
this regulation should be scrupulously obeyed by all steamship
companies, I do not think the failure to obtain and produce the
certificate upon return precludes the admission of a returned cattleman
of whose fundamental right to enter this country under such
circumstances, as a resident alien, you are assured. In the abstract,
the absence of this certificate might be held to exclude a returning
cattleman who is a citizen of the United States. The circular merely
provides that such cattlemen who hold certificates "shall be entitled
upon identification to admission into the United States without further
examination by the customs or immigration officers." The further
examination may make the right manifest even where no certificate is
held. To exclude a cattleman, otherwise entitled as a resident alien,
for the lack of a certificate would be to punish him for the inadvertent
or negligent failure of a steamship company to furnish the certificate.
The bearing of the circular seems thus to be necessarily interwoven
with the exact inquiry which you put, and leads me to express finally
the view that such returning cattlemen, being resident aliens and not
"alien immigrants" or "aliens immigrating," and if not for any other
reasons excluded persons, should be admitted "if and so long as it might
be found (in your supervision of the subject and administration of the
laws) by experience and inspection that they were in fact * * * not such
persons" (22 Opin., 464); that is, not alien immigrants as herein
defined for this particular class of cases, nor excluded persons.
Very respectfully,
JOHN W. GRIGGS.
IMMIGRATION LAWS-- REMISSION OF FINES; 23 Op.Att'y.Gen. 271, October
5, 1900
The act of March 3, 1891 (26 Stat., 1084), confers no authority upon
the Secretary of the Treasury to remit fines imposed on a vessel or her
master for allowing the escape of alien immigrants whose deportation has
been ordered.
Neither is the power of remission in such cases conferred by section
5295, Revised Statutes, as amended March 2, 1896 (30 Stat., 39).
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.
To constitute a violation of the act of March 3, 1891, there must be
a refusal on the part of the master to receive back on board his vessel
such aliens, or a neglect to detain them thereon, or a refusal or
neglect to return them to the port from which they came.
But where the master has taken every precaution to detain in safe
custody and to prevent an escape, and yet in some real and unforeseen
emergency an escape has occurred, there is no such neglect as the act
contemplates. In such case no fine has been incurred, and therefore none
can be imposed.
The Secretary has authority to return a deposit to cover a fine which
might be due, but which turns out not to have been incurred. Such return
would not be a remission of a fine or penalty, but the restitution of an
amount to which the Government was never justly entitled.
The general doctrine expressed in the opinion of February 3, 1894 (20
Opin., 705), concurred in.
DEPARTMENT OF JUSTICE,
October 5, 1900.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to reply herewith to your letter of September
26, by which you inform me, through a letter of the collector of customs
at the port of New Orleans, the statement of facts in which I understand
you adopt substantially as your own, that you have received an
application on behalf of the French steamship Olbia for remission of
fines to which that vessel or her master is presumably liable under
section 10 of the act of March 3, 1891 (26 Stat., 1086), for allowing
the escape of three alien immigrants whose deportation had been duly
ordered.
And thereupon you ask for my opinion regarding your authority to remit
these fines in view of the various statutes and of the opinion of my
predecessor, which you cite.
I may state briefly the facts leading up to this application, as they
are presented to me.
It appears that these immigrants were on board the Olbia at New
Orleans under the vigilant guard of the vessel's officers and of two
detectives employed by them for this purpose, one of the immigrants
being detained on board awaiting or expecting his release, and the other
two being held under an order of return to a foreign port. Because of
excessive heat, which prevented confinement of the immigrants between or
below decks, and because of the confusion of loading and coaling just
previous to the vessel's clearance, they escaped by swimming and the aid
of confederates, and were concealed, so that, although pursued from the
ship, they have not been retaken. It is the opinion of the collector of
customs that the master and agents of the vessel took every precaution
consistent with humanity and law to prevent the escape of the rejected
immigrants. The agent for the vessel deposited, under protest, to cover
the cases of the three immigrants, the sum of $900, and the matter is
now presented to your executive discretion for the return in whole or
the mitigation of the fine imposed by the act of 1891. That act, section
10, provides that--
"All aliens who may unlawfully come into the United States shall, if
practicable, be immediately sent back on the vessel by which they were
brought in.
* * * and if any master, agent, consignee, or owner of such vessel * * *
shall neglect to detain them thereon, or shall refuse or neglect to
return them to the port from which they came, * * * shall 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 offence; and any
such vessel shall not have a clearance from any port of the United
States while any such fine is unpaid."
The opinion of my predecessor (20 Opin., 705), relating to a suit by
the United States to recover the penalty prescribed for violation of
this section, in which there was conviction and judgment against the
defendant, followed by an application to the Secretary of the Treasury
for remission of fine, held, after reviewing the nature and extent of
this power of the Secretary, that none of the provisions in Title LXVIII
of the Revised Statutes relating to the remission of fines, penalties,
and forfeitures (secs. 5292 et seq.) provides for or permits the
remission of a fine or penalty incurred for violation of the alien
immigration acts. Although section 5292 is susceptible of a meaning
sufficiently broad to include such a case as the present, that opinion,
by reference to the original act upon which section 5292 is based, holds
that only certain cases of forfeitures, penalties, and disabilities are
included, which, specifically named in the original act as well as in
the section of the Revised Statutes, may not be extended through liberal
construction or because of erroneous punctuation beyond those cases;
and, the intervening sections clearly not applying, the opinion regards
section 5294 as relating only to penalties incurred under the laws
regarding steamboats.
With the general doctrines expressed in that opinion I concur. 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.
The case of the remission of fines under the immigration laws may be
merely an ordinary example of a casus omissus, or of a contingency which
the law had not anticipated and has not yet provided for. It seems,
however, that you have heretofore found under section 5294, as now
amended, the authority for your practice of exercising the power of
remission of the penalty under section 10 of the act of 1891 when though
proper, and it becomes important to consider the bearing of the language
of that section and of its amendments upon the point at issue.
Section 5294 provides that--
"The Secretary of the Treasury may, upon application therefor, remit
or mitigate any fine or penalty provided for in laws relating to steam
vessels, or discontinue any prosecution to recover penalties denounced
in such laws, excepting the penalty of imprisonment, or of removal from
office, upon such terms as he, in his discretion, shall think proper." *
* *
This section is based upon section 64 of the act of February 28, 1871
(16 Stat., 440, 458). By turning to this act its title is seen to be "An
act to provide for the better security of life on board of vessels
propelled in whole or in part by steam, and for other purposes." The
main, indeed substantially the only, purpose of that act is to insure
the safety of passengers on board such vessels, and it constitutes the
foundation for the present Government system of the regulation of steam
vessels as contained in Title LII of the Revised Statutes, through the
supervision and inspection of hulls, boilers, etc., with the various
licenses required and rules imposed. These were the "steamboat laws"
applying to all steam vessels navigating in waters of the United States
which are common highways of commerce, excepting public vessels of the
United States and vessels of other countries, and certain other boats
(sec. 4400, R.S.). Section 13 of the act of 1871 (16 Stat., 445, 446)
contains the requirement that the inspectors shall report promptly to
the collector of customs to their knowledge." The only respect in which
these laws touch the body of laws known as immigration laws is in the
provision common to both, that certain passenger lists should be kept,
in the case of the steamboat laws in order to insure that the vessel
should not carry a greater number than the rule of safety permits, and
in the other case in order that alien immigrants should be listed in
group convenient for the information of the Government officials and the
enforcement of the law (act of March 3, 1893.)
Of course this constitutes no real resemblance or connection between the
acts, and the purpose of the lists is very different in the two cases.
It can not well be doubted that section 5294 contemplates the steamboat
laws alone or the laws relating to steam vessels, as the phrase now is.
This is particularly obvious from the withholding of the penalty of
imprisonment or of removal from office in section 5294 from the
Secretary's power of remission, which refers to the punishment denounced
throughout the laws regulating steam vessels for the more serious
offenses thereunder.
You have, however, in previous cases of this sort found in the act of
March 2, 1896, amending section 5294, authority for granting relief from
such fines when you conclude that the circumstances justify that step.
It is therefore necessary to consider to what extent the act of 1896,
cited, affects the question.
The act of December 15, 1894 (28 Stat., 595), amended section 5294 of
the Revised Statutes by substituting the word "vessels" for the words
"steam vessels," and the act of March 2, 1896 (29 Stat., 39), further
amended section 5294 by inserting in that section after the word
"penalties" in the third line thereof the words "or relating to
forfeitures." Both these changes enlarge the scope of section 5294, but
although the immigration act of 1891 makes the vessel responsible for
the fine, it being provided that she shall not be cleared until payment,
shall keep the immigrant on board, shall deport him from the United
States, etc., I am not of the opinion that the act of 1891 relates to
vessels within the meaning of section 5294 as amended. The act of 1891
is an act amending the various acts relative to immigration and
importation of aliens under contract or agreement to perform labor.
Section 5294, in its origin, its form in the Revised Statutes, and under
the amendments, belongs to the navigation laws rather than to the
immigration laws, and the phrase "relating to vessels" to my
apprehension does not mean to include all laws which may affect vessels,
however remotely or indirectly, but rather the laws which relate to and
regulate vessels on the side of commerce and navigation as their
original and direct purpose.
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 should be observed that the above amendments to section 5294 have
both been enacted since the recent immigration laws were passed, and if
Congress meant to give the Secretary this additional power of remission,
they would have done so by express language, or in such general terms as
clearly to show this intent.
Nevertheless, I do not think that this legal conclusion disposes of
the case before us, and I suggest, for your guidance in disposing of the
question, an aspect of the matter which seems to me both legal in its
nature and important.
In the case in which Mr. Olney gave his opinion there was a trial,
conviction, and judgment by which the fine was definitely imposed. In
this case there have been no legal proceedings, and the necessary amount
has been deposited to cover the fines; but does the law require the
fines to be paid? Have they been incurred or imposed? Has the law been
violated? The condition of the law is: "If any master. * * * shall
refuse to receive back on board of 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." In such case the 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; and any
such vessel shall not have clearance from any port of the United States
while any such fine is unpaid." In the case of a refusal by the mater
there could be no doubt of the fact. As to the neglect to detain or
neglect to return, while the law does not require a willful default, nor
provide as necessary any form of legal proceeding to fix or adjudge the
offense, which proceedings in most cases, perhaps, are necessarily
undertaken by the Government to recover the penalty where the amount
thereof is not deposited or secured, I do not think the law means that
under all circumstances whatever guilt is to be assumed, and that even
your own executive or quasi judicial function shall have no liberty to
determine whether or not there has been "neglect."
No doubt the law, while casting upon you, in my judgment, a certain
undefined power to adjudge there questions, meant to leave little room
for mere assertions of innocence and of scrupulous custody where there
was to all intents and purposes a deliberate neglect and a connivance at
escape.
But while I assume nothing relative to the facts in this case, with
which it is your duty to deal and not mine, I am clearly of the opinion
that in a case where every precaution to detain in safe custody and
prevent escape has been rigidly taken, and yet in some real and
unforeseen emergency an escape has occurred, there is no such neglect as
the act contemplates. If the question were regarded otherwise, the act
would rather have said, "if any such alien shall escape from such
vessel, such master shall be deemed guilty of a misdemeanor, and shall
be punished," etc. In a case not merely doubtful, but really
meritorious, the fine would not have been incurred, and the law would
not impose it; and while you have, in my opinion, as I hold above, no
power of remission where the case is within the act and the fine has
properly been incurred and imposed, in such an instance as I am now
contemplating, your return of a deposit to cover a fine which might be
due, but which turns out not to have been incurred under the given
circumstances, would not be the remission of a fine or penalty, but the
restitution of an amount to which the Government was never justly
entitled. The law does not compel you, against your possible knowledge
that there was no failure whatever in good faith or proper measures to
guard and prevent escape on the part of the master, nevertheless to
collect from him the amount of a fine which is surely imposed only upon
the guilty, however their guilt may be determined.
Very respectfully,
JOHN W. GRIGGS.
LOTTERY-- ENDLESS-CHAIN SCHEMES; 23 Op.Att'y.Gen. 260, September 27,
1900
The scheme adopted by the Defender Shoe Store for carrying on
business through the mails is as follows: A ticket is sent to A, who
returns it with 80-cents, and receives a book containing four similar
tickets to sell to four different persons, collecting from each, first,
20 cents, which repays him the 80 cents he first sent; second, he
collects also from each 80 cents, making $3.20, which he takes with the
four tickets to the company's store and for which he gets a pair of
shoes. Another book containing four tickets is sent to each of the four
persons to whom A sold his tickets, and each is expected, in turn, to
sell these four tickets, upon the same terms, and get a pair of shoes
therefor, and so on, indefinitely. The schemes adopted by the Parisian
Skirt Company, the Peerless Shoe Company, and by Henry Murray are
similar in all essential respects, but they differ from the former in
that it is not the originator of the series, but the persons to whom he
sells the coupons who are to send in the money, and also in containing a
provision that in case two coupons are sold, and the cash therefor
turned in, the seller is entitled to some other article of less value,
or the company will redeem the unsold coupons at a certain value. Held:
That such schemes do not come within the prohibition of section 3894,
Revised Statutes, as amended by the act of September 19, 1890 (26 Stat.,
465), which forbids the transmission through the mails of matter
"concerning any lottery, so-called gift concert, or other similar
enterprise offering prizes dependent upon lot or chance."
The only element of uncertainty as to getting the article offered in
each particular case is whether the person will succeed in selling the
four tickets, an and this depends upon his own ability and exertion as
much as ordinarily does the question whether one can sell that which he
has for sale.
If the condition upon which a prize may be received depends solely
upon the ability of the beneficiary to perform that condition, then it
does not depend upon "lot or chance," in any legal sense.
To constitute "lot or chance," in a legal sense, the condition upon
which the prize is to be received must depend for its performance
entirely upon others over whom and whose action the beneficiary has no
control.
Opinion of August 31, 1900 (ante, p. 200), commented on and
distinguished.
DEPARTMENT OF JUSTICE,
September 27, 1900.
The POSTMASTER-GENERAL.
SIR: In response to your letter of September 22, 1900, in which you
request my official opinion whether certain schemes there set out for
disposing of their wares by the persons named come within the
prohibition of section 3894, Revised Statutes, as amended in 1
Supplement, Revised Statutes, page 803, which prohibits transmission
through the mails of matter "concerning any lottery, so-called gift
concert, or other similar enterprise offering prizes dependent upon lot
or chance," I have the honor to reply as follows:
You submit for opinion four different cases, each differing from the
others in some details, but all very similar in general plans, and I
shall consider them in the order in which you present them.
The plan of the Defender Shoe Store, of Cleveland, Ohio, is this,
taking a single instance a ticket is sent to, we will say, A, which
reads as follows:
"Return this ticket to the Defender Shoe Store, Cleveland, Ohio, with
eighty (80) cents, for which we will issue to you a book containing four
tickets. Sell these four tickets for 20 cents each, thereby getting your
80 cents back. Collect 80 cents from each person to whom you sell a
ticket. Send or bring this ticket to us with the 80 cents, for which we
in turn will issue a book of four tickets for the purchaser. When you
have sent each of the four tickets to us in this way you can readily see
that we will have received $3.20, and you are then entitled to a pair of
Defender men's shoes or a pair of Defender women's shoes, in patent or
enamel leather, black or tan vici kid, tan calf, box calf, or calf-skin,
equal to many $5 shoes in the market, and they cost you but 20 cents.
"(Write name and address of owner of this book here and not the party
you sell it to:)
"Name: . . .
"Address: . . .
"DEFENDER SHOE STORE,
"247 Superior Street, Cleveland,
Ohio.
"(Please write plain and fill out each ticket. See other side.)"
On the reverse side of the ticket is the following:
"DEFENDER SHOE STORE,
"247 Superior Street, Cleveland, Ohio.
"DEAR SIR: Please find enclosed 80 cents, for which send coupon book
for four tickets.
"Name: . . .
"Address: . . .
"If a ticket has been lost we will send duplicate free of charge,
upon condition that you give number of same.
"If you have sold two tickets and sent them, with the money, to us,
and you can not sell the balance, return same to us and we will redeem
them at 20 cents each, so you will not be out anything.
"Send all money by post-office money order, express money order, or
registered letter. Do not send stamps."
Upon the inside of the cover is printed this:
"When writing for or giving information always give the number of
this book, as all coupon-books are kept by number.
"Fill in these lines with the names of the parties to whom you sell
your tickets. Collect 80 cents from each person to whom you sell a
ticket, and send or bring the ticket to us with the 80 cents.
"A . . .
"B . . .
"C . . .
"D . . .
"When all your tickets are sold, send in this entire cover with your
name and address, where shoes are to be sent, which will be sent you as
soon as the four tickets you have sold are recieved by us from you,
according to terms of tickets.
"Do not confound our method with the many so-called endless chain
schemes, for it is not. Our new idea is a purely legitimate method,
whereby any person sending or bringing us the four tickets of their own
coupon book and $3.20 will receive a pair of Defender shoes and four
coupon books.
"Send the tickets of your own coupon book to us yourself, with 80
cents each, or the four tickets with $3.20.
"This book is sold with the positive understanding that should we at
any time wish to discontinue issuing coupon books, or should you wish to
discontinue selling the tickets, it can be done, we placing to your
credit 25 cents for each ticket which you have NOT sold upon return of
same to us, the same to be applied as part payment on any pair of
Defender shoes which you select from our catalogue, upon your paying the
difference between amount of your credit and the price of shoes."
You refer to my opinion rendered to your Department on August 31,
1900, in the case of the Midland Publishing Company, of Boston and St.
Louis, and desire to know if the four cases you now present are to be
distinguished from that thus considered or are to be governed by that
opinion.
It may be premised that, while the section above referred to forbids
the use of the mails for advertising or transacting the business of such
gambling enterprises as are there referred to, neither that nor any
other statute forbids or discourages any legitimate business or methods
which are free from that gambling element of lot or chance.
The plan of the Defender Shoe Store, as stated in these tickets, is
somewhat obscure, but, as I construe it as a whole, it is, in substance,
this:
A ticket is sent, we will say, to A, who returns it with 80 cents,
and receives a book of four similar tickets to sell to four different
persons, collecting from each, first, 20 cents, which repays him the 80
cents he first sent; second, he collects also from each 80 cents,
making $3.20, which he takes with the four tickets to the Defender Shoe
Store, and for which he gets a pair of shoes. And another book of four
tickets is sent to each of the four persons to whom the first four were
sold, and who is expected, in turn, to sell these four tickets, upon the
same terms, and get a pair of shoes therefor, and so on indefinitely;
each one selling four tickets for $3.20, and returning the money and
tickets to the store, getting a pair of shoes, and the company has
received $4, the 80 cents first sent and the $3.20 in the first instance
from A, and $3.20 from each of the others.
It will be seen that A, the originator of this series, gives nothing
for his shoes except his services in selling the four tickets and
returning them with the $3.20, as he has collected from the four
purchasers the 80 cents he first paid.
We will now take the case of B, one of the four purchasers of the
tickets. He has received another book of four tickets. He has already
paid $1, which went toward A's shoes. He sells his four tickets as A
did, collecting from each purchaser 20 cents and 80 cents, the former
repaying to him 80 cents of the $1 he had paid, and the latter, or $3.20
in all, goes to the store, and he also gets a pair of shoes, which, as
the ticket says at the close, has cost him but 20 cents, and so of each
of the others of the four, and so on indefinitely.
It will be seen that, on the part of the store, this is a sale, in
the first instance, of a pair of shoes for $4, and in each of the other
cases, is such sale for $3.20; and that each of the purchasers of
tickets has paid $1 toward the previous man's shoes, and has received
therefor four tickets which, if he can sell them, will repay him 80
cents of that dollar and get him a pair of shoes also.
The only element of uncertainty as to getting the shoes in any
particular case is the question whether he can thus sell the four
tickets, and this depends upon himself and his own ability and exertions
as much as ordinarily does the question whether one can sell that which
he has for sale. And this is not "lot or chance" in the sense in which
these words are used in the section referred to. In this respect this
case differs materially from that of the Midland Publishing Company,
considered in my opinion of August 31. In that case the condition upon
which the prize was to be received depended for its performance entirely
upon others, over whom or whose action in the premises neither the one
to give nor the one to receive the prize had any control. In this case
the condition is to be performed by the party himself, who is entitled
to the benefit of its performance.
And although this performance will depend upon finding some one willing
to purchase, so also does every case of legitimate sale or attempted
sale; and yet no one supposes that this injects into the transaction an
element of what is popularly or legally called lot or chance.
If the condition upon which something-- a prize, for instance-- may
be received, depends upon the beneficiary himself, his own ability or
exertions, then it does not depend upon lot or chance, in any legal
sense.
In this case, too, all the shoes thus sold are sold at the same, and,
so far as we are enabled to know, at a fair price; and the peculiar
inducement offered to each person is that his shoes will be paid for by
some one else, as they will be if he can thus sell four tickets; and
those who thus paid will, in turn, upon the same conditions, get shoes
which are paid for by another purchaser. And this feature is common to
all the four cases submitted. Of course, the chain will break somewhere,
by the failure of some one to sell four tickets, in which case he will
have paid toward the previous man's shoes without getting any himself.
But even this failure has not been by lot or chance, but was, as in so
very many other cases, an unsuccessful attempt at selling.
I do not attach much importance to the fact that, in this case, if a
party has sold two tickets and can not sell the other two, they will be
redeemed; nor, in the other cases considered, to similar promises to
redeem unsold tickets or coupons; for the reason that the question in
these cases is whether the prize itself depends upon lot or chance, and
is not as to whether the expenditure or loss of the party in trying to
procure it has been much, little, or nothing.
It has been objected that the opinion referred to overlooked a use of
the cards there considered, which would, to a certain extent, eliminate
the element of chance, namely, that the originator of the "chain," might
himself return the ten cards with 20 cents for each, and thus, by
something which depended upon himself alone, and not upon chance, secure
the prize. With reference to this, it is quite sufficient to say that,
in that case, the cards neither contemplated, nor promised anything for
any such use of them.
On the contrary-- and this was the expected principal source of
revenue-- it was expressly stipulated that the card should be
distributed to ten other persons, each of whom was expected to receive,
distribute, and have returned with the money, ten other cards; and,
whether any of them did so or not, depended upon considerations over
which no one else had any control.
The plan of the Parisian Skirt Company, of Syracuse, N.Y., is thus
stated in the coupons sent out by that company:
"Fill out blank on back and return this coupon with $1 postal or
express order, for which the company will issue you a book of five
coupons. Sell the five coupons for 20 cents each, thereby getting your
$1 back. Each of those to whom you sell a coupon sends in, purchasing a
book of five coupons for themselves. When your five coupons have been
sent in to us in this way we have received $5 (the wholesale price, and
you are entitled to a TAFFETA SILK WAIST OR SKIRT, made to measure.
"In case any person to whom you sell a coupon fails to send same in
promptly you may ask for a duplicate and subscribe for the books
yourself, with the privilege of reissuing at your leisure, thus avoiding
delay or any forfeiture of the amount that is placed to your credit on
account of books issued to your subscribers.
"Return this coupon to--
"Principal office and factory, Syracuse, N.Y.
"Owner of book: . . . Street: . . . Town: . . . County: .. .
State: . . .
"Do not remit check or postage stamps for books.
"If a coupon has been lost or destroyed write us, giving number, and
we will send you a duplicate. Inclose 2 cent stamp for return of books."
The plan thus outlined is, in its general features, similar to that
of the Defender Shoe Store, just considered, with one exception, and,
save as to that exception, what has been already said is applicable also
here. The exception is in the fact that, in this case, the persons to
whom the originator of a series sells the coupons are the ones to return
them with the money, and, whether they will do so or not is a matter
which he, the originator, can not control; and hence it may be said
that this involves the same element of chance that was found in the case
of the Midland Publishing Company. On the other hand, it may be said
that, when these persons have become so much interested and have
embarked in the enterprise and paid 20 cents each for a coupon, with the
intention of sending the coupon and $1 for the purpose of getting a silk
skirt in that way, the probability that they will carry out that
intention is such as, in a business view, to remove the question from
the region of mere chance into that of business calculation. But,
however this may be, in this case the getting of what is offered is not
"dependent upon lot or chance," for, in case one or more of the
purchasers of a coupon fails to send it in with the money, the seller
may procure duplicates and himself send them in with the money, with the
same result as if they had been sent in by the purchaser; so that,
whether he gets the skirt or not, depends entirely upon himself and not
upon any chance. True he would have to pay more in that case for what he
got, but this would militate rather against any gambling feature, and
certainly would not make the prize any more dependent upon chance, which
is the only question.
While I am not clear that this feature of the plan does not bring it
technically within the prohibition of the section being considered, yet
it is not clear to my mind that it does; and, inasmuch as the General
Government should not interfere with private business by such a drastic
measure as would be the exclusion of its correspondence from the mails
until it is clear that such business is in violation of law, I have to
advise you that no action be taken at present in this case.
The plan of the Peerless Shoe Company, of Bessemer, Ala., is thus
stated on its tickets:
"Return this ticket to the Peerless Shoe Company, Bessemer, Ala.,
with $1, for which we will issue you a book containing four tickets.
Sell these four tickets for 25 cents each, thereby getting your $1 back.
Each person to whom you sell a ticket sends or brings it to us with $1,
for which we in turn issue a book of four tickets for themselves. When
each of the four tickets have been sent to us in this way, you can
readily see we will have received $4, and you will then be entitled to a
pair of Peerless shoes in patent leather, willow calf, titan calf, box
calf, calf-skin, Russia tan, and black and tan vici kid, equal to many
$5 shoes on the market, and they cost you but 25 cents.
"Write name and address of the owner of the book here (not party you
to sell to):
"Name: . . .
"Address: .. .
"Please write plainly and fill out each ticket.
"When you sell the tickets see that they are sent to us promptly.
"PEERLESS SHOE COMPANY,
"1921 Second avenue, Bessemer,
Ala.
"(See other side.)"
On the reverse side is this:
"PEERLESS SHOE COMPANY,
"1921 Second avenue, Bessemer, Ala.
"DEAR SIR: Please find inclosed $1, for which send me coupon book of
four tickets.
"Name: . . . ,
"Address: . . ."
"If a ticket has been lost, we will send duplicate free of charge,
upon condition that you give number of same.
"If you have sold two tickets and they have been cashed in to us, and
you can not sell balance, return same to us and we will redeem them at
25 cents each, so you will not be out anything. One of these tickets
with $1 must be sent to us before we will issue a book.
"Send all money by post-office money order, express money order, or
registered letter. Do not send stamps, or money in envelopes, without
registering.
Except as to the provision in the last case considered, that the
person receiving the four coupons may himself turn in such as he can not
sell, with the same result as if so done by the purchaser, this case is
similar, in its general features to those already considered here; and
substantially what has been said may, with that exception, be said of
this case. For the reasons stated in the case last considered above, I
do not hold that this case is of the class of cases referred to in
section 3894 (1 Supplement Revised Statutes, 803). There is nothing in
this or either of the other cases which appears to be anything more than
the holding out of a legitimate inducement to others to assist in
selling what the promoter of the scheme has for sale. That inducement is
the promise of what is offered if the persons succeed in making a sale
and the price is returned. And, which is important upon the question of
lot or chance, in each case, success in thus selling is so within
ordinary ability and exertion, business expectation and probability as
to remove it from the range of mere chance.
When one purchases from the seller a coupon or ticket, for the sole
purpose of its being turned in for the seller's benefit, and which is
the sole purpose of the whole transaction, there is at least an implied
promise that the purchaser will turn it in, as expected, and thus enable
the seller to realize the only purpose and benefit of the sale. And
whether the purchaser will keep his promise is not, in any proper sense,
a matter of chance, but depends upon and is governed by the same
considerations which affect other executory business transactions.
The plan adopted by Henry Murray, of Mitchell, Ind., is thus stated
in the coupons of the books issued by him:
"Please find inclosed 90 cents, for which send me coupon book for
four tickets.
"Name: . . .
"Address: . . .
"Purchase a coupon from a coupon holder for 20 cents; return the
coupon to me, 90 cents inclosed, for which I will issue a book of four
coupons. Sell the four coupons for 20 cents each, thereby getting in
return 80 cents of your money. Each of those to whom you sell a coupon
send it to me, with 90 cents, and I will issue a book of four coupons to
each of them. When the four coupons have been cashed in to me, you can
readily see that I have received $3.60, and you are entitled to the rug,
which has cost you only 30 cents.
"Remittance must be made by post-office money order, express order,
or registered letter only.
"Name of book owner: . . . No. 26675. Address: . . .
"HENRY MURRAY,
"SPECIAL NOTICE.-- If you have sold one coupon and it is cashed in,
and you can not sell the balance, return same to me and I will send you
a 90-cent rug (good size); if you sell two coupons and they are cashed
in, you are entitled to a $2.50 Moquette rug (size 28 by 64), which
costs you 50 cents. If you fail to sell a coupon you are not entitled to
anything. One of these coupons, with 90 cents, must be sent to me before
a book will be issued.
"Give number of coupon when writing."
In addition to what thus appears, I am informed by the attorney of
Mr. Murray, at a hearing given him in this case, that, though the
coupons do not expressly so state, yet Mr. Murray's practice is to allow
anyone who can not sell the coupons he has received, to himself return
them with the money and receive the rug offered, the same if thus
returned by purchaser.
This would make the case similar to that of the Parisian Skirt Company.
Nothing need be said of this case beyond what has been already said of
the others.
I do not think that either of these four cases can be called a
"lottery, so-called gift concert, or other similar enterprise offering
prizes dependent upon lot or chance." On the contrary, as already said,
the getting or not getting that which is offered, being dependent upon
success in selling tickets or coupons, and that, in turn, being within
the range of ordinary ability and exertion, ordinary business
expectation and probability, it can not well be said that the getting of
what is thus offered depends upon lot or chance.
Respectfully,
JOHN W. GRIGGS.
TYBEE ISLAND MILITARY RESERVATION-- STATE JURISDICTION; 23 Op.
Att'y. Gen. 254, September 26, 1900
Where the United States has acquired title to lands by purchase by
consent of the legislature of a State, and there was no reservation on
the part of the State of concurrent jurisdiction over the lands so
disposed of, the Federal jurisdiction is exclusive of all State
authority.
An act of the State of Georgia, passed December 22, 1808, provided
that from and after the passage of that act the Congress of the United
States shall have and maintain jurisdiction in and over all the lands
the have acquired, or may hereafter acquire, for the purposes of
erecting forts and fortifications in that State. In 1875 the United
States acquired by purchase from a citizen the lands upon which is now
located the military reservation on Tybee Island, in that State. Held:
That under the provisions of the act of 1808, the United States acquired
and retains exclusive jurisdiction over that reservation, and the
sheriff of the county within which it is situated has no power to go and
serve thereon any process whatsoever issued by a court of that State.
The act of Georgia of March 2, 1874, can have no application to this
reservation, for at the time of its purchase that act was not in
existence, and no right on the part of the State to serve civil or
criminal process thereon having been reserved, the grant of power to the
United States was and is exclusive of all State authority.
DEPARTMENT OF JUSTICE,
September 26, 1900.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge the receipt of your letter of
January 27, 1898, in which you ask my opinion as to whether a sheriff in
the State of Georgia has the right to enter upon a Government military
reservation within the county for which he is sheriff, with a warrant of
attachment issued by a State court in Georgia, for the purpose of
levying upon personal property then in use by the defendant in the
attachment on the reservation in constructing a gun battery for the
United States under contracts for your Department.
It appears from your letter that the reservation in question is on
Tybee Island, about 17 miles below Savannah, Ga., and contains about 210
acres. It was conveyed to the United States by John Screven et al. by
deed dated May 21, 1875. The land was purchased as a site for
fortifications from the appropriation made by Congress "for purchase of
sites proposed to be occupied for permanent sea coast defenses.? (Act of
March 3, 1871; 16 Stat., 544.) It further appears that within the
210-acre tract is a light-house reservation of about 6 acres, which is
independent of the military reservation, the former being under control
of the Treasury Department and the latter under the control of your
Department. The light-house reservation appears to have been transferred
to the United States by an act of the State of Georgia, dated December
15, 1791, and this statute does not contain any reservation of the right
of the State to serve process of any kind. It further appears that, on
December 22, 1808, an act of the general assembly of the State of
Georgia was approved by the governor, which reads as follows:
"SECTION 1. Be it enacted by the general assembly of the State of
Georgia, That from and immediately after the passage of this act the
Congress of the United States shall have and maintain jurisdiction in
and over all the lands they have purchased or which have been ceded or
otherwise acquired by the, or hereafter may be acquired, for the purpose
of erecting forts or fortifications in this State: Provided, The said
United States do or shall cause forts or fortifications to be erected
thereon."
Subsequently, on March 2, 1874, an act of the general assembly of the
State of Georgia was approved, which provides, inter alia, as follows:
AN ACT to provide for the relinquishment to the United States, in
certain cases, title to and jurisdiction over lands for sites of
light-houses, and for other purposes, on the coast and waters of this
State.
"Whereas the Congress of the United States has made appropriations
for the construction of a light-house and dumb beacons in the Savannah
River, and the wants of commerce may hereafter call for the construction
of others on the coast and waters of this State; and
"Whereas the laws of the United States require that the said United
States shall hold exclusive title to and jurisdiction over all lands to
be occupied as sites of public works before any such work can be begun:
Therefore,
"SECTION 1. Be it enacted, etc., That whenever a tract of land
containing not more than five acres shall be selected by an authorized
officer or agent of the United States, for the bona fide purpose of
erecting thereon a light-house, beacon, or buildings connected
therewith, and the title to the said land shall be held by the State,
then, on application by the said officer or agent to the Governor of
this State, the said Executive is hereby authorized to transfer to the
United States the title to and jurisdiction over said land; but if the
title of the land wanted shall not be held by the State, then, on
application of the United States through their officer or agent, after
acquiring title thereto by purchase or otherwise, the said Executive is
hereby authorized to transfer to the United States exclusive
jurisdiction over the same: Provided, always, That the said transfer of
title and jurisdiction is to be granted and made as aforesaid upon the
express condition that this State shall retain a concurrent jurisdiction
with the United States in andover the land or lands so to be
transferred, and every portion thereof, so far that all process, civil
or criminal, issuing under authority of this State, or any of the courts
or judicial officer thereof, may be executed by the proper officer
thereof, upon any person or persons amenable to the same, within the
limits and extent of the land or lands so ceded, in like manner and to
like effect as if this act had never passed, saving, however, to the
United States security to their property within said limits or extent."
I further understand that the sheriff claims the right to serve the
process under the reservation of such right contained in the act of the
general assembly last quoted. The first question, therefore, involved in
your request for an opinion, is as to whether the act of March 2, 1874,
applies to the case in question. It is true that the title of the act
discloses a purpose to relinquish to the United States the "title to and
jurisdiction over lands for sites of light-houses, and for other
purposes, on the coast and waters of this State." Were there nothing in
the act to qualify the general language of the title, a military
reservation which is situated on the coast in the State of Georgia might
be considered as being within the expression "for other purposes." The
preamble of the act, however, suggests that the purpose of the act was
to cede title to land for the necessary safeguard of commerce. It
recites that appropriations had been made "for the construction of a
light-house and dumb beacon in the Savannah River, and the wants of
commerce may hereafter call for the construction of others on the coast
and waters of this State." This would seem to qualify the title of the
act and restrict its application to the erection of light-houses,
beacons, or other similar buildings which are constructed for the
benefit of commerce. It would not include a military reservation which
is constructed for the coast defense. Moreover, passing the title and
the preamble, the body of the act provides "that whenever a tract of
land containing not more than five acres shall be selected by an
authorized officer or agent of the United States for the bona fide
purpose of erecting thereon a light-house, beacon, or building connected
therewith," etc.
The military reservation in question is in extent in excess of 5
acres, and therefore could not have been ceded under the act of March 2,
1874.
Moreover, it was not acquired by the Government for the purpose of
erecting thereon a light-house, beacon, or building connected therewith.
Its purposes are wholly different and belong to a different department
of the Government.
Even the light-house reservation, which is within, but not a part of,
the military reservation, was not ceded under the act of March 2, 1874,
for the reason that it had been ceded under a prior act of December 15,
1791, and the Government at that time acquired its title to an exclusive
jurisdiction over the 6 acres in question. Moreover, as the
last-mentioned tract is more than 5 acres it can not fall within the act
of March 2, 1874. It is, however, unnecessary to decide whether the
attachment could be served within the 6-acre tract which is used for the
light-house, for I understand that the attachment which the sheriff
seeks to serve was to be executed by the seizure of certain personal
effects of the contractor who was then constructing a gun battery on the
military reservation as distinguished from the light-house reservation.
There can be no question in my mind that, as to the military
reservation, the act of March 2, 1874, has no application.
The 210-acre tract, therefore, purchased for permanent seacoast
defenses must be regarded as having been ceded under the act of December
22, 1808, already quoted, by which the State of Georgia provides that,
"after the passing of this act, the Congress of the United States shall
have and maintain jurisdiction in and over all the lands they have
purchased or which have been ceded or otherwise acquired by them, or
hereafter may be acquired, for the purpose of erecting forts or
fortifications as to the tract in question in the United States
Government. There was no reservation of any right to serve either the
criminal or civil process of the State. It is clear that without such
reservation there can be no right in the State authorities to serve
process in the tract in question, for it is an elementary principle of
law that a judicial officer can not serve process beyond his
jurisdiction. In this connection it is enough to call attention to the
case of Fort Leavenworth R.R. Co. v. Lowe (114 U. S., 525 et seq.),
where it is said:
"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."
Of course it is competent for the State in relinquishing its
sovereignty and ceding it to the United States to reserve the right to
serve civil and criminal process. But in this case no such reservation
has been made by the State of Georgia, and the granting of power to the
United States is absolute and exclusive of all State authority
whatsoever, (U.S. v. Cornell, 2 Mason, 60.)
It is needless to suggest that the case is not unimportant, as the
work of the Government, especially in the important and often urgent
matter of national defense, would be seriously embarrassed if the
necessary machinery of the contractors, who are engaged in the
construction of such means of national defense, could be seized under
the process of the State courts. As was said by Mr. Justice Field in the
first case cited, "Their exemption from State control is essential for
the independence and sovereign authority of the United States within the
sphere of their delegated powers."
Very Respectfully,
JOHN W. GRIGGS.
APPRAISERS-- SETTLEMENT TESTS-- IMPORTED SUGARS; 23 Op.Att'y.Gen.
238, September 25, 1900
Under Schedule E of the existing tariff law (act of July 24, 1897;
30 Stat., 168), specific rates of duties are laid upon imported sugars
graduated according to the polariscopic test. These tests, while made by
officers and experts subordinate to the appraiser, are reported to him,
and by him, after ascertainment of the quality and value of the sugar,
reported to the collector for classification.
It is the collector's duty to classify such sugars, and this
classification is based upon the appraiser's report, which embraces not
only the question of value, but the general result of his examination,
including the character and quality of the sugars.
Section 16 of the customs administrative act (June 10, 1890; 26
Stat., 138), authorizes the officers therein named to cite witnesses and
to require the production of letters, etc., in ascertaining the
classification as well as the dutiable value of merchandise, including
all information which the officers so empowered deem material.
It has been a part of the duty of appraisers throughout the tariff
history of the country to examine and inspect merchandise and report
upon its character and quality in connection with or in addition to the
report on value.
Under the law as it exists, the appraiser, as the final and chief
examining officer, is given authority to ascertain, by all reasonable
ways and means in his power, not only the actual value of imported
merchandise but its character and a quality as well; and this right of
ascertainment carries with it the authority to demand and secure from
sugar importers the settlement tests of all importations of sugar.
There can be no doubt of the collector's right, under section 16 of
the customs administrative act, to call for such settlement tests, and
for practical purposes it is immaterial whether appraiser obtains this
information directly from the importer or through his superior, the
collector.
DEPARTMENT OF JUSTICE,
September 25, 1900.
The SECRETARY OF THE TREASURY.
SIR: Your letter of April 16 informs me that under the tariff act of
1894 (Schedule E thereof), which imposed an ad valorem duty upon
imported raw sugars, it became the practice in appraising such
merchandise to ascertain first the value at the port of importation and
to deduct the costs and charges incident to transportation, because such
sugars were usually consigned for sale at the prices which might be
realized; that these prices were determined by what is known as the
settlement test of such sugars, which is the average of two tests made
by chemists employed respectively by the seller and buyer, and in case
of disagreement, by the intervention of a third commercial chemist. It
appears that importers contended under that tariff that such settlement
tests should be accepted by appraising officers as the proper basis for
appraisement, and freely furnished such tests for that purpose
In Treasury Department Circular No. 146, dated October 16, 1896, the
sugar regulations then in force were supplemented by the provision that
the appraiser may require the importer, under section 16 of the customs
administrative act, to report the polariscopic degree revealed upon any
settlement test, and may also require a sample identical with the sugar
which was the subject of such test.
Under the existing tariff (Schedule E thereof) specific rates of
duties are laid upon imported sugars graduated according to the
polariscopic test, and it appears to have been the practice of the
appraiser at New York to require of importers their settlement tests in
order to determine, where necessary or desirable, whether the Government
tests are correct. May importers continue to produce the settlement test
to the appraiser, while other importers object so to do on the ground,
generally, that since now no question of value is involved, and since to
the appraiser belongs the duty of ascertaining value, and he is not
empowered by law to decide the question of classification, which is
committed to the collector, the settlement test is not material in any
official matter before the appraiser; and for the further reason that
object, as such importers are informed, is to enable the appraiser, by
comparison of the settlement tests and the Government official tests, to
judge of the efficiency of the official samplers, and that it is not
competent for the appraiser thus to coerce the importer in aid of the
maintenance of official discipline.
The contention of the appraiser, on the other hand, is that he is
authorized to enforce a demand for such settlement tests by virtue of
the authority vested in him under section 16 of the customs
administrative act.
It seems, further, that frequent applications are made to the
appraiser at New York by importers for the retest of imported sugars
under the provisions of paragraph 34 of the sugar regulations now in
force which were promulgated May 10, 1899, by which paragraph it is
provided that is an importer claims an error in the official test
reported to him, and requests a retest of any portion of the sugar under
examination, the request may be granted, provided the appraiser, on
evidence furnished, deems the claim to be well founded; but such retest
shall not, however, be granted when the error claimed amounts to less
than four-tenths of 1 polariscopic degree. It seems that the evidence
furnished by the importer is, generally, his settlement test, and that
when that is shown to be four-tenths or more of 1 degree lower than the
Government test, the retest is granted. When, however, the settlement
test is four-tenths of 1 degree higher than the Government test, it is
the appraiser's practice to make retest under an amended regulation of
January 25, 1900, which provides that in case of retest for
classification shall be the original test, unless the latter is higher
than the retest, in which case the retest or the average of the test and
retest shall be taken as the basis of classification, whichever is shown
to the satisfaction of the appraiser to be the correct test.
You state that it follows from the foregoing that when the settlement
test is four-tenths of 1 degree higher than the Government test, that
fact can not be known to the appraiser unless importers are required to
present all their settlement tests, and the Government will lose the
advantage of retests which are fully accorded to importers when the
settlement tests are four-tenths of 1 degree lower than the Government
tests.
Upon this point it appears from the papers, on behalf of the importers,
which accompany your communication and which you make a part thereof in
effect, that since the Government takes its own samples and makes its
own tests, the classification is made upon the official test and not
upon the settlement test; that if the classification could be made upon
the settlement test, it would doubtless be furnished, but as this is not
the case, the settlement test is not material to the appraiser in
arriving at the proper test, and the importers' contention reverses the
contention of the appraising officers, as stated by you, that the
balance of advantage in reference to comparison of tests is against the
Government, because the importers claim that the appraiser is always
willing to regard the settlement test when higher than his own, but is
loath to give it significance when lower.
The position of the appraising officers, as shown more at large by
other inclosures, is as follows: That, as above states, when the
official test is believed to be excessive, the importers do not hesitate
to forward the settlement tests and demand investigation and correction
bases thereon; that the regulations drafted under the act of 1897 were
founded upon those in effect under the act of 1883, when a schedule
identical in spirit with the present one was in existence, the duties
under the tariff of 1883 also being specific, the differences being,
that under the present act, the polariscopic test was applied to sugars
of higher color standard, and that fractions of a degree affected the
tax proportionately, whereas under the earlier act, they were reckoned
as degrees; that the settlement tests are material, and the appraising
officer's inquiry is not restricted under the law to the ascertainment
of value, but embraces quality, and that while the collector is by law
the classifying officer, the appraiser's work in reference to the
character as well as value of merchandise is the basis of the
collector's classification; that if under the regulations such a test
is found as experience in the character and quality of sugar shows to be
incorrect, and by exercising the provisions of section 16 of the customs
administrative act the true test can thus be ascertained, it is the duty
of the appraisers to avail of the statute;
and, finally, that the appraiser is not seeking information by methods
which are inquisitorial, oppressive, and in excess of power, nor
prejudicial to the interests of the importers, but, on the contrary,
only seeks, for the purpose of discovering the actual and correct test
of the sugar, information which has been willingly offered in the past,
namely, the settlement test which the merchant claims to be the true
test, at least when it is to his interest to do so.
Upon this state of facts you desire my opinion touching the authority
of appraising officers to demand and secure from importers the
settlement tests of all importations of sugar, from which it will be
perceived that the question of law is whether the appraiser has the
right under the statutes to compel the production by the importer of the
information sought.
Addressing myself to the question, the provision of law which is the
foundation of the conflict and is first to be considered in section 16
of the customs administrative act providing--
"That the general appraisers, or any of them, are hereby authorized
to administer oaths, and said general appraisers, the boards of general
appraisers, the local appraisers or the collectors, as the case may be,
may cite to appear before them and examine upon oath any owner,
importer, agent, consignee, or other person touching any matter or thing
which they, or either of them, may deem material respecting any imported
merchandise, in ascertaining the dutiable value or classification
thereof; and the, or either of them, may require the production of any
letters, accounts, or invoices, relating to said merchandise, and may
require such testimony to be reduced to writing, and when so taken, it
shall be filed in the office of the collector, and preserved for use or
reference until the final decision of the collector or said board of
appraisers shall be made respecting the valuation or classification of
said merchandise, as the case may be."
The importers apparently concede that the collector as the
classifying officer may call for the settlement tests under this
section, but contend that its provisions are distributive, and that
while the appraiser is impowered to obtain any information deemed
material respecting dutiable value, he is not empowered to obtain
information where classification alone is involved, as in the case of
any merchandise like sugar subject to specific duty upon quality tests.
There can be no question in respect to the appraiser's function as to
determining dutiable value. The language of all the statutes, ending
with the customs administrative act, section 10, and of all the
decisions thereunder, expresses this duty. (Sec. 16, act of March 1,
1823, 3 Stat., 735; sec. 2, act of May 28, 1830, 4 Stat., 409; sec.
9, act of July 14, 1832, id., 592; secs. 16, 23, act of August 30,
1842, 5 Stat., pp. 563, 566; sec. 8, act of July 30, 1846, 9 Stat., 43;
sec. 2, act of August 10, 1846, id., 96; act of March 3, 1851, id.,
629; sec. 2902, Rev. Stats.) Allied provisions of the earlier acts and
of the customs administrative act make the appraisement final and
conclusive under certain conditions. The courts have sustained this
finality unless the appraiser proceeded on some wrong principle contrary
to law or exceeded his authority, and generally have sustained the
results reached by the appraiser, with the exception of cases to which
the qualifying principle just stated was applied. (Rankin v. Hoyt, 4
How., 327; Bartlett v. Kane, 16 How., 263; Greely's administrator v.
Burgess, 18 How., 413; Sampson v. Peaslee, 20 How., 571; Belcher v.
Linn, 24 How., 508; Hilton v. Merritt, 110 U.S., 97; Auffmordt v.
Hedden, 137 U. S., 310; Passavant v. United States, 148 U.S., 214;
United States v. Passavant, 169 U.S., 16.)
The nearly uniform language of the statutes, on which the appraiser's
functions rest, is that it shall be the duty of the appraiser, by all
reasonable ways and means in his power, to ascertain, estimate, and
appraise the actual market value and wholesale price of the merchandise,
and the number of yards, parcels, or quantities, and such actual market
value and wholesale price of every of them as the case may require.
There are some differences in the language of the statutes, and some
expressions therein which will presently be noticed, leading to an
enlarged view of the appraiser's duties, but, generally speaking, these
are regulated and defined in the manner just stated, and no direct grant
of power includes the ascertainment of quality and nature of merchandise
as well as of value.
But, nevertheless, have the appraisers no duties to perform relative
to other aspects of the merchandise than value, namely, such as the
determination of nature or character, quality, origin, or the like; or
are their functions in these respects only tributary to the inquiry
concerning value? I can not think so. While, as states, there is no
express grant or authority to enter into any inquiry beyond the
ascertainment of value, the nature of the case in its practical aspects,
the relation of the appraising officers to the customs system and to the
collector, and the fair, if not necessary, inference from all the laws,
regulations, and decisions lead to the contrary view. Although it is
the collector's duty to classify, his classification is based upon the
appraiser's report to him, and, as I understand the matter, the
appraiser's report embraces not only the question of value but the
general result of the examination of merchandise, and the appraiser is
the official who makes the report to the collector where the merchandise
is subject to a specific duty as well as to an ad valorem duty. The
polariscopic tests of sugar are made by officers and experts subordinate
to the appraiser, and these tests of course respect quality and are
reported by the appraiser to the collector; and it seems that the work
of branches of the customs staff, such as that of the samplers and
weighers, is tributary to the appraiser's work, and that the latter is
at least the conduit through which all information respecting imported
merchandise, including its quality and nature as well as its value,
reaches the collector.
I am unable to discover any reported case discussing fully the limits
of the appraiser's power to investigate imported merchandise where the
duties are specific, and the statements which I have just made go to a
general view of the system of appraising imported merchandise and
collecting revenue therefrom and to the main relations of the different
officials to that system. It must be admitted that in the case of
Marriott v. Brune (9 How., 619), deciding that duty is to be assessed,
not upon an invoice weight, but upon the weight when landed, the Supreme
Court said that an estimate made by the appraisers could be final only
as to the price abroad and not as to the quantity or weight reaching
this country.
"The latter is fixed by another class of officers authorized by law for
that purpose; and if the appraisers undertake to fix it, their action
in that respect is coram non judice, and a nullity." So here it might be
said that the test is reached by the experts authorized for that
purpose, and that while the appraiser may inform the collector of the
result, he can not properly affect it any more than he can usurp the
function of the weighers, and therefore has no authority to demand, for
his information and guidance, the importers' commercial test. Yet I
think that on the whole the laws now point to the authority of the
appraiser as the final and chief examining officer by whom the collector
is advised with respect to the classification. The question is
confessedly difficult, and I will therefore proceed to examine in some
detail various provisions and decisions which seem to me to tend to this
view, embracing the expressions used in the law to which I refer above.
Under section 16 of the act of 1823, supra, the appraisers are to
examine and inspect imported goods. That act referred to ad valorem
duties, but expressly applies to any other act, and the expression which
I have emphasized is general and is repeated frequently in subsequent
laws. The phrase in the customs administrative act is "to ascertain,
estimate, and appraise" value, and the more general previous phrase, so
far as express direction goes, led only to report of value, so that the
earlier language may strictly be regarded as involving no greater power
than the wor "estimate" in the present law. Section 9 of the act of
1832, supra, authorizes the Secretary of the Treasury to establish
regulations "to secure a just, faithful, and impartial appraisal of all
goods * * * and just and proper entries of such actual value thereof."
This section is substantially reproduced by section 2949, Revised
Statutes. So that the two phrases in the statutes from which the scope
of the appraiser's duty has been drawn are that the appraiser shall
examine and inspect merchandise in order to report the value thereof to
the collector, and shall ascertain, estimate, and appraise value by all
reasonable ways and means in his power.
Section 2912 of the Revised Statutes, relating to the appraisement of
wool, shows that the question of quality of an importation is within the
appraiser's competence, although there, too, the matter of value chiefly
is pertinent. Section 2921 is evidence, if evidence were needed, that it
is part of the appraiser's duty to examine merchandise. Section 2926,
relating to goods of which incomplete entry has been made, shows that
the particulars generally of an importation, as well as the cost of
value thereof, may be ascertained by appraisement, and section 2927
indicates clearly in respect to damaged goods, whether subject to duty
ad valorem or by specific rates, that it is the appraiser's duty to
ascertain and certify the rate or percentage of damage with respect to
the number of articles and weight or measure involved as well as with
respect to value. (See also sec. 2943.) In section 2933, involving a
hygienic purpose, it is shown that examination and appraisal refer to
quality, purity, and fitness as well as to value and identity. Section
2938 implies that the appraiser who revises and corrects the reports of
an assistant appraiser (sec. 2929) has a general supervision of the
duties of examination or appraisement performed where specially
qualified experts are requisite, as in the sugar case which we are now
considering; and section 2953 refers to accommodation for the use of
the United States appraisers "for the due examination and appraisal of
imported merchandise."
The oath which the appraiser at New York shall take under section
2614 binds him faithfully to direct and supervise the examination,
inspection, and appraisement according to law; and the assistant
appraisers, by section 2615, shall take an oath diligently and
faithfully to examine and inspect such goods, wares, and merchandise as
the appraiser may direct. Under section 2616 every officer appointed
under the title "Collection of Duties" shall take an oath that he will
use his best endeavors to prevent and detect frauds against the laws of
the United States imposing duties upon imports.
Some of the provisions of the Revised Statutes referred to have been
repealed by later laws, and in most instances by the customs
administrative act, for the reason chiefly, it would seem, that the
latter provisions simplify and systemize the previous laws, but are not
inconsistent therewith.
I have cited the repealed sections herein in order to show the general
scope of the appraiser's duties under our customs administration, and
these duties have certainly suffered no violent changes from later
legislation.
The Customs Regulations of 1892, articles 1120-1129, show that the
appraiser examines and appraises imported merchandise; that he assists
the collector in the assessment of duty and describes the merchandise in
such terms as will enable the collector to classify the same, and
reports the measurements and quantities where the surveyor does not
weigh, gauge, or measure. It is provided that it is not the function of
the appraising officers to classify, and that their chief business under
the statute is to ascertain dutiable value. It is shown also that
examiners make returns to the appraiser, and that the appraiser shall
furnish, besides information as to price, value, quantities, and
description, any further information affecting the assessment of duty
which the collector or the naval officer may request. Article 1122
provides as follows:
"As the examinations of appraisers are made the basis of the general
classification of importance for the assessment of duty, it is necessary
that appraisers shall closely inspect the articles ordered for
appraisement, and where they entertain doubts concerning the quality or
denomination of articles, they shall submit samples thereof, with their
opinions, to collectors, or for reference, in case of disagreement, to
the Board of General Appraisers."
Appraisers also must see (article 1128) that good and sufficient
samples to admit of analytical or comparative tests shall be forwarded
daily to the Board of General Appraisers, except in cases of merchandise
identical in quality, materials, and value with importations received
during the current month. By article 830 it is the duty of the appraiser
to make careful examination of any merchandise which the collector
designates for that purpose. By article 831, which refers to section 2
of the customs administrative act as its foundation, it is provided that
for the assistance of te collector in classification of merchandise the
appraising officer will describe it on the invoice, and that he may also
indicate what in his judgement ought to be the classification of the
same for duty; and by article 832, if it is found on examination that
the merchandise varies in quantity or in character from the
specifications in the invoice, the appraiser is to notify the collector,
and, if necessary, request that the remaining packages be submitted for
examination in detail.
It is not necessary further to multiply instances drawn from existing
laws to show that under a proper view of the situation the appraiser is
charged generally with the examination of all imported merchandise as to
character and quality as well as value; that the officials by whom the
investigation in respect to character, weight, and other details is
made, report to the appraiser, and that by the appraiser the collector
is informed of all the facts relating to the merchandise, and upon this
information proceeds to classify.
The opinion of Mr. Garland (18 Opin., 360), relating presumably to a
question of valuation, holds that the power of the appraisers under
section 2922, Revised Statutes, which was supplied by and substantially
reproduced in section 16 of the customs administrative act, was very
complete; that such examinations upon oath may or may not be made,
according to the discretion of the appraisers; that they can not be
demanded by the importer, although they may be required by the
appraisers; that Congress has not fettered such proceedings with
statutory rules, but has wisely delegated to the Secretary of the
Treasury the establishment of rules and regulations, and that as the
Secretary of the Treasury had framed no rule permitting importers to
appear before customs officers upon such examinations with counsel for
the purpose of producing witnesses on their own behalf, the importers
have no such right.
In Rankin v. Hoyt (4 How., 327), the collector had called upon the
appraiser to estimate the value of certain wool, and although the duty
was ad valorem by the tariff act then in force, it was claimed that the
appraisal was unauthorized and that the invoice should have been the
only guide. That ease, which is one of the earliest cases on the subject
of appraisement, went no further than to hold that the existing statutes
authorized the use of the appraisers, not merely when an imported
article pays an ad valorem rate of duty, but whenever the duty is
regulated by the value; that is, whenever a duty may exist or cease
according to the value, as well as whenever it may increase or diminish
according thereto.
The decison also sustained the legal presumption that public officers
act according to their duty and within their authority. In the present
case it is true the duty is not regulated by the value, although both on
the color standard and the polariscopic standard the value is greater as
a matter of fact as the polariscopic degrees increase and as the numbers
of the color standard rise, and the duties are laid progressively as the
qualities increase under these standards; and the values, although not
a basis of duty, follow in fact the increase in quality which the
various tests reveal. (See Merritt v. Welsh, 107 U. S., 694, as to
difference between color test and chemical polariscopic test.)
In Greely v. Thompson (10 How., 225), an appraisement was set aside
because of the failure of one of the appraisers to inspect the goods.
In Barlett v. Kane (16 How., 263), the appraisers had called for
correspondence of an importer upon the question of dutiable value under
the sixteenth section of the act of 1842, which contains provisions
similar to the sixteenth section of the customs administrative act, but
restricted to the question of value, and the importer, withholding the
information for which the officers of the Government had called, after
due legal requisition, the court held that he could not complain of an
alleged overestimate in the appraisement.
In Greely's administrator v. Burgess (18 How., 413), the importer
objected that the appraisers had not fairly and faithfully examined the
goods according to the statutory requirements, which contained a
positive mandate to open, examine, and appraise a certain number of
packages, and upon this ground his protest was sustained.
In Belcher v. Linn (24 How., 508), the appraisers determined, with
the approval of the court, that the article described in the invoice was
in point of fact a different article, and that the invoice and entry
were erroneous, not only with respect to the value affixed to the
article, but also as to its description; and it was held in that case
and in Hilton v. Merritt (110 U.S., 97) that any dispute as to the
nature of the produce imported and its consequent classification in the
invoice and entry is a question of fact within the jurisdiction of the
appraisers, although their decision upon all questions except valuation
may be open to review.
The forgoing cases, while relating to value particularly, show, I
think, that it has been a part of the duty of the appraisers throughout
the tariff history of the country to examine and inspect merchandise and
report upon its character and quality in connection with the report on
value or in addition thereto.
In the recent case of United States v. Ranlett & Stone (172 U.S.,
133), the question was whether certain imported bags were dutiable as
foreign-made bags at 2 cents per pound, a specific rate, the bales being
permeated with bags of foreign manufacture and the appraiser reporting
all the bags are dutiable and the collector so assessing them; or
whether, being entered as returned bags of American manufacture, they
were, as such, entitled to free entry, on the ground that the assessment
was illegal because of the insufficiency or invalidity of the
appraiser's examination, which determined the bags to be of foreign
rather than of American origin. In the course of the opinion the court
said:
"Under section 10 (of the customs adminstrative act) it was the duty
of the appraiser to ascertain, estimate, and appraise the market value
and wholesale price of the merchandise imported and the number of yards,
parcels, and quantity, and evidently this ascertainment involves
character and quality as well as value, since the statement, invoice, or
entry must be true in respect to the character of the goods as well as
their value."
Here, then, is a typical case in which the question was duty or not
duty, depending upon the character of the goods and the sufficiency of
the appraiser's examination determining the character or quality. The
duty was specific and not ad valorem, and the appraiser's determination
that the goods were of foreign origin and not of American manufacture,
in consequence of which the collector imposed the specific rate, was
broadly sustained.
I recur now to the language of section 16 of the customs
administrative act, which enlarges the provisions of the previous laws
reproduced in section 2922, by extending the power of the officers named
to cite witnesses and to require the production of letters, etc., as to
any matter which they may deem material in ascertaining the
classification as well as the dutiable value of imported merchandise.
Its language is very broad and includes by general terms all information
which the officers empowered may deem material. I can not agree with the
view that its provisions are distributive and that appraisers may call
for information respecting value and collectors for information
respecting classification. The phrase "as the case may be," used twice
in the section, does not compel the view that the authority is
distributive, because the phrase may aptly refer to the point in the
proceedings at which the call for testimony is made. If the matter is
pending before the appraiser, then that official may require the
evidence whether it respects valuation only or embraces also the
character of the goods, and whether the duties are specific or ad
valorem. And so, if the case has reached the collector, the collector is
empowered to make the order with respect to any aspect of the case not
disposed of. I see no greater force in the phrase "as the case may be"
than this, and I am of the opinion that the view stated is correct,
although the question of valuation may have become final before the
collector's jurisdiction attaches. That is to say, although under the
proceeding to reach a final appraisement of value by section 13, other
officers than the collector constitute the authoritative tribunal,
nevertheless, as the collector may deem an appraisement of value too
low, and may order a reappraisement, I conceive that he is empowered
under section 16 to call for witnesses or documentary evidence from the
importer even where dutiable value alone is involved, and per contra
that the appraiser may call for witnesses and evidence where the inquiry
concerns the nature and quality of merchandise in respect to
classification rather than value. I am confirmed in this view because
the work of the appraiser, as shown, has historically embraced the
examination of merchandise from all points of view, and is the source
from which the collector is informed; and if the collector, as seems to
be conceded, is entitled to the information sought, no valid reason can
be perceived either practically or in law why his chief subordinate
officer, so related to him, is not entitled to obtain it.
Even if it should be conceded that the only statutory function of the
appraiser is to estimate foreign market value of imported merchandise in
the statutory mode described, because the laws of Congress nowhere
invest him with additional power or authority, nevertheless it is clear
under the statutes and the regulations that the appraiser performs with
relation to the collector many advisory functions (G.A., 1915), and the
language of section 16 of the customs administrative act is sufficiently
broad and positive to sustain the appraiser's demand for information in
relation to his advisory functions as well as in relation to his strict
statutory functions concerning the determination of value. Furthermore,
while the definitions of "appraise," "appraiser," and "appraisement"
(see Webster, Century, and Standard dictionaries) recognize primarily
the strict legal and technical meaning of the words as relating to an
estimation of value, they also define the words more largely as
including the function of estimating or judging in regard to quality,
service, size, weight, or worth in a broader sense.
Consequently, upon the abstract legal question I clearly incline to
the view, and so hold, that under the law as it exists, appraising
officers are authorized to demand and secure from sugar importers the
settlement tests of all importations of sugar.
But since the question is obviously a close one, and since the remedy
of the Government upon the refusal of the importer to submit the desired
information is by a proceeding under section 17 to collect a financial
penalty and possibly to institute a criminal prosecution or an
information to forfeit the merchandise, which remedy being harsh in its
nature may perhaps lead a court (even in a case by no means clear, vide
United States v. Doherty, 27 Fed.Rep., 730) to hold the ways and means
pursued by the appraiser not reasonable and the proceedings unjust,
inquisitorial, and oppressive, I am led to suggest considerations which
are connected with the legal view of the case, and yet may perhaps in
strictness be regarded as addressed to your executive discretion.
In the first place, it is for you to determine, under all the
circumstances of the case, whether the appraisers in this matter are
proceeding by all reasonable ways and means, which limitation seems
necessarily to cover their actions either in ascertaining, estimating,
and appraising value, or in examining, inspecting, and ascertaining the
true character or quality of merchandise. This is a question of fact, or
of mixed fact and law. Again, there can be no doubt that, upon the most
rigorous view of the laws relating to appraisement of merchandise and
collection of duties, and of the provisions of section 16 of the customs
administrative act, the collector has the right to call for this
information, and it would seem to make little practical difference to
the appraiser whether, in the peculiar circumstances of this case, he
obtains the information directly from the importer or through his
superior officer, the collector. The authority of the Secretary of the
Treasury is complete whenever in his opinion any information of this
nature is necessary, because section 2925, Revised Statutes, which
appears to be in force, provides that "whenever in the opinion of the
Secretary of the Treasury it may be necessary, in order to carry into
full effect the laws for the collection of the revenue, he may authorize
the collector of any district into which merchandise subject to duty may
be imported, to require the owner, importer, or consignee of such
merchandise to give bond in a sum not exceeding the value of such
merchandise, that he will produce, or cause to be produced * * * such
proof as the Secretary may deem necessary * * * to enable the collector
to ascertain the class or description of manufacture or rate of duty to
which such merchandise is justly liable."
In conclusion, in connection with this aspect of the matter, whether
in any specific instance of sugar importation under the present tariff
it is necessary or desirable to obtain the importer's settlement test, I
presume it will be proper to bear in mind the completeness of the
existing Government regulations for the sampling, classification, and
polariscopic testing of sugars, by which the Government has provided a
system not dependent on any other agency of arriving with the utmost
accuracy at the true test for dutiable purposes of imported sugars.
This system appears to be beyond the necessity of aid from any
extraneous source, and the Government appears to be well able to reach
its own results and to ignore the importer's results, unless when they
are offered and the appraiser chooses to consider them on a claim of
error and request for retest by the importer. In view of this careful
and complete system, it may be suggested that the importers' settlement
tests are not necessary for the Government's enlightenment or
protection, and that the idea (if advanced) that the settlement tests
are important in order to check the work of subordinates, preserve
official discipline, or detect frauds or conspiracies on the revenue,
has not been confidently proposed. The means to these ends, involving,
of course, care in the selection of subordinates and extreme diligence
in supervising them in scrutinizing importations, are in the
Government's own own hands.
Very respectfully,
JOHN W. GRIGGS.
ARMY OFFICERS-- SERVICE-- RANK; 23 Op.Att'y.Gen. 232, September 22,
1900
The service of officers of the United States Army who were formerly
officers of State volunteer organizations called into the service of the
United States under the act of April 22, 1898 (30 Sts., 361), began on
the day of their enrollment and joining for service.
The service of officers of the ten volunteer regiments organized
under section 1 of the act of May 11, 1898 (30 Stat., 405), began at the
time each organized company reported at rendezvous for service and such
officers personally appeared for duty.
In fixing relative rank between officers of the same grade, section
1219, Revised Statutes, does not in terms require that the officer shall
be a commissioned officer, but only that he has "served as a
commissioned officer."
An officer of the Army may be such and be in the service of the
United States without any formal commission from the President, and his
grade and rank are those of a commissioned officer.
DEPARTMENT OF JUSTICE,
September 22, 1900.
The SECRETARY OF WAR.
SIR: I have the honor to reply to your note of September 12, 1900,
requesting my official opinion upon facts there stated, affecting the
relative rank of certain officers of the Army, under section 1219,
Revised Statutes, which reads as follows:
"In fixing relative rank between officers of the same grade and date
of appointment and commission, the time which each may have actually
served as a commissioned officer of the United States, whether
continuously or at different periods, shall be taken into account.
And in computing such time no distinction shall be made between service
as a commissioned officer in the Regular Army and service since the 19th
day of April, 1861, in the volunteer forces, whether under appointment
or commission from the President or from the Governor of a State."
The questions submitted are as to when this previous service as a
commissioned officer begins; and they refer to two classes of cases.
1. Officers of State volunteer organizations, called into the United
States service under the act of April 22, 1898, as to which the question
is asked, whether, under the facts stated, this previous service begins
at the time of their enrollment, or at the time when they are mustered
in and receive their commissions; and
2. Officers in the ten regiments of United States volunteers,
organized by the President under section 1 of the act of May 11, 1898,
as to which, the question asks, whether this previous service begins
from the time such officers were entitled to pay under the army
appropriation act of March 3, 1899, or from the time of their acceptance
of the commissions issued to them by the President.
As to the first class, it appears that some of the States, in
furnishing their quotas under the call for troops under the act of April
22, 1898, sent some of their State military organizations, the officers
of which had no commissions in the United States service, or other than
in such State organizations, until they were mustered into the United
States service and received commissions in that service.
A number of the volunteer officers have been appointed second
lieutenants in the Army of the United States, and in a number of cases
their appointments and commissions bear the same date; and, in such
cases, their relative rank may be affected, under Revised Statutes,
section 1219, by the length of their previous service. Hence it is
important to determine from what time that service begins.
The words "a commissioned officer of the United States," in the
section above quoted, are intended to indicate that the service with
which an officer may be credited shall be service as, or in the line of
a commissioned officer, as distinguished from service as an enlisted
soldier, or service in some other capacity, and they do not provide or
require that, in any such case, a commission in the United States
service must be actually issued in order to entitle the officer to
credit for his previous service.
An officer may be such and in the military service of the United States,
and in the line and grade of a commissioned officer, and performing the
service of a commissioned officer, even though, through inadvertence of
otherwise, no commission is actually issued to him. This is held, and I
think correctly, in Bennett v. United States (19 Ct.Cls., 379).
From this it follows that an officer is entitled, under the section
above quoted, to the benefit of his previous service as a commissioned
officer, even though, from some cause, no commission was actually issued
to him. But, so far as the cases here involved are concerned, it is not
necessary to maintain this, for, as to them, the same result follows
from other considerations.
Paragraph 16 of section 8, article 1, of the Constitution conferred
upon Congress the power "to provide for organizing, arming, and
disciplining the militia, and for governing such part of them as may be
employed in the service of the United States, reserving to the States
respectively, the appointment of the officers, and the authority of
training the militia according to the discipline prescribed by
Congress."
In recognition of this right of the States to appoint and commission
the officers of State troops furnished for and accepted in the service
of the United States, the act of April 22, 1898, provides (sec. 6):
"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 State in which their respective organizations are raised: Provided
further, That when the members of any company, troop, battery, battalion
or regiment of the organized militia of any State shall enlist in the
Volunteer Army in a body, as such company, troop, battery, battalion or
regiment, the regimental, company, troop, battery and battalion officers
in service with the militia organization thus enlisting may be appointed
by the governors of the States and Territories, and shall when so
appointed be officers of corresponding grades in the same organization
when it shall have been received into the service of the United States
as a part of the Volunteer Army."
So that these officers, thus commissioned by the governors, are, when
received into the United States service, commissioned officers of the
United States, no matter whether either the governor or the President
issues to them any other commission in that service or not. And when we
read that portion of the section above quoted, in connection with the
latter part of the section 1219, Revised Statutes, viz, "no distinction
shall be made between service as a commissioned officer in the Regular
Army and service since the 19th day of April, 1861, in the volunteer
forces, whether under appointment or commission from the President or
from the governor of a State, it is plain that such officers,
commissioned by the governors, are entitled to the benefit of their
service as such from the time they, under such commissions, entered the
service of the United States; and that, in order thereto, they require
no other commissions than those issued by such governors in the
respective State organizations.
It remains to determine the time when such officers are to be
considered as in the service of the United States, and, in the cases
here presented, whether that time is the date of their enrollment in the
service or the date at which they are mustered in or accept their
commissions in that service.
Revised Statutes, section 1651, provides that--
"Whenever the militia is called into the actual service of the United
States, their pay shall be deemed to commence from the day of their
appearing at the place of battalion, regimental, or brigade rendezvous."
And, as the United States does not profess to pay for that which is
not in its service, and, inasmuch as if such officers are in that
service at all they are so as commissioned officers in that service, it
is plain that their service "as commissioned officers of the United
States" begins, at least, from that time.
But this act makes their pay commence from the time they appear at
the battalion, regimental, or brigade, rendezvous.
Section 4693 directs that the persons entitled to pensions under the
preceding section include "officers of the Army * * * in the military
service of the United States, * * * whether regularly commissioned or
not."
So that an officer of the Army may be such, and in the service of the
United States, without any formal commission, and his grade and rank are
that of a commissioned officer.
The act of May 26, 1898, provides that-- -
"The pay and allowance of such of the volunteers as are received into
the service of The united states under the act of Congress into the
service of the United States under the act of Congress approved April
twenty-second, eighteen hundred and ninety-eight and the acts
supplemental thereto, shall be deemed to commence from the day on which
they joined for duty and are enrolled at the battalion, regimental, or
State rendezvous."
This act also made the pay commence from the time of joining and
enrollment in the battalion, regimental, or State rendezvous, and not
from the time at which the officers and men appeared for duty and were
enrolled in their company organizations for service in the United States
Volunteer Army. Complaint was made that frequently officers and men of
the State military companies left their business, appeared with and were
enrolled in their companies for United States service days or weeks
before joining or being enrolled at any battalion or regimental
rendezvous, and, under existing law, were not paid for this time.
Whereupon the law of July 7, 1898, was passed to amend the act of May
26, 1898, and provided:
"That the pay and allowance of all officers and enlisted men of the
volunteers received into the service of the United States under the act
of April 22, 1898, and the acts supplemental thereto, shall 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."
These statutes by their very terms declare such officers to be
officers in the service of the United States as much before they are
actually commissioned as after, and it is impossible to suppose one to
be an officer in the service of the United States, for the purpose of
receiving pay and pension for his service, and yet not such officer for
the purpose of determining the length of his service.
If it were necessary it might be pointed out that section 1219 does
not in terms require that the officer shall be a commissioned officer,
but only that "he has served as a commissioned officer." The section
supposes that previous service as an officer, with the experience and
knowledge thus acquired, is of importance in determining relative rank,
and in this respect it is immaterial, if the officer has had such
service, whether he actually held a formal commission or not.
All were paid, and were therefore in the United States service from
the day of their enrollment and joining for such service, in either a
company, battalion, or regiment, and I have no doubt that the previous
service of such officers, with which they are to be credited under
Revised Statutes, section 1219, begins from that time; and your first
question is answered in the affirmative.
As to the ten volunteer regiments organized under the act of May 11,
1898, commonly called "immunes," the officers of which were commissioned
by the President, the Army appropriation act of March 3, 1899, provides
for the payment of the company officers from the time each organized
company reported at rendezvous for service, and said officers personally
appeared for duty, until said officers were commissioned; and your
second question is, whether such officers are entitled to credit, under
section 1219, Revised Statutes, for the period between the time when
their pay began, as above states, and the date of the issue and
acceptance of their commissions.
The question, for the reasons above stated, is also answered in the
affirmative. They were officers in the service of the United States, or
they would not have been entitled to or have received pay as such
officers. They were serving as commissioned officers, in the language of
section 1219, even while they held no formal commission, or they were
not serving at all.
An actual formal commission is not necessary in order that an officer
may have "served as a commissioned officer of the United States," within
the purview of this section 1219, if the officer in fact rendered that
service as a commissioned officer.
Respectfully,
JOHN W. GRIGGS.
ATTORNEY-GENERAL-- OPINION; 23 Op.Att'y.Gen. 231, September 21,
1900
The Attorney-General can not determine questions of fact. He can only
aid in an application of the law to facts already ascertained.
DEPARTMENT OF JUSTICE.
September 21, 1900.
The SECRETARY OF THE TREASURY.
SIR: In your communication of the 10th instant you transmit the
original papers in the matter of the application of the Arlington Mills,
of Lawrence, Mass., for the establishment of a rate of drawback on
so-called "extract of wool" produced in the cleaning of imported wool,
and say:
"The application was orginally denied, following your opinion in the
camel's hair noils case (21 Opin., 159), and Department's decisions of
January 28, 1893 (T.D. 14127), and April 19, 1895 (T.D. 15920); but
subsequently the drawback was allowed upon the representation made by
the applicant that the wool extract was subjected to an independent
process of cleaning and refining, which brought it within the scope of
the decision in the linseed oil and cake case (T.D. 19323 of May 9,
1898).
"The question now arises as to whether this final action of the
Department is warranted by the facts, and the matter is, therefore,
submitted to you for your consideration and an expression of your views
as to whether the said extract of wool is an article of manufacture
within the meaning of section 30 of the act of July 24, 1897."
You thus submit to me not a question of law upon a statement of facts
formulated and presented, upon which alone the Attorney-General can
properly be asked to pass (22 Opin., 342, 498), but either a mixed
question of law and fact or a question of fact alone, to be determined
from a consideration of the original papers you inclose. It would seem
that what you really desire me to do is to review your action in the
determination of a question of fact arising in the in the administration
of your Department, the question being whether the representation made
by the applicant for the drawback, that the so-called "extract of wool"
was subjected to an independent process of cleaning and refining, is to
is not true. You determined, after investigation and report by your
special agents, that this representation was true and allowed the
drawback.
You now wish me to decide whether your action is warranted by the facts,
shown by the papers you transmit. This, of course, I can not do. You
must yourself determine questions fact. I can only aid you in the
application of the law to the facts as ascertained.
I return all papers.
Respectfully,
JOHN K. RICHARDS,
Solicitor-General.
Approved:
JOHN W. GRIGGS.
WAR-REVENUE TAX-- FERMENTED LIQUORS; 23 Op.Att'y.Gen. 227, September
13, 1900
Under the war-revenue act of June 13, 1898 (30 Stat., 448), beer,
which before that date had been transferred by a brewing company to
itself as a wholesale and retail dealer, said company having theretofore
paid the tax of $1 per barrel as brewer, and also the special tax as
wholesale and retail dealers, is not subject to the additional tax
imposed by that act on beer, etc., stored in warehouses, or removed for
consumption.
This tax is on beer stored or removed by the brewer and not by the
wholesale or retail dealer.
The warehouse is that of the brewer and not the place where the
dealer has it stored.
DEPARTMENT OF JUSTICE,
September 13, 1900.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to reply to your note of July 24, 1900,
requesting my official opinion upon a case stated, in substance, thus:
The Robert Smith Ale Brewing Company, a corporation, is, at the same
time, a brewer or manufacturer of malt liquors, ale, beer, lager-beer,
and porter, a wholesale and retail dealer in, and also a bottler of,
such liquors. Shortly before the passage of the act of June 13, 1898
(the war-revenue act, 30 Stat., 448), this brewing company transferred
to itself, as a wholesale and retail dealer in such malt liquors, 616
barrels of beer. This beer was bottled at the bottling works of this
company, in the regular course of its business and was thus held by it
as a wholesale and retail dealer when the act of June 13, 1898, took
effect. The company had paid the tax of $1 per barrel upon this beer
imposed by the law previous to that of 1898, and had paid also the
special tax as wholesale and as retail dealers in malt liquors. After
the passage of the act of 1898, the additional tax of $1 per barrel,
imposed by that act, was assessed and paid upon this beer; and the
company now claims the refunding thereof, as having been illegally
assessed and collected; and you ask whether "wholesale and retail
dealers in fermented liquors, who had large stocks of beer in warehouse
at the time of the passage of the act of June 13, 1898, are liable for
the additional tax of $1 per barrel on this beer stored therein."
The words in your question, which I have italicized, make the
question present a case different from that made in your statement of
facts, in that it states the beer, the subject of the tax, as stored in
a warehouse, while the statement of facts places it in the hands of the
company as a wholesale and retail dealer, for sale and not for storage
merely. But I shall consider the question as referring to the case
stated.
So far as important here, the only change in the previous law made by
the act of 1898 is in the increase of the tax from $1 to $2 per barrel
and in making the tax applicable to such liquors "stored in warehouse,"
while under the previous law it applied only to such liquors "brewed or
manufactured and sold or removed for consumption or sale."
So that the tax imposed by the first section of the act of 1898 is one
upon such liquors "brewed or manufactured and sold or stored in
warehouse; or removed for consumption or sale:" and if the beer here in
question is subject to this tax, it is so because "stored in warehouse,"
for it does not come within either of the other classes.
In my opinion to your Department dated December 27, 1898, I held, in
substance, that under these acts the tax imposed on fermented liquors
was to be paid by the brewer ; that the reference to such liquors
stored in warehouse meant those so stored by the brewer and not by those
to whom he had sold them; and that this included not only the technical
bonded warehouse of the brewer where such liquors might be stored
without affixing the stamps, but also those in ther agencies in the
different cities from which such liquors were distributed to retail
dealers. The same may be said also as to such liquors "removed for
consumption or sale." As the tax is to be paid by the brewer, it is
therefore upon that which is removed by him and not by one to whom he
has sold it after it has passed into the hands of the purchaser.
I also held that the tax imposed by section 1 of the act of 1898 was
not imposed upon retail dealers nor upon their stock in hand for sale.
The same is equally true of wholesale dealers. This section no more
taxes one than the other, and does not profess or undertake to tax
either, or their stock in hand for sale. Wholesale and retail dealers
are taxes as such by other provisions of the act, but not by this. As
the statute has required that the whole tax that is imposed upon
fermented liquors shall be paid by the brewer before it is sold by him,
such liquors come to the wholesale or retail dealer free of the tax, as
it is already paid; and the only remaining imposition is upon the
wholesale or retail dealer as such, and on account of his business, and
not on account of his stock.
I further held in that opinion that the usual place of a retail
dealer's business in his retail trade was not a warehouse within the
meaning of section 1 of the war-revenue act. The same may be said of a
wholesale dealer; the place where he transacts his usual business of
buying and selling, and where he keeps simply such stock as is there for
immediate sale in the usual course of his business, is not a warehouse
in the sense in which that word is used in this section. But it is not
necessary to this opinion to mention this as to either wholesale or
retail dealers, for, as already said, the warehouse contemplated by this
section is that of the brewer and in which he has stored the liquors,
and not that of the wholesale or retail dealer to whom the brewer has
sold them.
The whole matter may be stated more briefly another way. As the tax
assessed is one upon the brewer and to be paid by him, and, as the
United States does not in this section, tax one person for or on account
of the property of another, it follows that what is thus taxed is the
property of the brewer, and while it is so. It equally follows that the
tax upon beer, etc., "stored in warehouse, or removed for consumption or
sale," must be upon that so stored or removed by the brewer, and not by
some other who, after he has acquired it, stores or removes it on his
own account.
Again, as this section taxes only the beer, etc., of brewers, and
does not attempt to tax that of wholesale or retail dealers, it again
follows that this beer in the hands of such dealers is not subject to
the tax.
I have, therefore, to advise you that, under the facts stated, the
beer here in question was not subject to the additional tax imposed by
section 1 of the war revenue-act of 1898.
Respectfully,
JOHN W. GRIGGS.
SPANISH MINING LAWS-- CUBA; 23 Op.Att'y.Gen. 222, September 8, 1900
The Spanish mining laws were not continued in force in Cuba after the
American occupation of the island.
Both by the rules of public law that apply to foreign territory
seized and held as a conquest, and by the terms of the resolution of
Congress, the United States, upon taking possession of Cuba, rightly
entered upon the exercise of sovereignty, jurisdiction, and control over
that island. These are to be used by the United States as a trustee for
the benefit of the people of Cuba, and also for its pacification.
No limitation of this power is created by the trust, but as to what
acts of sovereignty it will perform, the particular manner in which it
will perform them, and the subject upon which it will permit its
sovereign will to operate, the United States, acting through the
President as commander in chief, is the sole judge.
The President, by virtue of his constitutional authority as commander
in chief of the Army and Navy, has adequate power to use and make
disposition of property in Cuba formerly belonging to the Crown of
Spain, or subject to the imperial prerogative, and this includes the
right to dispose of mining or other property formerly belonging to the
Spanish Crown.
If he desires to do so, the President can authorize the military
governor of Cuba to make grants of mining rights, but whether such power
should be exercised is a question involving important and delicate
considerations.
Similar questions arising in the Philippine Islands would not be
governed by the same rules applicable to Cuba. With regard to those
islands, whatever property or public rights pertained to Spain at the
time of the cession have been transferred to the United States, and can
only be disposed of in accordance with the will of Congress.
DEPARTMENT OF JUSTICE,
September 8, 1900.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge the receipt of your
communication of August 7, 1900, submitting for my opinion the following
questions:
"1. Did the Spanish mining laws continue in force in Cuba by virtue
of the laws of war and nations, after the American occupation of the
Island?
"2. May the Military Government in Cuba continue the granting of
mineral claims in that Island, upon compliance with the provisions of
the mining law as existing prior to the American occupation?
"3. Id the powers possessed by the Spanish officials for the
administration of said laws, pass to the officers of the existing
Military Government: that is to say, may the present civil governors of
the existing provinces of Cuba alienate minerals in a state of nature in
Cuba, by executing and delivering deeds to mining claims pursuant to the
Spanish laws?
"4. Has the Military Government of Cuba the right to confer upon an
individual the privilege of exercising the right of eminent domain by
virtue of the Spanish law regulating the exercise of said right in
connection with mines and minerals?
"5. May the president of the United States, as commander in chief of
the Army and Navy, now exercise the power of legislation and provide for
the alienation of minerals and the creation of mining rights in Cuba?
"6. May the President delegate such right of legislation to the
Secretary of War, the Military Governor of Cuba, or other officer of the
military government of the Island?
"7. As similar questions arising in the Philippines to be governed by
the rules applicable to those arising in Cuba?"
Accompanying your letter is a report from Charles E. Magoon, Esq.,
law officer of the War Department, Division of Insular Affairs, in which
the laws of Spain prevailing in Cuba prior to the relinquishment of
sovereignty therein by the treaty of Paris are states.
Assuming this statement of Spanish law to be correct, then all
inorganic, metalliferous, combustible, saline substances, calcareous
phosphates, barytina, fluorspar, and precious stones, whether found in
veins or strata, or in whatever other form, belonged to the Spanish
cRown, and no one was authorized to dispose of them without the
concession of the Spanish Government given in its name by the governors
of the provinces.
The method of obtaining title to a mine under Spanish law is set
forth as follows:
"In order to obtain title to a mine, application for ownership,
proving the existence of mineral, must be made to the governor of the
province.
"This may be done without consent or knowledge of the owner of the
land in case the surface land of the mine should happen to belong to
other than the applicant.
"Until the governor has given permission to examine the mine, and
should other objections be made, the matter may be referred to the
ministry within thirty days; no work can be done. This permission is
given on the report of the official mining engineer (who must make such
report within four months) thirty days after such report.
"Should the mine for which ownership is thus asked for be situated on
lands belonging to a person or persons other than the applicant for
ownership of such mine, such applicant, when he receives his title, must
pay the owner of the land its full value and one-fifth more.
"Should the owner of the land object and refuse to sell, or a price
can not amicably be agreed upon, he (the owner of the land) may be
forcibly ejected or expropriated, being paid for his land a price and
one-fifth more, adjusted by three appraisers named, one each by both
contending parties and the Government.
"As soon as applicant has thus acquired title to his mine he may
erect buildings and works and open shafts to operate it, this always
with the approval and inspection of the Government mining engineer.
"The fact of acquiring title is published in the official bulletin.
"The application for ownership must be accompanied by a surface plan
of the mine. This plan must always be multangular in shape, and each
mine can not exceed 20,000 square meters in size."
It thus appears that mines, minerals, and mining rights in Cuba were
vested in the Crown, and that the granting of mining or mineral rights
to an individual was an exercise of the imperial prerogative. When Spain
relinquished her sovereignty in Cuba, she parted with all the royal
prerogatives. The laws which theretofore had governed the exercise of
prerogative rights of the Crown of Spain did not pass to the successors
in sovereignty, whether such successors be considered the United States
of America as trustees for the pacification of the island or the people
of Cuba in a congregated sense. (See Munford v. Wardwell, 6 Wallace,
435; Pollard's Lessee v. Hagan, 3 Howard, 225; Harcourt v. Gaillard,
12 Wheaton, 523. See also, 22 Opin., 514, 521, 546, 551.)
I am of opinion that, under the principle of these decisions and of
the opinions heretofore rendered by me that have been referred to, the
Spanish mining laws were not continued in force in Cuba by virtue of the
laws of war of nations, or according to any other principle of
jurisprudence, after the American occupation of the Island.
The possession of Cuba was wrested by the United States from Spain by
force of arms under the constitutional direction of the President of the
United States as Commander in Chief of the Army and Navy, in pursuance
of the joint resolution of Congress passed April 20, 1898. This
resolution declared "that the United States hereby disclaims any
disposition or intention to exercise sovereignty, jurisdiction, or
control over said Island except for the pacification thereof, and
asserts its determination, when that is accomplished, to leave the
government and control of the Island to its people." Both by the rules
of public law that apply to foreign territory seized and held as a
conquest and by the terms of the resolution of Congress, the United
States, upon taking possession of the island, rightly entered upon the
exercise of sovereignty, jurisdiction, and control over said island.
All the usual incidents of sovereignty and jurisdiction pertain to the
military occupation orginally gained by force of arms and now maintained
in pursuance of the treaty of peace. It is true that that sovereignty
and jurisdiction are exercised by the United States as a trustee for the
benefit of the people of of Cuba, but the United States has a distinct
and well defined duty and purpose in connection with Cuba, namely, to
govern and control the island, to "exercise sovereignty, jurisdiction,
and control over it" (to use the language of the resolution) for its
pacification. No limitation upon the ordinary power of a conqueror over
conquered territory is created by this trust. The United States is
bound, in good conscience, to exercise its temporary sovereignty and
control for the benefit of the Cuban people, but as to what acts of
sovereignty it will perform, the particular manner in which it will
perform them, and the subject upon which it will permit its sovereign
force to operate, the United States, acting, through the President as
Commander in Chief, is the sole judge. The public property of Cuba, by
the treaty of peace, was not vested in the United States as a
proprietor, but had theretofore been partly in its possession as
conqueror, and the remainder was by Spain delivered over to its
possession as conqueror and as trustee for the future benefit of the
Cuban people. Cuba, therefore, rightly continues to be governed under
the law of belligerent right and not under the domestic laws of the
United States. According to the law of belligerent right, the will of
the conqueror supplants the former political laws and powers which
prevailed in the conquered territory, and the conqueror may make such
new laws, rules, and regulations as he sees fit. (Brown v. U.S., 8
Cranch., 110.) Under this principle, it is lawful for the conqueror, in
administering the conquered territory, to make such use of the property
previously belonging to the former sovereign as he sees fit. There is,
therefore, in the President of the United States, acting by virtue of
his constitutional authority as Commander in Chief of the Army and Navy,
adequate power to use and make disposition of property in Cuba formerly
belonging to the Crown of Spain or subject to the Imperial prerogative,
and this includes the right to dispose of mining and other property
formerly belonging to the Spanish Crown.
Whether this power of the President has been adequately conferred upon
the military governor or other American officers in Cuba I am unable to
say, as I am not furnished with the orders of your Department which have
been heretofore issued, but, in my judgment, the President, as Commander
in Chief, could authorize the military governor of Cuba to make grants
of mining rights, if the President desired to do so.
I beg to suggest, however, that whether such a power should be
exercised by the President or be by him conferred upon the military
government in Cuba, is a question involving important and delicate
considerations, in connection with which I call your attention to the
language of an opinion rendered by me to your predecessor on the
application of the Commercial Cable Company for leave to land its cable
on the island of Cuba (22 Opin., 408).
Similar questions arising in the Philippine Islands would not be
governed by the same rules applicable to Cuba, for the reason that the
Philippine Islands have been ceded to the United States, and whatever
property or public rights pertained to Spain at the time of the cession
have been transferred to the United States, and have become its
property, and can only be disposed of in accordance with the will of
Congress (22 Opin., 544, 546).
Very respectfully,
JOHN W. GRIGGS.
ATTORNEY-GENERAL-- LEGACY TAX; 23 Op.Att'y.Gen. 221, September 7,
1900
The question as to whether section 29, act of June 13, 1898 (30
Stat., 448, 464), imposes a legacy tax upon the estate of persons who
were not domiciled in the United States at the time of death, is not
free from doubt.
It is not the practice of the Department of Justice to give an
opinion in a matter where the question involved is disputable andis the
subject of a pending suit, as such action would be equivalent to
expressing an opinion as to whether the question ought to be decided in
favor of the Government and might bring the Department into conflict
with a judicial tribunal.
DEPARTMENT OF JUSTICE,
September 7, 1900.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
July 26, transmitting a letter from the Commissioner of Internal Revenue
dated July 24, 1900, and requesting an opinion upon the question as to
whether the twenty-ninth section of the act of June 13, 1898, imposes a
legacy tax upon the estates of persons who are not domiciled in the
United States at the time of death. I also have the honor to acknowledge
the receipt of your letter of August 22, 1900, with reference to the
same matter, together with the inclosed copy of a latter from the United
States district attorney for the eastern district of New York, by which
it appears that the question upon which you request an opinion is now
the subject of a suit in the United States court for that district.
The question submitted is not free from doubt. It is not the practice
of this Department to give an opinion in a matter where the question
involved is disputable and is the subject of a pending suit and awaiting
judicial determination.
To express an opinion under such circumstances would be equivalent to
expressing an opinion as to whether the question involved ought to be
decided by the courts in favor of the Government. Moreover, the opinion,
if given, might "bring this Department into conflict with a judicial
tribunal." For both the reasons suggested, this Department has refused
to give opinions under similar circumstances, and, it seems to me, with
propriety. (See 20 Opin., 619, 702.)
I must decline to give the opinion requested.
Respectfully,
JOHN W. GRIGGS.
TRESPASSERS ON INDIAN LANDS; 23 Op.Att'y.Gen. 214, September 7,
1900
Under the treaties with the Five Civilized Tribes of Indians no
person not a citizen or member of a tribe, or belonging to the exempted
classes, can be lawfully within the limits of the country occupied by
these tribes without their permission, and they have the right to impose
the terms upon which such permission will be granted.
The provisions of the act of June 28, 1898 (30 Stat., 495), for the
organization of cities and towns in said Indian country and the
extinguishment of Indian title therein have not yet been consummated,
and it is still Indian country. This act does not deprive these Indians
of the power to enact laws with regard to licenses or taxes, nor exempt
purchasers of town or city lots from the operation of such legislation.
Purchasers of lots do so with notice of existing Indian treaties and
with full knowledge that they can only occupy them by permission from
the Indians. Such lands are sold under the assumption that the
purchasers will comply with the local laws.
Sections 2147 to 2150, inclusive, of the Revised Statutes, expressly
confer the right to use the military forces of the United States in
ejecting trespassers upon Indian lands, and the grant of this power
carries with it the duty of its exercise.
It is the duty of the Department of the Interior to remove all
classes forbidden by treaty or law who are within the domain of the Five
Civilized Tribes without Indian permission; to close all businesses
which require permit or license and are being conducted without the
same; and to remove all cattle which are being pastured on said land
without Indian permit or license.
DEPARTMENT OF JUSTICE,
September 7, 1900.
The SECRETARY OF THE INTERIOR.
SIR: I have the honor to reply to your note of August 13, 1900,
requesting my official opinion upon several questions there stated,
arising from conditions now existing in the Indian country occupied by
the Five Civilized Tribes of Indians, and which conditions are stated,
in substance, thus:
Without referring specially to the tax legislation of these Indian
nations, they general require that persons, not citizens or members of
any Indian tribe, who reside or carry on certain kinds of business
within their limits, shall procure and pay for a permit or license to do
so.
Many persons of this description have bought, under the act of
Congress referred to below, lots in the towns and cities in these
nations, and many of them are engaged in mercantile, professional, and
other kinds of business, and refuse to pay such tax, claiming, among
other reasons, that the act of Congress referred to, in authorizing the
sale of such lots to persons not Indians or connected with any tribe,
has recognized this right to so purchase and to reside and carry on
business on said lots, and has exempted them from such tax.
In addition to this, vast herds of cattle, owned by persons not
citizens of such nation nor connected with any Indian tribe, are, by
their owners, kept and grazed upon the public lands of these nations and
the owners refuse to pay the tax imposed on account thereof, and the
questions propounded relate chiefly to the power and duty of the
Department of the Interior to enforce payment of these taxes, and to
remove from the limits of such nation, as intruders, those who refuse
payment thereof. On account of the number of persons, the vast amount of
property and the consequences involved, the question is, as you suggest,
one of great magnitude and importance.
Without referring specially to the different treaties with these
Indian nations, it may be stated that they provide that all persons not
citizens of such nations or members of any Indian tribe found within the
limits of such nation should be considered as intruders, and be removed
from and kept out of the same by the United States. From this class of
intruders are excepted the employees of the Government and their
families and servants; employees of any internal improvement company;
travelers and temporary sojourners; those holding permits from any of
the Indian tribes to remain within their limits, an white persons who,
under their laws, are employed as "teachers, mechanics, or skilled in
agriculture."
It is apparent, therefore, that, save the excepted classes, no one,
not a citizen or member of a tribe, can be lawfully within these limits,
without Indian permission; and equally apparent that all may be so,
with such permission. And it follows that the same power that can refuse
or grant such permission can equally impose the terms on which it is
granted.
So far as concerns the Choctaw and Chickasaw nations (and the same
rule applies to the others), this question was passed upon by my
predecessor, Attorney-General Wayne MacVeagh, who held (17 Opin., 134)
that such permit and license laws, with their tax, were valid and must
be enforced. The same doctrine was held by Acting Attorney-General
Phillips, in 18 Opinions, 13. Both these opinions are cited by the court
of appeals of Indian Territory in Maxey v. Wright (54 S.W. Repr., 807),
which distinctly affirms the validity of this legislation. I quite agree
with these opinions and have no doubt that it is competent for those
Indian nations to prescribe the terms, here being considered, upon which
they will permit outsiders to reside or carry on business within their
limits.
Nor does the act of June 28, 1898 (30 Stat., 495), either deprive
these nations of the power to enact such legislation or exempt
purchasers of town or city lots from its operations.
This was also decided in the case last referred to. So far as affects
any question here, that statute provides a plan for the organization of
cities and towns, for the sale of town and city lots, and the
extinguishment of the Indian title.
This last has not yet been consummated, but, as said by the court in
Maxey v. Wright, supra, decided January 6, 1900, "The Indian title to
such lands still remains in them and it is yet their country."
But, however this may be, and, even if the Indian title to the
particular lots sold had been extinguished, and conceding that the
statute authorizes the purchase of such lots by any outsider, and
recognizes his right to do so, the result is still the same, for the
legal right to purchase land within an Indian nation gives to the
purchaser no right of exemption from the laws of such nation, nor does
it authorize him to do any act in violation of the treaties with such
nation. These laws requiring a permit to reside or carry on business in
the Indian country existed long before and at the time this act was
passed. And if any outsider saw proper to purchase a town lot under this
act of Congress, he did so with full knowledge that he could occupy it
for residence or business only by permission from the Indians. I do not
say that Congress might not violate its treaty promises and authorize
the outside world to enter upon and occupy the lands of the Indians
without their consent, but do say that provisions very different from
any contained in this act would be required to justify the imputation of
any such intention. All that this act does in this respect is to give
the consent of the United States to such purchase, with the assumption
that the purchaser, if he wishes to occupy, will comply with the local
laws, just as in other cases. The United States might sell lands which
it holds in a State, but it would be a strange contention that this gave
the purchaser any immunity from local laws or local taxation. The case
is much like that of a Federal license to manufacture and sell
spirituous liquors, which, while good as against the United States,
confers no right where such manufacture and sale are forbidden. This act
was passed with the full knowledge of these laws of the Indian nations,
approved by the President and having the full force of laws, and, had
Congress intended to nullify these laws of take away the power to enact
them, or to exempt the purchasers of lots, or any other persons, from
their operation, it is quite safe to say it would have done so by
provisions very different from those in the act of 1898.
The treaties and laws of the United States make all persons, with a
few specified exceptions, who are not citizens of an Indian nation or
members of an Indian tribe, and are found within an Indian nation
without permission, intruders there, and require their removal by the
United States. This closes the whole matter, absolutely excludes all but
the excepted classes, and fully authorizes these nations to absolutely
exclude outsiders, or to permit their residence or business upon such
terms as they may choose to impose, and it must be borne in mind that
citizens of the United States have, as such, no more right or business
to be there than they have in any foreign nation, and can lawfully be
there at all only by Indian permission; and that their right to be or
remain or carry on business there depends solely upon whether they have
such permission.
As to the power or duty of your Department in the premises there can
hardly be a doubt. Under the treaties of the United States with these
Indian nations this Government is under the most solemn obligation, and
for which it has received ample consideration, to remove and keep
removed from the territory of these tribes, all this class of intruders
who are there without Indian permission. The performance of this
obligation, as in other matters concerning the Indians and their
affairs, has long been devolved upon the Department of the Interior.
This power and duty are affirmed in the two opinions referred to and, as
directly, in Maxey v. Wright, supra. In that case it was said, on page
812:
"Upon the whole case we therefore hold that a lawyer who is a white
man and not a citizen of the Creek Nation, is, pursuant to their
statutes, required to pay for the privilege of remaining and practicing
his profession in that nation, the sum of $25; and if he refuses the
payment thereof he becomes, by virtue of the treaty, an intruder, and
that in such a case, the Government of the United States may remove him
from the nation; and that this duty devolves upon the Indian
Department."
And in another place:
"We are of the opinion, however, that the Indian agent, when directed
by the Secretary of the Interior, may collect this money for the Creeks.
* * * In this case the Indian agent was acting in strict accordance with
directions and regulations of the Secretary of the Interior, in a matter
clearly relating to intercourse with the Indians."
That the United States has the power to perform its treaty
stipulations in this regard can not be doubted; and, as already said,
and in the opinions referred to and above quoted, the execution of that
power and duty devolves upon the Interior Department.
This power of removal is expressly conferred by Revised Statutes,
sections 2147 to 2150, inclusive, with the right to use the military
force of the United States, when necessary for its accomplishment. And a
power of this nature carries with it the duty of its exercise.
But as to persons other than purchasers of town or city lots residing
or carrying on business thereon, no question arises under the above act
of 1898, and persons who are pasturing cattle upon, or otherwise
occupying part of the public domain of either of these Indian nations
without permission from the Indian authorities, are simply intruders,
and should be removed, unless they obtain such permit and pay the
required tax, or permit, or license fee.
In one of the questions submitted, you ask whether your Department
has "authority in the case of a merchant refusing to pay such tax, to
close his place of business or to remove his stock of merchandise beyond
the limits of the nation."
To this, I answer: Your Department may and should remove such
merchant unless he has a permit to reside or remain there; and close
his place of business and his business, unless he has a permit to carry
it on, in all places where such permit is required by law. The question
of the right to remove his stock of merchandise beyond the limits of the
Indian nation is a different and more doubtful one. While he has no
right to remain or carry on business there without a permit to do so,
his want of right to keep his goods there, or the right of the
Department to remove them, is not so clear.
While the law excludes him and authorizes his removal, it does not do so
expressly, at least as to his goods. And as the whole evil which is
sought to be remedied is so done by the removal of the owner and the
closing of his business, it is recommended that his goods be permitted
to remain if he so desires.
Your question, whether the lands of any Indian nation in which a town
or city is situated will cease to be Indian country, etc., when the
lands in such town or city are sold, is not one involving any present
existing question, or one which I am authorized to answer.
Your last question asks, "What is the full scope of the authority and
duty of the Department of the Interior in the premises under the
treaties with these nations and the laws of the United States regulating
trade and intercourse with the Indians?"
As applicable to the cases here in hand, which is as far as I am
authorized to answer the question, and which is designed also as a
comprehensive answer to all the other questions save the one last
referred to above, it may be said generally that the authority and duty
of the Interior Department is, within any of these Indian nations, to
remove all persons of the classes forbidden by treaty or law, who are
there without Indian permit or license; to close all business which
requires a permit or license and is being carred on there without one;
and to remove all cattle being pastured on the public land without
Indian permit or license, where such license or permit is required; and
this is not intended as an enumeration or summary of all the powers or
duties of your Department in this direction.
In view of the number of persons, the magnitude of the interests
involved, and also as tending to a more ready and better adjustment of
the difficulties, it is suggested that public notice be first given to
all persons residing or carrying on business without an Indian permit or
license, where, for such residence or business, such permit is required,
that unless such permit or license be obtained by a short day to be
named, such persons will be removed, and such business closed; and in
case of cattle pastured without permission, where permission is
required, such cattle will be removed from within the nation.
I return herewith the printed copy of the Constitution and Laws of
the Chickasaw Nation, transmitted with your note.
Respectively,
JOHN W. GRIGGS.
IMPORTATION OF BODIES OF GAME ANIMALS; 23 Op.Att'y.Gen. 213,
September 6, 1900
The expression, "That all dead bodies, or parts thereof, of any
foreign game animals, or game or song birds, the importation of which is
prohibited," etc., found in section 5 of the act of May 25, 1900 (31
Stat., 187), refers to the animals and birds whose importation, if
living, is prohibited by section 2 of that act, and does not prohibit
the importation of "all dead bodies of any foreign game animals," etc.
DEPARTMENT OF JUSTICE,
September 6, 1900.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
August 15, 1900 (380 K), in which you request my opinion as to the true
construction of sections 2 and 5 of the act approved May 25, 1900. You
ask whether the words of section 5, "That all dead bodies, or parts
thereof, of any foreign game animals, or game or song birds, the
importation of which is prohibited," etc., refer to the animals and
birds whose importation, if living, is prohibited by section 2 of the
act.
In my judgment, this is the true construction of the two sections.
Section 2 was intended to forbid the importation of living animals or
birds, except under certain conditions, and section 5 provides that if
the dead bodies, or parts thereof, of such animals or birds are
"transported into any State or Territory," etc., they shall, upon
arrival, "be subject to the operation and effect of the laws of such
State or Territory enacted in the exercise of its police powers," etc.
I do not think that section 5 was intended to enlarge the prohibitory
features of the law, as suggested in your inquiry, by prohibiting the
importation "of all dead bodies, or parts thereof, of any foreign game
animals," etc.
To justify this construction, as you state, it is necessary to read into
the act the word "hereby," so that the sentence would read, "the
importation of which is (hereby) prohibited." Such an addition to the
act should not be made unless its plain meaning or purpose requires it,
for it is to be presumed that, if Congress had intended an additional
prohibitory clause by section 5, it would have added the word "hereby."
Its omission to do so, and the fact that the sentence quoted is
intelligible when read in connection with section 2, justify the
conclusion that the dead bodies therein referred to are those of animals
or birds whose importation, if living, has been prohibited by section 2.
Very respectfully,
JOHN W. GRIGGS.
WAR-REVENUE ACT-- TAX ON INSURANCE POLICIES; 23 Op.Att'y.Gen. 210,
September 5, 1900
The act of June 13, 1898 (30 Stat., 448), requires the stamp to be
affixed to the policy of insurance and not to the preliminary
application, although such application is expressly made a part of the
contract of insurances.
The term "policy of insurance" as used in that act is a technical
phrase, and ordinarily applies to the specific instrument by which the
company agrees to pay a certain amount upon conditions therein states.
Where the application for insurance expressly stipulates that the
policy shall embrace four separate contracts, covering four consecutive
periods aggregating one year, and shall remain in force after the first
insurance period only as continued by further payments of premium, such
policy is held to be a policy issued for one year, and the amount of tax
to be affixed when the policy is delivered is to be determined by the
aggregate of the premiums for the entire year.
DEPARTMENT OF JUSTICE,
September 5, 1900.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
December 2, 1898, transmitting a copy of a letter of the Commissioner of
Internal Revenue dated November 30, 1898, in which you request my
opinion as to the proper method of stamping certain applications and
policies of installment accident insurance issued by the Travelers'
Insurance Company. You state that the party desiring the insurance makes
a written application to have the policy . written for four consecutive
periods, of two, two, three, and five months, respectively, each being
covered by a distinct premium to be paid, respectively, from his wages.
He simultaneously gives an order upon the paymaster of the corporation
by which he is employed, whereby he assigns a sufficient sum from his
wages to pay these four premiums. After receiving the application the
Travelers' Insurance Company issues a single policy to the insured for
the principal sum mentioned as the full amount of insurance in the
application. The application expressly stipulates that "the policy shall
embrace four separate insurance contracts, and shall remain in force
after the first insurance period only as continued by payments of
premium for the consecutive periods following;" and the assignment blank
contains the statement that "the payments named in this assignment are
premiums for separate and independent contracts for consecutive periods
of two, two, three, and five months; and each shall apply only to its
corresponding insurance period." The insurance company claims the right
to affix the revenue stamps required by the act of June 13, 1898, upon
the application instead of the policy, and it contends that the amount
of the stamp shall be deternined separately for each of the four
successive periods during which the contract runs. The Commissioner of
Internal Revenue, on the other hand, has ruled that, although the
payments are made in installments, the entire amount of the premium is
and has been fully determined at the time of issuing the policy, and as
the policy is for a stated period and a fixed premium, it should be
stamped when delivered for the four terms of insurance included therein.
Two questions, therefore, are suggested by your inquiry:
First. Should the stamp required by the act of June 13, 1898, be
affixed to the policy of insurance, or to the application for such
policy?
Second. Should the amount thereof be such as is required by the
entire premiums to be paid during the period of one year for which the
policy of insurance runs, in the aggregate, or may the stamp duty be
divided into four parts and separately affixed with each successive
payment during the periods in question.
As to the first question, I would advise you that the act of Congress
requires a stamp to be affixed to the "policy of insurance, or other
instrument, by whatever name the same shall be called." It is true that
in the present c?ase the application is expressly made a part of the
policy, and it is therefore true that the application and the assignment
of the wages do form a part of the entire contract of insurance.
Nevertheless, the term "policy of insurance," as used in the act of
Congress, is a technical word with a well-ascertained meaning, and
ordinarily applies to the specific instrument by which the company
agrees to pay a certain amount upon conditions therein stated. The
application does not of itself insure, and a policy of insurance may not
be granted as applied for. To the extent that its statements, if false,
may invalidate the policy, it forms a part of the contract of insurance,
but it is not commonly regarded as the policy, but only an instrument of
writing preceeding and accompanying it. I am therefore of opinion that
Congress intended that the stamp should be affixed to the policy of
insurance and not to the preliminary application.
As to the second question, there can no longer be any doubt, in view
of the case of Buckalew v. United States (102 Fed.Rep., 320), in which
the circuit court of appeals for the fifth circuit decided upon facts
which are precisely those set forth in your inquiry, that the policy was
a policy issued for one year, and that therefore the amount of the tax
to be affixed when the policy was delivered was to be ascertained by the
aggregate of the premiums, even though the premiums for the entire year
were payable in four installments.
Very respectively,
JOHN W. GRIGGS.
LOTTERY-- GUESSING CONTESTS; 23 Op.Att'y.Gen. 207, September 4,
1900
It is not offering a prize "dependent upon lot or chance," within the
meaning of section 3894, Revised Statutes, as amended by the act of
September 19, 1890 (26 Stat., 465), for a corporation to issue and sell
shares of stock, agreeing that one-half of the purchase money shall be
divided into prizes of different amounts and distributed among the
purchasers of the stock whose guesses as to the majority that will be
received by either Presidential nominee shall be nearest correct.
DEPARTMENT OF JUSTICE,
September 4, 1900.
The POSTMASTER-GENERAL.
SIR: I have the honor to acknowledge the receipt of your letter of
October 2, 1899, in which you request an opinion as to whether a certain
scheme, which is outlined in your letter, is a violation of the lottery
law. The scheme as stated in your letter is as follows:
"A corporation proposes to issue stock in shares of the face value of
$10 each. Fifty per cent of the purchase money is to be divided into
prizes of different amounts, to be distributed among the various
purchasers of stock whose guesses as to the majority that will be
received by either the Republican or Democratic nominee at the nest
Presidential election, shall be nearest correct."
You refer to the opinion heretofore given by Attorney-General Miller,
in a similar case, dated October 31, 1890 (19 Opin., 679), in which the
Cincinnati Enquirer offered to give certain prizes to those who sent the
most correct estimate as to the majority which either the Democratic or
the Republican candidate for the office of secretary of state for the
State of Ohio would receive at the next succeeding election, and you ask
whether, in consideration of the vicious tendencies of the present
scheme, and its evident preparation for the purpose of practically
evading the lottery law, "it may not be distinguished from the principle
laid down by the Attorney-General in the case of the Cincinnati
Enquirer."
So far as the legal question is concerned, as to whether either
scheme is a violation of the lottery law, it is difficult to distinguish
in principle between the guessing contest of the Cincinnati Enquirer and
the guessing contest now proposed.
It is true that the present scheme is, as you say, far more vicious in
its tendencies, for the reason that the sums which may be raised for
distribution may be large, as compared with the small prizes offered by
the Cincinnati Enquirer, and, therefore, practically offer to the public
the allurements of a lottery. Moreover, in the case of the Cincinnati
Enquirer, the prizes were gratuitously given by the newspaper, while, in
this case, the sums to be distributed are raised by the subscriptions of
those who participate in the scheme, thus assimilating it to a lottery.
Nevertheless, the question must, in the present case, as in the case
which was the subject of the opinion referred to, depend upon a
reasonable construction of the statute which forbids the use of the
mails for "any lottery, so-called gift concert, or other similar
enterprise offering prizes dependent upon lot or chance." The prizes to
be distributed in the present case are obviously not dependent upon lot,
and the only question to be determined is whether they are dependent
upon chance within the meaning of the statute. As Attorney-General
Miller said in the opinion above referred to:
"In a certain sense and in a certain degree, perhaps, any prediction
as to human action may be said to be dependent upon chance; that is to
say, it is in some measure dependent upon circumstances, the happening
of which can not be anticipated or foretold with any degree of
certainty. But, at the same time, it can not be said that a prediction
that a man who has lived a life of uprightness for fifty years will,
during the remainder of his life, continue so to live, or that a man who
has been a successful business man for fifty years will so continue, or
that a man who has maintained certain opinions-- religious, political,
or economical-- will continue in the same line, is dependent upon
chance. It is, of course, quite possible that such man may utterly
change his habits of life, business, or opinions, but such change will
not be purely matter of chance. So with regard to the case in hand. A
student of statistics might know approximately the number of Republican
votes and the number of Democratic votes in the State of Ohio; he might
approximate the ratio in which one and the other might increase or
decrease in a given year.
It is quite likely that his estimates would often be wide of the mark,
but it would not be by reason of chance, but by reason of causes in
regard to which he had formed erroneous estimates. It would hardly do to
say that a child or a schoolboy could form as correct an estimate in the
matter as an experienced politician who had been giving weeks and months
of steady attention to the consideration of the question."
The question therefore arises whether a similar contest, in which the
prizes are dependent upon the accuracy with which the participant
estimates the majority which the successful candidate will receive at
the coming Presidential election, is distinguishable in principle from a
scheme offering prizes for the nearest estimate to the majority to be
given in an election for the office of secretary of state of the State
of Ohio. As I have intimated, the method by which the money for the
distribution or prizes is secured is unimportant, even though it make
the present scheme both vicious and dangerous in its tendencies.
Similarly, the amount of money to be distributed can not affect the
question, Though it is also true that the possible distribution, in a
scheme of this character, of large sums of money makes the present
scheme far more objectionable than the comparatively small prizes given
by the Cincinnati Enquirer. Neither of these considerations in any way
affects the question whether the distribution of prizes is "dependent
upon lot or chance."
Ordinarily it would be more difficult to estimate the majority of a
successful candidate for the Presidency than to estimate a similar
majority at a State election for a State office. This, however, is not
necessarily or invariably the case. There are many State elections in
which the conditions change so rapidly from day to day that an estimate
is quite as difficult as an estimate in a Presidential election, where
the number of votes is much greater. In both cases the vote is so large
that nothing is possible but an approximation. The difficulty of such
approximation, as between the two cases, is one of degree only, and in
both the elements of calculation, foresight, knowledge, inquiry, and
information play no inconsiderable part.
The trained observer of political events is far more likely to
approximate the number than one who has not studied election statistics
or past political struggles. Upon the other hand, it can be said that
the exact number is so far beyond the power of human calculation that,
as between competitors in such a contest of equal knowledge, the
successful guess must necessarily be wholly a matter of chance. In other
words, if two men, equally familiar with election statistics and the
past and current movements of political parties, should attempt to make
estimates, the question as to which would be the nearest to the exact
number would no longer be a matter of calculation and reflection, but
would be wholly dependent upon chance.
Notwithstanding this, I find it impossible to distinguish the case in
principle from that which was the subject of Attorney-General Miller's
opinion; and as the case is not free from doubt, and as questions of
doubtful construction of criminal statutes should be resolved in favor
of the liberty of the subject, I am constrained to adhere to the opinion
of my distinguished predecessor. I do this with a full appreciation of
the vicious and dangerous tendencies of the present scheme, to which you
have with reason referred; and if this scheme should be used to an
extent that would make it a public evil, I should not hesitate to advise
such amendments to the lottery act as would bring similar schemes within
the letter of the prohibitory statutes.
I have the honor to remain, very respectfully,
JOHN W. GRIGGS.
LOTTERY-- ENDLESS CHAINS; 23 Op.Att'y.Gen. 200, August 31, 1900
The "endless chain" enterprise, whereby A agrees with B that upon the
return to him by B of a card accompanied by a certain sum of money and
the distribution by him of ten similar cards accompanied by like
requests to ten other persons, and upon the receipt by A of all of the
ten cards accompanied in each instance by like sums of money, he will
send to B a magazine for one year free, and will present him with books
or other articles equal in value to fifty times the amount of money
originally sent by 'b, comes within the prohibition of section 3894,
Revised Statutes, as amended by the act of September 19, 1890 (26 Stat.,
465), which provides that "No letter, postal card, or circular
concerning any lottery, so-called gift concert, or other similar
enterprise offering prizes dependent upon lot or chance, or concerning
schemes devised for the purpose of obtaining property under false
pretenses, * * * " shall be received, transmitted, or delivered through
the mails.
Any enterprise or scheme by which a person pays for a chance to
obtain something of much greater value, the getting or failure to get
which, depends upon lot or chance, is similar to a lottery in the sense
in which that word is used in this statute.
DEPARTMENT OF JUSTICE,
August 31, 1900.
The POSTMASTER-GENERAL.
SIR: I am in receipt of your note of March 31, 1900, asking, in
substance, my official opinion whether certain cards containing printed
matted matter similar to the one enclosed in your note can be legally
received, transmitted, and delivered through the mails, in view of
Revised Statutes, section 3894, as amended by the act of September 19,
1890 (26 Stat. 465), and I have the honor, in reply to transmit the
following opinion:
Upon the cards in question there is printed the following:
"DEAR . . . : Please enclose this card with 20 cents in silver or
ten 2-cent stamps in a sealed envelope, and address and mail it to 'The
Midland Publishing Company, publishers of The Coming Age, Copley square,
Boston, Mass.,' or for quicker answer, to 'The Midland Publishing
Company, western branch office, 306 Olive Street, St. Louis, Mo.'
"They will send you by return mail, a copy of the Coming age,
together with a set of ten cards like this one, with full instructions,
and a list with descriptions of fine clothbound books from which they
give you $10 worth free. On receipt of the cards, hand or mail them to
ten or your friends, the same as I have done to you, and when they have
sent in your cards, as you do mine, the publishers will send you the
magazine one year free, and in this way you will bet the magnificent
magazine, The Coming Age, 132 pages, each month, and entire year for
only 20 cents. When the cards of your ten friends have been returned as
requested, the publishers will then present you with $10 worth of
magnificent cloth-bound books of your own selection, from their 1899
list of high-class books, which they will send you with your cards.
"Instead of the books, if you prefer, you can have either a $12
family Bible, a $25 sewing machine, an $18 baby carriage, a folding bed,
a suit of upholstered parlor furniture (3 pieces), a set (112 pieces) of
decorated tableware, a combination bookcase and desk, an upholstered
couch, a sideboard, a graphophone, an Elgin or Waltham watch (lady's or
gentleman's), an imported double-barreled shotgun, or some other equally
useful article, all shown in an illustrated catalogue, which will be
sent you with the ten cards.
"If you can not do this, please return this card, for if it is lost
or destroyed it will break my chain. Kindly send it the day you get it,
and you will do me a great personal favor.
"Yours very truly,
"Name: . . . . . . ,
"Postoffice: . . . .
"Date: . . . , 1899.
"$2 a year; single copies, 20 cents."
Each card bears a series number for identification
Commenting upon this, you say that--
"Every person originating a series of cards by the purchase and
distribution of ten cards similar to the above, will receive a certain
prize, provided these ten cards and ten other similar sets of cards--
110 cards in all all-- which are to be purchased from the Midland
Publishing Company, by each recipient of a card sent out by the
originator of the chain, are all returned to the company, each
accompanied by 20 cents, as set out above. If any one of the 100 cards
fails to reach the company, according to the statement of the card 'it
will break my (the) chain,' and the originator of the series will not be
entitled to a prize."
I am not quite certain whether the above is merely your construction
of the working of the scheme as disclosed by the card itself, or is also
a statement of some facts known to your Department, but not stated on
the card. If the former, I am not able to agree entirely with that
construction.
As I understand the working of the scheme, as developed by the card
itself, it is this: As these cards are intended for distribution in the
manner indicated, I assume they can be procured for that purpose, on
application for them. Then I suppose the originator of a series or
"chain" obtains ten cards and distributes them among ten persons.
If these all come back to the company, each with 20 cents, the
originator gets his prize. But each of the ten persons so returning
these cards gets back from the company another set of ten cards; and we
will now follow one card of this first series, say, given to A. He has
returned it, as I have said; and received ten other cards, and if he
distributes these, he will be the originator of another (second) series,
and if each of those cards returns with 20 cents to the company, A gets
his prize. The same is true of the other nine, and any one of those
whose ten cards come back with the money, gets a similar prize, and so
on indefinitely. So that, in each case or series, the originator gets a
prize, or not, dependent upon the return or failure of return of ten
cards, and not dependent upon the return of 110 cards. This is so,
because the cards are all alike, and each person receiving one is
promised that if he returns it with 20 cents and gets ten other cards
which are returned, each with that sum, he will get the prize. If any
one card of any set of ten cards is not returned with the money, no one
gets any prize on account of that set, but the company receives and
retains the money on each card that is returned.
The originator of the "chain" may well be, in many or most cases, the
publishing company itself, which sends out these sets of cards for the
purpose indicated.
The difference in the working of the plan, as outlined in your note,
and as stated by me above, is a difference in degree only and not in
principle; for, if either be obnoxious to the objection that it is a
giving of something of value upon a mere chance, the other is equally
so, though the chance of getting the thing sought may be greater or less
in one case than the other.
Revised Statutes, section 3894, as amended by the act of September
19, 1890 (26 Stat., 465), provides that--
"No letter, postal card, or circular concerning any lottery,
so-called gift concert, or other similar enterprise offering prizes
dependent upon lot or chance, or concerning schemes devised for the
purpose of obtaining money or property under false pretenses, * * * "
shall be received, transmitted, or delivered through the mails.
The language of this and of the section amended is peculiar in view
of the evident purpose of Congress in this legislation. It speaks of
"lottery, so-called gift concert, or other similar enterprise offering
prizes dependent upon lot or chance." This necessarily means that
lotteries and so-called gift concerts are similar in the sense in which
Congress used that term, though, in most respects, they are essentially
different; for, it makes the "other enterprise" similar to both, which
can not be unless they are, in that sense, similar to each other. It
would be very difficult to formulate a definition of those enterprises
or schemes by which prizes are offered dependent upon lot or chance, and
which are similar to lotteries and gift concerts, which would embrace
these only; and, for the purpose of this opinion, it is not necessary
to do so. It suffices to say that an enterprise or scheme by which a
person pays for a chance to get something of much greater value, the
getting, or failure to get which, depends upon lot or chance, is similar
to a lottery, in the sense in which that word is used in this statute.
It remains to determine whether the scheme developed in these cards is
of that description.
Is the giving by the company of what is offered, and its receipt, upon
the other hand, dependent upon lot or chance?
It is quite safe to assume that the Midland Publishing Company
embarks in this business as a business enterprise, and not from
philanthropic or charitable motives, and that it expects to receive from
the business more than it will be compelled to pay out. How is this to
be done? We will take first a single set of ten of these cards:
A person receives one of the cards, which he returns with 20 cents to
the company, and receives a set of ten cards which he distributes among
ten persons, including, perhaps, himself, and, we will say, all of them
are returned with the money to the company, making $2.20. For this the
company promises the magazine, price as stated on the cards $2, and $10
in books, or $12 in all. And suppose that each of the others of the ten
has also received and distributed his ten cards, which have been
likewise returned. Then the company will have e received $22 and paid
out in prizes or gifts $1,200, and it is obvious that the oftener the
holders of these various cards do as they are requested to do-- that is,
send in their cards and money-- the sooner will the company be bankrupt.
And it is equally obvious that the making of any money by the company,
or, even avoiding bankruptcy, if the business continues, depends upon
the chance that, in by far the most of the cases, all of the set of ten
cards will not be thus returned, and the company will then get, without
any equivalent or return, the money that is sent. And in every case,
every dollar that the company makes, over what it pays out in prizes, is
that which it receives where the whole set of cards has not been thus
returned, and for which it renders no equivalent whatever to those who
paid it. Like other lotteries, this is the price paid for blanks. And
equally obvious it is that, in order to any profit, the number of these
blanks must exceed the number of the prizes in a greater proportion than
that in which the value of each prize, $12, exceeds the $2.20 paid for
it. And all this-- whether any or all these cards are thus returned,
depends not at all upon any act, volition, or control of the company,
but upon matters entirely outside and over which it has no control.
It would seem difficult to imagine a case where the payment of what is
thus conditionally promised, depended more upon chance than this.
So much for the company. How is it with those who receive the cards
and return them with the money? Each of these is entitled to the
magazine and the $10 worth of books, dependent upon the chance that all
the other nine also return their cards and money. Here, too, whether
they do this or not, is quite beyond any act, volition, or control of
any one of them. Whether any particular one will do this depends upon
himself and not upon chance, for he can determine it. But not so as to
the others. Their action may be affected by an infinity of
considerations or accidents which he can neither forecast nor control;
and it is much as if the same thing were promised upon the same
consideration, if the recipient of the card should predict correctly
what the weather will be at a particular hour of a day in the distant
future. One would depend about as much upon chance as the other.
Strictly speaking, there is probably no such thing as chance; and all
things occur by cause and arrangement, and if we knew all the causes and
influences operating in every direction, and their extent and effect, we
could correctly forecast the result of everything terrestrial. But,
since we can not do this, we call by the name of "chance" things we can
neither forecast nor control, and which, as far as we can see, may or
may not happen. The section under consideration recognizes such a thing
as chance, and, I think, in some such sense as this. For, in view of the
manifest purpose of this section, it would seem difficult to avoid some
such meaning.
With some such meaning as this it is manifest that, as respects both
the company issuing these cards and their recipients, whether the prizes
or gifts offered shall be delivered or received, depends entirely upon
whether, in each set or series of ten cards, all are returned to the
company with the money, and that this is depending upon chance within
the meaning of the statute.
But this is not all. The section makes unmailable the same kind of
matter "concerning schemes devised for the purpose of obtaining money or
property under false pretenses."
The scheme developed by these cards is one offering a $2 magazine and
$10 worth of books to every one who will purchase for 20 cents ten
cards, each of which is returned with 20 cents, making, at the outside,
and as I construe the card, $2.20. Each of the same ten persons also
receives a similar card offering him a similar $12 prize for the same
sum, $2.20. And the cards are furnished for such distribution and are
distributed for the ostensible purpose of inducing each recipient to
return the card and money and get the prize; and each is told that if
he and the other ten will do so he will get a $12 prize, for which the
company will receive $2.20.
This is a fraud and a false pretense upon its face. For it is
apparent that, if all, or even a considerable part, were to do as
requested-- that is, if the other parties to the contract perform their
parts-- the company can not and will not perform on its part. A promise
which, if accepted and performed by the promisee according to its terms,
is one which the promisor knows he can not, and will not, in that case,
perform, and does not intend to, is a fraud and false pretense. This
case is of that character. For it is evident that if the persons to whom
these cards are sent, perform their part, as requested, the company can
not and will not perform on its part, and never intended to perform in
that contingency.
I have therefore to advise you that, upon each of the grounds I have
stated, the case you present comes within the prohibition of the statute
referred to.
Respectfully,
JOHN W. GRIGGS.
SPANISH CONCESSIONS FOR TELEGRAPHS-- CUBA-- THE PHILIPPINES; 23 Op.
Att'y.Gen. 195, July 27, 1900
The concessions secured from Spain by English telegraph companies in
Cuba and the Philippines are not binding, as contracts, on the United
States, Cuba, the Philippines, or other government replacing Spain;
but, as to the Philippine cables, it does not follow from this fact that
no obligation whatever exists.
There is an equitable obligation on the part of the four islands
connected by cables, and on the part of the archipelago as a whole, with
regard to the concession for interisland cables in the Philippines,
which concession provides for an annual subsidy.
With regard to two other concessions for cables, from Bolinao to
Manila and from Bolinao to Hongkong, which do not call for pecuniary
subsidies, but for a monopoly during a certain number of years, the
equitable obligations upon the islands concerned, and upon the
archipelago, though less obvious, exists.
It is for Congress to determine whether any such obligation exists on
the part of the United States.
In the absence of any urgent reason for Executive action, the whole
matter of these equitable liabilities concerning the Philippine cables
ought to be left to Congress or to the permanent Philippine government.
The foreign and purely temporary character of the occupation of Cuba
by the United States makes it highly proper for the latter to leave the
question of Cuba's equitable liability in regard to similar concessions
to the permanent government of Cuba to determine.
DEPARTMENT OF JUSTICE,
July 27, 1900.
The SECRETARY OF STATE.
SIR: I received from you some months ago the following request for
an opinion, a response to which I took the liberty of delaying, in
expectation of possible changes in the situation of affairs in Cuba and
the Philippines. As I am verbally informed that the British ambassador
is very desirous of information from you upon the subject-matter, I
shall now proceed to answer.
"SIR: I have the honor to acknowledge the receipt of your letter of
the 6th ultimo, and to inform you in reply that this Department's letter
of November 13 last, to which you refer, inadvertently submitted to you
the question whether the claim of the Cuba Submarine Telegraph Company
for reimbursement of the expenses actually incurred by it in the repair
of its cables, cut by the United States forces, should be sent to
Congress.
"It was the Department's purpose in the said letter to confine its
reference to only the first paragraphs of Lord Pauncefote's note to May
25, 1899, therewith inclosed-- that is, to the question of the
recognition by the United States of the concessions secured from Spain
by English telegraph companies in Cuba and Porto Rico.
"I have the honor to be, sir,
"JOHN HAY,
"Secretary of State.
"The ATTORNEY-General."
"Porto Rico, is an evident mistake, as the ambassador's notes concern
Cuba and the Philippines.
I have just completed an opinion to the Secretary of War as to the
following questions:
"I have the honor to inclose herewith papers relating to the claim of
the Manila Railway Company, Limited, for quarterly subventions under the
concession granted it by Spain, and to request your opinion as to what
obligations, if any, exist under said concession either against the
revenues of the Philippine Islands or those of the United States; and
if any such obligations do exist, as to what action can legally be taken
in recognition and settlement thereof by the Executive department of the
United States, or the military government in those islands."
The concession of the railroad company is similar to that of the
cable companies, and I therefore refer to the opinion of the Secretary
of War as throwing light upon your inquiries. In accordance with the
views, and for the reasons therein explained, I am of opinion that the
contracts of concession fo the Cuba Submarine Telegraph Company,
concerning cables from Habana to Santiago and from Habana to Manzanillo;
also the three concessions to the Eastern Extension, Australasia and
China Telegraph Company, Limited, concerning cables from Hongkong to
Bolinao and from Bolinao to Manila, and three cables from Luzon to
Panay, Negros, and Cebu Islands, are not binding, as contracts, on the
United States, Cuba, the Philippines, or other government replacing
Spain.
As to the Philippine cables, I am of opinion, for reasons partly
suggested in my communication to the Secretary of War, that it does not
follow from the fact that there is no contract obligation that there is
no obligation at all.
The concession for interisland cables in the Philippines provided fro
an annual subsidy of 4,500 pounds, payable from the general treasury of
the Philippines, and the reasons given in the case of the railroad
company lead to the conclusion that there is an equitable obligation on
the part of the four islands connected by the cables and on the part of
the archipelago as a whole.
The other concessions, for cables across from Bolinao to Manila and
from Bolinao to Hongkong, do not call for pecuniary subsidies, but for a
monopoly during so many years. The equitable obligation upon the islands
concerned and the archipelago is less obvious, but I think,
nevertheless, that it exists. The monopoly, if not money, was a valuable
thing and quite as local as the revenues of the Philippines. The
benefits were received as in the other case, although, of course, the
cable to Hongkong gives a foreign as well as a local benefit.
I have not deemed it necessary to inquire into any equitable
obligation on the part of the United States growing out of the benefit
derived by them, since any such obligation would be for Congress rather
than for the Executive to deal with.
In the absence of any urgent reason for Executive action, I think the
whole matter of these equitable liabilities concerning Philippine cables
ought to be left to Congress or the Permanent Philippine government.
Turning now to the concessions in Cuba, I have already said that, as
contracts, they do not seem to me to be binding upon Cuba or the United
States. Cuba is but temporarily in our control, and I am of opinion that
the question of an equitable liability similar to that mentioned in
connection with the Philippines need not be settled by us, but belongs
to the permanent government of Cuba to determine.
It is true, as suggested by the British ambassador, that by the
treaty of peace it was provided that "the United States, who were to
occupy the island on its evacuation by Spain, were to assume all the
obligations, which, under international law, might result from such
occupation, for the protection of life and property." The note of the
British ambassador proceeds to say:
"Article VIII provided for the security of private property; Article
IX for the security of individuals; Article X for the free exercise of
religion; Article XI for the administration of justice; Article XII
for pending judicial proceedings; Article XIII for rights in copy
rights and patents; Article XIV for the establishment of Spanish
consular officers. All these provisions apply to Cuba, and while Article
XVI states that the obligations of the United States with regard to Cuba
are limited to the time of its occupancy, it further provides that it
will, upon the termination of its occupancy, "advise" any government
established on the island to assume the same obligations. Such an
occupation is not in the slightest degree analogous to a mere military
occupation. It may or may not be temporary, but, so long as it lasts, it
carries with it the duty of respecting such local obligations as the
concessions of the telegraph company.
"It need not, in the opinion of Her Majesty's Government, be
contended that the United States assumed absolute responsibility for the
permanent observance of these concessions in Cuba, but they are bound to
respect them during the occupation, and to "advise" any succeeding
government to do the like.
"This obligation appears to Her Majesty's Government to result from
the character of the occupation itself, and from the terms of the
treaty."
Article VIII of the treaty, above cited, simply provides that the
relinquishment or cession of buildings, wharves, barracks, etc.,
belonging to the Crown of Spain, and the public domain, can not in any
respect impair the property or rights which by law belong to the
peaceful possession of property of all kinds belonging to provinces,
municipalities, associations, or private individuals, of whatsoever
nationality such individuals may be. The other articles cited are
equally irrelevant.
Article I, which declares that the United States will, so long as its
occupation shall last, assume and discharge the obligations that may,
under international law, result from the fact of its occupation, for the
protection of life and property, can not well be strained so as to
require the United States, by way of protecting life or property, to
settle all the obligations, legal or equitable, of the government of
Cuba. That is not the natural meaning of the article, and the
discussions of the plenipotentiaries which led up to the treaty show
that it is not the real meaning of the article, since a strenuous effort
was made, and failed, to insert a stipulation concerning the
obligations.
As for the suggestion that the character of our occupation itself,
aside from the treaty, binds us to respect the concessions, and to
advise any succeeding government to do the like, it seems to me, on the
contrary, that the foreign and purely temporary character of our
occupation makes it highly proper for us to leave to the Government of
Cuba the consideration and adjustment of a matter of this kind.
(Bluntschli, Droit International, sec. 732; Calvo, Le Droit
International, secs. 2489, 3144.)
Congress has expressly forbidden the granting of new concessions in
Cuba, or of any property or franchise; and while the recognition of
this concession, or of any equitable responsibility in connection with
it, might not literally violate such prohibition, the resolution of
Congress confirms me in the opinion that all such business can rightly
be left to the deliberate judgment of the permanent government.
Respectfully,
JOHN W. GRIGGS.
SPANISH RAILWAY CONCESSIONS-- PHILIPPINES; 23 Op.Att'y.Gen. 181,
July 26, 1900
The provinces in the Philippine Islands through which a railroad was
built in pursuance of a royal decree of April 9, 1885, and which in
large measure received the benefit of said railroad, are equitably
obligated to make some fair arrangement with the company as to the
two-thirds of the guaranteed interest which the decree imposed upon the
provinces.
This concession of Spain is regarded as a personal contract, binding
on the parties who made it and equitably on the provinces affected
thereby; but whatever obligation, if any, rests upon the United States
in regard thereto, it is something different from the contract
obligations and may or may not coincide with its terms.
Congress will determine whether, based upon the reception of benefits
from the railroad, the United States has incurred one-third or any such
portion of the original indebtedness which, under the decree, was to be
paid from the royal or peninsular funds in the Philippine treasury.
As Congress has not yet determined the future permanent status of the
islands, the President has authority to settle this preexisting accrued
indebtedness, if he believes that the settlement can not justly and
wisely be left to await action by the future government.
In such case the President, or, with his consent, the military
government, may apply the local revenues of the provinces through which
this road extends to the discharge of their equitable liability, based
upon so much of the concessionary agreement as has been already
executed, the amount of which liability he has authority to determine in
view of all the facts and circumstances.
DEPARTMENT OF JUSTICE,
July 26, 1900.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge receipt of the following
request for an opinion:
"WAR DEPARTMENT,
"Washington, July 2, 1900.
"SIR: I have the honor to inclose herewith papers relating to the
claim of the Manila Railway Company, Limited, for quarterly subventions
under the concession granted it by Spain, and to request your opinion as
to what obligations, if any, exist under said concession either against
the revenues of the Philippine Islands or those of the United States;
and if any such obligations do exist, as to what action can legally be
taken in recognition and settlement thereof by the Executive Department
of the United States, or the military government in those islands.
"With these papers are inclosed a copy of the note of the British
ambassador at this capital, and of the report of the law officer of the
Division of Customs and Insular Affairs.
"Very respectfully,"
"Elihu ROOT,
"Secretary of War.
"(Inclosures: Copy of Judge Magoon's report 849 and inclosures 1 to
46, except 18 and 29, with p.c., the return of which papers is
requested.)"
I perceive that the subvention as claimed is calculated from January
1, 1899. This date, of course, was more than three months before the
ratifications of the treaty of Paris were exchanged, and therefore
before the sovereignty of Spain over the Philippines was formally
terminated. So far as there may be a liability of the sovereign
Government as distinguished from that of the Philippine Islands or
provinces therein, it would seem necessary to consider whether the
concessionaire must not look to Spain, rather than to the United States,
for indebtedness accruing prior to such exchange of ratifications.
The facts seem to be that, according to the method familiar to Spain,
a project of a railway from Manila to Dagupan, on the northern coast of
Luzon, was, in pursuance of a royal decree of the 9th of April, 1885,
made the subject of a public auction, held at Madrid and also at Manila.
At that auction Mr. Edmund Sikes Hett was the only bidder, and by a
royal order of the 21st of January, 1887, he was declared the
concessionaire authorized to build the road. Afterwards Mr. Hett duly
assigned his rights to the company mentioned by you, and that company,
an English corporation, proceeded to construct the road and now owns it,
and prefers a claim against the United States, or whom it may concern,
to be paid certain sums of money in accordance with the terms of the
concession.
The royal decree first referred to, dated the 9th of April, 1885, was
as follows:
"ART. 1. The Government will assist the construction of the railway
from Manila to Dagupan, guaranteeing an interest of 8 per cent per annum
on the capital which is spent on the works, reserving to itself the
right to recoup itself the two-thirds part of the amounts which for this
purpose it may pay from the local funds belonging to the provinces which
the aforesaid line crosses, in accordance with the practices established
for other public works in the Philippine Islands.
"ART. 2. The subvention with which the concessionaire shall be
assisted shall be paid over every three months, handing over at the end
of every term the amount which belongs to the section or sections
working during the three months for guaranteed interest.
"The quantity which shall be paid every three months as subvention
shall be determined by discounting from the amount which represents the
guaranteed interest corresponding to the section or sections in working,
50 per cent of the gross products of the aforesaid working.
"When the 50 per cent of the gross products of the working exceed the
amount which represents the guaranteed interest the excess shall be
divided equally between the concessionaire the treasury.
"ART. 3. The maximum capital which shall receive the interest of 8
per cent per annum and which shall serve as a type for the auction for
the concession of the line, is fixed in 4,964,473.65 pesos."
The amount of capital appears to have been increased to the extent of
about a million pesos.
It appears that the pesos in question were held by the courts of Spain
to be payable in the Philippine Islands, and that they were therefore
Philippine pesos, the value of which is a matter of importance in the
disposition of this claim as regarded by me.
As was likewise usual in such cases, a schedule of special conditions
was published in advance of the auction, giving details of the work to
be done by the concessionaire, the point at which the road was to start,
referring to royal orders and decrees to which the whole business was to
be conformed, specifying the stations and the kinds or classes of
stations, the amount and character of rolling stock, providing for the
establishment of an electric telegraph line and the use of it by the
concessionaire and by the Government, and many other details, expressed
in 33 articles. This schedule of special conditions was dated the same
9th of April, 1885. Among the articles were the following:
"4. The Government shall aid the construction of the line by
guaranteeing 8 per cent annual interest on the capital employed therein.
"10. * * * The sum which the treasury of the Philippine Islands is to
pay quarterly as subvention shall be fixed by deducting from the sum
representing the guaranteed interest corresponding to the section or
sections in working 50 per cent of the gross proceeds of such working.
"18. The electric telegraph of the line shall be established for the
service of the same, but the concessionaire shall be bound to place as
many as four wires for the telegraph of the State, immediately the
government of the islands shall so require him, there being for his
account the establishment and maintenance, and for account of the State
the service of the official and private correspondence. The Government
and the concessionaire may, however, agree that the functionaries of the
former shall carry on the telegraphic service of the railway.
"The concessionaire shall furnish the locale necessary for the
telegraph station of the Government at the railway stations where it may
be thought proper to have them, the establishment of such stations and
their maintenance and service being for account of the State.
"He shall also furnish the locales necessary for the inspections of
the Government.
"19. He shall also provide in the trains determined upon the locale
corresponding to the services of mails, the carriage whereof shall have
to be always gratis, as also the carriage of the correspondence in all
other trains.
"The transports of the State, both civil and military, and those of
prisoners or persons for trial, shall be effected for a moiety of the
tariff prices.
"22. The concessionaire shall be subject to the tariff of maximum
prices of toll and transport, which tariff may be revised and amended by
the Government, in accordance with what is expressed in article 32 of
the royal decree aforesaid of August 6, 1875.
"23. The concession is granted for ninety-nine years, according to
these conditions and to the tariffs approved, and subject to all that is
provided by the said royal decree of August 6, 1875.
"27. Upon the expiration of the term of the concession, the State
shall acquire the line with its rolling stock and all its dependencies,
entering into full ownership thereof, and in the full enjoyment of the
right of working it."
It is apparent that this contract was recognized as one of utility to
the Government of Spain, and one of benefit to the provinces in the
island of Luzon, through which the orad was to pass. Ultimately, as we
may infer from the royal decree of April 9, 1885, those provinces were
to bear two-thirds of the expense of the guaranty. The whole guaranty
was to be paid from the Philippine treasury; but I do not understand
that to mean that it was to be paid wholly from moneys belonging to the
local funds of the Philippines, but ultimately, to the extent of
one-third, from the royal or peninsular funds in the Philippine
treasury, or at all events as in part a subsidy recognized by the
general policy of Spain as chargeable to herself.
All of the colonial laws and regulations of Spain concerning public
works, railroads, and the police of railroads in the Philippines are not
before me; and I have examined principally those concerning Cuba and
Porto Rico, which are chiefly an extension to the colonies of the ones
in force in the peninsula.
I have examined also divers concessions concerning railroads, cables,
etc., in Cuba and the Philippines. The same procedure seems to have been
pursued pursued in the Philippines as elsewhere. I therefore quote, as
throwing light upon the present concession, the following article of the
law of railroads for Spain, Cuba, and Porto Rico, extended to Cuba in
1883 and promulgated in Porto Rico in 1888:
"ART. 13. The provinces and towns directly interested in the
construction of a line of general service, shall contribute with the
State to the subsidy granted, in the proportion and manner prescribed by
the law referred to in Article II (i.e., the special law granting the
concession)."
In article 50 of the regulations for executing that law, we read:
"If the aid consists of the delivery of a sum in specie or bonds and
stocks, it shall be paid to the company in the form and time stipulated,
always on a certificate of the engineers of the State charged with the
inspection. The payment of the subsidies in these cases shall be made to
the company by the Government directly, and the Government in its turn
shall be paid by the province and the town the part of the subsidy
devolving upon them, as determined by the law. 0 0 0 (Thus far the
regulation is identical with that of 1877 for Spain, extended to Cuba in
1883.) If the subsidy consists of the exemption of customs duties, the
formalities determined in the existing of customs duties, the
formalities determined in the existing provisions or those provided in
the future by the proper law or regulations shall be complied with. If
the subsidy consists in the guaranty of interest, there shall be paid
semi-annually to the company by the public treasurer of the island, the
difference between the net earnings, after deducting what is provided
for in the special clauses of the concession, and the said interest.
When, during four consecutive periods of six months, the net earnings of
the operation shall equal or exceed the interest guaranteed, the right
to such interest shall cease; but the treasury may continue to collect
half of the excess on the said interest, until it shall have been repaid
for the advances made, if it has been so stipulated in the special
clauses of the concession."
The contract of concession has not been fully executed, but was, in
some respects, to remain executory for eighty-seven years. It was a
contract between the Spanish Government and the railroad company. The
promises were made by the one to the other. I am of opinion that an
identical contract between the United States and the company was not
created by the ratifications of the treaty of Paris, and does not exist.
We need not inquire whether the contract would now survive had the
Philippine government or the provincial deputations, regarded as
autonomous or even as merely part of the Royal Government, made it, and
had the benefits of it been wholly received by the provinces or
archipelago. For the contract was made by Spain, and partly for hier own
benefit. It was the indivisible personal contract of Spain and of the
concessionaire.
It seems to be the consensus of opinion among authorities on
International law, that, upon the separation of part of a country from
the sovereignty over it, debts created for the benefit of the departing
portion of the country go with it as charges upon its government.
(Hall's International Law (4th ed.), p. 98; Rivier, Droit des Gens,
tome 1, pp. 70,72; Calvo, Le Droit Inter., t. 1, sec. 101; t. 4, sec.
2487; Phillimore's Inter. Law (2d ed.), vol. 1. pt. 2, secs. 136, 137;
The Tarquin, Moore on Arbitration, vol. 5, p. 4617; Lawrence's
Wheaton's Inter. Law, pp. 53, 54; Wharton's International Law Digest,
sec. 5; Anglo-Saxon Review, June, 1899, Mr. Reed's article concerning
the Philippine debt, etc.; Dana's Wheaton's Inter. Law, sec. 30, note;
Glenn's International Law, sec. 28; Field's International Code, secs.
24, 26; Gardner's Institutes of Inter. Law, p. 52; Senate Doc. 62,
Fifty-Fifth Congress, third session, pt. 1, p. 500.)
Various bases are given for an obligation of a locality and its new
government. The chief one is that a benefit goes with its attached
burden. Another is the legal right of the original sovereign to bind the
locality to pay any debt, even if not for local benefit. (Bluntschli,
Droit International, sec. 59.) A third is the possession by the new
government of the funds or revenues out of which the debt was to be
paid.
This obviously happens in the case of a revolutionary government getting
control of the whole national territory. Still another is the fact that
the creditor was lawfully induced to rely, and did rely, upon funds
which are now in the possession of the new government. And as for the
binding or mortgaging of the locality, it is not to be understood that
more is meant, or now commonly practiced, than for a sovereign to agree
that certain local objects or revenues should be bound. The creditor is
not, as formerly, given a city or province in mortgage, with a right of
sovereign jurisdiction. (Heffter, Droit International, sec. 71.)
As for the nature of the obligations supposed to bind the locality,
they are not confined to simple debts, but are said to extend to
boundary settlements, right of navigating rivers, right to maintain
monasteries, colleges, etc etc. (Bluntschli, Droit International, sec.
47.)
As already suggested, all the promises of every contract entered into
by the former government of a province wrested from it by victory in war
do not transfer themselves to the new government, in defiance of the
natural proposition that a man can not be bound by a stranger's
promises. But benefits may be received by a province as well in
pursuance of a personal contract of the sovereign partly for his own
benefit as otherwise. They are none the less benefits received and
retained by the province, and if the burden of the contract itself does
not go with them, the burden of an obligation to do equity toward the
contractor who has supplied them, does go with them.
There is an obvious difference between a mere debt for the repayment
of a loan and an executory contract containing many stipulations to be
performed on one side and the other. Where the former exists, and there
are thousands of bonds, perhaps, in the hands of individuals, second or
third holders of them, it would be obviously inconvenient, and seldom
necessary to the ends of justice, to attempt to make a distinction
between the real value of a work and the loan obtained by the original
contracting sovereignty, so as to confine the obligation of the
succeeding sovereign to such real value of the work, the benefit of
which he gets.
There is also a clear difference between ordinary executory contracts
and contracts to convey lands.
Chief Justice Marshall says, in Soulard v. United States (4 Peters,
511):
"The term 'property,' as applied to lands, comprehends every species
of title inchoate or complete. It is supposed to embrace those rights
which lie in contract; those which are executory; as well as those
which are executed. In this respect the relation of the inhabitants to
their government is not changed. The new government takes the place of
that which has passed away."
This was said concerning uncompleted titles to the public domain in
Louisiana. In respect to public domain, a contract to convey would,
according to this view of the matter, be regarded as equitably
diminishing the ownership of the sovereign who contracted, so that he
could not afterwards convey an unincumbered title to a third person.
Accordingly, the land in the hands of the third person might well be
regarded as his only to the extent that it had not so been contracted
about. But this would not mean that the third person was substituted as
a contractor for the original contractor so as to be obliged by the
obligations which he had never stipulated. It would mean merely that he
got no more title than was equitably left in his grantor at the time of
the grant.
The concessions here in question are executory contracts, not
concerning the public domain owned by Spain, but containing many
personal obligations of Spain and of other parties. Spain is regarded by
the law of nations as having a personality of her own distinct from that
of the power which has succeeded her in control of the ceded territory,
and I am not aware of any authority for saying that such personal
obligations, either on the part of the Government of Spain or the other
contracting parties, become binding as contractual obligations upon a
government which made no such promises, or upon the individual towards a
government to which he made no such promises. Hall says (International
Law, sec. 27):
"With rights which have been acquired, and obligations which have
been contracted, by the old state as personal rights and obligations the
new state has nothing to do. * * * The new state, on the other hand, is
an entirely fresh being.
It neither is, nor does it represent, the person with whom other states
have contracted; they may have no reason for giving it the advantages
which have been accorded to the person with whom the contract was made,
and it would be unjust to saddle it with liabilities which it would not
have accepted on its own account."
The fact that in certain treaties of cession contracts, regularly
entered into for objects of public interest specially concerning the
ceded territory, are taken over by the new sovereignty, can not be
accepted as proving that without treaties all such contracts become
obligatory upon the acquiring sovereignty. The stipulations of treaties
are sometimes confirmatory of the law of nations, sometimes different
from it. Presumably they should be regarded as not identical with it,
since nations may well be presumed not to make unnecessary stipulations,
or fail to obey the law of nations.
Calvo (sec. 101) does not seem to regard such treaties as mere
repetitions of the law of nations; and Hall (sec. 27, note) reminds us
of the motives of policy which govern the making of these as of other
treaties. The stipulations are no doubt the result of the existence of
general principles of the law of nations concerning debts and contracts,
as affecting an acquiring sovereignty; but those principles may well
fall short of the proposition that all executory contracts by the
central government for imperial rights and privileges, as well as local
benefits, become obligatory as such contracts in all their terms upon
the victorious sovereign acquiring the locality.
As I have suggested, these concessions, made by a military monarchy
for cables and railroads through its colonies, were by no means entered
into without regard to the benefit and conveniences of the central
government as sovereign over the colonies. They were, and this appears
upon their face, concerning instruments with which the monarchy was to
govern more easily and conveniently the subject colonies, for the
general benefit of Spain as well as their own.
To regard them as exclusively for local benefit would, therefore, be
to ignore obvious facts.
A debt or executory contract by a city or province, whether made by
its people or by imperial authorities over it, for gas or irrigation
works or other local works, including railroads of only local use,
presents another question altogether.
He who contends that the liability in such a case is destroyed by a mere
change of sovereignty over the city or province, has clearly an unjust
cause to maintain.
It may well be that the treaties in question, some of which speak of
"contracts for objects of public interest, expecially concerning the
ceded territory," intended to include only contracts for objects which
were, or were supposed to be, or were liberally treated as being, local
objects, and not contracts for combined local and imperial objects.
Probably neither a debt, nor even an executory contract of a city for
gas works or of a province for irrigation works or railroads of purely
provincial interest, can justly be repudiated, upon a change of imperial
sovereignty, whether made by the people of the city or province or by
imperial agents duly authorized to act for either. On the other hand, to
charge the ceded province with contracts or debts for imperial objects,
such as those concerning the relations between the central government
and the locality, can not be justified by the mere fact that the
contract concerns also local objects.
But it may be said that contracts of this kind may properly be
charged to the new sovereignty, which will be interested in the imperial
objects and own the province. The old machinery for holding and ruling
the province can serve as well the new as the old sovereignty, and,
therefore, the law requires the former to fulfill the contract made by
the latter.
Such a principle might, perhaps, be conceded if it were a fact that
the relations between the new sovereignty and the province and the uses
to be made by the new sovereignty of the province were, or could be
presumed to be, identical with the preexisting relations and uses. But a
presumption of the kind must be rested upon a great preponderance of
probabilities, and no such preponderance exists. Geographically,
politically, commercially, everyway, a province or piece of territory
will probably have different relations with the new and the old
sovereignty. Take, for example, the colony of Florida, ceded by Spain to
the United States. Of what use has Spain's machinery for exploiting,
holding, and governing that colony, been to the United States?
Take Gibraltar and its connection with Spain and England. Take almost
every instance of cession. Even in the instances of border provinces
ceded to the neighboring nation, machinery for dealing with them from
the east, and protecting the border against a western enemy, would ill
suit the western sovereignty, while the old sovereign might have a
monarchical and the new a democratic and autonomous system governing the
province.
Nor should we, in inquiring whether the nations have consented to a
rule of law to the effect that contracts made by the old sovereignty for
local and imperial objects shall be obligatory as such upon the new
sovereignty, forget the extraordinary effects which must flow from such
a law. What is there that may not be contracted for? What imaginable
stipulations may not be made? To agree in a treaty to be bound by
actual, known contracts, and to assent to a law about contracts in
general are two different things. Could nations commit themselves to
anything more embarrassing and unsafe than a legal obligation to carry
out specifically any promises whatsoever that may be made by others in
any contracts for imperial and local objects? It seems to me not, and
that whoever asserts that nations have by common consent established
such a law must furnish abundant and indisputable authority, whereas, as
Hall says (sec. 217), "this subject is one upon which writers on
international law are generally unsatisfactory."
Servitudes or easements, completely granted or established upon the
ceded territory for the benefit of a foreign nation, have been supposed
to diminish by so much the title of the owner of the province, so that
when he cedes it he cedes it subject to the servitudes. On the other
hand, it may be that the owner of the province may acquire from a
foreign power a servitude over foreign territory for the benefit of the
province, in such a way that it would become appendant or appurtenant to
the province and go with it into whosesoever hands the province might be
transferred. This seems to be the meaning of Hall (International Law,
4th ed., p. 98) in speaking of the navigation and regulation of a river.
In such a case the obligation runs with the land, and may be regarded as
other than a mere personal obligation. But this is no reason for
treating personal obligations, stipulated in an executory contract, as
not personal obligations, simply because they may have some relation to
a particular ceded locality.
I am unable to regard these contracts of concession, with their
manifold personal stipulations, as other than what they purport to be;
and the difference between them and servitudes, diminishing the title of
the owner prior to the cession or appurtenant to the province ceded, or
contracts to convey public lands, or what we conceive of as a
"franchise" to accomplish (as here) a public duty of the sovereign of
the ceded province, or even a private (e.g., eleemosynary) work, where
such franchise exists otherwise than as but an integral part of such an
executory contract of the sovereign of the province as we have under
consideration, seems to me to be an obvious one. These contracts are
contracts. They are whole things with interdependent parts and
reciprocal personal promises. We can not change their nature by calling
them by other names, or repeating the word "local" in connection with
them. As such personal contracts their promises bind those who made
them. Any obligation of others in connection with their subject-matter
is something different from the contract obligation, and may or may not
coincide with the terms of the specific promises.
When we look into the present instance we find the large capital upon
which the subsidy was calculated has long since been invested by the
railway company; the provinces of the Philippines have undoubtedly
received, and they retain and will retain, the chief benefit from the
railroad; the revenues out of which that part of the benefit was to be
paid for are now in the hands of their new government; the creditor was
induced, very properly, to look to those revenues for that purpose;
and, moreover, the railroad was a most necessary piece of property,
two-thirds of which was bought, as it were, by a guardian for the use of
his ward, the price to be paid as to two-thirds from the funds of the
ward.
The property has been furnished and is being maintained, and, from its
nature, will be maintained, and must continue to benefit the ward, whose
funds are now freed from the guardian's control. From these
considerations it seems to me to follow that, although the contract as
such has departed with Spain, there is a general equitable obligation
upon the provinces to make some fair arrangement with the company as to
the two-thirds benefit, and that they can not justly take advantage of
the disappearance of Spain to retain what she procured for them, on the
credit of their funds, and deny all liability for the price.
Whether, based exclusively upon the reception (for the future and so
far as geographical, political, and other differences will permit a
benefit to continue) of the benefit of the railroad, the United States
has incurred any liability affecting one-third or any such portion of
the original indebtedness, it is unnecessary to consider, since, if so,
it will be for Congress to deal with it.
So much in answer to your question as to what obligations, if any,
exist under said concession, either against the revenues of the
Philippine Islands or those of the United States.
You ask, if any such obligations do exist, what action can legally be
taken in recognition and settlement thereof, by the Executive department
of the United States, or by the military government of those islands.
It seems to me that the non-action of Congress has confirmed to the
President the responsibility and authority to continue the military
government he has set up in the Philippines, as the only government, for
the present and for an uncertain time, of a peopled country whose future
permanent status is undetermined. (Treaty of Paris, Article IX; opinion
Attorney-General, July 22, 1898 (22 Opin., 150), concerning Hawaii).
Under such circumstances I am of opinion that the President is not
without authority to settle a preexisting accrued indebtedness of the
kind herein explained, if he has good reason to believe that the
settlement can not wisely and justly be left to await action by the
future government.
It is represented in the papers submitted to me that the large
deficiencies in the receipts of the railroad company, occasioned by the
disturbed state of affairs, etc., threatens its bankruptcy.
If so, this is a fact which may be considered in determining the
propriety of present action.
You desire to know what particular action can be taken. I am of
opinion that the President has authority, if he thinks it necessary, to
apply the local revenues of the provinces through which this road
extends to the discharge of their equitable liability, based upon so
much of the concessionary agreement as has been already executed, the
amount of which liability he has authority to determine, in view of all
the facts and circumstances. And what he can do the military government
can do with his consent.
Respectfully,
JOHN W. GRIGGS.
FRENCH SPOLIATION CLAIMS; 23 Op.Att'y.Gen. 179, July 5, 1900
It is the duty of the Secretary of the Treasury under the act of
March 3, 1899 (30 Stat., 1191), making appropriation for the payment of
certain French Spoliation claims, to determine before payment whether or
not these claims are "held by assignment or owned by any insurance
company." Stat duty is not altered by reason of the receipt of
certificates of the Court of Claims issued under the authority of that
act.
DEPARTMENT OF JUSTICE,
July 5, 1900.
The SECRETARY OF THE TREASURY.
SIR: I have received your letter of the 30th ultimo, informing me
that you have received certificates of the Court of Claims in eleven
French Spoliation claims contained in the act of March 3, 1899, in favor
of Charles F. Adams, administrator of Peter C. Brooks, and adding:
"The advice of the Attorney-General is desired by this Department, in
view of his letter of March 7, 1899, above referred to, as to whether
there is now any reason why these claims may not be paid."
Your question seems to me, in effect, whether the certificates you
say you have received do away with the question called to your attention
in the Attorney-General's letter of March 7, 1899.
They do not. The court itself says that, notwithstanding the
certificates the appropriation act gives it jurisdiction to issue, it is
for your Department, and not the court, to decide whether or not these
claims are "held by assignment or owned by any insurance company." In an
opinion (herewith inclosed) recently delivered, in the matter of Charles
Ghequiere's application for certificates under the same appropriation
law, the court says:
"The authority of the Secretary of the Treasury to pay to the persons
named in the act the several sums appropriated therefor is restricted by
the last proviso in these words: 'Provided, however, That any French
Spoliation claim appropriated for in this act shall not be paid if held
by assignment or owned by any insurance company.'
"Manifestly that is a direction to the Secretary of the Treasury. If
the court should assume to go into the question raised, it would in
effect be considering a motion for a new trial as to the real party in
interest; and, too, after the court has lost jurisdiction of the case.
"That we can not do without express authority of law; hence the
motion, in so far as it asks the court to certify that the 'claim is not
held by assignment or owned by any insurance company,' is overruled.
"The certificate that the claimant, as administrator, represents the
next of kin of Charles Ghequiere, deceased, is ordered issued."
Besides, the certificates ordered sent you in the Brooks case are in
a special form, omitting the usual words "the original owner of the
claim on which said award was made." I inclose the printed form
ordinarily used. The court was asked by the claimant's attorney to
modify its order, but would not do so.
Our letter of March 7, 1899, therefore, calling your attention to the
proviso of the appropriation act, and to the case of Farnum v. Brooks
(9 Pick., 212), where all the facts are explained, requires no
modification.
This Department having been, while these claims were before the Court
of Claims, in the position of attorney for the defendants, it would be
agreeable to us, now that there is a question pending before you
concerning the same claims, not to take any part in discussing that
question.
Doubtless the accounting officers, being lawyers, can afford all
necessary aid in deciding it. However, if you request it, my assistant,
Mr. Russell, will attend any hearing of both parties which your
Department may conclude to have.
The matter is an important one, involving in all between two and
three hundred similar claims of the same estate of Brooks, and probably
seven or eight hundred thousand dollars.
Respectfully,
JOHN W. GRIGGS.
ATTORNEY-GENERAL-- OPINION; 23 Op.Att'y.Gen. 178, June 26, 1900
When an opinion is desired from the Attorney-General, the facts which
exist or are assumed as the basis of the inquiry should be definitely
stated. The Attorney-General can not safely assume that facts not stated
probably exist.
DEPARTMENT OF JUSTICE,
June 26, 1900.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your note of
June 9, 1900, with a copy of letter to you from the Commissioner of
Internal Revenue, of June 7, 1900, and requesting my opinion upon the
facts stated by the Commissioner whether the Standard Oil Company is
taxable under section 27 of the act of June 13, 1898 (30 Stat.,
448-464), on account of its receipts from certain pipe-line companies.
It is a rule of this Department, of long standing and universal
recognition, that when an opinion is desired from the Attorney-General
on a particular question of law arising in another Department, the facts
which exist or are assumed as the basis of such question should be
definitely stated. The Attorney-General can not, with either prudence or
safety, assume that certain facts not definitively stated probably
exist.
An examination of the facts stated in the letter of the Commissioner
fails to disclose sufficient data to enable me to advise you on the
question submitted. The question is whether, within the meaning of the
war-revenue act, the Standard Oil Company, a corporation, controls
certain other corporations engaged in the transportation of oil in such
a way as to subject the Standard Oil Company to taxation on account of
the receipts of such other companies.
The section referred to taxes every person, corporation, etc., who
owns or controls a pipe line for the transportation of oil whose gross
yearly receipts from controls a pipe line for the transportation of oil
whose gross yearly receipts from the business referred to in the section
exceeds $250,000. The Commissioner's letter shows only that the Standard
Oil Company is engaged in refining petroleum and also owns a majority of
the stock of numerous pipe-line companies for the transportation of oil,
but there is nothing in the case to show the extent to which, or whether
at all, that company actually controls or manages the pipe lines or the
corporations which nominally own and operate them, while it is claimed,
on the other hand, that each of these pipe lines is owned and operated
by a separate corporation, having its own organization, directors,
officers, and by-laws, and carrying on the business in its own name and
for the benefit of itself and stockholders.
Under these circumstances it is impossible for me to say whether the
Standard Oil Company owns or controls either of the pipe lines referred
to within the meaning of the section cited, and it is therefore
impossible for me to decide whether it is taxable on account of its
receipts from such pipe lines or not.
Very respectfully,
JOHN W. GRIGGS.
HAWAII-- NATIONAL BANKS; 23 Op.Att'y.Gen. 177, June 23, 1900
The act of April 30, 1900 (31 Stat., 141), extended the national
banking laws of the United States to the Territory of Hawaii, and the
Comptroller of the Currency is authorized to grant permission for the
organization of national banks therein.
Sections 5154 and 5155, Revised Statutes, do not apply to banks
existing in Hawaii prior to the passage of the act of April 30, 1900,
but refer exclusively to banks organized under special or general laws
of a State.
DEPARTMENT OF JUSTICE,
June 23, 1900.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge receipt of your letter of June
5, in which you request my opinion as to the authority of the
Comptroller of the Currency to permit the organization of national banks
in Hawaii, and the conversion of banks incorporated under the laws of
Hawaii into national banking associations, under the provisions of
section 5154 of the Revised Statutes.
By the act of April 30, 1900, providing a government for the
Territory of Hawaii, it was enacted that all laws of the United States
not locally inapplicable should have the same force and effect within
the said Territory as elsewhere in the United States. This extended the
national banking acts to the Territory of Hawaii, and would authorize
the Comptroller to grant permission for the organization of national
banks therein. See my opinion of June 2, 1900, relative to the same
question as applied to Porto Rico.
But I do not think the provisions of section 5154 apply to banks
existing in Hawaii prior to the passage of the act of April 30, 1900.
Sections 5154 and 5155 seem, by their special terms, to refer only to
banking institutions organized under special or general law of a State,
and do not seem to apply at all to banks organized under the law of any
Territory. I think the object of those two sections was to enable banks
that were previously strictly State institutions to become national
corporations, and the operation of the act in that respect is to be so
restricted.
Very respectfully,
JOHN W. GRIGGS.
CONTRACTS-- NAVAL VESSELS; 23 Op.Att'y.Gen. 174, June 21, 1900
The act of August 13, 1894 (28 Stat., 278), entitled "an act for the
protection of persons furnishing materials and labor for the
construction of public works," relates to contracts for the construction
of public buildings, fortifications, river and harbor improvements,
etc., which can only be erected upon land, and are commonly understood
under the designation "public works." The act does not refer to
contracts for the construction of naval vessels.
DEPARTMENT OF JUSTICE,
June 21, 1900.
The SECRETARY OF THE NAVY.
SIR: I have the honor to acknowledge receipt of your letter of June
11, in which you request my opinion as to whether the provisions of the
act entitled "An act for the protection of persons furnishing materials
and labor for the construction of public works," approved August 13,
1894 (28 Stat., 278), apply to contracts about to be made by the Navy
Department for the construction of certain naval vessels recently
authorized by act of Congress.
The act in question provides as follows:
"That hereafter any person or persons entering into a formal contract
with the United States for the construction of any public building, or
the prosecution and completion of any public work, or for repairs upon
any public building or public work, shall be required before commencing
such work to execute the usual penal bond, with good and sufficient
sureties, with the additional obligations that such contractor or
contractors shall promptly make payments to all persons supplying him or
them labor and materials in the prosecution of the work provided for in
such contract," etc.
Accompanying your letter is the form of a contract used by the Navy
Department in making contracts for the construction of naval vessels,
which form has remained in use substantially unchanged since 1883.
By the terms of this contract, the contractor undertakes, at his own
risk and expense, to construct, in conformity with drawings, plans, and
specifications, the required vessel and to deliver the same at a
specified place to such person as the Secretary of the Navy may
designate. It is further provided in various clauses of the contract
that the vessel shall not be accepted until after a specific trial,
which can only be had after her full completion, and even then such
preliminary acceptance is only conditional, the final acceptance being
postponed to await the result of what is called a "final trial." The
contract further provides that whenever a payment under it is to be
made, as a condition precedent thereto, the Secretary of the Navy may,
in his discretion, require evidence satisfactory to him, to be furnished
by the contractor, that no liens or rights in rem of any kind against
said vessel or her machinery, fittings, or equipment, or the material on
hand for use in the construction thereof, have been or can be acquired
for or on account of any work done or material already incorporated as a
part of said vessel or on hand for that purpose.
I do not think the contract for the construction of a naval vessel,
made in such form as I have referred to, is within the act of August 13,
1894. The contracts there referred to relate to the construction of
public buildings and the prosecution and completion of public works, and
to repairs upon public buildings or public works. The object of the act
was to afford a better method of 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 ve erected 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."
Of course, no mechanic's or laborer's lien would attach, by operation of
any State statute, to property belonging to the United States on account
of work done or materials furnished for improvements thereon. 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. I assume it to be correct to say that if a
State law authorized a lien for labor or materials furnished in the
construction of a vessel under this form of contract, it would not be
void or unenforcible because the vessel was in process of construction
for the United States, the property to the same not yet having passed to
the Government, and such liens could therefore be effectively enforced.
The clause of the contract referred to making it optional with the
Secretary of the Navy to require evidence that no liens or rights in rem
of any kind exist against said vessel imports that such is the opinion
of the Navy Department. The fact that your Department, ever since the
act of 1894, has construed the statute as inapplicable to the
construction of naval vessels, is also of importance.
I therefore have the honor to advise you that you are not required to
take from the contractor a bond with the special condition required by
said statute.
Very respectfully,
JOHN W. GRIGGS.
WAR REVENUE ACT-- TAX ON FERMENTED LIQUORS; 23 Op.Att'y.Gen. 170,
June 2, 1900
Under section 1 of the act of June 13, 1898 (30 Stat., 448), the
whole tax upon a barrel of not more than 31 gallons of beer, lager beer,
ale, porter, or other similar fermented liquors is $1.85, to be paid by
stamps attached to the barrel, though the stamps attached to such barrel
indicate a tax of $2.
In all cases where more than 85 cents per barrel has been collected
in addition to the $1 tax which had theretofore been paid, such
collection was erroneous.
DEPARTMENT OF JUSTICE,
June 2, 1900.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge receipt of yours of March 12,
1900, in which you resubmit the following question (which was set out in
yours of March 13, 1899) and ask my opinion:
"Is the tax upon fermented liquors, bearing the old $1 stamp, which
were removed from the brewery on June 14 without the new $2 stamp, owing
to the failure of the Government to furnish same, a tax of $2 per
barrel, or of $1.85, or of $0.85?"
The law (section 3339, R.S.), as it existed before the act of June
13, 1898, known as the war-revenue act, went into effect, levied upon
every barrel of lager beer containing 31 gallons or less a tax of $1,
which was paid by stamp. The first section of the war-revenue act is as
follows:
"That there shall be paid, in lieu of the tax of one dollar now
imposed by law, a tax of two dollars on all beer, lager beer, ale,
porter, and other similar fermented liquors, brewed or manufactured and
sold, or stored in warehouse, or removed for consumption or sale, within
the United States, by whatever name such liquors may be called, for
every barrel containing not more than thirty-one gallons; and at a like
rate for any other quantity or for the fractional parts of a barrel
authorized and defined by law. And section thirty-three hundred and
thirty-nine of the Revised Statutes is hereby amended accordingly:
Provided, That a discount of seven and one-half per centum shall be
allowed upon all sales by collectors to brewers of the stamps provided
for the payment of said tax; Provided further, That the additional tax
imposed in this section on all fermented liquors stored in warehouse to
which a stamp had been affixed shall be assessed and collected in the
manner now provided by law for the collection of taxes not paid by
stamps."
In the outset, by the provisions of this section a tax of $2, in lieu
of the then existing tax of $1 per barrel, is levied upon each barrel of
lager beer and other fermented liquors brewed or manufactured and sold,
or stored in warehouse, or removed for consumption or sale within the
United States. If the lawmakers had stopped here, there could be no
doubt that the tax had been increased from $1 to $2 per barrel.
But they go further and provide "That a discount of seven and
one-half per centum shall be allowed upon all sales by collectors to
brewers of the stamps provided for the payment of said tax."
In other words, the collectors are required by the law to sell to the
brewer the $2 worth of stamps necessary to pay the tax upon a 31-gallon
barrel of beer for $1.85; and, although the stamps, when affixed to the
barrel of beer, indicate a tax of $2, yet, in fact, the taxpayer has
only paid and the Government has only received $1.85 therefor. And it
can not be otherwise, for the tax has to be paid by stamps provided by
the Government, and the law says that upon such stamps when sold by the
authorized agents of the Government, there must be allowed to the
taxpayer who purchases them a discount of 7 1/2 per centum.
Under section 3339, as before stated, the tax was $1 per barrel, and
this was without discount to the taxpayer. Therefore, to purchase the
stamps required upon a barrel under the new law requires 85 cents in
addition to the amount which was required to purchase the stamps before
the latter law went into effect.
It appears that at the time the war-revenue act became operative some
of the brewers or manufacturers had in their warehouses barrels of beer
upon which they had already paid the tax of $1 and had affixed the
stamps necessary to denote such payment; and now the question arises as
to what should be the amount of assessment for additional tax upon
barrels of beer found in this situation.
It will be observed that the last proviso of section one, above
quoted, directs that the additional tax imposed on all fermented liquors
stored in warehouse to which a stamp had been affixed shall be assessed
and collected in the manner now provided by law for the collection of
taxes not paid by stamps. When the method of collecting the additional
tax upon beer for which the existing tax of $1 had already been paid was
prescribed by Congress in the above provision, it was no doubt in
contemplation of the fact that the increase in the tax was 85 cents per
barrel, and to require the purchase of stamps for the payment of such
additional tax would have levied a greater rate upon beer of this class
than upon beer which was to be wholly tax-paid under the new law. The
brewer had already paid a tax of $1 per barrel; and then, to buy
another $1 stamp under the new regime, less the 7 1/2 per centum
discount, would cost him 92 1/2 cents, thus making his tax upon his
barrel of beer $1.92 1/2, when the tax upon others under the new law was
only $1.85. The plan of collecting by assessment, therefore, the
additional tax upon beer which had already paid the anterior tax was
adopted in order that the tax might be uniform upon all beer going upon
the market at the same time.
It is stated by the Commissioner of Internal Revenue, in his letter
inclosed with yours, that owing to the failure of the Government to
furnish the stamps which became necessary under the new law for use upon
barrels of beer, certain of the brewers who had already paid the $1 tax
were permitted by the Government to attach to each barrel another $1
stamp of the old series, which stamp cost the brewer $1, having been
sold to him without discount. In such case it is evident that the
Government received a dollar tax, when under the law it was entitled to
receive only 85 cents. There is no express authority for the use of the
old stamps to pay the additional tax upon beer already tax-paid at the
rate of $1 per barrel found in the warehouses when the new law went into
effect, for the provision in section one quoted, is that this tax shall
be assessed and collected in the manner provided by law for the
collection of taxes not paid by stamps. So these old stamps could not
have been used by the brewers under the new law without the consent of
the collecting officers of the Government. These officers must have
induced, or at least permitted, the use of such stamps otherwise the
barrels of beer to which they were attached would have gone upon the
market liable to seizure because of being improperly stamped.
It seems to me, under such circumstances, that it would be applying a
very harsh rule to hold that, by reason of the failure of the Government
to provide suitable stamps and by permitting the use of other stamps,
the taxpayer should be the sufferer and should bear the burden of 15
cents more on each barrel of his beer than by law he was required to
pay.
I therefore advise you that, under the war-revenue act, the whole tax
upon a barrel of not more than 31 gallons of beer, lager beer, ale,
porter, and other similar fermented liquors is not $2, but $1.85, to be
paid by stamps attached to the barrel, though, under the law, the stamp
or stamps attached to such barrel indicate the tax to be $2.
I am further of the opinion that in all cases where the collecting
officers of the United States have collected by stamp, assessment, or
otherwise, more than 85 cents per barrel additional upon beer which had
theretofore paid the $1 tax, whatever sum was so collected over and
above the 85 cents per barrel was erroneous.
Respectfully,
JAS. E. BOYD.
Assistant Attorney-General.
Approved:
JOHN W. GRIGGS.
PORTO RICO-- NATIONAL BANKS; 23 Op.Att'y.Gen. 169, June 2, 1900
By virtue of section 14 of the act of April 12, 1900 (31 Stat., 77),
the laws of the United States relative to the organization and powers of
national banks were extended to Porto Rico.
DEPARTMENT OF JUSTICE,
June 2, 1900.
The SECRETARY OF THE TREASURY.
SIR: By letter of May 24, you advised me that the Comptroller of the
Currency is receiving applications for the granting of national bank
charters in the island of Porto Rico, and you request my opinion as to
whether or not the national banking laws of the United States are now
applicable to that island.
By the Paris treaty between the United States and Spain, Porto Rico
was ceded to the United States and became subject to the jurisdiction of
this Government. Before the ratification of the treaty of Paris, the
Island had been in the occupation of the military forces of the United
States, and the government of the same was carried on under the law of
belligerent right by means of military forces, under the direction of
the President of the United States. This condition continued after the
ratification of the treaty of peace, until Congress, exercising the
power to dispose of and make all needful rules and regulations
respecting the territory belonging to the United States, passed the act
entitled "An act temporarily to provide revenues and a civil government
for Porto Rico, and for other purposes," approved April 12, 1900. This
act took effect on the 1st day of May, 1900.
Section 14 of the said act is as follows:
"That the statutory laws of the United States not locally
inapplicable, except as hereinbefore or hereinafter otherwise provided,
shall have the same force and effect in Porto Rico as in the United
States, except the internal-revenue laws, which, in view of the
provisions of section three, shall not have force and effect in Porto
Rico."
By virtue of this provision a broad extension of all the statutory
laws of the United States, not locally inapplicable, is made to the
island of Porto Rico, the only exception being the internal-revenue
laws, which are excepted by name, and such other laws as are in the said
act otherwise provided.
This language is broad enough to extend to Porto Rico the laws relating
to the organization and powers indicating that they are locally
inapplicable to Porto rico, or that they are so locally applicable to
some other place of places of specific character as to make them
practically inapplicable locally to Porto Rico. An examination of the
various sections of the Revised Statutes and subsequent acts of Congress
relative to national banks discloses no provisions which are locally
inapplicable to Porto Rico. There seems to be in the structure of the
national banking laws no general provisions which can not be carried
into force and effect in Porto Rico equally with all of the various
States and Territories to which the laws were originally applied. I can
find no reason to hold that the statutes relative to the organization
and powers of national banks have not, by section 14 of the Porto Rican
act above referred to, been extended to that Island. The language of
that section is broad enough, and in my opinion does, authorize the
organization and carrying on of national banks in Porto Rico.
Very respectfully,
JOHN W. GRIGGS.
PORTO RICO-- REMISSION OF TAXES; 23 Op.Att'y.Gen. 167, May 31, 1900
By the act establishing the government of Porto Rico, the orders of
the Governor-General of August 22, September 6, and October 4, 1899,
relative to the remission of taxes, were made a part of the substantive
law of the island. As such they are binding upon the present
administration to the same extent as they bound the military government.
The action of the Governor in approving each specific remission is
purely executive and administrative, and in no sense legislative.
The Governor has power to establish rules and regulations governing
the submission to him of claims for remission of taxes for which his
approval is sought. He may require that such applications shall be
brought within a specified time and require the establishment of certain
facts.
DEPARTMENT OF JUSTICE,
May 31, 1900.
The SECRETARY OF STATE.
SIR: I beg to acknowledge receipt of your letter of 28th instant,
transmitting copy of a letter from the Governor of Porto Rico relative
to the subject of remission of insular taxes, and requesting my opinion
as to whether the governor is required to carry out the provisions of
the orders of the Governor-General of August 22, September 6, and
October 4, 1899, relative to the remission of taxes, due by landholders
to the insular treasuries and municipalities, on account of damages
caused to property by the hurricane of August, 1899.
Governor Allen rightly assumes that by the act establishing the
government of Porto Rico these orders were made a part of the
substantive law of the island. As such, they are binding upon the
present administration to the same extent that they bound the military
administration.
The fact that difficulties arise in the administration of the rules
established by these orders does not make them any the less binding to
such extent as they are binding laws.
It is suggested in the letter of the Treasurer, a copy of which
accompanies Governor Allen's communication, that the action of the
Governor-General in giving his approval to each specific remission was a
legislative act, and that the present Governor, being merely an
administrative officer, could only perform such legislative act in
conjunction with the executive council and legislative assembly. This is
an erroneous assumption. The action of the Governor in approving each
specific remission is purely executive and administrative, and in no
wise legislative. Of course, in order to repeal the orders of the
Governor-General, it would be necessary to have the action of the
legislative body of the island, but the approval by the Governor, or the
disapproval by him, of specific reports as to the amount of taxes to be
remitted in any case is, as I have said before, nothing but an executive
act.
It is within the power of the Governor to establish rules and
regulations governing the submission to him of claims for remission for
which his approval is sought. I think he might lawfully declare that he
would approve no applications unless they were presented within a
specific time, to be stated in the regulations, or unless the report
established certain facts, such as he might designate in advance,
relative to the merits of the application. It is impossible to suggest
all the provisions that might be made by such rules and regulations
tending to facilitate the consideration of this subject and to
abbreviate the number of applications and the amount of reductions, but
with careful consideration I think the difficulty that confronts the
administration in Porto Rico can be very greatly diminished, and I
recommend, therefore, that the Governor have prepared a system or rules
and regulations of the kind I have indicated.
Very respectfully,
JOHN W. GRIGGS.
ISTHMIAN CANAL COMMISSION-- PUBLIC PROPERTY-- SALE; 23 Op.Att'y.
Gen. 163, May 29, 1900
The president of the Isthmian Canal Commission has authority, upon
the completion of investigations by that body, under the direction or
with the approval of the President, to sell, in such manner as will
produce the best results, various materials, supplies, and equipments
purchased and used by the Commission which can not profitably be brought
to the United States.
DEPARTMENT OF JUSTICE,
May 29, 1900.
The SECRETARY OF STATE.
SIR: I have the honor to acknowledge receipt of yours of the 23d
instant, enclosing copy of a letter from Rear-Admiral John G. Walker,
President of the Isthmian Canal Commission, in which you request my
opinion relative to the disposition or sale of public property purchased
and used by the Commission of Panama.
By sections 3, 4, 5, and 6 of the act of March 3, 1899, entitled "An
act making appropriations for the construction, repair, and preservation
of certain public works on rivers and harbors, and for other purposes"
(30 Stat., 1150), an appropriation for the purpose is made and the
President is authorized and empowered to make full and complete
investigation of the Isthmus of Panama and ascertain the most feasible
and practicable route with a view to the construction of a canal by the
United States across said Isthmus to connect the Atlantic and Pacific
oceans. Under the provisions of the law as contained in the said
sections, the President appointed the Isthmian Canal Commission,
consisting of nine members, and of which Rear-Admiral Walker is
president.
The chief duty devolving upon the Commission was to survey and
explore the several routes suggested as feasible for the construction of
the canal. In furtherance of this duty I find, among other instructions
given to the Commission by the direction of the President, the
following:
"The Commission is authorized to make such journeys and to do such
work as may be necessary to carry into effect the instructions contained
in the act. To facilitate its work, the Commission is authorized to
purchase in open markets such materials, including instruments, field
outfit, supplies, etc., as in its judgment are necessary * * * ."
Under this authority, the Commission purchased for use in prosecuting
the work in Panama various materials, supplies, and equipments found to
be necessary in carrying on the said work. The Commission has concluded
the surveys and explorations with which it was charged, and considerable
quantities of the materials, supplies, and equipments which it had
purchased and used in the course of its operations are left on hand in
Panama, which must be brought to the United States or sold or abandoned
where they are.
You ask to be advised as to whether the Commission can lawfully sell
this property, and, if authority exists to sell, whether the same can be
sold in any other manner than at public auction after advertisement. In
other words, you desire to know if, under the circumstances, the said
property can be disposed of at private sale.
Rear-Admiral Walker, in his statement concerning this property, says
that it is on the American isthmus and consists of sundry articles
difficult to set forth in detail; but among other things there is a
large amount of iron piping scattered along the route of the proposed
Nicaragua Canal from the Caribbean Sea to Brito on the Pacific. This
piping has been more or less used and is in various conditions as to
value; that to collect and transport the piping to Greytown (from
whence it would have to be shipped to the United States) would cost more
than its value, while the freight on the same from Greytown to the
United States would probably again equal its value. There are also a
large number of canoes, of some value in Central America, very bulky and
expensive to transport by steamer, and of no value in the United States;
also camp equipage of all kinds, including tent flys, tarpaulins, cots,
hammocks, and cooking and mess outfits, all of a cheap character, very
much worn, and which would cost more than they are worth to transport to
America, but which are of some value where they are; also two small
sailing craft of light draft, bought for the purpose of transporting
provisions along the cost of Darien to working parties in the field.
These are not sufficiently seaworthy to be brought to the United States,
and if they were brought here they would be of little or no value after
their arrival; also a lot of provisions, canned food, etc., remaining
on hand when the surveying and exploring parties are finally withdrawn.
There is no statute directing all sales of property belonging to the
United States to be made at public auction or after advertisement.
It is true that in some particular cases the method of sale is
prescribed by law; as for instance, sales under section 3749, Revised
Statutes, of unproductive lands or other property acquired under
judicial process or otherwise in the collection of debts; and in other
instances the property must be condemned before there is authority to
sell. But these have no application here, and I find no legislation
indicating the manner in which property such as that under consideration
is to be sold. Certainly there is no law forbidding the sale of such
property when the interests of the Government require it.
The Commission having finished its work finds itself in possession of
a lot of property which was bought for use in conducting the surveys,
explorations, and examinations which it had in hand. This property is in
Panama and will remain there, resulting in a total loss to the
Government of its value, whatever the same may be, unless it can be sold
where it is. The president of the Commission in his statement discloses
the impracticability of collecting the property and of advertising it in
order to make sale thereof at public auction. Under these circumstances,
I can not doubt the authority of the Commission, under the direction or
with the approval of the President, to make sale of the property in
question and to sell the same in such way as will produce the best
results.
In case of a sale of the property, I call your attention to the law
relating to the disposition of the proceeds. Section 3692 of the Revised
Statutes provides that "All moneys received * * * from sales of
materials, stores, or supplies to any exploring or surveying expedition
authorized by law, shall respectively revert to that appropriation out
of which they were originally expended, and shall be applied to the
purposes for which they were appropriated by law."
This section not only shows that the sale of such property was
contemplated by Congress, but it also directs that the money derived
from the sales thereof shall be returned to the appropriation from which
it was taken. I think this provision of law applies in this case, and
that the proceeds of the sales of property purchased for the use of the
Isthmian Canal Commission from the appropriation above referred to
should be returned to that fund.
Respectfully,
JAMES E. BOYD,
Assistant Attorney-General.
Approved:
JOHN W. GRIGGS.
ARMY-- TRANSPORTATION BLANKS-- FRAUD; 23 Op.Att'y.Gen. 161, May 26,
1900
Where blank transportation requests were delivered to an officer of
the United States Army in such form as to require but the filling of the
blanks and his signature to make them Government orders upon carriers
for the transportation therein indicated, and where these blanks were
issued fraudulently to persons not entitled to them, and railroad
companies furnished transportation upon the orders, in the absence of
negligence and bad faith on the part of the carriers, the United States
is liable for the transportation thus furnished.
DEPARTMENT OF JUSTICE,
May 26, 1900.
The SECRETARY OF THE TREASURY.
SIR: In reply to your request indorsed May 18, 1900, on the letter
of the Comptroller of the Treasury, dated May 15, 1900, I have the honor
to hand you my official opinion upon the facts there stated.
The case thus made is, in substance, this: In accordance with a
custom, of long standing in the War Department, to facilitate the
procuring of necessary railroad and other transportation for persons
connected with the Army, and for the convenience of the Government,
certain blank "transportation requests," printed on the usual blank
forms furnished by that Department, with the lithographed signature of
the Quartermaster-General, were, in regular course, delivered to one who
was then a captain in the Army. These, as was the usual custom, were in
blank as to the person for whom, and the transportation to be furnished,
and required but the filling of these blanks and the date and the
countersigning of the officer to whom they were delivered to make them
available to procure the transportation thus called for. Very large
numbers of these are constantly in the hands of very many officers for
such use, and, in accordance with the custom, and as understood by both
the Government and common carriers, upon presentation of these
"requests," thus filled up and countersigned, the carriers issued
tickets for the transportation thus called for. They were, in short,
Government orders upon the carriers for the transportation thus
indicated, and, by general practice, were honored by the carriers, and
the transportation paid for by the Government. It was a convenient mode
adopted for the convenience of the Government, instead of paying cash in
advance, in each instance.
Some time since the officer to whom the "requests" here in question
were delivered was dismissed, but the unused requests in his possession
were not taken up, but he still retained them, and after his dismissal,
and when he had no longer any right to do so, fraudulently filled up and
countersigned some of them in the regular and usual form and delivered
them to persons not entitled to transportation at Government expense,
and not upon Government account or for Government service, and those
persons presented them and received the transportation thus called for,
and the railroad companies furnishing such transportation now present
the bills therefor for payment by the United States. There was nothing
to distinguish these "requests" from those properly issued in the
Government service, nor is there any question of negligence or want of
good faith on the part of the railroad companies in honoring these
orders for transportation. And the questions submitted are whether the
United States is liable for this transportation, and whether the
accounting officers of the Treasury should pay the bills therefor.
Under these circumstances, and with this absence of negligence and
bad faith on the part of those furnishing the transportation upon these
orders, I have no doubt that the United States is legally and equitably
liable to pay for this transportation and as if these orders had been
properly issued in the Government service. Several reasons for this
might be stated, but one will suffice. It is a general rule, as well of
law as of equity and good sense, that when one of the innocent parties
must suffer from the wrongful act of a third person, the loss must be
borne by him who placed it in the power of such third person to do the
act which occasions it.
Here the Government placed in the hands of one of its officers all
the means and the appropriate and authorized means for obtaining this
transportation, and gave to him discretion as to when and the persons
for whom they should be used from time to time, and by its express order
and by its practice invited and asked carriers to furnish the
transportation thus called for.
It did this with a very large number of officers all over the country,
and upon Government blanks furnished and issued by the War Department
for that very purpose, and bearing the authorized signature of the
Quartermaster-General, and authorized the issuing officer to countersign
them for the very purpose of proof to the carriers that the orders were
properly issued. It did all this with the full knowledge that,
generally, it would be impossible for ticket agents to either verify the
signature, or know whether the officer issuing the order was still an
officer, or whether it was for transportation on Government business, or
whether the person there named was one entitled to Government
transportation. All of this the Government left to the honesty and
discretion of its officers, as between it and the carrier. The carriers
honored these orders and furnished the transportation upon the very
evidence which the Government invited them to accept as sufficient. If,
under such circumstances, the officer betrayed his trust, or, after his
dismissal, he was still left in possession of the same means for
procuring transportation and the same evidence of his right to do so,
and he used them, I know of no rule of law or equity which would shift
the loss from the Government to the carrier.
I have, therefore, to advise you that, under the facts stated, the
United States is legally bound to pay for the transportation thus
furnished; and, this being so, the accounting officers of the Treasury
may legally allow the same.
As requested, I return herewith the papers transmitted to me.
Respectfully,
JOHN W. GRIGGS.
NAVAL OFFICERS-- RELATIVE RANK; 23 Op.Att'y.Gen. 155, May 22, 1900
Under the act of March 3, 1899 (30 Stat., 1004), reorganizing the
personnel of the Navy and Marine Corps, Charles H. Laucheimer, a captain
of the line in the Marine Corps, was, upon the date of the passage of
that act, appointed and commissioned assistant adjutant and inspector
with the rank of major, and on March 11 following took the oath of
office. On March 23, 1899, Charles H. McCauley, a captain and adjutant
quartermaster in the Marine Corps, was promoted to assistant
quartermaster, with the rank of major, to take rank from March 3. He
took the oath of office on March 30. The question of the relative rank
of these officers being presented for determination, Held:
1. That the advancement of an officer to a higher grade, one to which
he could not then succeed in due course by seniority, while called an
appointment is, in fact and effect, a promotion.
Major Laucheimer's advancement should therefore be taken as a promotion,
and there is nothing in this regard to affect their relative rank.
2. As Major Laucheimer's commission and induction into office each
antedate by several days that of Major McCauley's, during that period,
the former ranked the latter. This rank was not lost, nor a superior one
conferred, by the subsequent promotion of Major McCauley.
3. As both officers were, in fact, promoted, the earlier commission
and rank of Major Laucheimer entitle him to precedence in rank.
4. The Secretary of the Navy, by virtue of his general power under
the President to make rules and regulations for the government of the
Navy, may determine, with the force and effect of law, the relative rank
of naval officers. Usually this is better done by general rules than by
decisions in particular cases, but it may be done either way.
DEPARTMENT OF JUSTICE,
May 22, 1900.
The SECRETARY OF THE NAVY.
SIR: I have the honor to reply to your note of April 24, 1900, in
which you request my official opinion, upon the facts stated, as to the
relative rank of two officers in the Marine Corps. The facts as stated
are these:
Charles H. Laucheimer, after completing the prescribed course of a
naval cadet in the Navy, was commissioned second lieutenant in the
Marine Corps July 1, 1883; promoted first lieutenant January 9, 1890;
promoted captain August 10, 1898; appointed assistant adjutant and
inspector, with the rank of major, to rank from March 3, 1899, under the
act of March 3, 1899, reorganizing the personnel of the Navy and Marine
Corps (30 Stat., 1004). His commission is dated March 3, 1899, and he
accepted the appointment and took the oath of office March 11, 1899.
Charles L. McCauley was appointed from civil life captain and
adjutant quartermaster in the Marine Corps June 27, 1897, and promoted
assistant quartermaster, with the rank of major, March 23, 1899, to fill
a vacancy created by the act above referred to, to rank from March 3,
1899, and took the oath of office March 30, 1899.
From your statement it appears that one of these officers, "Major
Laucheimer, was advanced from the next lower rank 'by selection from the
line officers of the active list of the Marine Corps,' and the other,
Maj. Charles L. McCauley, 'by promotion according to seniority of the
officers in his (the quartermaster's) department,'" under the act of
March 3, 1899, above referred to.
And it will be seen that these two officers are in different departments
of the Marine Corps-- one in that of the adjutant, and the other in that
of the quartermaster; that both have the same grade and nominal rank;
both were commissioned to fill vacancies created by the act of March 3,
1899, above referred to, and while each took rank from the same date,
the commission of Major Laucheimer and also his induction into office
antedates by several days that of Major McCauley, while, on the other
hand, Major McCauley was promoted in due course, and Major Laucheimer
was appointed to his present office, and, again, Major Laucheimer is
much the senior in service.
The case is anomalous and, as I understand from your note, is without
real precedent in the Army or Navy, and the difficulty arises from the
conflicting claims to rank, which these facts give to the two officers,
respectively.
I quite concur with the opinion of Attorney-General McVeagh (17
Opin., 196), and think that, except as it recognizes the general rule
which has regard for previous service, section 1219, Revised Statutes,
does not apply to such a case as that which you submit.
Nor is much assistance, in this direction, afforded by the
above-mentioned act of March 3, 1899, under which, and to fill vacancies
thereby created, these officers were selected. The only portion of that
act, pertinent to this inquiry, is section 22, which provides that--
"The staff of the Marine Corps shall consist of one adjutant and
inspector, one quartermaster and one paymaster, each with the rank of
colonel; one assistant adjutant and inspector, two assistant
quartermasters and one assistant paymaster, each with the rank of major;
and three assistant quartermasters, with the rank of captain. That the
vacancies created by this act in the departments of the adjutant and
inspector and paymaster shall be filled first by promotion according to
seniority of the officers in each of these departments, respectively;
and then by selection from the line officers on the active list of the
Marine Corps not below the grade of captain, and who shall have seen not
less than ten years' service in the Marine Corps.
That the vacancies created by this act in the quartermaster's department
of said corps shall be filled, first by promotion according to seniority
of the officers in this department, and then by selection from the line
officers on the active list of said corps not below the grade of first
lieutenant: Provided, That all vacancies hereafter occurring in the
staff of the Marine Corps shall be filled first by promotion according
to seniority of the officers in their respective departments, and then
by selection from officers of the line on the active list, as
hereinbefore provided for."
Here, provision is made for filling the vacancies created by this act
in three different departments of the Marine Corps-- that of the
adjutant and inspector, that of the quartermaster, and that of the
paymaster-- those in the first and last of which are to be filled in the
same way, while those in the quartermaster's department are to be filled
in a way somewhat different. But, in each case, when the question of
seniority occurs, it is not seniority in the service, but seniority in
the particular department. This seniority, while it might, perhaps,
affect the relative rank of officers in the same department, can not
offset such relative rank as between officers of different departments.
It may well happen, as it does in this case, that one officer may be
senior in one department, while the other is much his senior in service.
Whatever effect, if any, this section may have, in a possible case,
in determining the relative rank of officers in the same department, I
do not think it has any in the case under consideration.
The section is immaterial to this question for another reason also.
It is merely directory to the appointing power as to the course to be
pursued in filling vacancies, and has nothing to to with the relative
rank of officers after their appointment, and would have nothing to do
with this, so long as the officers held their commissions, even if the
rule prescribed were violated in the selection and a junior instead of a
senior in the department were selected.
The question you submit appears to be without any statutory answer,
except as it may be affected by those general principles recognized in
the statutes relating to both the Army and the Navy, and, as I
understand, recognized also in practice in both these branches of the
service, which takes into favorable account length of previous service,
seniority and promotion in due course. As to these and similar
considerations, your department is much better qualified than I am to
pass upon them and give to them their proper weight in determining this
question of relative rank, which, it would appear, must be determined
more upon such considerations than as a mere question of law.
As to the difference between promotion and appointment, in fixing the
relative rank of officers, it may be observed that what is technically
called an appointment may be in every practical sense a promotion. As is
said in 17 Opinions, 196:
"Appointment is the selection of persons not now in the Army as
officers of it, or the designation by selection of an officer already in
the Army to a vacancy which is not recognized by the law or the
regulations to be filled by promotion according to seniority. Promotion
is the advancement of officers already in the Army according to
seniority to vacancies happening in the different arms of the service,
and according to rules prescribed by law or by regulations having the
force of law."
Without vouching for the strict accuracy or completeness of these
definitions it is apparent that the advancement of an officer to a
higher grade, and to which he could not then succeed in due course by
seniority, while called an appointment, is in fact and effect a
promotion, and it would seem that an officer thus advanced should be
entitled to whatever benefit attaches to promotion. While promotion
receives favorable regard, this is so because of the merit which it
implies, and this implication is quite as strong, at least, where an
officer is advanced faster than he could be in regular course.
This was the case with Major Laucheimer, who was advanced from
captain to assistant adjutant and inspector, with the rank of major, and
this, by whatever name it be technically called, is in fact a promotion;
and unless there be something in the rules or practice of your
Department to indicate otherwise, I think that, with reference to the
question you submit, his advancement should be taken as a promotion, and
as both officers were in fact promoted, there is nothing in this regard
to affect their relative rank.
And there is another consideration. The commission and induction into
office of Major Laucheimer each antedated by several days that of Major
McCauley, and during that period the former ranked the latter. Is this
rank lost or a superior one conferred by the subsequent promotion of
McCauley to the same grade? Here also the answer to the question may be
controlled by the rules and practice of your department, with which I am
not familiar; but unless it is, I would answer the questions in the
negative.
I think also that, according to the preference given, throughout the
statutes and by the rules and practice of the Army and Navy Departments,
to seniority of service, the longer service of Major Laucheimer would,
other things being equal, give him precedence in rank. And I am of
opinion, as both officers were, in fact, promoted, that the earlier
commission and rank of Major Laucheimer and his seniority of service
entitle him to precedence in rank.
But this opinion is not based upon express statutory provisions, nor
given with a familiarity with the practice of your department in such
matters; and if, under such rules and practice, a contrary conclusion
would be reached from the three facts above referred to as the basis of
this opinion, then such conclusion should govern.
And I may add that, in this case-- whether in consonance with this
opinion, or otherwise-- and in other cases where the matter is not
regulated by statute, you may yourself determine them, with the force
and effect of law, by virtue of your general authority, under the
President, to make rules and regulations for the government of the Navy.
Usually, of course, this is better done by general rules than by
decisions in particular cases; but it may be done either way.
I return, as requested, the inclosures transmitted with your note.
Respectfully,
JOHN W. GRIGGS.
CONTRACT-- FINAL PAYMENT-- PASS A LOUTRE; 23 Op.Att'y.Gen. 143, May
17, 1900
The remote possibility that in some way and at some time the crevasse
in Pass a Loutre may injuriously affect the channel in South Pass, can
not justify the United States in withholding final payment on the
contract for opening and maintaining said channel after it has been
opened according to contract and shall have been maintained for a period
of twenty years.
The contractor was under no obligation to close the crevasse, unless
it was necessary in order to maintain the channel and protect the works.
The question whether a necessity exists to close the crevasse is one
of fact, not of law; and the facts and inferences are opposed to its
existence.
DEPARTMENT OF JUSTICE,
May 17, 1900.
The SECRETARY OF WAR.
SIR: By the act of March 3, 1875 (18 Stat., part 3, p. 463), the
United States entered into a contract with James B. Eads for the
improvement of the South Pass of the Mississippi River. The provisions
of this contract, as subsequently modified, are contained in the act
mentioned and the acts of June 19, 1878 (20 Stat., 168), and March 3,
1879 (20 Stat., 363). The provisions necessary to be considered in
connection with the question you have submitted and which will be stated
hereafter, are as follows:
The act of March 3, 1875, authorized James B. Eads and his associates
"to construct such permanent and sufficient jettees, and such auxiliary
works as are necessary to create and permanently maintain, as
hereinafter set forth, a wide and deep channel between the South Pass of
the Mississippi River and the Gulf of Mexico, and for that purpose he
may construct, in the river, outlet, or pass, and likewise in the Gulf
of Mexico, such walls, jettees, dikes, levees, and other structures, and
employ such boats, rafts, and appliances, as he may, in the prosecution
of said work deem necessary" (p. 463).
The consideration provided for such construction and maintenance was
as follows:
"The United States hereby promise and agree to pay to said Eads, or
to his assigns or legal representatives, five million two hundred and
fifty thousand dollars for constructing said works and obtaining a depth
of thirty feet shall be maintained by the jettees and auxiliary works
aforesaid in said South Pass during twenty years after first securing
the said depth." (Page 463.)
During the progress of the work payments were to be made, according
to the depth and width of the channel from time to time obtained, "on
certified statements of an engineer officer, who shall be detailed by
the Secretary of War, and whose duty it shall be to report the depth of
water and width of channel secured and maintained from time to time in
said channel, together with such other information as the Secretary of
War may direct." (Page 464.)
After a channel 30 feet in depth and not less than 350 feet in width
had been "obtained and maintained for twelve months consecutively," the
final payment was to be made, "making a total aggregate of four million
two hundred and fifty thousand dollars for the aforesaid payments, the
respective depths and widths of channel being measured at average flood
tide, as ascertained and determined by the Secretary of War." (Page
464.)
The provision relating to the retention of the one million dollars as
security for the maintenance of the channel thus obtained for a period
of twenty years, followed:
"When a channel thirty feet in depth and three hundred and fifty feet
in width, shall have been obtained by the effect of said jettees and
auxiliary works aforesaid, the remaining one million dollars shall be
deemed as having been earned by said Eads and associates; but said
amount shall remain as security in the possession of the United States
for the purposes hereinafter set forth, interest at five per centum per
annum on the same being payable to said Eads, his assigns, and legal
representatives, semi-annually, from the date when a channel of thirty
feet in depth and three hundred and fifty feet in width shall have been
first secured, so long as said money, or any part thereof, is held by
the United States." (Page 464.)
Payments for the maintenance of the channel during the twenty year
period were regulated as follows:
"That after said channel of thirty feet in depth and of not less than
three hundred and fifty feet in width shall have been secured, one
hundred thousand dollars per annum shall be paid in equal quarterly
payments during each and every year that said channel of thirty feet in
depth and three hundred and fifty feet in width shall have been
maintained by said Eads and his associates by the effect of said jetties
and auxiliary works aforesaid in said pass, for a period of twenty
years, dating from the date on which said channel of thirty feet in
depth and three hundred and fifty feet in width shall be first secured:
Provided, however, That no part of such annual compensation shall be
paid for any period of time during which the channel of said pass shall
be less than thirty feet in depth and three hundred and fifty feet in
width, as hereinbefore specified." (Page 464.)
The final release and payment of the one million dollars reserved as
security for the maintenance of the channel for twenty years was thus
stipulated:
"That the said channel of thirty feet in depth and three hundred and
fifty feet in width having been maintained for ten years, one-half of
the one million dollars hereinbefore mentioned shall be released and
paid to said Eads, his assigns, or legal representatives; and said
depth and width having been maintained for ten additional years, the
remaining half of the said one million dollars shall be released and
paid as aforesaid." (Page 465.)
The act further provides (p. 466) for annual reports by the Secretary
of War to Congress of all important facts relating to the jettees and
auxiliary works, "to the end that the Congress of the United States may
be kept fully advised as to the faithfulness and efficiency with which
the said works are being executed."
The act of June 19, 1879 (20, Stat., 168), modifies the terms of
payment under the contract of March 3, 1875, and provides for the
appointment by the President of a board of five Army engineers to
examine the works and make a full report to the President, which shall
be laid before Congress.
The act of March 3, 1879 (20 Stat., 365), makes an appropriation of
$24,000 for examination and surveys of the South Pass to ascertain the
depth and width of the channel secured and maintained, and to enable the
Secretary to make full reports to Congress respecting the character and
permanency of the works.
Such being the essential provisions of the contract between the
United States and James B. Eads, you enclose in your communication of
the 26th ultimo, a letter of the Chief of Engineers of the United States
Army, of that date, presenting the following statement of facts, and
formulating the question upon which an opinion is desired:
"The statutory channel, of the width and depth required by the
contract, was secured by the contractor on July 8, 1879, and the first
moiety of the $1,000,000 above named, reserved as a pledge, was
appropriated by joint resolution of Congress, approved February 14, 1889
(25 Stat., 1335), and was duly paid, after ten years of maintenance.
"For the maintenance of the channel, so secured, Eads was to be paid
$100,000 per annum, in equal quarterly payments, during every year said
channel should be maintained for a period of twenty years, commencing on
the date when the channel should be first secured; this time began to
run July 8, 1879.
"Under the interpretation by the Attorney-General (16 Opin., 392) the
terms "quarterly" and "annual" in their application to payment for
maintenance of channel, after completion, have reference to the time
during which the completed channel is maintained, excluding from the
computation of such time all periods of failure to maintain the channel.
"The method of determining the maintenance of the channel is by
examination and surveys, under the direction of an officer of the Corps
of Engineers, the expense of such examinations and surveys being
specially provided for by Congress. At the expiration of every period
during which the channel has been maintained at the required width and
depth for three full months, or ninety days, the engineer officer in
charge certifies to the fact, and, upon his certificate, the 'quarterly'
payment is made.
"'Quarterly' payments, under the rule as stated, have been made to
the contractors from July 8, 1879, to date, and during all this time the
channel, of the width and depth required by the contract, has been
maintained by the contractors, with the exception of occasional
interruptions caused by deposits of silt or mud in the channel, or
change in the bed of the stream, which remain until removed either by
the action of the river itself or by auxiliary work by dredging.
"The action of the War Department in accepting the work of the
contractors in the maintenance of the said channel has been regularly
reported to Congress in the annual reports of the Chief of Engineers,
showing, as to each quarter, the number of days deficiency of channel
and the location of the same, whether in the South Pass, in the jetty
channel, or in the Gulf of Mexico.
"During the period of 'maintenance' of channel by the contractors a
formal 'report of operations' for each month has been duly forwarded by
the engineer officer in charge of South Pass to the Chief of Engineers.
"Upon the question here, in the reports for November, 1896, dated
December 7, 1896, and for December, 1896, dated January 7, 1897, and for
January, 1897, dated February 3, 1897, and for February, 1897, 'dated
March 5, 1897, all seasonably received at the office of the Chief of
Engineers, the statements are identical, viz:
"'The construction work was commenced June 2, 1875, and was
considered completed July 8, 1879, on which date a channel 30 feet in
depth without regard to width was secured. On the latter date commenced
the period of twenty years' maintenance of a channel 26 feet in depth
and not less than 200 feet in width at the bottom, and having through it
a central depth of 30 feet without regard to width; and since that date
such additional work as has been required to maintain the jettees and
the required channel has been done.'
"The inspection upon which this report of February, 1897, was made,
was on January 28, 1897.
"While this applies to the date of the act approved February 26,
1897, providing for closing the crevasse at Pass a Loutre, it may be
properly said the same condition has been maintained by the contractor
to this date.
"The crevasse in Pass a Loutre forms an outlet from Pass a Loutre
into an arm of the Gulf of Mexico, known as Garden Island Bay. The
situation will fully appear by reference to the map sent herewith (sheet
32), published by the Mississippi River Commission.
"The banks of the passes are low, soft mud, brought down and
deposited by the river itself, and only as high as floods build them.
At high tide and high river the banks are overflowed nearly their entire
length.
"The crevasse was caused by the wearing away of the narrow, low,
south bank of the pass at a locality 1 3/4 miles below Head of Passes,
at which point the water of the Mississippi River divides and flows to
the Gulf of Mexico through three 'passes,' viz, the Southwest Pass, the
South Pass (which is the one improved by Mr. Eads), and Pass a Loutre.
"In 1872 there was a ditch across the south bank of Pass a Loutre,
from the Pass to Garden Island Bay, 3 feet wide. There is no record, so
far as known, whether this bank of the Pass at this point was ever
closed, or how long the ditch had been carrying water; but from 1872 it
gradually increased from year to year.
"In January, 1891, the crevasse began to widen rapidly, but could not
be checked on account of high water in the river. In July, 1891, it was
860 feet wide and 25 feet deep. In October, 1891, the representatives of
Mr. Eads attempted to close it by a dam, but were unable to do so.
Several attempts afterwards failed and the work was abandoned in 1894 by
them. November 18, 1896, the crevasse was 2,230 feet wide.
"An appropriation of $250,000 was made by act of February 26, 1897,
to close the crevasse by building a dam. The work progressed to
practical completion November 13, 1893, but a heavy storm the next day
washed out a part of the dam, so that now some 660 feet has been
completely washed out.
"There has been expended of this appropriation $221,257.72. No later
provision has been made by Congress to close the crevasse. An
appropriation has been made to place a sill on the bed of the river, a
few feet thick, to prevent the deepening of the water there.
"As to the effect of the crevasse upon the works or channel in South
Pass, it may be noted that this crevasse is 1 3/4 miles away from any
work done by Mr. Eads in creating the channel in South Pass, and the
crevasse did not occur until twelve years after the contract channel had
been created and accepted by the United States.
"In the Annual Report of the Chief of Engineers for 1897, page 1738,
it is said:
"'By reference to the profiles on Chart No. 6, the great improvement
in the channel into South Pass will be appreciated, and the fact that
the improvement from year to year shows the efficiency of the works
which caused it, although they are not so extensive as when they were
built.'
"In December, 1896, Maj. J. B. Quinn, engineer officer in charge of
the works at South Pass, wrote to the Chief of Engineers:
"'So far as any injury to the depths in South Pass is concerned the
surveys do not show any material changes which could be traced to this
crevasse's influence.'
"As to the abandonment of the attempt to close the crevasse by the
representatives of Mr. Eads, he says in the same letter:
"'Their abandonment of the work might also indicate that the result
of their observations was to the effect that its existence was, after
all, immaterial so far as the maintenance of their work was concerned,
and no definite conclusion can be drawn from the condition of South
Pass, since the required channel has maintained itself during the
high-water seasons precisely as though the crevasse did not exist.'
"It is only at low water that the required channel fails to maintain
itself, and during such times the tides produce about all the current
there is in the river, and the influence of the crevasse at such times
would be immaterial.
"'So far the apparent or prospective injuries to South Pass are
purely speculative, since the evidences of decay existed before the
crevasse occurred, and there is no precise data which indicates that its
activity has had any pernicious results so far.'
"So that, concisely stated, the facts upon which the opinion of the
Attorney-General is requested may be said to be:
"1. The contract with Mr. Eads was for securing and then maintaining
for twenty years' actual time a certain channel through South Pass by
such means as he chose to adopt. He was not restricted as to methods.
Results only were contracted for, and the risk was his.
"This channel was secured July 8, 1879, and has been maintained by
said Eads and his representatives up to this date, and since July 8,
1879, such additional work as has been required to maintain the jettees
and the required channel has been done.
"2. Quarterly payments for this maintenance have been made by the War
Department up to this date.
"3. The action of the War Department in accepting the work and making
payment for the quarterly maintenance has been regularly reported to
Congress.
"4. The crevasse in Pass a Loutre was in existence in 1871 in a small
way, and did not assume any substantial size until 1891.
"The attempt on the part of the representatives of Mr. Eads to close
it was not because of any direction of the War Department, but an act of
their own. Congress made the appropriation of February 26, 1897, to
close the crevasse of its own motion.
"5. Down to this date there is nothing official showing that there is
any material change in the condition of South Pass which can be traced
to the influence of the Pass a Loutre crevasse. Prospective injuries to
the South Pass by reason of this crevasse are purely speculative.
"6. The statutory channel has been maintained by the representatives
of Mr. Eads since 1891, to this date, in substantially the same manner,
and with substantially the same condition, as before the widening of the
Pass a Loutre crevasse.
"The twenty-year period for maintenance will expire, under ordinary
conditions, during the early part of the year 1901, at which time
payment of the remainder of the $1,000,000 originally reserved for
maintenance $500,000), will be due. It is desired by the representatives
of the estate of the said Eads that Congress make appropriation of the
sum mentioned at the present session.
"Ordinarily the only question that would be considered in providing
for and making this payment, would be whether or not the said channel
has been maintained in accordance with the terms of the contract. But an
act of Congress, approved February 26, 1897 (29 Stat., 597), entitled
'An act to provide for closing the crevasse in Pass a Loutre, one of the
outlets of the Mississippi River,' contains the following provision:
"'SEC. 2. That nothing herein contained shall be held or construed to
destroy or impair any right or rights of the United States arising under
the acts of March third, eighteen hundred and seventy-five, June
nineteenth, eighteen hundred and seventy-eight, and March third,
eighteen hundred and seventy-nine, containing the contract or contracts
between James B. Eads and such persons as might become associated with
him and the United States, or to release the legal representatives of
said James B. Eads or other persons associated with him, jointly or
severally, from any obligation, expressed or implied, arising under and
from said acts or other acts pertaining there thereto: Provided, That
nothing herein contained shall be held or construed to release in
anywise the executors of the estate of James B. Eads as such executors,
or the associates of said James B. Eads, jointly or severally, in whole
or in part, from any liability which now exists, if any such liability
does exist, for a failure to close said Pass a Loutre crevasse, and the
question of such liability shall be referred to the Attorney-General,
after a full hearing to both parties, be to the effect that the
responsibility for the closing of the said Pass a Loutre crevasse rests
upon the executors of the estate of James B. Eads as such executors, and
the associates of the said James B. Eads, jointly or severally, under
existing laws, then upon the completion of the twenty years' contract
for the maintenance of the channel in South Pass outlet of the
Mississippi River, as the same now exists, the Secretary of War shall
withhold so much of the money then to be paid to the executors of the
estate of James B. Eads as such executors, or to the associates of the
said James B. Eads, jointly or severally, as shall have been expended
under the authority of this act, until the same shall be judicially or
otherwise legally determined in favor of such executors as such
executors, or said associates of James B. Eads, jointly or severally.'
"The legal question, therefore, upon which the opinion of the
*********** Attorney-General is desired, and which is necessary before
payment of the money that will be due at the expiration of the
twenty-year period of maintenance can be made, is whether any liability
rests upon the executors of the estate of James B. Eads as such
executors, or the associates of James B. Eads, jointly or severally,
under existing laws, for a failure to close Pass a Loutre crevasse."
The act of February 26, 1897 (29 Stat., 597, requires you to submit
the question whether any liability rests upon the executors of the
estate of James B. Eads for a failure to close Pass a Loutre crevasse;
and the statement of facts you present in submitting this question
clearly requires me to answer it in the negative.
Respecting the plan of compensation under this contract, Attorney
General Devens said (16 Opin., 391, 395):
"It will be observed that the plan for compensation to Mr. Eads for
maintaining the channel was by a system of quarterly and annual payments
for a period of ten years, when a certain sum of $500,000 was to be
released to him, and subsequently, upon the maintenance by him of the
channel for an additional period of ten years, he receiving certain
quarterly and annual payments, at the end of that time another $500,000
was to be released to him. The sum of $1,000,000 was thus, as it were,
kept in pledge by the United States for the performance by Captain Eads
of his full contract, which was to maintain as well as obtain the
channel proposed by the act."
And again, referring to the retention of the $1,000,000 as security,
the same Attorney-General said in another opinion (16 Opin., 420):
"It is a part of the contract of Captain Eads with the United States
that the channel constructed shall, when completed, be maintained for
the period of twenty years. To assure the performance of this part of
his undertaking is the purpose of the above-mentioned security held by
the United States."
Mr. Eads stipulated to secure a certain channel in the South Pass and
to maintain it for twenty years. The contract expressly left the details
of the work to his judgment and skill, the Government contenting itself
with results. For securing the channel he was to be paid $5,250,000;
for maintaining it, $100,000 per annum in quarterly installments. He
secured the channel July 8, 1879, and so earned the sum of $5,250,000.
Four million two hundred and fifty thousand dollars of this amount was
paid him. The ******* remaining $1,000,000 was "earned," but "remained
as security in the possession of the United States" for the maintenance
of the channel for twenty years, one-half to be released and paid at the
end of ten years, and the remaining half at the end of ten additional
years.
The channel having been maintained for ten years, one-half was released
and paid under the joint resolution of February 14, 1889 (25 Stat.,
1335). The remaining half is being held until the second period of ten
years shall expire. Up to this time the channel has been duly
maintained, is now being maintained, and presumably will be maintained
until the early part of the year 1901, when, under the law and the
contract, the full period of maintenance will expire, the works be
turned over to the United States, and the remaining half must be
released and paid to the representatives of Mr. Eads.
The remote possibility that in some way and at some time the crevasse
in Pass a Loutre may injuriously affect the channel in the South Pass,
can not justify the United States, when the channel shall have been
maintained for twenty years, in refusing to release and pay over money
which was earned when the channel was obtained in 1879 and is being held
simply as a security for its maintenance for twenty years. The crevasse
began to widen in January, 1891. In October, 1891, the representatives
of Mr. Eads attempted to close it, but were unable to do so, and in 1894
abandoned the attempt. After that the Government tried to close it, but
failed. The money this work cost was expended by the Government on its
own motion and at its own risk. The Government made no demand on the
representatives of Mr. Eads to close the crevasse; nor did they request
the Government to undertake the work. Whether it was necessary or
desirable to close the crevasse was a doubtful question. Mr. Eads'
representatives, after experiment, apparently answered the question in
the negative. The results tend to confirm the soundness of their
judgment, and the Government has never officially contested its
correctness. No injury to the channel has resulted up to this time, nor
is there any claim, or reasonable ground stated for a claim, that injury
will result from this source.
After all, the question submitted is one of fact and not of law, and
it is answered in the statement of facts presented.
The representatives of Mr. Eads were under no obligation to close the
crevasse, unless it was necessary in order to maintain the channel and
protect the works. The question whether a necessity exists is one of
fact, not of law, and you neither find nor affirm the existence of such
necessity. On the contrary, all the facts and inferences are opposed to
its existence. If there were any showing that the representatives of Mr.
Eads have failed to do anything required under the contract to make the
improvement permanent in character, I should be disposed to hold that
the Government might properly decline to release the money now in its
possession which belongs to them, until the necessary work should be
done; or might do the work and charge it against the security fund;
but there is no showing of fact which requires or would justify such
holding on my part. Indeed, the facts conceded by the Government in your
statement leave no course open except to release and pay over the money
at the expiration of the statutory period of maintenance; for they
preclude the possibility of successful defense in the judicial
proceedings which would inevitably follow a refusal to do so.
The question you submit is therefore answered in the negative.
Respectfully,
JOHN W. GRIGGS.
EXPRESS COMPANIES-- BROKERS-- WAR REVENUE; 23 Op.Att'y.Gen. 139, May
14, 1900
Express companies issuing money orders and travelers' checks are not
taxable as brokers under the war-revenue act of June 13, 1898 (30 Stat.,
448).
Money orders and travelers' checks as at present issued by certain
express companies do not come within the legal definition of bills of
exchange or checks, but possess more of the characteristics of
promissory notes.
The issuing of these orders by express companies upon themselves is
not a sale of promissory notes. It is merely an incident to their
business as carriers, and does not constitute them brokers.
A broker is one who negotiates purchases or sales, or both purchases
and sales, of one or all of the following-named classes of property:
Bonds, exchange, bullion, coined money, bank notes, promissory notes,
and other securities.
DEPARTMENT OF JUSTICE,
May 14, 1900.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of yours of the 7th
of November, 1899, requesting my opinion as to whether certain express
companies are liable to tax as brokers under the provisions of the act
of June 13, 1898, known as the war-revenue act.
These companies, through their agents at various offices, issue what
are known as "money orders" and "travelers' checks." The money orders
issued by the several companies differ somewhat in form, but are
substantially to the effect that the company issuing the same will
transmit and pay to the order of the person maned in the face of the
order the highest printed marginal amount (not exceeding . . . dollars)
as per conditions thereon. The order then contains the name of the place
at which the same is issued, the date, the name of the officer or agent
of the company who issues the same, the name of the place at which
payable, and also the name of the remitter. These orders are so drawn
that they will be cashed, upon presentation, by the officers or agents
of the company issuing the same at the designated place of payment, and
it also appears that, in some instances, the banks cash them.
What are called "travelers' checks" differ from the money orders in
that they are more simple in form, do not name a place of payment, being
in substance as follows: "The . . . Express Company will pay to the
order of (name of payee) . . . dollars," and are dated and signed by the
treasurer or other authorized agent of the company issuing the same.
These checks are paid upon presentation to the agents of the company by
which they are issued, in this country or in foreign countries, to suit
the convenience of the holders, and are also cashed by the banks in the
ordinary course of business.
The express companies charge specified rates for issuing money orders
and travelers' checks according to the amounts named severally therein.
These rates, together with the amount called for by the orders or
checks, are paid by the persons to whom they are issued to the agents of
the company from which the orders or checks are obtained.
The question upon these facts is whether or not express companies, by
reason of this manner of dealing, are subject to tax as brokers under
this provision of the war-revenue act:
"Brokers shall pay fifty dollars. Every person, firm, or company,
whose business it is to negotiate purchases or sales of stocks, bonds,
exchange, bullion, coined money, bank notes, promissory notes, or other
securities, for themselves or others, shall be regarded as a broker:
Provided, That any person having paid the special tax as a banker shall
not be required to pay the special tax as a broker."
From the definition of a broker given in the above statute it would
seem that the only view in which the transactions of the express
companies before described can come within the meaning of the law is to
hold that, in issuing the orders and checks referred to, the companies
negotiate sales of exchange or of promissory notes.
Mr. Daniels defines a bill of exchange to be "an open letter
addressed by one person to a second directing him, in effect, to pay
absolutely and at all events a certain sum of money therein named to a
third person or to any other to whom the third person may order it to be
paid, or it may be payable to bearer or to the drawer himself."
Blackstone's definition is, "An open letter of request from one man to
another desiring him to pay a sum of money therein named to a third
person on his account."
Mr. Tiedeman describes a bill of exchange as follows: "A bill of
exchange is an unconditional written order by one person on another,
directing him to pay to a third person or to his order, or to the
bearer, the sum of money therein named."
It has been held in the case of Merchants' Bank v. State Bank (10
Wall., 604) that "bank checks are not inland bills of exchange, but have
many of the properties of such commercial papers; and many of the rules
of the law merchant are alike applicable to both. In both cases there is
a drawer, a drawee, and a payee. Without acceptance, no action can be
maintained by the holder upon either against the drawee. The chief
points of difference are that a check is always drawn on a bank or
banker. No days of grace are allowed."
The instruments issued by the express companies do not come within
the legal definition given of either bills of exchange or checks. They
are not bills of exchange, because they are not drawn by one person upon
another directing the payment of a certain sum of money to a third
person, nor do they require acceptance before suit can be maintained
against the drawee for nonpayment; and they differ from checks, in that
they are not drawn upon a bank. They are simply the promises or
obligations of the companies to pay certain sums of money to the persons
therein named, and, therefore, possess more the characteristics of
promissory notes than otherwise. This is particularly true of travelers'
checks, for they are in the usual form of a promissory note.
I readily conclude, therefore, that in issuing money orders and
travelers' checks, such as are being considered, the companies do not
negotiate sales of exchange either for themselves or others. It then
remains to be seen whether or not the companies are liable to tax as
brokers on the ground that they negotiate sales of promissory notes.
The broker is understood generally in the law to be an agent and not
a principal. He does not have possession of the property, and does not
deal in his own name. The addition of the words "for themselves" in the
act has been construed by the courts so as to make one who buys and
sells stocks, bonds, etc., for himself a broker.
This decision does not, however, affect the character of the business of
broker-- that is, the business of negotiating purchases or sales of
stocks, bonds, exchange, bullion, coined money, bank notes, promissory
notes, and other securities. To constitute a broker, the corporation or
person must negotiate purchases or sales, or both purchases and sales,
of one or all of the classes of property named. Now, do the express
companies negotiate sales or make sales of promissory notes? I think
not. A sale of property for a consideration, and the subsequent transfer
of ownership is one thing, and the delivery of a contract for the
payment of money by the maker to the payee is another. The latter
transaction is not a sale.
It appears from the facts and exhibits in this case that money orders
and travelers' checks issued by express companies are practically a
substitute for the actual transmission of money from one point to
another. Formerly the plan in use was to ship the money delivered to the
carrier by the shipper to the consignee at the point of destination. As
a more convenient method, in case the proposed shippers desire it, the
companies have adopted this system of money orders payable at the place
to which, and to the person to whom, the amount is to be sent. This
business, since its inception, has greatly enlarged; and in addition to
the money orders, travelers' checks are also issued, which are payable
at any of the offices of the company by which the same are issued. In
the course of time the banks have also begun to handle these orders in
some instances, and the checks generally, as they do ordinary commercial
paper.
Section 3407 of the Revised Statutes defines a bank or a banker as "a
place of business * * * where money is advanced or loaned on stocks,
bonds, bullion, bills of exchange, or promissory notes, or where stocks,
bonds, bullion, bills of exchange, or promissory notes are received for
discount or for sale." In construing this section, the Supreme Court, in
Selden v. Equitable Trust Company (94 U.S., 419), holds that "A
corporation whose business is confined to the investment of its capital
in bonds secured by mortgage on real estate, and to the negotiation,
sale, or guaranty of them, is not a bank or a banker within the meaning
of" said section. In the course of its business, which was to invest its
capital, the corporation loaned money and took bonds and promissory
notes secured by mortgage, and it also received bonds and promissory
notes so taken and secured for the purpose of negotiating sales of them.
And yet the Supreme Court held that this was merely incidental to the
business of the corporation, and therefore did not make it a bank or a
banker.
Brokerage is not the business of the express companies; they are
carriers; and the issuing of money orders and travelers' checks is a
mere incident to the business of carriers, the companies, for a
consideration, issuing their own orders, upon themselves, for the
payment of money upon presentation to their authorized agents.
My opinion is, therefore, that the transactions described do not
bring the companies within the terms of the law which defines a broker,
and that they are not liable to the brokers' tax under the provision of
the war-revenue act above quoted.
Respectfully,
JAMES E. BOYD,
Assistant Attorney-General.
Approved:
JOHN W. GRIGGS.
STATUTORY CONSTRUCTION-- CHINESE SECRETARY; 23 Op.Att'y.Gen. 136,
May 11, 1900
The change of name from "Interpreter to legation to China" to
"Chinese secretary" in the appropriation act for the diplomatic and
consular service, approved April 4, 1900 (31 Stat., 60), did not create
a new office, but is merely a new name for the same office, and an
appointment to this position by the President does not require the
confirmation of the Senate.
DEPARTMENT OF JUSTICE,
May 11, 1900.
The SECRETARY OF STATE.
SIR: By your letter of May 8 you inform me that the appropriation
act for the diplomatic and consular service for the year ending June 30,
1901, approved April 4, 1900, contains the following item:
"Chinese secretary, legation to China, and interpreter to legation to
Turkey, at three thousand dollars each, six thousand dollars."
And you desire to be advised whether, the officer being thus
designated as "Chinese secretary" rather than "interpreter," the
President is required to nominate him to the Senate, or whether it will
be sufficient to have the commission merely signed by the President in
the same manner as the commissions of interpreters who are not confirmed
by the Senate.
I have the honor to state in response that the provision of the
Constitution, Article II, section 2, paragraph 2, is that 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."
Section 1680 of the Revised Statutes provides that the compensation
of the secretary of the legation of China, if acting as interpreter,
shall be at the rate of $5,000 a year, and if not acting as such, at the
rate of $3,000 a year; and the President may appoint for the legation
to China an interpreter when the secretary of the legation does not act
as such, who shall be entitled to compensation at the rate of $5,000 a
year. Regarding the "Chinese secretary" as the interpreter under another
name, it is evident that the compensation under section 1680 has been
changed by the appropriation act approved April 4, 1900, supra. The
concluding portion of the same paragraph of the last-mentioned act is as
follows:
"But no person drawing the salary of interpreter as above provided
shall be allowed any part of the salary appropriated for any secretary
of legation or other officer."
If, then, the Chinese secretary is in reality an interpreter, it is
clear that he is not to be regarded in any sense as a secretary of
legation, and for that reason to be appointed by and with the advice and
consent of the Senate.
Further, the heading of the provision quoted from the diplomatic
appropriation act is "Salaries of interpreters to legations." I am,
therefore, of opinion that by the change of name from "interpreter to
legation to China" to "Chinese secretary" a new office was not created,
which, in the absence of any direction by Congress, would fall within
the constitutional requirement of appointments by and with the advice
and consent of the Senate.
It is universally true, I think, that when Congress, in pursuance of
its authority under the provision of the Constitution above quoted, sees
fit to give the sole power of appointment to the President, it does so
by language appropriate to that end, such as the unqualified phrase "may
appoint" in section 1680 (see also R.S., secs. 88, 555, 677, 1053, 1313,
1411, 2538; sec. 19, act of May 28, 1896, 2 Supp.R. S., 485; act of
March 3, 1897, id., 578); and, on the other hand, when Congress means
the appointment to an office established by law to be made by and with
the advice and consent of the Senate, the intention to that effect is
specifically shown by the language used (sec. 2, act of June 11, 1878, 1
Supp.R.S., 174; act of June 4, 1897, 30 Stat., 58; act of April 12,
1900, secs. 17, 18, 34,40; act of April 30, 1900, secs. 66, 69, 80,
86).
In the Book of Estimates of Appropriations (House Doc. No. 12,
Fifty-sixth Congress, First session, p. 391) are set forth the reasons
of the State Department for desiring that the interpreter of the
legation of China should be known as "Chinese secretary." It therefore
appears quite conclusively that Congress has authorized the President
alone to appoint an interpreter for the legation to China; that the
Chinese secretary is merely another name, adopted for good reasons, of
such interpreter, and that there is nothing in the appropriation act in
question, or in any other provision of law which I can discover, showing
a withdrawal by Congress of the right of the President alone to appoint
this officer. I am therefore of the opinion that it will be sufficient
in this case to have the President sign the commission of the Chinese
secretary in the same manner as he does those of other interpreters who
are not confirmed by the Senate.
Very respectfully,
JOHN W. GRIGGS.
ANTIMONY-- DRAWBACK REQUIREMENTS; 23 Op.Att'y.Gen. 134, May 11,
1900
Section 29 of the act of July 24, 1897 (30 Stat., 210), which
regulates the smelting or refining for exportation of crude metal in
bonded warehouses, requires that each day a quantity of the refined
metal equal to 90 percent of the amount of imported metal in crude form
smelted or refined that day be set aside; not that 90 per cent of the
refined product must be set aside. This is true of antimony,
notwithstanding its volatile nature, which makes it impossible, as it is
claimed, to recover from the bullion 90 per cent of the antimony which
it contains as shown by assay.
DEPARTMENT OF JUSTICE,
May 11, 1900.
The SECRETARY OF THE TREASURY.
SIR: Section 29 of the tariff act of July 24, 1897 (30 Stat., 151),
provides a method for smelting or refining imported ore or crude metal
in a bonded warehouse for exportation without payment of duties.
Incidentally, there is provision for the removal of the refined metal
for domestic consumption upon entry and payment of duties. The primary
object being the smelting or refining of the imported ore or metal in
bond, the ascertainment of the refined product, and its exportation
without the payment of duties, a method is provided for determining from
day to day the product of the imported ore or metal smelted or refined.
This is done by requiring each day a certain quantity of the refined
metal recovered from the imported ore or bullion to be set aside. The
exportation of the refined metal or metals thus set aside cancels the
warehouse bond and exempts from duties the imported ore or metal out of
which it is produced.
The proviso defining the quantity of refined metal to be set aside each
day reads as follows:
"Provided, That each day a quantity of refined metal equal to 90 per
cent of the amount of imported metal smelted or refined that day shall
be set aside," etc.
From your communication of April 23, and the inclosures, it appears
that M. Guggenheim's Sons, operating works at Perth Amboy, N.J., are
engaged in smelting and refining imported lead bullion carrying a small
percentage of antimony. They represent that, owing to the volatile
nature of antimony, it is impossible to recover from the lead bullion 90
per cent of the antimony which it contains as shown by assay. They have,
therefore, applied to your Department for relief from the necessity,
existing under the present regulations, of exporting more antimony than
they can recover from the imported bullion in order to cancel the
warehouse bond; and, following their suggestion, you submit the
question whether the quantity of refined metal to be set aside for
exportation under the proviso I have quoted, should be equal to 90 per
cent of the dutiable metal shown by assay to be contained in the
imported ore or metal, or should be equal to 90 per cent of the refined
product, as claimed by them.
A reading of section 29, and more particularly the proviso referred
to, makes it clear, it seems to me, that this is not a case for
construction. The language is so plain as to leave no room for
construction. The section provides "that each day a quantity of refined
metal equal to 90 per cent of the amount of imported metal smelted or
refined that day shall be set aside." The "imported metal smelted or
refined" is the metal contained in the imported ore or bullion smelted
or refined. The amount of such imported metal is ascertained by an assay
of the imported ore or metal. The amount of imported metal having been
thus ascertained, each day a quantity of refined metal equal to 90 per
cent of the amount of imported metal in crude form smelted or refined
that day must be set aside. The meaning of this language is
unmistakable. It is capable of no other construction than that adopted
by your Department from the beginning.
In the above I have necessarily confined myself to a consideration of
the question of statutory construction submitted, and I am not to be
taken as intimating an opinion upon any question of administrative
authority with respect to the cancellation of warehouse bonds, which may
be suggested by the peculiar circumstances of this case.
Respectfully,
JOHN K. RICHARDS,
Solicitor-General.
Approved:
JOHN W. GRIGGS.
DRAWBACK-- LEAD; 23 Op.Att'y.Gen. 131, May 10, 1900
The drawback to be allowed under section 30 of the act of July 24,
1897 (30 Stat., 211), on refined lead withdrawn from bond, manufactured,
and exported, the same being originally part of a quantity of base
bullion that had been imported and upon which regular duties had been
paid, under Par. 182 of the same act, should be based on the quantity of
refined lead thus used, plus 2 per cent for waste (that is, an amount
equal to the duties paid on the materials actually used), less the
statutory 1 per cent of such duties.
DEPARTMENT OF JUSTICE,
May 10, 1900.
The SECRETARY OF THE TREASURY.
SIR: In your communication of June 30, 1899, recently referred to
me, you state that, acting under the authority of section 29 of the
tariff act of July 24, 1897 (30 Stat., 151), providing for the smelting
or refining of imported ore or crude metal in bond, The Guggenheim
Smelting and Refining Company, of Perth Amboy, N.J., imported 60,465
pounds of base bullion (act of July 24, 1897, par. 182), being unrefined
lead bullion containing small quantities of silver and gold and some
impurities, and refined the same in bond at their works, setting aside
54, 465 pounds of refined lead, being 90 per cent of the lead contained
in the imported base bullion.
The refined lead thus set aside was not "reexported" without payment
of duties, but was withdrawn, after entry and payment of duties, for
domestic consumption and was used by Messrs. Tatham & Bros. in the
manufacture of shot for export. Upon the withdrawal of the refined lead
for domestic consumption, the regular duties were paid, not on the
54,465 pounds of refined lead withdrawn, but on the 60,465 pounds of
base bullion imported, of which the refined lead was the principal but
not the sole product. This was in accordance with the opinion of this
Department of December 29, 1898 (22 Opin., 285), in which it was held,
with respect to refined lead set aside as the product of imported lead
ore, that, in case the refined metal set aside as the product of
imported lead ore is not "reexported" within six months after the
receipt of the ore, the regular duties must be paid, not on the refined
metal set aside, but on the imported ore from which it is manufactured.
Upon the exportation of the shot manufactured from the refined lead
so produced from the imported base bullion, Messrs. Tatham & Bros. made
application, under section 30 of the act of July 24, 1897, for a
drawback equal in amount to the duties paid on the imported base
bullion. The matter involved in this application was referred to the
collector of customs of New York for investigation, who reported the
approximate results obtained in refining 100,000 pounds of base bullion
in bond, as follows:
One hundred thousand pounds of base bullion contains 97,500 pounds of
lead, 2,000 pounds of silver, and 500 pounds gold. Of the 97,500 pounds
of lead, 2,000 pounds are lost in refining and 95,500 recovered. Thus
it appears that 95,500 pounds of refined lead are recoverable, while
only 90 per cent of 97,500, or 87,500 pounds, are required to be set
aside. The difference, 7,750 pounds, is delivered "free" to the owner.
In view of these facts and the provisions of the law, you declined to
grant a drawback equal in amount to the duties paid on the imported
bullion, holding that only the refined lead withdrawn plus the 2 per
cent lost in refining could be considered as sued in the manufacture of
the exported shot, the remaining products, silver, gold, and excess
lead, being retained in this country and not so used. Accordingly, you
granted a drawback equal in amount to the duties paid on the proportion
of the imported bullion represented by the 54,465 pounds of refined lead
used, less the legal deduction of 1 per cent and allowing an additional
2 per cent on account of wastage. (T.D., June 12, 1899; S. 21251.)
The question submitted is whether the course of your Department in
allowing the drawback based on the refined lead actually used, plus 2
per cent for wastage and deducting the statutory 1 per cent, was proper
under the circumstances, or whether the drawback should equal in amount
the entire duties paid upon the imported base bullion when the refined
lead set aside was withdrawn.
Section 29 provides, primarily, a method for smelting or refining
imported ore or crude metal in a bonded warehouse for exportation
without payment of duties.
Incidentally, there is provision for the removal of the refined metal
for domestic consumption, upon entry and payment of duties. The primary
object being the smelting or refining of imported ore or metal in bond,
the ascertainment of the refined product, and its exportation without
the payment of duties, a method is provided for determining from day to
day the supposed actual product of the imported ore or metal smelted or
refined. This is done by requiring each day a quantity of refined metal
equal to 90 per cent of the amount of the imported metal smelted or
refined that day to be set aside. The exportation of this refined metal
cancels the warehouse bond and exempts from duties the imported ore or
metal out of which it is made; but if the refined metal is removed for
domestic consumption there must be a proper entry and payment of the
regular duties, not on the refined metal withdrawn, but on the ore or
crude metal originally imported.
In the present case, when the refined lead set aside was withdrawn
for manufacture, the duties had to be and were paid upon the base
bullion originally imported. These duties were computed at the rate of 2
1/8 cents per pound upon the base bullion (tariff act of 1897, par.
182), thus applying to every weight-giving ingredient; and not, as in
the case of lead-bearing ores, at a rate per pound on the lead contained
therein (par. 181). The duties paid on the base bullion can not,
therefore, be treated as duties paid simply on the refined lead set
aside, there being other products which entered into the weight of the
base bullion, namely, the excess of the refined lead recovered over that
set aside, and the gold and the silver. Whether individually dutiable or
not, they paid duty as part of the base bullion imported.
Section 30 of the act of July 24, 1897, under which this application
is made, provides that the drawback shall be "equal in amount to the
duties paid on the materials used, less 1 per cent of such duties."
In this case the material used was the refined lead set aside; and
while it was necessary, in order to withdraw this, to pay the duties on
the imported base bullion, the drawback should be limited under the law
to the proportion of those duties represented by the refined lead set
aside and actually used in the manufacture of the exported shot.
The conclusion I have reached after careful consideration is that the
action of the Department in allowing the drawback was proper and lawful
under the circumstances.
Respectfully,
JOHN K. RICHARDS,
Solicitor-General.
Approved:
JOHN W. GRIGGS.
CUBA-- ARTICLES OF WAR; 23 Op.Att'y.Gen. 120, May 9, 1900
Article 58 of the Articles of War, which provides that "In time of
war, insurrection, or rebellion * * * murder (inter alia) * * * shall be
punished by the sentence of a general court-martial, when committed by
persons in the military service of the United States," does not apply to
the present situation of affairs with regard to Cuba. Therefore a
private of the Second United States Artillery who committed homicide in
Cuba subsequent to the treaty of peace with Spain, the victim being a
teamster in the military service, should not be tried by court-martial
nor by a military commission.
Article 59 of the Articles of War does not require that such private
be delivered to the Cuban courts, but it is, nevertheless, proper to
permit such courts to try him.
DEPARTMENT OF JUSTICE,
May 9, 1900.
The SECRETARY OF WAR.
SIR: I have received your request for an opinion as follows:
"WAR DEPARTMENT,
"Washington, April 28, 1900.
"To the Honorable
"The ATTORNEY-GENERAL.
"SIR: Private John York, Battery I, Second United States Artillery,
is now held at Havana, Cuba, awaiting trial by the civil courts of Cuba
for the killing of William Fisher. The homicide was committed in Cuba,
subsequent to the treaty of peace with Spain, and by an enlisted man, on
premises occupied by United States troops, the victim being a negro
teamster in the military service.
"On behalf of the accused it is claimed that the killing was in
self-defense; that Fisher was a desperate character and was making a
murderous assault on York at the time; and that he should be tried by
court-martial or military commission and not be turned over to the civil
courts of Cuba for trial.
It is understood that York is charged with murder, which is a capital
offense, and it is desired by the military authorities in Cuba that your
opinion should be obtained for their guidance in this and future similar
cases.
"The fifty-eighth article of war provides that--
"'In time of war, insurrection, or rebellion * * * murder (inter
alia) * * * shall be punished by persons in the military service of the
United States, and the punishment in any such case shall not be less
than the punishment provided, for the like offense, by the laws of the
State, territory, or district in which such offense may have been
committed.'
"And the fifty-ninth article of war provides:
"'When any officer or soldier is accused of a capital crime, or of
any offense against the person or property of any citizen of any of the
United States which is punishable by the laws of the land, the
commanding officer and the officers of the regiment, troop, battery,
company, or detachment to which the person so accused belongs are
required, except in time of war, upon application duly made by or on
behalf of the party injured, to use their utmost endeavors to deliver
him over to the civil magistrate, and to aid the officers of justice in
apprehending and securing him, in order to bring him to trial. If, upon
such application, any officer refuses or willfully neglects, except in
time of war, to deliver over such accused person to the civil
magistrates, or to aid the officers of justice in apprehending him, he
shall be dismissed from the service.'
"I have the honor, therefore, to request your opinion as to whether,
in view of the nature of the military occupation in Cuba and of the
Articles of War for the government of the Army, York can be legally
tried by a court-martial or by military commission, or whether his trial
must be by the civil courts of Cuba.
I inclose a letter from the adjutant-general, Department of Havana,
dated February 16, 1900, and invite attention to the indorsements
thereon; and request that it be returned with your opinion.
"Very respectfully,
"ELIHU ROOT,
"Secretary of War."
Article 58, unlike article 59 of the Articles of War, was new
legislation in 1863. It was section 30 of an act entitled "An act for
enrolling and calling out the national forces and for other purposes."
Upon a critical examination of it, it does not seem to have any
counterpart in the articles of war of Great Britain, from which most of
ours have been taken. It has been supposed to be remotely derived from a
British article of 1774 and subsequent years, providing for the
punishment of civil crimes committed by soldiers in Gibraltar and other
places beyond seas; and that this British article must have been known
to the person who drafted article 58 is true, but the English article
applied to times of peace, and was based upon the necessity for
punishing civil offenses by soldiers where, in time of peace, there were
no civil courts, or none administering the ordinary laws of England
through the ordinary instrumentalities. Naturally, when we copies the
British articles in 1776 and reedited them in 1806, partly because we
had no such places as Gibraltar, etc., occupied by armies in time of
peace, but partly, perhaps, because it was not deemed proper to exercise
the kind of power made use of in subjecting the civil offense to
military courts in time of peace, we omitted to copy this particular
British article. (Hale, Pleas of Crown, 500.)
Article 58, then, enacted in 1863, can not be interpreted by merely
ascertaining the interpretation placed upon some previous article.
It can, however, as I think, be interpreted by reference to British
law. The British articles of war originally and properly concerned the
government of the British army; that is, applied so far as military
offenses, offenses relating to discipline, and the like, were in
question. In its essence the British article of 1774 was wholly
different from this. It dealt with purely civil offenses, and undertook
to punish them through military courts merely because there was no
others in the particular places to deal with them.
Article 58 also deals with purely civil offenses, but it deals with
them only "in time of war, insurrection, or rebellion." It deals with
them, that is to say, under circumstances suggesting those in which,
according to the common law of England, martial law took the place of
civil law, both as to civil offenses by soldiers and offenses,
especially warlike offenses, by civilians.
The mutiny act of England, annually reenacted, under which the
articles of war were made, expressly declared that a soldier should not
be exempt from the process of the civil courts. This came to be one of
the most cherished principles of the governmental institutions of our
British and American ancestors-- that the military, unlike the armies of
Continental Europe, should not have a separate and equal law, except for
mere military discipline, but should remain civilly and criminally
subject to the law of the land spoken of in Magna Charta.
An exception to this, other than that of military discipline, arose
from a state of affairs which reversed the supremacy of civil over
military judicature, and made soldiers and civilians who should commit
crimes affecting the public safety, subject to be tried by the military
courts.
This state of affairs was that of insurrection and rebellion.
At times when in England the public safety was endangered from such
causes, it was recognized by the common law, or at all events such was
the practice acquiesced in, that martial law or the rule of the military
was in order.
It seems to me that it is clearly to this ancient and familiar
exercise of the military power over those things which naturally belong
to the civil that article 58 is to be traced; and I think it is proper
to consider when and how martial law was thus applied in seeking the
meaning of this article.
In doing so it is not necessary to contend that the power of Congress
under the Constitution was limited, in the framing of such an article,
to the English practice, and still less to the scope of the article
itself, which does not concern civilians.
Congress does, as a matter of fact, confine the article to a "time of
war, insurrection, or rebellion." Nor can we forget that the article,
although transcribed into the Revised Statutes in 1873, was enacted
during and with an especial view to a state of "war, insurrection, or
rebellion," during which martial law was in many ways applied.
The concluding lines of the article, as well as the whole scope of
the law of which it was a section, warrant us in saying that a "war,
insurrection, or rebellion" within the United States, and having some
resemblance to the one then in existence, was what Congress had chiefly
in mind.
When such a state of affairs should exist, martial law, so far as it
dealt with civil offenses committed by soldiers, was to come into play
and to withdraw from the courts of civil judicature their superior right
to deal with soldiers committing civil offenses.
When the article was adopted in 1863, there were no such places in
contemplation as the treaty with Spain has brought under the flag of the
United States. When the revision of the statutes took place we had
acquired Alaska, but its sparse population and physical character, as
then understood, and the manner of treatment by the revisers, lead to
the belief that no new intent was imported to the section at the time of
the revision.
Without undertaking to characterize precisely the situation of
affairs in the Philippines, thousands of miles across the sea, and
containing a large population at the time of their cession, it seems to
me that if we should concede the existence there of an insurrection or
rebellion against the Government, it would be neither within the real
intent of Congress in framing article 58 chiefly with a view to the
civil war existing in 1863, nor consistent with the practice concerning
martial law as understood in England and this country, to say that a
civil offense committed by a soldier, part of a body of troops stationed
in Maryland or Pennsylvania for service there, in no way connected with
what is going on in the Philippines, should be punished as prescribed in
this article.
The civil judicature and the laws of the land, with whose relation to
martial law so far as it concerns civil crimes articles 58 and 59 deal,
were the laws of the realm in England, and the ordinary courts of
England. I do not understand that the existence of martial law in
England would have been regarded as having anything to do with its
existence in all remote parts of the world subject to British control
would give rise to the existence of martial law in England.
This seems to me a reason for supposing that our derivative notions of
martial law should be held to exclude the proposition that Congress
intended that such a situation as now exists in the Philippines should
give rise to the existence of martial law in Maryland or Pennsylvania.
Moreover, we must not forget that martial and military laws are
eminently practical; that the former deals with necessities concerning
the public safety, and that some attention must be paid, in interpreting
any statute to enforce it, to the existence or nonexistence of any such
necessity.
It can not be doubted that a civil crime committed by a soldier can
be dealt with by the civil courts of Maryland or Pennsylvania; and that
those courts are open and neither closed nor in any way affected in
their ability to exercise their powers by the situation in the
Philippines.
I may add that this view seems to be in accordance with the trend of
thought of military men, which should always be respected in dealing
with such questions.
But if article 58 does not at present apply in Maryland or
Pennsylvania, it seems to me that still less can it apply in Cuba, a
foreign country, even more remote than Maryland or Pennsylvania from
being affected with regard to martial law by the status of affairs as to
the Philippines.
As for article 59, I have already suggested a reason why it does not
apply in Cuba, namely, that the laws of the land and the civil
judicature, whose supremacy in matters of civil crime it seeks to
enforce, are such laws and courts as, since the time of Magna Charta,
our ancestors have been taught to venerate, and not the laws of a
foreign country.
The question remains, however, whether, leaving articles 58 and 59
wholly out of the question, the act committed by Private York can be
inquired into and punished by the courts of Cuba.
As a matter of fact, the President stands in such a relation to the
Cuban courts that no punishment can be inflicted in opposition to his
will.
Cuba, as I have said, is a foreign country. Its former laws, except
as slightly modified, remain in force because they have been sanctioned
by the intervening Government. They are applied by the former system of
courts and judges, supervised by the President through a governor
representing him.
The former inhabitants and the American civilians may be and are
tried and condemned by those laws and courts.
Only one reason occurs to me why Private York can not be tried by
them, and the soundness of that reason I shall proceed to examine.
That reason is the proposition which has been mentioned
argumentatively by our Supreme Court in the case of Coleman v.
Tennessee (97 U.S., 509), and the case of Dow v. Johnson (100 U.S.,
165), that when the army of one country is passing through or stationed
in another country in time of peace it is not subject to the laws of the
latter country. The sovereign who permits the passing or presence of the
army is, it seems, presumed to consent to exemption from civil and
criminal process.
It is decided in the Coleman case referred to that an army in the
enemy's country is not subject to the civil courts of that country.
This last proposition seems to me wholly different from the other.
It seems contrary to reason to suppose that the tribunals of an enemy
would be able to administer anything worthy the name of justice to a
member of an invading army; still more, that an invading sovereign,
occupying and controlling a district of his enemy's country, should
permit one of his soldiers to be dealt with according to the will of a
court of his enemy.
But the proposition in question seems to concern nothing more than
the inter interpretation of the special privilege occasionally given by
a sovereign having in force a complete system of civil and criminal laws
to another sovereign to send an army through or into his dominions. "In
such case, without any express declaration waiving jurisdiction over the
army to which this right of passage has been granted, the sovereign who
should attempt to exercise it would certainly be considered as violating
his faith. By exercising it, the purpose for which the free passage was
granted would be defeated, and a portion of the military force of a
foreign independent nation would be diverted from those national objects
and duties to which it was applicable * * *.
The grant of a free passage, therefore, implies a waiver of all
jurisdiction over the troops during their passage, and permits the
foreign general to use that discipline, and to inflict those punishments
which the government of his army may require." (The Exchange, 7 Cranch,
138.)
In the case cited the court say that a presumption of a privilege to
introduce an army into a foreign country does not arise from a general
license to foreigners to enter the dominions of a friendly power, but
that such a presumption does exist with regard to war ships entering the
ports of a friendly nation.
In the same case the court say: "The jurisdiction of courts is a
branch of that which is possessed by the nation as an independent
sovereignty, and the jurisdiction of a nation within its own territory
is necessarily exclusive and absolute; it is susceptible of no
limitation not imposed by itself."
And the court proceeds to say that all exceptions must be traced up
to the consent of the nation itself, and to discuss three instances of
exception, namely: The exemption of the person of a foreign sovereign
from arrest, the immunity of foreign ministers, and the case in which a
sovereign allows the troops of a foreign prince to pass through his
dominions.
It seems to me that the situation with regard to Cuba does not
furnish a state of facts to which this mere interpretation given to a
special license need be, or can well be, applied.
And it does not seem to constitute in any sense a law of nations, any
more than the presumptions of secondary intent which might be supposed
to exist in any special waiver of any of a hundred sovereign rights.
We recognized the sovereignty of the people of Cuba at a time when
that sovereignty had not yet separated itself from Spain and manifested
its will in the shape of civil and criminal laws.
At that time, against the will of Spain, our armies forced themselves
into Cuba, and, by reason of the success of our warfare, caused Spain to
evacuate, leaving our armies in full possession.
The people of Cuba, as recognized by our Government, have never yet
manifested their sovereign will in the shape of civil and criminal laws.
The President, holding the sovereign powers of the people of Cuba
subsequently to the presence of our Army there, has made all the
criminal and civil laws which can be regarded as the laws of the
sovereignty of Cuba.
The case is not one, therefore, where the sovereign of Cuba should be
regarded as giving a special license to be exempt from civil and
criminal process, in waiver of one of his rights, but where he should be
regarded as displaced in all of his rights by a trustee, in whose hands
they all are now and were before he had any civil and criminal process.
Among these rights the right to waive rights is included; but a
trustee is not supposed to exercise any of his trust powers in
conferring benefits upon himself.
While, therefore, it is not to be supposed that the President can
not, in the exercise of his trust, exempt the Army from those laws,
formerly the laws of the sovereignty of Spain, which he himself has
adopted as the laws of the sovereignty of Cuba, so far as may be
necessary (if at all necessary) to carry out the purposes of the trust
and for the benefit of Cuba, the international theory referred to is
foreign to the question whether he has done so.
I take it for granted that he has not expressly made any such
exception in the laws, and I know of no reason for presuming any intent
to that effect.
Nor, while the passage of an army upon a hostile expedition, could
not, without breach of faith, be consented to and then practically
prevented by the same sovereign, by a delay which might well defeat the
object of the expedition and endanger the safety of the sovereign of the
army, am I convinced that the law of such a case should be extended to
cases of occupation for purposes so wholly different as those of our
occupation of Cuba. Several things are assumed in the one case which can
not be in the present, and chiefly that the detention of soldiers by
civil or criminal process would be inconsistent with the successful
accomplishment of the object of the expedition. This is the very gist of
the supposed "breach of faith." And we can not, as I have suggested,
presume in the case of some bodies of troops stationed in Cuba for the
purposes for which ours are there, that to try a soldier for murder will
defeat the object of the presence of the troops.
If there is to be any presumption, it seems to me that such a trial
would rather tend to further that object.
Moreover, the supposed exemption of the Army, even if it were granted
by Cuba, would be granted to the United States as a nation for our
national purposes. It would carry with it no individual right of Private
York.
Accordingly, the United States would be free to waive it or insist
upon it without consulting Private York. And in this the President would
represent them.
It may be thought that Private York is in Cuba against his will and
has been ordered there by the President; but he gave his consent when
he entered the service and agreed to obey all lawful orders of his
superiors.
It might also be thought that, though a soldier, he is protected by
the fifth and sixth amendments to the Constitution; but they expressly
except the land and naval forces of the United States. Besides, these
amendments concern only Federal prosecutions for Federal offenses; and,
as American civilians are subject to be tried by these Cuban courts, the
question is not whether Private York, though a soldier, can claim
exemption, but whether he shall be exempt because he is a soldier.
On the whole, therefore, I do not think that there need be such a
failure in Cuba of the chief end and aim of all government as would be
implied in the inability to find any form of trial and punishment for
such crimes as the one of which Private York has been accused, when
committed by American soldiers.
That the President is exercising the governmental powers, civil and
military, of the people of Cuba, principally by means of American
soldiers, does not give Cuba a status taking its character from martial
or military law or government. It seems to me, then, that it is useless
to discuss at length the question of sending Private York before one of
these military commissions, peculiarly war courts, made use of in times
of martial law and military government over enemy country, to punish,
sometimes soldiers, but chiefly civilians, enemies, and residents, for
offenses not within the Articles of War.
I may remark, however, that the act attributed to York, as done in
Cuba in time of peace, has not be prescribed by Congress as either a
civil or military crime against the United States; that Congress
excluded it from article 62, providing for the trial of undescribed
offenses other than capital, prejudicial to discipline; and that as
martial law or the safety of the United States does not necessitate such
a commission, so neither can the other argument of necessity be urged,
that there are no courts open to inquire into and punish such deeds.
Unless Simmons (Courts-martial, p. 30) misinterpreted the amendment
of 1881 of a British article, already referred to, prescribing for
soldiers in Gibraltar, etc., not especially in war, but in peace rather,
courts-martial, it would seem that British soldiers committing civil
crimes were subject to civil courts of a recently conquered province,
because those courts were under British authority. Yet, unlike those of
Cuba in the present case, the courts of such a province might well be
warped by the most intense hostility to the conquering soldiery.
I therefore answer your questions by saying:
1. In the present situation of affairs with regard to Cuba, neither a
court-martial nor a military commission should try Private York.
2. Article 59 of the Articles of War does not require him to be
delivered to the Cuban courts, but it is nevertheless proper to permit
such courts to try him.
Respectfully,
JOHN W. GRIGGS.
PHILIPPINE ISLANDS-- DUTIES ON SPANISH PUBLICATIONS; 23 Op.Att'y.
Gen. 115, May 8, 1900
All such Spanish scientific, literary, and artistic works, not
subversive of public order, which are published in Spain and thence
imported into the Philippine Islands, as were entitled to free entry
into those islands under the Spanish tariff in force when our Government
began to exercise authority therein are entitled, under Article XIII of
the treaty of peace with Spain (30 Stat., 1760), to continue to be
admitted free of import duty and of the duty or charge of 2 per cent ad
valorem for harbor and commercial improvement charges under section 20
of the Philippine tariff, for the period of ten years from the date of
the exchange of the ratifications of the treaty, which privilege
includes the bindings in which such works, if publications, are
inclosed, provided such bindings were previously admitted free.
DEPARTMENT OF JUSTICE,
May 8, 1900.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge the receipt of your two
communications of April 6 and your communication of April 10, with its
inclosure, by which you request my opinion upon the following questions,
which arise in the consideration of a note from the Spanish minister at
this capital, received through the Department of State, relative to the
duties now being collected in the Philippine Islands on Spanish
literary, artistic, and scientific publications:
"1. Has the provisional government of the Philippine Islands, under
the provisions of Article XIII of the treaty of peace with Spain (1898),
the right to impose an import duty of 8 per cent ad valorem, with 10 per
cent of that amount added, and also an additional amount on the
bindings, on Spanish scientific, literary, and artistic works, not
subversive of public order, which are published in Spain and thence
imported into the Philippine Islands?
"2. Are the provisions of section 178, 'Customs tariff and
regulations for the Philippine Islands,' set forth in Tariff Circular
No. 112, in contravention of Article XIII of the treaty of peace with
Spain?
"3. If Article XIII of the treaty of peace with Spain prohibits
imposing an import duty on Spanish publications of the character
referred to, does said article also prohibit imposing an import duty on
the bindings in which said publications are inclosed?
"4. Section 20, 'Customs Tariff and Regulations for the Philippine
Islands,' provides for 'Harbor and Commercial Improvement charges' as
follows:
"'20. In addition to customs and other charges there shall be levied
a charge of 2 per cent ad valorem, to be summarily ascertained, on the
value of all merchandise, free or dutiable, imported into or exported
from the Philippines.' Philippines.' Would the enforcement of this
provision as to Spanish scientific, literary, and artistic works, not
subversive of public order, which are published in Spain and thence
imported into the Philippine Islands, be in contravention of Article
XIII of the treaty of peace with Spain?"
Article XIII of the treaty of peace of 1898 between the United States
and Spain provides that--
" * * * Spanish scientific, literary, and artistic works, not
subversive of public order in the territories in question 'Porto Rico,
the Philippines, and other ceded territories' shall continue to be
admitted free of duty into such territories for the period of ten years,
to be reckoned from the date of the exchange of the ratifications of
this treaty."
Paragraph 178 of the "Customs Tariff and Regulations for the
Philippine Islands," as now amended, imposes a duty of 10 pesos per
kilogram on books, bound or unbound, and other printed matter in
Spanish; and of 5 pesos per kilogram on books, bound or unbound, and
other printed matter in other languages; and of 25 pesos per kilogram
on engravings, maps, and drawings. A note appended to paragraph 178
provides that--
"Book bindings shall be dutiable according to the component material.
When the books are stitched or bound in boards, they shall pay duty as
printed matter on gross weight." * * *
I am not informed whether the duties imposed by paragraph 178 amount
to 8 per cent ad valorem, with 10 per cent of that amount added on the
various publications embraced therein, but it is to be assumed that the
duty laid by the provisional government of the Philippine Islands
conforms to the tariff and regulations adopted for the same.
It is, I think, necessarily to be assumed that the Philippine tariff,
which in the main took effect under Executive order before the treaty
was ratified and proclaimed, was not intended to ignore or disregard
treaty obligations which might be made. In other words, the tariff was
adopted subject to any modifications which the treaty as ratified might
thereafter impose. And I think it is also fairly to be assumed that, so
far as the tariff was amended or supplied after the adoption of the
treaty, it was not intended to set aside the pledged faith of the
Government, nor did it have that effect as a later expression of the
Executive will or of the law.
The test, therefore, of the reply to all your queries is to be found
in the language of Article XIII construed in conjunction with the
situation presented previous to the ratification and proclamation of the
treaty on April 11, 1899.
The significant phrase of Article XIII is that the articles described
"shall continue to be admitted free of duty." The privilege is limited
to such Spanish scientific, literary, and artistic works, not subversive
of public order, as had previously been admitted free into the
territories in question. I am not informed by your communication whether
there was any difference in the construction of this privilege under
Spanish rule and under our provisional government between the date of
the termination of Spanish sovereignty and the ratification of the
treaty. If there was a difference because the privilege under the
Spanish laws was not extended until the treaty was ratified, then I am
of opinion, under all the circumstances, that the intention of the
treaty was by the use of the word "continue" to recur to the privileges
granted under Spanish law and practice, and that that intention must
rule the case.
On this test, therefore, it is not necessary for me to consider the
full import of the phrase "spanish scientific, literary, and artistic
works," nor to point out that books, as well as certain other
publications, are ordinarily included in the term "works," and that the
bindings of books are commonly considered to be a part of books. Nor, on
the other hand, is it necessary for me to discuss the nature and extent
of the qualification to be found in the adjectives "scientific,"
"literary," and "artistic," because a complete rule of practice will be
found by following the rulings and distinctions of the Spanish
privileges, which were directed to continue by the treaty. By paragraph
367 of the Philippine tariff it appears that the schedules and
provisions thereof are based upon the tariff and taxing laws theretofore
in operation in the Philippine Islands. In the case of the Cuban tariff,
which went into effect on January 1, 1899, it seems that the President
directed the continued free admission of certain articles referred to in
paragraphs of the free list of the preceding Spanish tariff, which
appear to correspond to sections 3, 4, and 5 of paragraph 321 and to
paragraph 358 of the Philippine tariff. This direction of the Executive,
which seems to be similar in the Cuban and Philippine tariffs, exempted
from duty national articles returned from foreign exhibitions, and under
certain conditions works of fine art, archaeological and numismatical
objects, and specimens and collections of mineralogy, botany, and
zoology, and small models for educational and scientific use.
I am not advised whether this exemption embraces the entire exemption
accorded under the preceding Spanish tariff to Spanish scientific,
literary, and artistic works. If, therefore, books, including their
bindings, or other publications, are included among the "Spanish works"
which were entitled to free admission under the Spanish tariff for the
Philippine Islands they are to continue to be admitted free, otherwise
not.
This view also renders it unnecessary for me to discuss the point
suggested in the correspondence that the phrase "Spanish works" is not
only intended to embrace no other books or publications than those
published in Spain and thence imported into the Philippine Islands, but
also no other than those which are the production of Spanish literary
men or Spanish scientists or artists. The same rule and test would apply
to separate or detached bindings for books or other publications,
although there is nothing in your queries to suggest that the books or
publications in question are not bound in the ordinary way but are only
inclosed, so as possibly to carry in free of duty, unjustly or
improperly, the mere commercial articles which ordinary detached
bindings would be.
I may therefore answer your four questions comprehensively by stating
that, in my opinion, all such Spanish scientific, literary, and artistic
works, not subversive of public order, which are published in Spain and
thence imported into the Philippine Islands, as were entitled to free
entry into those islands under the Spanish tariff in force when our
Government began to exercise authority therein, are entitled under
Article XIII of the treaty of peace with Spain to continue to be
admitted free of import duty and of the duty or charge of 2 per centum
ad valorem for harbor and commercial improvement charges, under section
20 of the Philippine tariff, for the period of ten years from the date
of the exchange of the ratifications of the treaty, which privilege
includes the bindings in which such works, if publications, are
inclosed, provided said bindings were previously admitted free.
Very respectfully,
JOHN W. GRIGGS.
PORTO RICO-- EXHORTO OR LETTER ROGATORY; 23 Op.Att'y.Gen. 112, May
7, 1900
There is no law, Federal or State, which requires or authorizes any
court of New York to comply with an exhorto or letter rogatory issued by
the tribunal of the district of San Juan, Porto Rico, to the judge,
tribunal, or court of justice in New York, requesting the latter to
order certain persons in that State to appear as defendants in an action
instituted in said tribunal.
Such action would be foreign to the fundamental principles and
practice of our State and Federal courts.
DEPARTMENT OF JUSTICE,
May 7, 1900.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge receipt, "for the necessary
action," of your reference, dated the 30th ultimo, of two legal papers
intended to be served upon Dona Dolores Ros y Rivera and Dona Josefina
Ros y Rivera, living in New York City, in order to cause them to appear
as defendants in a suit instituted by Don Antero Tarazona y Agredo in
the tribunal of the district of San Juan in Porto Rico.
These cedulas of citation accompany what may be called a letter
rogatory from that tribunal to the judge, tribunal, or court of justice
in New York which may be the proper one or have jurisdiction, asking
that court for its cooperation and aid to require a compliance with the
order of the court of the district of San Juan; that is to say, to
order Dona Dolores and Dona Josefina, living in New York, to put in
their appearance and answer within twenty days after service upon them
of the two papers referred to.
These papers are accompanied by two copies of what may be called the
declaration or complaint filed in the case, showing the nature of the
suit, which concerns a city easement or urban servitude in San Juan
affecting light and ventilation of a house. There seem to be a number of
persons beside the two ladies mentioned proceeded against.
All these papers were forwarded to you from the headquarters of the
Department of Porto Rico, April 18, 1900, "for the necessary diplomatic
action." The letter rogatory was dated on the 16th of April.
I am asked to take the necessary action.
Owing to the peculiar situation of affairs now existing with regard
to Porto Rico, I have given these papers some consideration, although
they manifestly apply to a private suit, with which it is not my
ordinary business to be concerned.
I am not asked to take any particular action, nor even to send the
letter rogatory to any particular court. It has, therefore, been
necessary to consider what court, if any, has authority to do what some
court is expected to do-- that is, order these ladies, who seem to be
residents and perhaps citizens of New York, to appear and answer in a
proceeding in a local court of Porto Rico. To be of any use such an
order would have to be one which they ought to obey. If one which they
ought to obey, they may be heavily fined by the Porto Rican court for
not doing so and the case can be proceeded in to final judgment in their
absence.
But some examination of the code of procedure of New York I do not
find any reason to believe that a court of that State is invested with
authority to make such an order; neither do I find anything in the
statutes of the United States investing the Federal courts with
jurisdiction to make such an order.
It would be wholly foreign to the practice of our State and Federal
courts and to our fundamental principles in regard to such matters.
The laws of Spain, which Porto Rico retains so far as not
inconsistent with the laws of Congress and the nature of the change
which has taken place by her cession to the United States, Provide for
letters rogatory of two kinds.
One kind is a letter addressed to a Spanish court in another district or
place, asking it to take certain steps, such as issuing the order now in
question, and the other is addressed, through the proper diplomatic
channel, to a court in a foreign country, asking similar action.
In cases of great intimacy between Spain and other nations, as
between her and Portugal, it is, or was, customary for her court to
address the other directly and ask for almost anything that another
Spanish court could be expected to do. On the other hand, in the case of
Great Britain there was considerable difficulty in obtaining in this
Britain there was considerable difficulty in obtaining in this way, as
Great Britain's institutions, like our own, do not contemplate much aid
by their courts to those of foreign countries.
In the courts of Great Britain a Spanish consul within his district
was instructed, under the royal orders of Spain, to obtain the testimony
of voluntary witnesses by proceedings before a magistrate, but to attend
to citations himself. This was expressly upon the ground of the failure
of English institutions to authorize the courts to take such
proceedings, and was, when we consider that the Spanish consul is, so
far as permitted by the local law, a judge of the peace and a judge of
first instance, merely making use of a second Spanish court and not of a
foreign court.
It seems to have been understood in Spain that the laws of the United
States of America were in this matter the same as those of England.
Obviously, when one Spanish court sends its exhorto or letter
rogatory to another Spanish court in pursuance of the laws of Spain,
both courts are carrying out the will of the same sovereign. The laws of
Spain expressly Provide that the second court shall do what is so
requested, and require the person ordered to obey the order so made.
Equally obvious, no Spanish law can give any foreign court
jurisdiction in addition to the jurisdiction its own sovereignty
authorizes.
Treating Porto Rico as under the same sovereignty as the United
States, I look in vain for any law requiring the courts of New York,
State or Federal, to do what the Spanish law required the second Spanish
court to do, or compelling persons in New York to obey orders issued as
here requested.
Considering Porto Rico as foreign to the United States, I do not see
that it can be in a better position than Spain would be, and find no
authority for any Federal or State court in New York to issue such an
order as is here requested, to people living in New York to appear in
Spain and answer a complaint filed there.
It seems to me that there must be some distinct law of the United
States, or of New York, requiring obedience to such orders and giving
jurisdiction to make them before they can be of any validity.
It may be said that the recent legislation concerning Porto Rico, by
continuing in force there the Spanish or Porto Rican laws, impliedly
gives jurisdiction to Federal courts in New York to make such orders,
and impliedly requires people there to obey them. But this is carrying
implication to an unreasonable extent.
I therefore return the exhorto addressed to the court in New York and
the other papers and suggest that they be returned to the court in Porto
Rico, with a copy of these suggestions.
Respectfully,
JOHN W. GRIGGS.
CONTRACT PENALTIES-- LIQUIDATED DAMAGES; 23 Op.Att'y.Gen. 105, May
5, 1900
Two parties entered into contracts with the proper authorities for
the erection of certain buildings at the Soldiers' Home. The contracts
provided that in case of failure to complete the work within the times
specified a deduction or payment of $25 "per diem" should be made as
liquidated damages for each and every day thereafter until completion of
the contracts. With nothing to show the cause of the delay, whether a
trifling or a substantial portion of the work was delayed, or whether
any real damage was caused thereby, Held:
That the question whether contract stipulations for the payment or
deduction of a certain sum "per diem" for failure to perform at a
specified time is to be treated as a penalty or as liquidated damages,
must frequently depend upon facts and circumstances outside of the
contract. No matter in how strong terms the contract provides that the
stipulation is to be considered as liquidated damages, it is not at all
conclusive of the matter.
In determining this question, courts proceed upon the single idea of
compensation, and, where this can be done without injury to the party
not in default, will treat such provisions as penalties.
Where it is impossible to determine the extent of the damage, courts
will generally give effect to the agreement, and treat it as liquidated
damages. Even here the idea of compensation must not be violated by
fixing a sum greatly in excess of any actual or fairly presumable
damage.
Whether the stipulation is to be treated as a penalty or as
liquidated damages, the sum to be deducted or recovered is such as will
compensate the party for the loss occasioned.
If, under the general principles stated and the facts of the case,
the Secretary of War shall find that the sum to be deducted is measured
by the damages really sustained, the Board of Commissioners of the
Soldiers' Home have ample authority to pay said contractors the full
contract prices, less damages actually sustained by the delay.
DEPARTMENT OF JUSTICE,
May 5, 1900.
The SECRETARY OF WAR.
SIR: In your note of April 24, 1900, with its enclosures, you ask my
official opinion whether the provisions in each of the two contracts
referred to for a deduction of certain "per diem" sums for failure to
complete the work agreed upon by a certain fixed time are to be treated
as providing a penalty merely, or as liquidated damages for
non-performance within the time fixed, and whether, in one of the cases,
the Board of Commissioners of the Soldiers' Home have authority to pay
the contractors the whole contract price less the damage actually
sustained by the delay; and I have the honor, in reply, to say that--
From your note and its enclosures it appears that the proper
authorities made a contract with William Kimmel for the erection by the
latter of an addition to the King Building, United States Soldiers'
Home, for the consideration of $37,711, which provided for the
completion of the work on or before November 1, 1899, with the following
provision:
"Should the said party of the second part fail to complete the work
within the time specified, he shall pay or cause to be paid to the said
party of the first part the sum of $25 per diem, as liquidated damages,
for each and every day thereafter until the completion of the contract
by the said party of the second part, which sum shall be deducted from
any money which may be due him, and if that amount be not due, then he
agrees to pay the same."
In the other case, a contract was made with Meade & Reynolds for
erecting and completing additions and alterations to the Barnes Hospital
Building, United States Soldiers' Home, for the sum of $35,200, with a
fixed time for the completion of the work, and a provision similar to
that above quoted, in case of failure to complete within the time fixed.
The work was not completed, in either case, within the time
stipulated, and the deductions provided for in the contracts amount, in
one case, to $2,975, and in the other to $2,625.
There is nothing before me to show the cause of the delay, its
necessity, or otherwise; whether a trifling or a substantial portion of
the work was delayed beyond the time fixed, or whether any real damage
was caused thereby.
There is, perhaps, no branch of the law more uncertain or indefinite
in its application to particular cases than is that which deals with the
question whether contract stipulations for certain consequences of a
failure to perform within the time fixed are to be treated as penalties
intended to secure prompt performance, or as fixing the maximum of
damage for failure, or as fixing in advance, by the parties themselves,
a sum which, by agreement, shall measure the otherwise uncertain damage
which one party shall be conclusively considered to have sustained by
the failure to perform (liquidated damages, in other words). Certain
general rules are well enough established, but there is so much
diversity and conflict in the authorities as to their application to
particular cases, and such infinite variety of circumstances attending
the performance of different contracts, that difficulty is found in
determining whether a particular case falls within one rule or another.
Where such stipulations are to be treated as penalties intended to
secure prompt performance, only the damage actually sustained can be
deducted or recovered, notwithstanding the stipulation for a larger sum.
But if as liquidated damages, then the stipulated sum may be exacted,
though the party may have sustained little or no real loss or injury.
Whether such a stipulation is to be regarded as of the one character
or the other can not always (or perhaps even generally) be determined
from the contract alone, but may often depend upon other facts and
circumstances.
Nor is the fact that the parties have, in their contract, declared--
no matter in how strong terms-- that it is as liquidated damages and not
as a penalty at all conclusive of the question.
One general rule is that where the damage which a party may sustain
by a failure to perform within the time fixed is, from the nature of the
case and of the subject-matter, entirely uncertain and incapable of
ascertainment, such stipulations, unless greatly in excess of any
damages that may be forecasted, will be treated as liquidated damages.
And yet, there are many cases clearly within this rule where it would
not be so held, and where subsequent facts might require a construction
different from that which would be given if the contract alone were
looked at.
A case frequently referred to in the books is that of a contract to
build by a fixed day a grand stand for a race course, with a fixed sum
per diem as damages for delay. In such a case the damages would be
uncertain and the parties might well contemplate that very considerable
loss would result from delay, and as the amount would be, to a great
extent, conjectural and difficult of ascertainment, the parties might
fix a sum as agreed damages, and which, if not greatly in excess of any
damage to be reasonably expected, a court would treat as a liquidation
of the damages, and enforce the stipulation viewed only from the
standpoint of the contract.
But suppose that, while the contractor has failed to complete the
work in time, yet, before the stand could have been wanted or used, the
races were postponed indefinitely and so that the woner had no use for
the grand stand, so that, instead of being injured by the delay, he was
really benefited in having less to pay for a useless stand, I suppose no
one would claim that the owner could enforce a large per diem
stipulation of the contract on account of the failure to perform.
Such a case illustrates how a contract may receive one construction
when considered by itself, and a different one when read in the light of
facts to which it relates, even though subsequently arising, and one
reason for this will be found in the general rule next referred to.
Whether the stipulation in question is considered as a penalty or as
liquidating the damage, the courts proceed upon the single idea of
compensating the party for the injury he has sustained by the delay;
and, in cases where the amount of damage that will probably result from
delay is uncertain and can not be ascertained or measured with any
reasonable degree of accuracy and the parties have themselves agreed
upon a sum which shall measure the damage, courts will generally give
effect to the agreement, and treat it as fixing the amount of the
damage. But here, too, the idea of compensation governs, and if it
appears that this has been violated by fixing a sum greatly in excess of
any actual or fairly presumable damage, the courts will treat the
stipulation as a penalty.
Whether this principle of compensation has been thus violated may, in
some cases, be determined by the contract alone, read in the light of
its subject-matter and attendant facts.
In others, subsequent facts, those attending the performance of the
contract and the facts existing at that time, may show that the party
has, in fact, sustained little or no damage, and that the enforcement of
the stipulation which was reasonable enough when made, would, by reason
of these facts, be unjust, inequitable, and oppressive, and would
violate this principle of compensation. The case of the grand stand
above referred to will illustrate this.
Again, treated as liquidated damages, such stipulations would require
their enforcement even though the portion of the work not completed was
small, and might be completed by the owner at little cost, and although
the damage was trifling compared with the sum fixed for it. These are
some of the reasons which incline courts to treat such stipulations as
penalties whenever they can do so without injustice to the party in
default, and to hold, in many cases, that the enforcement of such a
stipulation, fair enough when made, would under the facts attending
performance, violate this principle of compensation.
Applying these general considerations to the cases in hand, the
latter would seem to come clearly within the rule applicable to cases
where the damages that might be reasonably expected to result from delay
are uncertain, and practically impossible of ascertainment and
measurement, and, taking into account all the facts which affect this
branch of the question, it would seem difficult to say, from the
contract alone, read in the light of its subject-matter, that the per
diem sum stipulated was, at the time, so in excess of any damage which
might be fairly contemplated from the failure to perform within the time
fixed, as to be violative of this principle of compensation.
Therefore, unless the question be affected by other facts, next
referred to, and standing upon the contracts alone, with the facts
existing at the time they were made, I should concur with the fair and
able opinion of the Judge-advocate- Judge-Advocate-General, transmitted
with your note, that the stipulations in question are to be taken as
fixing the amounts of the damage, and should be enforced.
But, in the letter (brief) of the counsel for Mr. Kimmel, in one of
the cases submitted, it is claimed, first, that in that case, with a few
trifling exceptions, the work was completed within a short period after
the time fixed, except the porches outside, and that, with this
exception, the building, so far as Mr. Kimmel's work was concerned, was
ready for occupancy within a short period, at most, after the time
fixed, and that, as to the porches, they were intended for use only in
warm weather, and if completed would have been of no practical use at
that season of the year, and that the institution, the Soldiers' Home,
sustained no real damage by his delay; and, second, that the contract
for heating the building was let to other parties, and that, by reason
of their failure to complete their work, the building could not have
been occupied at that season of the year, even if Mr. Kimmel had
completed his work; and therefore, for this reason also, no actual
damage was sustained by Mr. Kimmel's default.
And further, that by reason of these facts, inter alia, if any deduction
from the contract price be made, it should be measured by the actual
damage and not by the per diem stipulation.
I mention this to show also how subsequent facts may change the
construction to be given to stipulations of this character.
Of course I have no knowledge of what the facts may be in regard to
these claims, and as I am not authorized to give official opinions upon
questions of fact, I might leave this without notice. But as the claim
is made, and you must pass upon it, and as the answer to the questions
you ask may be affected by the claim made, it is not deemed
inappropriate that I speak generally of such considerations.
Bearing in mind that in all such cases, whether the stipulation be
treated as a penalty, or as liquidated damage, the sum to be deducted or
recovered for the delay is such as will compensate the party for the
loss thus occasioned, it is obvious, if the facts are substantially as
stated in either of the claims above referred to, that the Soldiers'
Home has not sustained, by reason of Mr. Kimmel's failure, any damage
approximating the aggregate of the per diem stipulation-- that the
principle of compensation would be violated by the enforcement of the
latter, which would be a payment for damages never sustained.
What the facts may be in the other case I am not advised, and i
mention the above only to advise you that while upon the contracts and
their subject-matter alone, I am of opinion that these stipulations
should be regarded as fixing by agreement the measure of damage
contemplated by the parties, yet if subsequent facts, not apparently in
the contemplation of the parties, show that any damage sustained by the
owner of either structure by the delay in performance is greatly less
than the sum stipulated for, then the amount deducted should in each
case be measured by the actual loss sustained, which was occasioned by
the default, in this respect, of that contractor. Otherwise, the amounts
stipulated should in each case be deducted from the contract price, if
so much remains unpaid.
The answer to your second question depends upon the answer to the
first. If, under the general principles above stated, and the facts as
you shall find them, the sum to be deducted is measured by the damage
actually sustained, the Board of Commissioners of the Soldiers' Home
have ample authority to so do. It is only what a court would compel them
to do under such circumstances.
I return herewith the papers transmitted by you.
Respectfully,
JOHN W. GRIGGS.
ADMINISTRATION-- ALIEN LAW OF CUBA-- TREATY OF PARIS; 23 Op.Att'y.
Gen. 93, April 26, 1900
Under Article IX of the treaty of Paris, 1898 (30 Stat., 1759), a
Spaniard born in the peninsula, who died in Cuba before the expiration
of one year from the ratification of that treaty, was, in contemplation
of the treaty, a Spanish subject at the time of his death.
Article XI of that treaty obliges the United States to see that
Spaniards in Cuba have the same rights to appear before Cuban courts and
pursue the same course therein as citizens of Cuba, but it does not make
it unlawful for the laws of that country to give them better methods of
appearing and proceeding as aliens or Spanish subjects than those
enjoyed by the citizens themselves. Consequently that article does not
prevent article 44 of the alien law of Cuba from being applicable to the
estate of Don Ramon Marti y Buguet, a native of Tarragona, Spain, and a
Spanish subject, who dies intestate at Baez, Santa Clara, Cuba, July 2,
1899.
Under article 44 of said alien law, foreign consuls were authorized
to be the administrators and judges in charge of the business of
settling estates and succession to property of aliens dying intestate in
Cuba. This privilege having been denied the Spanish consul by the court
of Santa Clara, that court was without jurisdiction to administer the
estate of Don Ramon Marti y Buguet. To oust the consul altogether and
proceed without him was to proceed without jurisdiction.
DEPARTMENT OF JUSTICE,
April 26, 1900.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge the receipt of the following
request for an opinion:
WAR DEPARTMENT,
Washington, April 16, 1900.
SIR: I have the honor to present a matter arising in a court of Cuba
which seems to involve an interpretation of the treaty of peace with
Spain.
On July 2, 1899, one Ramon Marti y Buguet, a native of Tarragona,
Spain, and a Spanish subject, died intestate at Baez, Santa Clara, Cuba,
leaving an estate. The court of Santa Clara, having jurisdiction under
Spanish law to administer upon estates of persons dying within its
jurisdiction, assumed control of said estate and proceeded to administer
thereon pursuant to Spanish law for the administration of estates of
deceased natives of Cuba.
On the 15th of July, 1899, the Spanish consul at Cienfuegos, having
learned of the death of Marti, addressed a letter to the judge at Santa
Clara, requesting that his consulate be permitted to administer upon the
estate of the deceased, pursuant to the provisions of article 44 of the
alien law put in force in the island of Cuba while Spanish dominion
prevailed therein.
The court refused to comply with the request of the Spanish consul,
and the estate was administered upon in accordance with the laws
regulating the administration of estates of deceased natives of the
island.
The Spanish minister at this capital calls the attention of the
Government to annul the orders made regarding said estate by the judge
of said court.
The questions thus presented appear to me to be:
1. Under the provisions of the treaty of peace between the United
States and Spain (December 10, 1898), did the court of Santa Clara have
exclusive jurisdiction to administer upon the estate of said Don Ramon
Marti, deceased?
2. If the said Don Ramon Marti at the time of his death was a
resident of Santa Clara, Cuba, did the Spanish consul have the right to
participate in the administration of said estate?
3. If the request of the Spanish consul to be allowed to participate
in the administration of said estate was improperly refused by the
court, did the court thereafter possess jurisdiction to administer upon
said estate?
I have the honor to request that you will favor me with your opinion
upon the matter above presented.
Very respectfully, yours,
ELIHU ROOT,
Secretary of War.
The ATTORNEY-GENERAL.
NOTE.-- The original papers in the case are also inclosed, which
please return with your reply.
1075 and inclosures 1, 3, 4, 5, 6, 7, and press copies.
The inclosures of your letter show the following order of the judge
of Santa Clara, dated the 25th of July, 1899:
"As it appears that Don Ramon Marti y Buguet, a native of Tarragona,
died on the 2d instant, in the precinct of Baez, belonging to this
judicial district, without leaving any relatives or testamentary
provisions, this court has ordered the proclamation of the intestacy.
As it appears that, on the 15th instant, the Spanish consul at
Cienfuegos addressed a communication to this court, stating that, having
heard that the Spanish subject, Don Ramon Marti, had died intestate, he
has appointed Don Benito Menduina, under article 44 of the alien law in
force, to draw up the inventory and to carry out all the other
proceedings provided by said law. Considering: First, that there is no
evidence to show that Don Ramon Marti had obtained the registration
required by article 9 of the treaty of Paris, concluded between Spain
and the United States on the 10th December of last year, in order to
retain his Spanish nationality, and (considering) that, until such
registration is proved by record, he must be regarded as a native of
Cuba, and, consequently, subject only and exclusively to the provisions
of the law of civil procedure and the civil code now in force.
Considering: that even if the reason hereinbefore stated did not exist,
the provisions of the alien law cited by the Spanish consul at
Cienfuegos would still not be applicable, because, under article 11 of
the said treaty, Spaniards residing in the territories over which Spain
has ceded or abandoned her sovereignty, remain subject, in civil and
criminal matters, to the jurisdiction of the country in which they
reside, in accordance with the ordinary laws in force in such
territories, and must appear and plead in the same manner as the
citizens of the country in which they reside. In view of the articles of
the treaty of Paris, it is declared that the intervention of the Spanish
consul at Cienfuegos in these proceedings can not be permitted, and it
is ordered that he be notified of this decision by a courteous note."
An examination of Article IX of the treaty of Paris shows that
Spaniards residing in the ceded or relinquished territories were to have
a year within which to make up their minds whether to preserve, not
acquire, Spanish nationality, and I think there is no doubt that a
Spaniard, born in the peninsula, who died in Cuba before the expiration
of that year, was, in the contemplation of the treaty, a Spanish subject
at the time of his death.
Article XI of the treaty, relied upon by the judge, is, in the
English copy, as follows:
"The Spaniards residing in the territories over which Spain by this
treaty cedes or relinquishes her sovereignty shall be subject, in
matters civil as well as criminal, to the jurisdiction of the courts of
the country wherein they reside, pursuant to the ordinary laws governing
the same; and they shall have the right to appear before such courts,
and to pursue the same course as citizens of the country to which the
courts belong."
The first part of this article treats of the position of Spanish
residents when proceeded against in court; the latter provides
implements for their use. The former subjects them as defendants to the
tribunals, according to the ordinary laws which may regulate the
competency of the tribunals (leyes comunes que regulen su competencia);
the latter places at their disposal, though aliens, the right to appear
before the tribunals (comparencia en juicio) according to the same laws
of procedure (forma) and carrying on the same course of pleading and
practice (procedimientos), as citizens of the country.
In so placing at their disposal the free right to appear and proceed
like citizens, I do not understand that the treaty intended to make it
unlawful to give them better methods of appearing or proceeding, as
alien parties or as Spanish residents, in addition to those of citizens.
The provision was for their benefit-- they were to be allowed, at least,
the same "forma" and same "procedimientos" as citizens. On the other
hand, there is still less reason to say that as defendants they could
not be subjected to any laws regulating the jurisdiction of the courts
except those concerning cases between citizens of the country. The first
part of Article XI says nothing of citizens of the country. It says they
shall be subject to the tribunals according to the ordinary, the usual
laws (comunes) concerning their competency or jurisdiction.
What is meant by ordinary or usual? It was usual in every one of the
countries mentioned to have laws concerning aliens, laws which
incidentally affected the competency of the courts. Article IX of the
treaty alludes to these long-familiar laws and the possibility of others
to be enacted. Such as these, in my opinion, are not excluded by the
word ordinary (comun).
Spanish residents, at the time of the making of the treaty, were
somewhat uneasy lest they should be persecuted, and desired to be
guaranteed that a proper course of procedure would be followed in
criminal and civil actions against them; but they expected to be
aliens, subjects of a foreign soverign, and to be treated by the laws as
such. They desired to be subjected to the tribunals only as other aliens
might be; to the ordinary tribunals acting without special authority
directed against them.
Article 47 of the alien law, which denied any special fuero to aliens
(not, as translated, "special right or privilege"), operated to confirm
a transfer of aliens (extranjeros) in the provinces from the old fuero
de extranjeria and other special fueros (e.g., of war and marine) to the
same courts to which Spaniards were subject, "according to the cases,"
certainly without any purpose by so doing to make them cease to be
aliens or to prevent the interposition in administrations of their
respective consuls; and I think it was as little the intent of the
provisions of Article XI of the treaty to exclude that interposition.
The article forbids the establishment of the old fuero of aliens and
that of a new fuero of Spaniards, but not all affecting the business
concerning aliens, which may come into the ordinary courts or fueros
"according to the cases." Such a treaty provision might even be
unconstitutional and void.
The reasons given in 1868 and 1869 for the general abandonment of
special fueros for the ordinary or common fuero were:
In those regions (colonies), as in Spain, the diversity of fueros
paralyzes the march of the administration of justice by the numerous
jurisdictions (competencias) to which it gives rise, disorganizes the
judicial hierarchy, renders impossible the formation of a correct and
enlightened jurisprudence, and is the cause at times of contradictory
judgments in identical cases, which diminishes respect for the law and
for the tribunals."
I can not suppose, without manifest proof, that the United States
were stipulating to cripple permanently in Porto Rico and the
Philippines, and (by persuasion) in Cuba, the vital power to make and
judicially enforce laws concerning alien inhabitants.
It must be remembered that, so far as Cuba is concerned, this Article
XI does not bear the same relation to the alien law as though the latter
were an act of Congress. The treaty is an agreement between Spain and
the United States; supreme law for and over the latter, but not for and
over Cuba. It obliges us, while acting in that country, to see to it
that the Spaniards there are treated as the Article XI intends; but the
alien law, while temporarily continued and enforced by the power of the
United States, is rather the law of and for another country. It is an
old law in Cuba, and is doubtless intended to be left in Cuba when we
and our treaty are gone.
In my opinion, then, there is no reason to say that Article XI of our
treaty prevents article 44 of the alien law of Cuba from being
applicable to the estate of Don Ramon Marti y Buguet.
Both of the conclusions of the court at Santa Clara, therefore, as I
think, proceeded from erroneous views of the treaty of 1898.
Your third question is:
"If the request of the Spanish consul to be allowed to participate in
the administration of said estate was improperly refused by the court,
did the court thereafter possess jurisdiction to administer upon said
estate?"
At first view this seemed to me a question so exclusively of Spanish
civil law, with which the secretary of justice and the courts of Cuba
are familiar, that I was disposed to suggest that it be referred to them
for consideration, in the light of the views concerning the treaty
hereinbefore set forth. But as I perceived from the inclosures of your
letter that two secretaries of justice and some local official attorneys
in Cuba have had this matter under consideration, and as I recognized
that the international aspect of it might render it difficult for the
question to be determined by the familiar rules of the Spanish law
concerning appeals, proceedings in cassation, decisions between
conflicting jurisdictions, etc., it seemed to me better to attempt to
give a direct answer to your inquiry.
An examination of the original Spanish of the alien law, article 44
(of which you inclosed a translation), makes it clearer that the first
paragraph of that article aims at the preservation of the property for
the benefit of the heirs, rather than the exercise of the judicial power
of Cuba in determining who may be the heirs or determining any other
question concerning the estate.
Who, then, is expected by the alien law to determine such questions--
the consul, the local judge, or both? If the consul is to have any
judicial function in the matter, is he, with the local judge, to
constitute a tribunal exercising the judicial power of Cuba; is he to
exercise the judicial power of his own country and wholly exclude the
local judge from judicial action, or is the consul to exercise the
judicial power of his own country upon certain questions and to be the
administrator as an officer of his own country, and the judge, with
regard to other questions, to step in and exercise the judicial power of
Cuba?
It seems to me that some light may be thrown upon these questions by
articles 42, 43, and 45 of the alien law, articles 42 and 43 speaking
(in the original Spanish) of demands giving rise to a special set of
questions, and article 45 providing that in intestate proceedings the
Spanish courts shall have jurisdiction only of those demands. In the
translation of the alien law which you sent me the word "demands" is
omitted from articles 42 and 43, and your translation of them, and of
articles 44 and 45, is as follows:
"ART. 42. They shall also be subject to said laws and courts in all
suits instituted by or against them for the fulfillment of obligations
contracted within and outside of Spain in favor of Spaniards, or which
involve the ownership or possession of property situated in Spanish
territory.
ART. 43. The Spanish tribunals shall also have jurisdiction over and
shall take cognizance of suits between aliens brought before them, and
which involve the fulfillment of obligations contracted or to be
fulfilled in Spain.
"ART. 44. In the case of an alien dying intestate, the judicial
authority of the town in which the death occurs shall, together with the
nearest consul of the nation to which the deceased belonged, or with the
person appointed by the consul in his stead, take an inventory of the
property and goods and shall take the necessary steps to have the same
placed under custody and at the disposal of the heirs.
"Should the alien be a resident, and should he die outside of his
domicile, the judge of the latter, to whom notice shall be sent by the
judge of the place where the death occurred, shall fulfill the
provisions of the foregoing paragraph with regard to the property and
effects of the deceased existing there.
"Should there be no consul in the town where the death occurred or in
the domicile, the judicial authority, while awaiting the arrival of the
consul, whom he shall advise immediately, or of his delegate, shall only
take the measures necessary for the custody of the property and of the
goods.
"ART. 45. In intestate as well as in testamentary successions of
aliens, the Spanish courts shall have cognizance only of the claims and
demands referred to in the foregoing articles."
Further light, I think, can be thrown upon the questions by an
examination of two treaties, the making of which closely preceded the
alien law of 1870, one of Spain with France (A.D. 1862) and the other of
Spain with Italy (A.D. 1867). I quote three articles, which are
substantially the same in both treaties:
XVII. In case of the decease of any subject of one of the contracting
parties in the territory of the other, the local authorities must give
immediate notice to the consul-general, consul, vice-consul, or consular
agent in whose district the decease has occurred, and they, on their
part, must give the same notice to the local authorities when the
decease comes to their knowledge first.
"If an Italian in Spain or a Spaniard in Italy should die without
making a will or without appointing a testamentary executor; or if the
legitimate or testamentary heirs should be minors, incapable, or absent,
or if the testamentary executors appointed should be incapable, or
should not be found in place where the property has been left, the
consuls-general, consuls, and consular agents of the deceased's nation
shall have the right of proceeding successively to the following
operations:
"1. To affix seals, ex officio or at the request of the parties
interested, on all the movable property and papers of the deceased,
giving notice of this operation to the competent local authority, who
may be present and affix his own seals also.
"These seals, as well as those of the consular agent, must not be
removed without the consent of the local authority. Nevertheless, if,
after a notice addressed by the consul or vice-consul to the local
authority, inviting him to be present at the removal of the double
seals, he should not appear within forty-eight hours from the time of
receiving the notice, the said agent may proceed to the operation by
himself.
"2. To draw up the inventory of all the goods and effects of the
deceased, in the presence of the local authority, if he has attended in
consequence of the aforesaid notification.
"The local authority shall put his signature to the reports drawn up
in his presence, and shall have no right to demand fees of any kind for
his official intervention in said matters.
"3. To provide for the sale at public auction of all the movable
effects of the estate which may deteriorate and of those which may be
difficult to preserve, as well as of the collections or effects for the
disposal of which there may be favorable opportunities.
"4. To deposit in a secure place the effects and securities
inventoried; to keep the amount of the debts and incomes received and
the proceeds of the sales in the consular house, or to intrust them to
some merchant who gives good security. In both cases he must proceed in
concurrence with the local authority who has taken part in the previous
operations, if, after the summons referred to in the following
paragraph, subjects of the country, or of a third power, should
represent themselves as interested in the estate.
"5. To announce the death which has taken place and to summon, by
means of the newspapers of the place and of the deceased's country, such
persons as may have claims against the estate, in order that they may
send in their respective claims duly approved within the legal period of
each country.
"If creditors of the estate should appear, their debts must be paid
in fifteen days from the completion of the inventory, if there should be
ready money enough for the purpose; and if not, as soon as the funds
can be obtained in the most convenient manner, or within the period
fixed by common consent between the consul and the majority of those
interested. If the respective consuls should refuse payment of one or
more of the claims brought in, alleging the insufficiency of the
property of the estate to satisfy them, the creditors may, if they
consider it advantageous to their interests, demand of the competent
authority the power of constituting themselves as a body.
"Such a declaration having been obtained by the legal means
established in each of the two nations, respectively, the consuls or
vice-consuls must immediately consign to the judicial authority or to
the syndics of bankruptcy, as the case may be, all the documents,
effects, and securities belonging to the estate; and the said agents
will remain as the representatives of the heirs who are absent, minors
or incapable.
"6. To administer and liquidate the estate, either themselves or
through a person appointed on their responsibility, the local
authorities having no power to interfere in those operations unless
subjects of the country or of a third power should have to prove rights
upon the estate itself, and that in such case difficulties should arise
chiefly proceeding from some claim which gives rise to discussion among
the parties; the consuls-general, consuls, vice-consuls, or consular
agents having no right to decide therein, it must be brought before the
tribunals of the country, whose place it is to provide for and settle
such difficulties.
"The said consular agents will then act as representatives of the
estate; that is, they will retain the administration and the right of
definitively liquidating the inheritance, as well as that of proceeding
to the sale of the effects in the periods before prescribed. They will
take care of the interests of the heirs, with the power of appointing
advocates to maintain their rights before the tribunals; and it is
understood that they must furnish all the papers and documents necessary
to explain the question which is submitted to their judgment.
"When the sentence has been pronounced, the consuls=general, consuls,
vice-consuls, or consular agents must execute it, unless they interpose
an appeal; and they will also continue of full right to carry on the
liquidation which was suspended until judgment had been passed.
"7. To consign the inheritance or the produce thereof to the lawful
heirs or to their agents, but not until the expiration of the term of
six months from the date on which the announcement of the death was
published in the newspapers.
"8. To constitute, whenever it may be necessary, a guardianship or
trusteeship according to the laws of their own country.
"XVIII. If an Italian die in Spain or a Spaniard in Italy, at a place
where there is no consular agent of his nation, the competent local
authority shall proceed, in accordance with the laws of the country, to
make an inventory of the effects and to liquidate the property left,
under the obligation of rendering an account as soon as it is possible
of the results of his operations to the respective embassy or legation,
or to the consulate or vice-consulate nearest to the place where the
property has been left; but from the instant that the consular agent
nearest to the place where the property has been left makes his
appearance, either in person or by means of any delegate, the
intervention of the local authority must be in accordance with the
provision in Article XVII of this convention.
"XIX. The consuls-general, consuls, vice-consuls, and consular agents
of both nations shall attend exclusively to the inventories and other
precautionary measures for the preservation of the hereditary property
left by sailors of their nation dying ashore or on board the vessels of
their country, whether during the voyage or in the port of their
arrival."
It is clear that under this treaty system between these three Latin
countries-- Spain, Italy, and France-- the consul is to exercise an
extraterritorial judicial power and to be the real administrator of the
estate; but that disputes in which the country where the death occurred
has some special interest, as where its own people or the people of a
third country whom it should protect are concerned, are to be carved out
of his jurisdiction and settled by the local judicial authority, leaving
him to resume his functions when these special questions have been
determined.
Similar treaties had anciently been made with England. Thus, in
Warden's Consular Establishment, page 252, we read:
"In a treaty with Spain, made in 1667, it was stipulated, that the
goods and estates of Englishmen, dying without will in that Kingdom,
were to be put into inventory, with their papers, writings, and books of
accounts, by the consul or other public minister of the King of Great
Britain, and placed in the hands of two or three merchants named by the
said consul or public minister, to be kept for the proprietors or
creditors; and that neither the Cruzada, nor any other judicatory
whatsoever, should intermeddle therein; which, also, in the like case
was to be observed in England, toward the subjects of the King of
Spain."
Still further light is shed upon our questions, I think, by the
consular system of Spain, in which her consuls in foreign countries are
authorized to exercise all the powers of courts of first instance, if
permitted to do so by the laws of the country to which they are
accredited.
I can not but think, from these and similar considerations, that the
privilege intended to be accorded to foreign consuls by article 44 of
the alien law was not merely to be present and see that the local
judicial authority did what was proper, nor to exercise any part of the
judicial power of the country to which the consul was accredited, but to
be the administrator and judge in charge of the business of settling the
estate and succession.
It seems to me, therefore, that to oust the consul altogether, as was
done in the matter of the estate of Don Ramon Marti y Buguet, and
proceed without him, was to proceed without jurisdiction, and I
therefore answer your third question in the negative.
Respectfully,
JOHN W. GRIGGS.
ATTORNEY-GENERAL-- OPINION; 23 Op.Att'y.Gen. 92, April 20, 1900
When an opinion is desired from the Attorney-General, the question to
which an answer is desired, as well as a statement of the facts upon
which the question is based, should be clearly set forth in the request.
DEPARTMENT OF JUSTICE,
April 20, 1900.
The SECRETARY OF WAR.
SIR: I am in receipt of your communication of March 24, 1900, by
which certain papers, referring to a contract between the United States
and James B. Eads, are referred to me, with the request for an opinion
as to whether, under the contract between the United States and Eads,
any liability existed at the date of the approval of the act of February
26, 1897, entitled, etc., on the part of said Eads or his representative
for a failure to close the Pass a Loutre.
I beg to call your attention to the well-settled rule of practice in
this Department that when an opinion is desired from the
Attorney-General, the question to which an answer is desired, as well as
a statement of the facts upon which the question is based, should be
clearly contained in the request for the opinion, and that the
Attorney-General should not be left to seek out the facts and infer the
questions submitted from the correspondence inclosed. (See 20 Opin.,
253, 270, 526, 699.)
The papers are herewith returned, in order that they may be
resubmitted with such a statement of the facts and of the legal
questions which it is desired that I shall answer as will conform to
this rule.
Very respectfully,
JOHN W. GRIGGS.
CIVIL-SERVICE-- REINSTATEMENT; 23 Op.Att'y.Gen. 87, April 20, 1900
The words "specifically required by law," found in section 2, Rule
IX, of the Civil-Service Rules, which provides that "Any person who has
been separated from the service by reason of a reduction of force
specifically required by law may be reinstated, etc.," mean that the
reduction of force must have been specifically required, not that the
removal of the particular individual must have been specifically
required by law.
DEPARTMENT OF JUSTICE,
April 20, 1900.
The SECRETARY OF THE TREASURY.
SIR: By letter of March 5, 1900, you transmitted to me copies of
correspondence between the Treasury Department and the Civil Service
Commission relative to the proposed reinstatement of Mrs. Louis Tompkins
as a clerk in the office of the Commissioner of Internal Revenue, who
had previously, as claimed by your Department, been separated from the
service by reason of a reduction of force specifically required by law.
Referring to the facts and contentions of the parties, as set forth in
the correspondence referred to, you request my opinion as to whether
Mrs. Tompkins is eligible for reinstatement under the second proviso of
Rule IX of the Civil-Service Rules.
In response to my request for a more full and complete statement of
the facts and circumstances upon which my opinion is desired, you did,
by letter of March 22, 1900, advise me as follows:
"The removal of Mrs. Tompkins occurred on September 30, 1894, leaving
a vacancy of $1,200 per annum, which was filled as follows:
"R. A. Charles, of the office of the Commissioner of Internal
Revenue, was reduced October 1, 1894, from class 2 to class 1, vice
Tompkins, removed.
"S. A. Lewis was reduced October 1, 1894, from class 3 to class 2,
vice Charles, reduced.
"H. L. Piper was reduced October 1, 1894, from Assistant
Superintendent Life-Saving Service, and transferred to class 3, office
of Internal Revenue, vice Lewis reduced.
"It is a fact that the contemplated changes under the Dockery Act
were cons considered previously to the passage of the act; changes were
made, and vacancies occurring were continued and used to lessen the
number of removals which would be made necessary on the 1st day of
October, 1894, when the Dockery Act went into effect.
"It is a fact that at that date, October 1, 1894, all changes in the
service were influenced, more or less, by the necessary reduction of
force under the act; every opportunity was taken advantage of to lessen
the number of compelled removals from the service, by the use of
vacancies in other bureaus or offices available, and by making removals
of least competent clerks in order that clerks of greater ability might
be retained in the service by transfer from offices abolished or reduced
in force under the Dockery Act.
"To follow down the line of changes and reach an appointee in a
specific office directly affected by the Dockery Act is difficult. It
can only be said that the Tompkins vacancy made one less removal
necessary from the service under the Dockery Act.
"The Commissioner of Internal Revenue, in a communication dated
January 22, 1900, says:
"'I have the honor to state that while the Dockery Act did not
specifically reduce the force of the Internal Revenue Bureau, it made a
large specific reduction in the force of the Treasury Department, which
reduction the then Secretary, Mr. Carlisle, distributed through the
Department instead of confining it to the bureaus or offices reduced or
abolished by said Dockery Act.
"'In carrying out this plan of reduction a large number of dismissals
were made by the Secretary in offices not specifically affected by the
Dockery Act, and the vacancies thus created were filled by reductions,
promotions, or transfers made for the purpose of securing places for
persons who had previously been paid on the rolls of offices reduced or
abolished by said act, or whose positions were desired for such persons.
"'Thus, by reference to the memorandum attached to the letter of Mr.
Proctor, it will be seen that in the dismissal of Mrs. Tomkins the
objective point was to secure, by the reduction of Mr. Charles and Mr.
Lewis, a third-class clerkship for Mr. Piper, whose transfer thereto
from his former position in the Life-Saving Service was necessary to
carry out the Secretary's plan of distributing the reduction through the
Department generally, and that her dismissal was therefore due to the
operations of the Dockery Act as administered by the responsible head of
the Department, the only officer of the Government clothed with
authority to accomplish such reduction, and from whose decision as to
the manner in which the reduction should be made there was no appeal.
"'In connection with this matter I will also state that Mr. Carlisle
declared over and over again, verbally and in writing, that dismissals
made by him in offices not specifically affected by the Dockery Act,
'were made necessary by the reduction of force made by Congress in the
Dockery Act.'
"'It is evident that Mrs. Tompkins's case comes clearly within the
clause of amended civil service Rule IX, which provides for the
reinstatement under said rule of 'persons separated from the service by
reason of a reduction of force required by law.'
"The statement of the Commissioner, in whose office Mrs. Tompkins was
employed when separated from the service, enforced the conclusion that
she was removed as the result of a necessary reduction of force
specifically required by law, and this contention being disputed, your
opinion in the premises was requested."
In my opinion, the contention of the Treasury Department is correct.
The language of the proviso to Rule IX referred to is, "Any person who
has been separated from the service by reason of a reduction of force
specifically required by law may be reinstated without regard to the
length of time he or she has been so separated from the service." It not
only appears from your statement of facts, but it seems also to be
conceded by the Civil Service Commission, that the law known as the
"Dockery Act" did specifically provide for a reduction of force in the
Treasury Department, but in bureaus separate and distinct from the
Bureau of Internal Revenue; that the act referred to did require that a
certain number of persons employed in each of certain bureaus of the
Department, the Internal Revenue Bureau not being one, should be
separated from the service in their respective bureaus. It is also
conceded in the communication of the Civil Service Commission of
February 12, 1900, that Mrs. Tompkins's separation can be said to be by
reason of a reduction of force which was required by law, but it is
contended that it was remotely and indirectly so, and not directly and
specifically so. The Commission contends that the word "specifically"
used in the rule must relate directly and unmistakably to the particular
place or person affected, and that unless it does so, the rule does not
apply.
Conceding, therefore, that the moving cause of the discharge of Mrs.
Tompkins was the reduction of force required by the Dockery Act,
although that act did not require any specific reduction in the office
of the Commissioner of Internal Revenue, the question is, Does the
proviso of Rule IX cover her case? It is obvious that her removal was
due to any other cause than the necessity imposed upon the head of the
Treasury Department, by reason of the passage of the Dockery Act, to
reduce the force in his Department. As is stated in your communication
of March 22, changes in the service at the date that act went into
effect were influenced more or less by the necessary reduction of force
under the act; every opportunity was taken advantage of to lessen the
number of compelled removals from the service by the use of vacancies in
other bureaus or offices available, and by making removals of less
competent clerks, in order that clerks of greater ability might be
retained in the service by transfer from offices abolished or reduced in
force under the Dockery Act.
That which the rule requires as a condition for reinstatement is that
the separation from the service shall have been by reason of a reduction
of force to be affected must be specifically required. The rule does not
say that the removal of the particular individual must be specifically
required by law, but only that the separation of such individual from
the service shall be by reason of such reduction. The phrase "by reason
of" in this connection has the force and meaning of the phrase "because
of." See the word "reason" in Webster's Dictionary. Can it be denied,
under the statement of facts you present to me, that the separation of
Mrs. Tompkins from the service was by reason of a reduction of force?
It is true it was not a reduction of force in the bureau in which she
was employed, but the proviso to Rule IX does not declare that the
reduction must be in the particular bureau from which the clerk is
separated. Can it be denied that the cause for which she was separated
from the service was a reduction of force specifically required by law?
The Dockery Act specifically required a reduction of force, and that
reduction was made. The removal of Mrs. Tompkins was effected in
carrying out that scheme of reduction, and for no other reason. It was
made because of that specifically required reduction in the force.
The statement from my opinion of December 9, 1899, construing this
clause, which is quoted in the letter of the Civil Service Commission of
January 31, 1900, is not applicable to this case. The language quoted by
the Commission is as follows:
"There may be doubt as to what is meant by the phrase, 'specifically
required by law,' the doubt arising from the indefinite nature of the
word 'specifically,' but there can be no doubt that the reduction of
force referred to must be one required by law and not one which is
caused by the exercise of the discretionary power vested in an executive
officer.
It must be a reduction which, under the law, is compulsory, and not one
which is optional."
That opinion referred to a state of facts where the reduction of the
force was optional with the executive officer. In this case the
reduction of the force was specifically required, the only matter
remaining optional with the Secretary being the method by which he would
execute the specific reduction. The fact that he had the option to
discharge one clerk to make room for another, in carrying out this
scheme of reduction, does not render his duty to reduce the force
discretionary. That was absolute and mandatory.
The result, therefore, is that Mrs. Tompkins is eligible, under the
facts stated, for reinstatement.
Very respectfully,
JOHN W. GRIGGS.
ATTORNEY-GENERAL-- OPINION; 23 Op.Att'y.Gen. 86, April 18, 1900
The claim of Dudley & Michener for the payment of a sum of money as
compensation for the cancellation by the War Department of a contract
entered into between that Department and the claimants for furnishing
the Government with Mauser rifles is one which, under the act of July
31, 1894 (28 Stat., 208), and the decisions of this Department, should
be referred to the Comptroller of the Treasury for his opinion.
DEPARTMENT OF JUSTICE,
April 18, 1900.
The SECRETARY OF WAR.
SIR: On November 17, 1898, your predecessor transmitted to me a
communication addressed to him by Messrs. Dudley & Michener, of this
city, making claim upon the War Department for the payment of a certain
sum as compensation for the cancellation by the War Department of a
contract entered into between the War Department and Dudley & Michener
on the 9th of July, 1898, for furnishing the Government with 20,000
Mauser rifles, etc. Secretary Alger requested the opinion of the
Attorney-General as to whether or not he had authority to pay Messrs.
Dudley & Michener their claim.
The question submitted for my opinion is one which, under the act of
July 31, 1894 (28 Stat., 208, chap. 174, sec. 8), may be, and under the
decisions of this Department ought to be, submitted to the Comptroller
of the Treasury. (See 21 Opin., 178, 181, 188, 530, and opinion of
December 20, 1899.) I accordingly return the claim of Dudley & Michener,
in order that it may be referred to the Comptroller for his opinion, if
desired.
In explanation of the delay in acting upon this matter, I would say
that I was under the impression that the claim of Messrs. Dudley &
Michener had been in some way adjusted so as not to require any opinion
thereon, and therefore filed the papers under that misapprehension.
Very respectfully,
JOHN W. GRIGGS.
MEDALS OF HONOR-- PERILS OF THE SEA-- SHIPWRECK; 23 Op.Att'y.Gen.
78, April 2, 1900
The act of January 21, 1897 (29 Stat., 494), which was passed for the
purpose of giving a more liberal construction to the acts of June 20,
1874 (18 Stat., 127), and of June 18, 1878 (20 Stat., 165), provides
that the several acts heretofore passed "shall be construed so as to
empower the Secretary of the Treasury to bestow such medals upon persons
making signal exertion in rescuing and succoring the shipwrecked, and
saving persons from drowning in the waters over which the United States
has jurisdiction, whether the said persons making such exertion were, or
were not, members of a life-saving crew, or whether or not such
exertions were made in the vicinity of a life-saving station." These
acts are in pari materia, and may be read as one act.
The act of 1897 empowers the Secretary of the Treasury to bestow
medals of honor upon all persons who, in his opinion, have endangered
their lives in saving or attempting to save human life, whenever,
wherever, and in whatever way it may be imperiled by the sea.
The term "perils of the sea," as used in the act of 1874, includes
all perils on water caused by the sea, or which are such by reason of
the sea.
The word "shipwreck," as used in the act of 1878, includes not only
those in danger from "perils of the sea" by reason of the threatened
destruction of their ship, but also those who, having parted from their
vessel, are in a situation where, without rescue or succor, they would
die of starvation, thirst, or exposure.
DEPARTMENT OF JUSTICE,
April 2, 1900.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your note of
March 22, 1900, with its inclosures, in which you request my official
opinion as to the proper construction of various portions of the acts of
Congress authorizing the Secretary of the Treasury to bestow medals of
honor of the first class and of the second class upon persons who make
signal exertions in endeavoring to save life from the perils of the sea,
etc., in the waters of the United States.
The first act of Congress, approved June 20, 1874, section 7, made
provision for these medals of honor only in cases of persons who
"endanger their own lives in saving or endeavoring to save lives from
perils of the sea within the United States, or upon any American
vessel."
By section 12 of the act of June 18, 1878, the Secretary of the
Treasury is authorized to bestow these medals of the second class "upon
persons making such signal exertions in rescuing and succoring the
shipwrecked and saving persons from drowning as, in his opinion, shall
merit such recognition."
Under these sections my predecessor in office rendered an opinion on
January 30, 1895 (21 Opin., 124), holding, in substance, that they
"apply to the rescue of those persons only who, in the vicinity of a
life-saving station, life-boat station, or house of refuge, are in
danger of drowning," * * * and that the purpose of such statutes is to
cause such medals to be bestowed upon the members, whether regular or
volunteer, and whether permanent or temporary, of the life-saving crews;
and that the terms "succoring the shipwrecked" and "saving persons from
drowning," employed in section 12, act approved June 18, 1878,
authorizing the bestowal of life-saving medals of the second class, were
intended to embrace only those persons who were suffering from the
perils of the sea, either by actual shipwreck or from being upon or
connected with any vessel in distress." (I quote from the statement of
the opinion in the preamble of the construing act of January 21, 1897.)
The question of the correctness of the construction thus given to
these sections by my predecessor is not involved here.
But it is apparent that, when the construing act of January 21, 1897 was
passed, the Congress then intended a much broader and more liberal
construction. That act, after reciting, as above, the opinion of the
Attorney-General, provides that the sections above partially quoted, and
the act of May 4, 1882, authorizing additional honors for repeated acts
of such heroism, "shall be construed so as to empower the Secretary of
the Treasury to bestow such medals upon persons making signal exertions
in rescuing and succoring the shipwrecked and saving persons from
drowning in the waters over which the United States has jurisdiction,
whether the said persons making such exertions were or were not members
of a life-saving crew, or whether or not such exertions were made in the
vicinity of a life-saving station."
It will be noted that the object and purpose of all this legislation
is the saving of life endangered by shipwreck and other perils of the
sea within the jurisdiction of the United States; and, to this end, to
encourage, by suitable distinction of honor, heroic exertions and
self-sacrifice in behalf of those whose lives are thus in peril. This
object, with the reason for it, is as broad as the peril, and exists
wherever the peril if; and this would, if necessary, aid the
construction of language which, however, in my opinion, needs no aid
from construction.
It will be noted, also, that the act of January 21, 1897, was passed
to correct a construction by one department of the Government which
Congress, then at least, deemed too narrow, and to give to this
legislation a broader scope. In doing this, Congress has plainly made
the territorial extent of this legislation as broad as the waters over
which the United States has jurisdiction. For, in correction of a
previous construction, fixing much narrower limits, Congress has
extended the legislation to all "the waters over which the United States
has jurisdiction, * * * or whether or not such exertions were made in
the vicinity of a life-saving station." Amd all places which either are
or are not "in the vicinity of a life-saving station" clearly embrace
all places "in the waters over which the United States has
jurisdiction." And it extends, by express terms, on board any American
vessel. And, as already said, the purpose and object of the legislation
emphasize this construction, and require it wherever, in the waters of
the United States, human life is in peril of the sea and equally require
recognition of heroic efforts in its behalf, without reference to
locality.
The same generality of application and liberality of construction
are, both from the language used and the reason for it, required in
respect of the persons whose signal exertions for the rescue of others
from the specified perils may claim the honorable distinction intended
therefor by Congress. This is not limited to any particular persons,
class or classes, but is general and without distinction, and just as
the expression "whether or not such exertions were made in the vicinity
of a life-saving station" embraced all places within the waters of the
United States, so the expression in the same sentence, "whether the said
persons making such exertions were or were not members of a life-saving
crew," embraces all persons within the same jurisdiction.
The next question has relation to the kind and nature of the perils,
the rescue or attempted rescue from which may win the honorable
recognition and distinction intended by Congress.
Here, too, the language of the statutes and their obvious reason,
purpose, and object agree in the same construction and conclusion. By
the act of June 20, 1874, these were defined simply as "perils of the
sea," and, although this expression would probably be broad enough to
embrace all perils of the sea-- all perils caused by the sea, or which
were such because of the sea-- yet the perils have been, in the later
acts, particularized somewhat, while retaining in the first act the
original expression, and the medals of honor may now be bestowed for
"saving or endeavoring to save lives from the perils of the sea" and for
"signal exertions in rescuing and succoring the shipwrecked and saving
persons from drowning." As will be seen further on, this provision as to
the shipwrecked was necessary in order to the full measure of relief
intended by Congress.
But, you ask the meaning of the terms "perils of the sea" and "the
shipwrecked."
As has been already stated, the purpose and objects of these acts are
the saving of human life menaced by sea peril and by shipwreck in any
waters of the United States. These provisions must be interpreted with
reference to this purpose and object and such meaning be given to the
language used, if possible, as will promote the end and aim of the
statutes. Such statutes as these receive a liberal and not a strict or
technical construction; and when the obvious reason or object of the
law requires a more extended or less technical meaning of a word or
words, in order to effect the object of the law, such meaning may be
given. And when the same reason applies equally to words in a more
extended sense, such meaning may be given them, if not inconsistent with
the language used.
There are three classes of persons whose rescue from danger is
contemplated by these acts, although some of one class may be embraced
in another, viz: Those in danger from perils of the sea, the
shipwrecked, and those in danger of drowning. Perils of the sea may, in
certain cases, include the shipwrecked; the shipwrecked may be in
danger of drowning, and persons may be in danger of drowning from perils
of the sea other than shipwreck. Thus, one class may, but not always,
necessarily, embrace persons in another class.
As applied to this subject, it would be difficult to choose another
expression at once so conclusive and so little in need of definition as
is that of "perils of the sea," and yet, here, as in most cases,
definition is necessary. The term, in its comprehensiveness, includes
all perils of the sea, and not some of them merely. It includes all
perils on water caused by the sea or which are such by reason of the
sea. Of course, it does not embrace all perils to which one may be
exposed on the sea, but only such as are caused by it. A man on
shipboard in mid-ocean may be in imminent danger of his life from a
personal assault or in various other ways, and, though the sea might
prevent his escape, yet the danger which menaced him would not be a
peril of the sea, one caused by the sea, or one which is such by reason
of the sea. Nor, on the other hand, do I think the term is here used in
the limited sense of its ordinary application to navigation or commerce,
where ti is usually applied to vessels, or persons or property on
shipboard.
Such cases are expressly provided for by the expression, in the same
sentence, "or upon any American vessel." The distinction there made of
"perils of the sea within the United States or upon any American vessel"
clearly show that the perils of the sea, contemplated by the act, are
not restricted to those which menace life on shipboard or in shipwreck.
It is impossible to give a definition of the term "perils of the sea"
which will fit and cover every case. But, generally, it may be said that
whenever, wherever, and in whatever way human life is directly imperiled
by the sea, this, within these statutes, framed to protect and rescue
life from such peril, is a peril of the sea, the rescue from which in
the manner prescribed may entitle the rescuer to the honorable national
distinction provided by these acts. The perils of the sea, to one on
shipboard, are provided for by the words "or upon any American vessel."
The other provisions, while they may in terms embrace also one on
shipboard, yet obviously have a broader scope and apply also elsewhere;
and the only limitation fixed is that they shall apply in waters over
which the United States has jurisdiction. So that I am of opinion that a
bather, a person capsized from a small boat, one falling into the water
from a wharf, a child in shallow water near the shore-- that in each of
these and similar cases, if the person is thereby in imminent danger of
his life, he is so, within the liberal spirit and intention of these
acts, from a peril of the sea. And I am unable to perceive why all of
the classes of cases to which I have reference are not as much perils of
the sea as in the case of a disabled vessel on a rocky lee shore; nor
why the saving of life and reward of the rescuer is not just as much
within the reason, spirit, and intent of these statutes in one case as
in the other. And had section 7 of the act of June 20, 1874, stood
alone, I should be of opinion that it applied to all cases like those to
which I have referred.
All of these acts are in pari materia and have the same object.
Neither repeals another, and they may all be read as one act. While
section 7 of the act of 1874 authorizes the Secretary to bestow these
medals "upon any persons who shall hereafter endanger their own lives in
saving or endeavoring to save lives from perils of the sea," and
authorizes medals of the first class in "cases of extreme and heroic
daring," and those of the second class in "cases not sufficiently
distinguished to deserve the medal of the first class," section 12 of
the act of 1878 authorizes the Secretary to bestow medals of the second
class "upon persons making such signal exertions in rescuing and
succoring the shipwrecked and saving persons from drowning as, in his
opinion, shall merit such recognition."
It would seem that it was the intention of this section to give to
the Secretary, in the two cases mentioned, a broader discretion than was
conferred by section 7 of the act of 1874, and not to except or exclude
from what, in the previous act had been called "perils of the sea," two
such obvious act had been called "perils of the sea," two such obvious
of those perils as shipwreck and drowning. And I am of opinion that
these may be still classed as perils of the sea, under section 7 of the
act of 1874, and that section 12 of the act of 1878 merely gives to the
Secretary a broader discretion in case of shipwrecked and drowning
persons than was conferred by section 7 of the previous act; and that
medals of the first or second class may be bestowed in case of
shipwrecked or drowning persons, in case the rescuers come within the
terms of that section; or medals of the second class, under section 12
of the act of 1878, where the rescuers do not endanger their own lives,
but make such signal exertions in rescuing or succoring the shipwrecked,
or saving persons from drowning as, in the opinion of the Secretary,
merit such recognition. In other words, both being perils of the sea,
they are provided for in section 7 of the act of 1874: Provided, The
exertions of the rescuers are of the character there described. But if
such exertions do not come up to that standard, the persons may still
receive a medal of the second class, under section 12 of the act of
1878, if in the opinion of the Secretary they merit such distinction.
The term "the shipwrecked" requires further consideration. Persons
shipwrecked may be, and generally are, for a time at least, in peril of
the sea, and in that case are provided for in section 7 of the act of
1874; and those who save them from that peril may be entitled to a
medal of the first or second class if their exertions are of the
character described.
On the other hand, persons shipwrecked may be no longer in danger from
the sea, that peril having passed, and yet be in imminent danger and in
great need of succor and rescue. They may be adrift in an open boat,
without food or water, or stranded on some barren coast, or in other
situation where, without rescue or succor, they would die of starvation,
thirst, or exposure. In these, and many other situations readily
imagined, the danger which menaces is not strictly a peril of the sea,
and, therefore, provision is easily made for them in section 12 of the
act of 1878, and those who make such signal exertions in rescuing or
succoring persons in such situation, as in the opinion of the Secretary
merit such recognition, may be entitled to the medal of the second
class.
It is believed that the foregoing answers, in a general way, all of
your questions, but you desire specific answers to certain questions:
First. Does the act of 1897 "give the Department authority to bestow
medals upon persons who endanger their lives in saving or attempting to
save persons who were suffering the perils of the sea in any case except
by actual shipwreck or from being upon or connected with any vessel in
distress? Second. Do the words 'perils of the sea,' as used in section
7 of the act approved June 20, 1874, apply to any perils other than such
as may arise in connection with actual shipwreck or a vessel in
distress, or upon an American vessel?"
To each of these questions I answer, Yes.
Third. "Do any of the statutes relating to life-saving medals apply
to the rescue or saving from drowning of persons who accidentally fall
from docks, wharves, or other places into any waters of the United
States?"
To this question I answer, Yes, if the other facts mentioned in the
statute concur.
Fourth. You especially request a definition of the term "perils of
the sea," as used in section 7, act of 1874. No definition of this term,
as used in that section, in a statute like that, can be given which will
be likely to cover all the various cases arising; but, generally, I
refer you to the one already given herein, viz, perils caused by the
sea, or which are such by reason of the sea, in connection with the
foregoing observations upon that subject.
=#HC86
You also ask whether the construction given to these acts by the
Department, as shown in Nos. 1 and 2 of second page of circular
transmitted, is correct.
I think not, inasmuch as No. 1 limits the perils of the sea to actual
shipwreck, or to persons upon or connected with any vessel in distress,
or upon any American vessel, and No. 2 awards medals only for "signal
exertions in rescuing or succoring the shipwrecked and saving persons
from drowning, either by actual shipwreck or from being upon or
connected with any vessel in distress."
I return the inclosures transmitted with your note.
Respectfully,
JOHN W. GRIGGS.
DISPOSITION OF WRECKED SPANISH WAR VESSELS; 23 Op.Att'y.Gen. 76,
March 29, 1900
The Spanish vessels wrecked in battle by the naval vessels of the
United States during the war with Spain, and now lying along the coast
of Cuba, are the property of the United States.
That island being now temporarily within the jurisdiction of the
United States, the Secretary of the Treasury, under section 3755,
Revised Statutes, has power to make such provision for the sale or other
disposition of such wrecked vessels as he may deem necessary.
Section 3755 applies as well to wrecks which are the property of the
United States as to the vessels of private owners which have been
wrecked, abandoned, or become derelict.
The acts of June 14, 1880 (21 Stat., 197), and August 2, 1882 (22
Stat., 208), which authorize the Secretary of War to remove sunken
vessels or craft which obstruct the navigation of a "navigable" water of
the United States, do not apply to the coastal waters of Cuba, as such
waters do not become waters of the United States by reason of the
temporary jurisdiction of the United States over that island.
DEPARTMENT OF JUSTICE,
March 29, 1900.
The SECRETARY OF THE NAVY.
SIR: Referring to your communication of the 17th instant, relative
to the Spanish vessels lying aground along the shores of Cuba, you
inform me that after making costly efforts to raise such of said vessels
as were thought to be worth repairing and to recover from them articles
of value left on board, with scant success, however, and having no
further appropriation available for such uses, the Navy Department has
abandoned the undertaking, being uncertain as to the extent of its
jurisdiction in the premises, the situation being novel and the existing
status peculiar.
In this connection you call my attention to section 3755 of the
Revised Statutes and section 4 of the act of June 14, 1880 (21 Stat.,
197), and the act of August 2, 1882 (22 Stat., 208).
It seems, further, that the various wrecks are of no use for the
naval service and are not desired for other purposes, and that a certain
application has been received from persons who wish to raise the wreck
of the Alphonso XII, destroyed by the Terror and other vessels, and now
lying off the north shore of Cuba. The Navy Department, therefore, being
uncertain as to its authority and rights in relation to the matter,
wishes an expression of my views before taking any action with regard to
the disposition of the property in question.
I have the honor to state in response that the question respecting
the Alphonso XII appears to be the only one actually arising and pending
in the Navy Department, and my observations, therefore, as to the status
of the wrecked vessels generally are to be taken as suggestions rather
than as a formal opinion by which your action is to be guided.
It would seem that if the Navy Department has neither general nor
special authority in law to recover and preserve these wrecks and their
appurtenances, and if the only appropriation available has now been
exhausted, the conclusion to abandon the undertaking was necessary.
Section 3755, Revised Statutes, authorizes the Secretary of the
Treasury--
"To make such contracts and provisions as he may deem for the
interest of the Government for the preservation, sale, or collection of
any property or the proceeds thereof which may have been wrecked,
abandoned, or become derelict, being within the jurisdiction of the
United States, and which ought to come to the United States." * * *
These wrecks all appear to be lying on the shores and in the coast
waters of Cuba, and as that island is now within the jurisdiction of the
United States under the treaty with Spain and in international law,
although temporarily so, and by means of a military government, it is my
opinion that section 3755 gives to the Secretary of the Treasury
complete authority in the premises.
The portions of the acts of June 14, 1880, and August 2, 1882, which
you cite, make it the duty of the Secretary of War to remove sunken
vessels or craft which obstruct the navigation of a "navigable water" of
the United States, and give him a certain discretion respecting the sale
and disposition of any such sunken craft. As these acts are restricted
to navigable waters of the United States, I am of opinion that they do
not apply to the coast waters of the island of Cuba, which do not become
waters of the United States by reason of our temporary jurisdiction over
that island. The plain meaning and intent of the language of the acts of
1880 and 1882 in my opinion forbid that view.
As to the application to raise the wreck of the Alphonso XII, it
appears to me that under section 3755 the applicants may properly be
remitted to the Secretary of the Treasury, and of course their
application to Congress would be in order. Section 3755 undoubtedly
includes wrecks which are, unless they have been definitely abandoned or
allowed to become derelict, the property of the United States, even if
it does not exclusively refer to such wrecks, but extends also to the
property of private owners which has been wrecked, abandoned, or become
derelict; and I do not suppose it would be denied on any ground that
the wrecks on the coast of Cuba are the property of the United States as
victors in the war with Spain and in the various engagements in which
these vessels were sunk.
Very respectfully,
JOHN W. GRIGGS.
CUSTOMS LAW-- FORFEITURE-- FORMER ACQUITTAL; 23 Op.Att'y.Gen. 63,
March 28, 1900
Section 9 of the act of December 29, 1897 (30 Stat., 227), and the
Treasury regulations made in pursuance thereof, which prohibit the
importation into the United States of fur-seal skins taken in the waters
mentioned in that act, impose upon the importer the burden of showing
the right to entry of any fur-seal skin.
That burden rests and remains upon the claimant, and neither an
acquittal on the charge of smuggling, nor any other proceeding under the
customs revenue laws, has the effect of shifting the burden of proof in
the entirely distinct proceeding to forfeit seal skins brought into the
United States in violation of that act.
An acquittal upon the charge of smuggling, under section 2865,
Revised Statutes, and of illegal importation under section 3082, is not
a bar to a proceeding in rem to forfeit the goods, the subject of the
charge of smuggling and illegal importation, under sections 2802 and
3061, Revised Statutes.
To support an indictment under sections 2865 and 3082, Revised
Statutes, there must be sufficient evidence of a criminal intent, while
a proceeding in rem to forfeit, under sections 2802 and 3061, Revised
Statutes, presents a civil liability rather than an offense, and does
not require proof of such intent.
DEPARTMENT OF JUSTICE,
March 28, 1900.
The SECRETARY OF THE TREASURY.
SIR: Your letters of February 21 and March 14, with their
inclosures, relative to the application of Charles E. Pearson for the
release of a woman's seal-skin coat seized from him at the port of New
York for violation of section 2802, Revised Statutes, and section 9 of
the act approved December 29, 1897, were duly received, and by them I am
informed that Pearson, a passenger upon a steamer arriving at New York
from Liverpool, failed to declare the garment, which was found as he was
leaving the dock, sewed to or fastened within the overcoat which he wore
or carried. He was arrested and indicted under sections 2865 and 3082,
Revised Statutes, but acquitted upon trial on the ground, apparently,
that he was on his way to his home in Canada with the garment and had no
intention of introducing the article into this country. He now requests
the release of his property for the purpose of exportation in bond to
Canada, and claims that his acquittal is a bar to an action for
forfeiture, citing Coffey v. United States (116 U.S., 436), and United
States v. Zucker (161 U.S., 475).
You ask for my opinion on the question whether in such a case an
acquittal on a criminal charge is a bar to proceedings in rem.
Connected with this inquiry it appears that there is another
question, fiz, whether under section 9 of the act of December 29, 1897,
and the regulations made in pursuance thereof, forbidding the
importation into the United States by any person whatever of any
fur-seal skins taken in the waters mentioned in the act, and providing
that all such articles imported after the act shall take effect shall be
seized and destroyed by the United States, this garment should not be so
dealt with unless a consular certificate shall be produced showing that
the skins of which it is made were not taken from seals killed within
the aforesaid waters.
With reference to this question it appears to have been suggested
that the importation is not in violation of the customs-revenue laws,
that there is no enactment for the forfeiture of this garment to the
United States, and that if proceedings for forfeiture and destruction
are undertaken, the burden of proof will rest upon the Government to
show that the skins from which it was made came from seals killed in the
prohibited waters since the passage of the act of 1897; while you
suggest that the importation is presumably in violation of the fur-seal
act of 1897 and the regulations thereunder, so that the importer must
take the burden of proof and produce satisfactory evidence that the
article is not subject to the prohibition and penalty of said act; and,
further, that the importation is also in violation of the
customs-revenue laws (Rev. Stat., sec. 2802), and the acquittal of the
importer in person of the criminal charge under sections 2865 and 3082
would not be a bar to civil proceedings to forfeit the garment under
section 2802.
In reply, I have the honor to say, before addressing myself to the
legal questions, that, as you will observe, I have stated the questions,
particularly the last one, not in the exact language of your
communication, but in accordance with what I understand to be the
purport and intention of your inquiries.
It appears that Pearson was searched and the garment seized and
secured for trial under the authority of section 3061, and that he was
indicted under sections 2865 and 3082, which impose punishment "if any
person * * * smuggle or clandestinely introduce * * * " dutiable goods
(sec. 2865), and "if any person shall * * * import * * * contrary to law
* * * ." Section 3082, containing the latter provision, concludes as
follows:
"Whenever, on trial for a violation of this section, the defendant is
shown to have or to have had possession of such goods, such possession
shall be deemed evidence sufficient to authorize conviction, unless the
defendant shall explain the possession to the satisfaction of the jury."
Section 3082 also provides that the merchandise shall be forfeited,
but section 2865 contains no provision for proceedings in rem.
Under these circumstances it appears to me that the following
proposition from the decision in the case of Coffey v. United States,
supra, is applicable so far as forfeiture under section 3082 is
concerned:
"Yet, where an issue raised as to the existence of the act or fact
denounced has been tried in a criminal proceeding, instituted by the
United States, and a judgment of acquittal has been rendered in favor of
a particular person, that judgment is conclusive in favor of such
person, on the subsequent trial of a suit in rem by the United States,
where, as against him, the existence of the same act or fact is the
matter in issue, as a cause for the forfeiture of the property
prosecuted in such suit in rem."
The decision in this case was cited and approved, with a limited
application, however, in the cases of Boyd v. United States (116 U.S.,
616, 634), and United States v. Zucker, supra, and all three opinions
cite other authorities for the same proposition. As a result, I am of
the opinion that proceedings in rem, founded on the same state of facts
involved in the criminal action and upon the same section of the Revised
Statutes as the indictment, must fail.
But a new element enters into the subject when section 2802 is
brought forward. That section was not directly involved in the criminal
proceedings. The search and seizure were made under section 3061, which
authorizes the search of vehicles, persons, etc., on which or whom it is
suspected there is merchandise subject to duty or such as has been
imported or introduced in any manner contrary to law, and the seizure of
the merchandise for trial is directed. This section does not in itself
expressly warrant forfeiture of such merchandise, but that is perhaps
its sufficient intent and force, especially in connection with section
3062, which specifically makes the vehicles, the coverings of such
merchandise, and other appurtenances subject to forfeiture. The point
appears to be pertinent, because section 2802, which you particularly
suggest, refers only to articles concealed in baggage and not mentioned
in the passenger's entry, which articles shall be forfeited. I am not
required under your request to determine whether the article in the
present case is covered by the phrase "found in the baggage" of the
person arriving within the United States.
Generally, it can not be doubted that, apart from the question of
acquittal on the criminal charge, there is sufficient warrant in the
statutes just reviewed to institute proceedings in rem. Whether the
proceedings would succeed and a verdict be obtained need not at present
be considered.
The question may now be stated thus: If the acts or facts fall short
of smuggling or importation contrary to law, as shown by a verdict of
acquittal on such a charge, and if it is admitted that the verdict bars
the forfeiture provided by one of the sections upon which the criminal
charge was founded, is the Government therefore deprived of all remedy
through civil proceedings in rem, even upon other aspects of the facts
and under other sections of the statutes? In other words, although
Pearson is found not to have smuggled this garment, is he therefore,
ipso facto, relieved from all the relative prohibitions and penalties of
the customs-revenue laws?
An early leading case on the subject is The Palmyra (12 Wheat., 1).
The exact question there was whether in a libel in rem for piratical
aggressions it is necessary to allege or prove the acquittal or
conviction of the person for the criminal offense; and it was held that
this doctrine of the common law was never applied to seizures and
forfeitures created by statute in rem cognizable on the revenue side of
the exchequer. But the following language of the decision embraces in
principle such a case as the present:
"The thing is here primarily considered as the offender, or rather
the offense is attached primarily to the thing. * * * Many cases exist,
where the forfeiture for acts done attaches solely in rem, and there is
no accompanying penalty in personam. Many cases exist, where there is
both a forfeiture in rem and a personal penalty. But in neither class of
cases has it ever been decided that the prosecutions were dependent upon
each other. But the practice has been, and so this court understand the
law to be, that the proceeding in rem stands independent of, and wholly
unaffected by any criminal proceeding in personam."
The references in the decision to the common law rule suggest that
the doctrine of twice in jeopardy has no application to the case,
whether by plea of former conviction or acquittal, because the common
law not only made conviction of the crime conclusive evidence for
forfeiture, but originally required conviction as the only valid ground
of forfeiture.
It is to be noted that there was another forfeiture case against
Coffey (116 U.S., 427) besides the one cited (id., 437), in which it was
adjudged that a count in an information based upon a section of the
statutes included in a previous indictment or criminal information was
good, and that the issue of former conviction thereunder raised by plea
must be held to have been found against the claimant by the general
verdict. Upon the question as to the sufficiency of the information in
the other case this ruling was upheld (id., 442), from which it is to be
inferred that a general verdict against the claimant in the case before
us would find the issue of former acquittal against him, and if based
upon one good count would be sustained. Now, in the Coffey case, cited
on Pearson's behalf, it was distinctly held that the fraudulent acts,
attempts, and intents alleged in the prior criminal information embraced
all the acts, attempts, and intents averred in the forfeiture suit, and
it is upon this premise that the judgment proceeds. The very same acts
or facts had been put in issue and determined once for all against the
United States by the judgment of acquittal in the criminal proceedings,
which ascertained that the facts which were the basis of both
proceedings did not exist. But the court, in stating that this rule as
to the effect of a former acquittal does not apply in an action against
the defendant by an individual, because the parties are not the same,
adds the additional reason that a certain intent must often be proved to
support the indictment which need not be proved to support the civil
action. It is along these lines, in my opinion, that the proper
distinction between the Coffey case and the present one lies, and I
observe that in Coffey's case the court is careful not to answer the
questions whether a conviction on an indictment might not be conclusive
evidence for condemnation in a subsequent suit in rem, and whether
judgment of forfeiture in such a suit might not be conclusive evidence
for conviction under a subsequent indictment.
Further, the leading case of Rex v. The Duchess of Kingston, cited by
the court, makes a prior judgment as a plea, a bar, or, as evidence,
conclusive between the same parties upon the same matter when it is
directly upon the point.
Zucker v. United States, supra, turned upon an entirely different
point from that involved here, although the court therein referred to
the decision in the Coffey case with approval; but the language (161 U.
S., 482) clearly restricts the rule to a case where the offense is
identically the same and both the criminal consequence and the civil
penalty are provided by the same section of the same act.
The general question and the point adjudged in Coffey v. United
States are discussed in numerous decisions in the lower courts,
including United States v. Butler (38 Fed.Rep., 498); United States v.
Three Copper Stills (47 Id., 495); United States v. Olsen (57 Id.,
579); and Stone v. United States (64 Id., 667).
In the case of United States v. Three Copper Stills, Judge Barr
carefully distinguishes the case of Coffey v. United States, upon views
similar to those herein suggested, and holds that a conviction for
illicit distilling is not a bar to proceedings in rem under another
section of the statutes framed to declare and perfect the forfeiture;
that a conviction for removing or selling spirits contrary to law is not
a bar to a conviction for illicit distilling, and that the Fifth
Amendment to the Constitution, declaring that no one shall be twice put
in jeopardy for the same offense, does not apply to proceedings in rem.
United States v. Olsen reviews the previous cases, also distinguishes
Coffey v. United States, and approving the conclusions of Judge Barr,
holds that the forfeiture of a vessel under the act of July 5, 1884, for
an act of the master in landing Chinese laborers in the United States is
not a bar to an indictment against the owner under another section of
the same act.
Stone v. United States also distinguishes the Coffey case, and
decides that an acquittal of a person indicted for unlawfully and
feloniously cutting and removing timber from public lands is not a bar
to an action by the United States to recover the value of such timber;
and quotes the following language from Freeman on Judgments:
"The best and most invariable test as to whether a former judgment is
a par is to inquire whether the same evidence will sustain both the
present and the former action. If this identity of evidence is found, it
will make no difference that the form of the two actions is not the
same. * * * On the other hand, if different proofs are required to
sustain two actions, a judgment in one of them is no bar to the other."
See also United States v. Jaedicke et al. (73 Fed.Rep., 100).
Now, it will be observed that in some of the foregoing cases there
was a previous conviction, in others a previous acquittal, and in one
the criminal proceedings were subsequent to the forfeiture of the res.
But it is evidently a matter of clear inference from the Palmyra case
and the Coffey case that conviction might not only not be a bar, but be
conclusive evidence in favor of condemnation in a subsequent forfeiture
suit. In other words, the nature of the two actions is so far separate
and distinct that the ordinary criminal pleas of autrefois convict or
autrefois acquit are similarly inapplicable.
Applying, then, the reasoning from the foregoing authorities to the
case in hand, we have an acquittal on the charges of smuggling under
section 2865 and illegal importation under section 3082, and it is clear
that this would be a bar to proceedings in rem founded upon the latter
section; but such proceedings founded upon sections 2802 and 3061, read
in the light of section 3062, while the same facts and transactions are
involved, present a separate and distinct offense; in fact, strictly
speaking, they present a civil liability rather than an offense,
especially because these sections do not require a certain criminal
intent, such as must be proved to support an indictment under sections
2865 and 3082, and therefore evidence sufficient for the condemnation
would not sustain the indictment. Hence, as different proofs are
required to sustain the two actions, the judgment in one is no bar to
the other. Moreover, the acquittal was of the crime of smuggling and of
the crime of importing contrary to law, which, in the absence of
authoritative distinction, points out, or at least includes in this
case, the charge of smuggling; and in the case of Keck v. United
States (172 U.S., 434, 448, et seq.), the court, finding that smuggling
as properly defined contemplates the actual landing of goods in
violation of law, holds that acts which might lead up to smuggling or
which might follow the unlawful landing are prohibited as distinct and
separate offenses "entailing in some cases forfeiture of goods and in
others pecuniary penalties and criminal punishments."
Consequently, as generally the connected acts or facts antecedent,
accompanying, or subsequent, which amount to smuggling if the goods are
landed and criminal intent is proved, are nevertheless viewed as
distinct transactions, some being punished as separate crimes or
misdemeanors by imprisonment or fine, and some involving the penalty of
forfeiture in civil proceedings, and as the proof to support a suit in
rem in the present case need not embrace intent (which must, however, be
proved to support an indictment under secs. 2865, 3082), I am of the
opinion under the authorities cited that the acquittal on the criminal
charge is not a bar to proceedings in rem under sections 2802 and 3061.
In short, the verdict determined that criminality under sections 2865
and 3082 did not exist in Pearson's acts; but did not ascertain,
respecting sections 2802 and 3061 as a basis for forfeiture, that the
acts or facts did not exist.
The other question presented under the fur-seal act of 1897 is
entirely separate. If that act applies at all to this case, the remedy
provided is concurrent with or cumulative to that provided by the
customs revenue laws. Importation of fur-seal skins under the act of
1897 is not in violation of the customs revenue laws, and neither the
remedy provided by that act nor the remedy under the customs statutes is
exclusive. That is, I do not perceive any reason for thinking that the
Government is put to its election as between the respective laws, unless
the positive, mandatory, and radical provisions of the act of 1897
require the election of the remedy under section 9 of that act wherever
it is applicable. But is that act applicable? It may be that the
conclusion which I have reached on the other branch of the case will
relieve me in your view from pursuing the inquiry.
Nevertheless the reason just suggested renders apt a brief consideration
of the subject.
Section 9 of the act of December 29, 1897, provides:
"That the important into the United States by any person whatsoever
of fur-seal skins taken in the waters mentioned in this act, whether
raw, dressed, dyed, or manufactured, is hereby prohibited, and all such
articles imported after this act shall take effect shall not be
permitted to be exported, but shall be seized and destroyed by the
proper officers of the United States."
Article 1 of the regulations based upon this act provides:
"One. No fur-seal skins, whether raw, dressed, dyed, or otherwise
manufactured, shall be admitted to entry in the United States, unless
there shall be attached to the invoice a certificate, signed by the
United States consul at the place of exportation, that said skins were
not taken from seals killed within the waters mentioned in said act,
specifying in detail the locality of such taking, whether on land or at
sea, and also the person from whom said skins were purchased in their
raw and dressed state, the date of such purchase, and the lot number.
Consuls shall require satisfactory evidence of the truth of such facts
by oath or otherwise before giving any such certificate.
"No fur-seal skins, raw, dressed, dyed, or otherwise manufactured
shall be admitted to entry as part of a passenger's personal effects
unless accompanied by an invoice certified by the consul as herein
provided.
"All fur-seal skins, whether raw, dressed, dyed, or otherwise
manufactured, the invoices of which are not accompanied by the
certificate above prescribed, shall be seized by the collector of
customs and destroyed as provided for in section 9 of the act of
December 29, 1897."
The remaining articles require a certain method of proof of the
origin of the skins, an investigation of the proofs presented to a
consul at the foreign port, and an examination at the public stores of
skins, whether imported as merchandise or as part of the passenger's
effects, to prevent evasion of the law. There is also a provision for
the reentry of seal-skin garments and presentation of a certain
certificate of ownership obtained by the owner before leaving this
country, and nothing in the regulations is to affect the right of a
customs officer to inspect and seize any fur-seal skin or garment
imported which he may find to have been imported in violation of the
act.
The first step in the inquiry on any such case is the consideration
of the evil to be remedied, and the evil which this act seeks to prevent
is the killing of fur seals in certain waters of the North Pacific
Ocean. It is to be noticed that section 9 applies to "any person
whatsoever" and to all fur-seal skins "imported after this act shall
take effect."
Now, in view of the attitude and claims of the United States
regarding fur seals taken in the waters in question, it might be
contended that the clearly mandatory provisions of the act and of the
regulations thereunder apply to any person who enters the territory of
the United States with such articles in his possession, although he may
be innocent of the intent to violate the law and may be ignorant of its
provisions, and may allege with truth that such innocence and ignorance
should protect him, because he has not in fact imported the article into
the United States, but is merely in transit to his home in a foreign
country, and is therefore entitled to export it in bond. In other words,
the inquiry is, whether the general purpose of the act of 1897 for the
protection of fur seals gives it such effect as to embrace within its
provisions fur-seal skins casually brought into the United States by
citizens or subjects of other powers who do not intend to dispose of the
skins or the garments into which they are manufactured in this country,
but are merely in transit with the same to or from their homes in
foreign territory.
The statement itself of this question perhaps suggests that an
affirmative answer would give too broad a scope to the act of 1897, but
I merely formulate the entire inquiry and do not undertake herein to
answer for the reason, as suggested, that an answer may not now be
necessary. I observe, however, that the solution of the matter turns on
the meaning to be given to the word "importation" in section 9 of the
act-- whether it shall be held to mean on the one hand a bare arrival of
goods within the limits of a port of entry (United States v. Vowell, 5
Cr., 368; Arnold v. United States, 9 Cr., 104) with the intention to
unlade (United States v. Ten Thousand Cigars, 2 Curt., 436; Harrison v.
Vose, 9 How., 372, 381; United States v. Lyman, 1 Mason, 499; McLean
v. Hager, 31 Fed.Rep., 602, 606; The Schooner Mary, 1 Gall., 206) or,
on the other hand, shall be held to mean such an arrival of goods with
the further intention of disposing of them by sale or otherwise within
the country.
The decisions just cited refer to merchandise shipped in the ordinary
course of trade for sale and consumption or use within the territory,
rather than to effects accompanying a traveler; although, of course, it
is obvious that any general relaxation of definitions in favor of
travelers, even if not forbidden by existing law, only increases the
opportunities for evasion of law which naturally exist respecting
travelers' effects. As to the administrative practice, it appears from
your letter of March 14 and its inclosure that the Treasury Department,
while applying, without express limitation to residents, the rule that
women's wearing apparel brought by a man is not free of duty as personal
effects (S. 18448), and applying, also without such limitation, to
"passengers departing from and arriving within the United States,"
Regulations I-V of Treasury Circular No. 55, dated April 10, 1899,
nevertheless inclines to the recognition of such a case as the present
one as matter of transit rather than of importation by permitting
Canadians owning seal-skin garments and going abroad through the United
States to forward such garments for transit in sealed crates from points
in Canada just across the line; and, further, if residents of Canada or
other foreign countries returning en route to their homes have not
obtained a certificate of ownership under the regulations before
departure abroad (as many such travelers do), and do not produce the
required invoice certified by a United States consul, they are required
to give other satisfactory evidence of ownership and origin of the seal
skins of like character with that demanded from returning residents of
the United States who are without a certificate or certified invoice.
That is, the garment is inspected with reference to its apparent age,
etc., in order to determine to the satisfaction of the officer whether
under the law it should be detained for further proof or ultimate
destruction, or may be released.
But it seems that while a passenger en route to Canada, in the absence
of satisfactory evidence of origin of the skins, would not be permitted
to retain the garment in his possession while within this country, yet
if it is found within his baggage the package may be forwarded to the
port of exit under bonded carriage.
I infer from these facts and rules that you possess practically a
certain administrative discretion on the subject, and may not only
receive from any owner who is a returning traveler other evidence of
origin of the skins of which a garment accompanying him or her is
manufactured than a certificate of ownership or a certified consular
invoice, but, if you are satisfied that there was no intention to
violate the customs-revenue laws or the act of 1897, may allow the
foreigner passing through this country to transport and export in bond a
fur-seal garment, although the skins of which it is manufactured, while
not intended to remain in this country, may not be proved to have been
taken in other waters than those specified in the act of 1897 or before
the act took effect.
I am, however, clearly of opinion that if the act of 1897 is
applicable to Pearson's case, and is invoked by you, the burden of proof
thereunder rests and remains upon the claimant. Neither the acquittal on
the charge of smuggling nor any other proceeding under the
customs-revenue laws has the effect of shifting the burden of proof in
the entirely distinct and different proceedings, summary and executive
rather than judicial, provided by section 9 of the act of 1897.
Very respectfully,
JOHN W. GRIGGS.
STAMP TAX ON CALL LOANS; 23 Op.Att'y.Gen. 53, March 20, 1900
Written or printed agreements between a borrower and a bank whereby
all securities deposited as collateral to any loan or indebtedness of
the former shall also be held as security for any other liability of the
borrower to said bank, whether then existing or thereafter contracted,
are not taxable under the head "Mortgage and pledge," in Schedule A of
the war-revenue act of 1898 (30 Stat., 461).
In order to render such an agreement taxable, the property pledged
must be so definitely described therein as to be capable of
identification, and the amount for which it is pledged definitely set
forth in the instrument itself, or made certain by reference to some
other paper.
If stock is hypothecated simply by the delivery of the certificates,
or is deposited as the basis of credit without a mortgage or other
instrument being executed, no tax thereon, collectible by the affixing
and cancellation of an adhesive documentary stamp, can be imposed.
The provision named does not impose a tax upon anything which is not
written or printed.
Stock pledged as security for loans would be taxable under the first
paragraph of Schedule A, if accompanied by any paper or agreement or
memorandum or other evidence of transfer such as is contemplated by the
statutes.
The rule of construction in tax laws is that if there is doubt as to
the liability of any instrument to taxation, the construction is in
favor of its exemption.
DEPARTMENT OF JUSTICE,
March 20, 1900.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of yours of
November 10, 1899, inclosing copy of a letter received by you from the
Commissioner of Internal Revenue, in which you ask my opinion upon the
two following questions:
"First. Whether the transaction detailed in his (the Commissioner's)
letter is subject to tax as a pledge under the provisions of the
paragraph in Schedule A headed 'Mortgage or pledge.'
"Second. If your opinion should be in the negative on the first
proposition, your opinion is requested as to whether stock pledged as
security for loans may not properly be taxed under the first paragraph
of Schedule A."
Accompanying the Commissioner's letter is a copy of an instrument,
which is as follows, and which presents the facts involving the
transaction upon which the opinion is desired:
"Know all men by these presents, that the undersigned, in
consideration of financial accommodations given, or to be given, or
continued to the undersigned by . . . National Bank of the city of New
York, hereby agree with the said bank, that whenever the undersigned
shall become or remain, directly or contingently, indebted to the said
bank for money lent, or for money paid for the use or account of the
undersigned, or for any overdraft or upon any indorsement, draft,
guaranty, or in any manner whatsoever, or upon any claim, the said bank
shall then and thereafter have the following rights, in addition to
those created by the circumstances from which such indebtedness may
arise against the undersigned, or his, or their executors,
administrators or assigns, namely:
"First. All securities deposited by the undersigned with said bank,
as collateral to any such loan or indebtedness of the undersigned to
said bank, shall also be held by said bank as security for any other
liability of the unders undersigned to said bank, whether then existing
or thereafter contracted; and said bank shall also have a lien upon any
balance of the deposit account of the undersigned with said bank
existing from time to time, and upon all property of the undersigned of
every description left with said bank for safe-keeping or otherwise, or
coming to the hands of said bank in any way, as security for any
liability of the undersigned to said bank now existing or hereafter
contracted.
"Second. Said bank shall at all times have the right to require from
the undersigned that there shall be lodged with said bank as security
for all existing liabilities of the undersigned to said bank, approved
collateral securities to an amount satisfactory to said bank; and upon
the failure of the undersigned at all times to keep a margin of
securities with said bank for such liabilities of the undersigned,
satisfactory to said bank, or upon any failure in business or making of
an insolvent assignment by the undersigned, then and in either event all
liabilities of the undersigned, to said bank shall at the option of said
bank become immediately due and payable, notwithstanding any credit or
time allowed to the undersigned by any instrument evidencing any of the
said liabilities.
"Third. Upon the failure of the undersigned either to pay any
indebtedness to said bank when becoming or made due, or to keep up the
margin of collateral securities above provided for, then and in either
event said bank may immediately without advertisement and without notice
to the undersigned, sell any of the securities held by it as against any
or all of the liabilities of the undersigned, at private sale or
broker's board, or otherwise, and apply the proceeds of such sale as far
as needed toward the payment of any or all such liabilities, together
with interest and expense of sale, holding the undersigned responsible
for any deficiency remaining unpaid after such application.
If any such sale be at broker's board or at public auction, said bank
may itself be a purchaser at such sale free from any right or equity of
redemption of the undersigned, such right and equity being hereby
expressly waived and released. Upon default as aforesaid, said bank may
also apply toward the payment of the said liabilities all balances of
any deposit account of the undersigned with said bank then existing.
"It is further agreed that these presents constitute a continuing
agreement, applying to any and all future as well as to existing
transactions between the undersigned and said bank.
" . . . . . . .
"Dated New York, the . . . day of . . . , 189-- ."
I think that I sufficiently answered the first question in the
opinion which was rendered to you on the 21st of September, 1898 (22
Opin., 218). The instrument upon which the opinion was based in that
case differed from the one now under consideration in that, in the
outset, that instrument contained a promissory note signed by the
borrower; then stipulated in express terms that the borrower had
deposited with, and pledged to, the company from which the money was
borrowed, and to which the note was given, as collateral security for
the payment of the note, a certain number of shares of stock described
in the said instrument. Following this express pledge of the said stock
as security for the payment of a definite and certain sum of money,
evidenced by the said note, were further stipulations in the said
instrument, substantially the same as those contained in the instrument
of which the above is a copy.
In the opinion referred to, I advised you that my construction of the
law led me to the conclusion that the transaction was stampable only in
so far as the property described was made security for the payment of a
definite and certain sum of money, to wit, that sum which was evidenced
by the note which was a part of the transaction. I reiterate what I said
in my previous opinion, that any mortgage or other written instrument by
which property is made security for the payment of a definite and
certain sum of money, lent at the time or previously due and owing or
forborne to be paid, being payable, is, together with the other papers
relating thereto, taxable as one transaction under the paragraph of
Schedule A of the war-revenue act headed "Mortgage or pledge" (30 Stat.,
461), and the amendment thereto of February 28, 1899 (30 Stat., 1390).
I do not think it necessary to discuss the question raised in some of
the briefs filed in this matter as to whether shares of stock are
"movable personal property," because the language of the statute is as
follows:
"Mortgage or pledge, of lands, estate, or property, real or personal,
heritable, or movable, whatsoever."
This is broad enough to include anything which is the subject of
ownership, and, therefore, if shares of stock or other securities are
conveyed by mortgage or other written instrument as security for the
payment of a definite and certain sum of money, such transaction is
taxable under the provision of the war-revenue act above cited, and the
stamp or stamps required to pay the tax must be affixed to the papers,
or some one of them, which constitute the evidence of the transaction.
In order, however, to bring the transaction within the purview of the
statute, it is my opinion that the property conveyed in the mortgage or
pledge must be so definitely described therein as to be capable of
identification from such description in case of foreclosure, and the
amount for which the mortgage or pledge is operative must be a definite
and certain sum set forth on the face of the instrument itself, or made
certain by reference to some other paper in which the sum secured to be
paid is specifically stated and which constitutes a part of the
transaction.
If stock is hypothecated as security for the payment of money simply
by the delivery of the certificates to the lender, or deposited as a
basis of credit without a mortgage or other written instrument being
executed or made, whereby the said stock is pledged to secure the
payment of a definite and certain sum of money, it is my opinion that no
tax collectible by the affixing and cancellation of an adhesive
documentary stamp can be imposed.
The taxes provided for under Schedule A of the war-revenue act are
stamp taxes, and the method provided for the collection of said taxes is
by the affixing of stamps to instruments, papers, or documents, and for
this reason the stamps issued for the payment of taxes under Schedule A
are called "documentary stamps."
In section 6 of the war-revenue act it is provided--
"That on and after the first day of July, eighteen hundred and
ninety-eight, there shall be levied, collected, and paid, for and in
respect of the several bonds, debentures, or certificates of stock and
of indebtedness, and other documents, instruments, matters, and things
mentioned and described in Schedule A of this act, or for or in respect
of the vellum, parchment, or paper upon which such instruments, matters,
or things, or any of them, shall be written or printed by any person or
persons, or party who shall make, sign, or issue the same." * * *
It will be seen that by this provision, the tax is levied in respect
of the things described themselves, or of the vellum, parchment, or
paper upon which they are written or printed. I see no provision which
indicates that any tax is imposed upon anything which is not written or
printed, and, the tax being collectible through the instrumentality of
adhesive stamps, the statute contemplates that such stamps shall be
affixed to the vellum, parchment, or paper upon which the instruments
are written or printed.
And further, in section 7, it is enacted--
"That if any person or persons shall make, sign, or issue, or cause
to be made, signed, or issued, any instrument, document, or paper of any
kind or description whatsoever, without the same being duly stamped for
denoting the tax hereby imposed thereon, or without having thereupon an
adhesive stamp to denote said tax, such person or persons shall be
deemed guilty of a misdemeanor," etc.
Now, what constitutes the offense under this section? Undoubtedly,
it is the making, signing, or issuing, or causing to be made, signed, or
issued, of instruments, documents, or papers without the same being duly
stamped, or without having thereupon-- that is, on the instrument,
document, or paper-- an adhesive stamp to denote the tax.
Section 14 of the act provides that-- "no instrument, paper, or
document required by law to be stamped, which has been signed or issued
without being duly stamped, * * * shall be recorded or admitted, or used
as evidence in any court, etc.;" and section 15 forbids the recording or
registration of any instrument or paper or document required to be
stamped unless the stamp is affixed and canceled.
Section 16 is to the effect that no instrument, paper, or document
required by law to be stamped shall be deemed or held invalid and of no
effect for the want of a particular kind or description of stamp
designated for and denoting the tax on such instrument, paper, or
document, provided a legal documentary stamp or stamps denoting the
necessary tax shall have been duly affixed and used thereon.
There are certain transactions upon which a tax is imposed under the
provisions of the war-revenue act in which the act itself requires the
making of the instrument or paper to which the stamp is to be affixed.
For instance, as to common carriers, the law provides that when goods
are accepted for transportation, a bill of lading shall be given by the
carrier, and upon this bill of lading a 1-cent stamp shall be affixed;
and it is made a misdemeanor not to give the bill of lading, and also a
misdemeanor to give the bill of lading without the stamp. Also in case
of sales, or agreements of sale, or agreements to sell, any products or
merchandise at any exchange or board of trade or any similar place, the
seller is required to make and deliver to the buyer a bill, memorandum,
agreement, or other evidence of such sale, agreement of sale, or
agreement to sell, and the stamp denoting the payment of the tax is to
be affixed to this. A similar provision will be found in the case of an
agreement to sell stock, or where the transfer is by the delivery of the
certificate assigned in blank. The seller is required to deliver to the
buyer a bill or memorandum of the sale with stamp affixed.
There is a further provision in regard to the sale of stocks, that
where the the transfer is made upon the books of the company, then the
stamp must be placed upon the transfer entry on the book, and where the
change of ownership is evidenced by the transfer certificate, the stamp
shall be affixed to the certificate.
I have cited these various provisions and requirements in the
war-revenue act in order to show that wherever a documentary tax, to be
paid by the use of an adhesive stamp, is provided for, it contemplates
the making, signing, or issuing of some instrument or paper to which the
stamp can be attached.
There are certain instruments and papers required by the war-revenue
act to be stamped, if such instruments or papers are made or executed;
but there is no provision of the law requiring them to be made. For
example, is A loans B $1,000, and B gives a note for it, he is required
to affix revenue stamps to the value of 20 cents. But if A lends him the
money and does not elect to take a note, then B does not have to pay the
tax. The same may be said of a lease or contract for the hire of land.
If the lease is in writing, then a documentary stamp must be placed upon
it; but there is no law which requires the lessor to put the lease in
writing. He can make an oral lease if he sees proper and thereby escape
the payment of the tax.
I therefore conclude that no tax collectible by the use of an
adhesive documentary stamp can be imposed, unless an instrument, paper,
document, or writing, falling within some one of the descriptions given
in the act, is executed, made, signed, or issued, to which the stamp
denoting the payment of the tax is to be affixed. The paper under
consideration does not, in my opinion, meet the requirements necessary
to constitute a mortgage or pledge such as is taxable under that head in
the war-revenue act. It does not convey or pledge any property capable
of identification from the paper itself, nor is any property, so far as
appears in the paper, made security for the payment of any definite and
certain sum of money lent at the time or previously due and owing or
forborne to be paid, being payable.
In your second question you inquire whether stock pledged as security
for a loan may not properly be taxed under the first paragraph of
Schedule A, which is as follows:
"Bonds, debentures, or certificates of indebtedness issued after the
first day of July, anno Domini eighteen hundred and ninety-eight, by any
association, company, or corporation, on each hundred dollars of face
value or fraction thereof, five cents, and on each original issue,
whether on organization or reorganization, of certificates of stock by
any such association, company, or corporation, on each hundred dollars
of face value or fraction thereof, five cents, and on all sales, or
agreements to sell, or memoranda of sales or deliveries or transfers of
shares or certificates of stock in any association, company, or
corporation, whether made upon or shown by the books of the association,
company, or corporation, or by any assignment in blank, or by any
delivery, or by any paper or agreement or memorandum or other evidence
of transfer or sale whether entitling the holder in any manner to the
benefit of such stock, or to secure the future payment of money or for
the future transfer of any stock, on each hundred dollars of face value
or fraction thereof, two cents:
Provided, That in case of sale where the evidence of transfer is shown
only by the books of the company the stamp shall be placed upon such
books; and where the change of ownership is by transfer certificate the
stamp shall be placed upon the certificate; and in cases of an
agreement to sell or where the transfer is by delivery of the
certificate assigned in blank there shall be made and delivered by the
seller to the buyer a bill or memorandum of such sale, to which the
stamp shall be affixed; and every bill or memorandum of sale or
agreement to sell before mentioned shall show the date thereof, the name
of the seller, the amount of the sale, and the matter or thing to which
it refers." * * *
The Commissioner in his letter calls particular attention to the
following language in the above paragraph: "or by any delivery, or by
any paper or agreement or memorandum or other evidence of transfer or
sale whether entitling the holder in any manner to the benefit of such
stock, or to secure the future payment of money or for the future
transfer of any stock, on each hundred dollars of face value or fraction
thereof, two cents;" and asks if the delivery of certificates of stock
to secure the future payment of money is not a taxable transaction under
this provision.
My opinion is that it would be if the delivery of the stock were
accompanied by any paper or agreement or memorandum or other evidence of
transfer such as contemplated by the statute.
But I can not construe this act to mean that the mere hypothecation of
certificates of stock by depositing the same without any written or
printed instrument of hypothecation, although the same may be held as
security for the payment of a loan or taken as a basis of credit, is
subject to stamp tax.
The language of this paragraph is involved, and presents difficulties
of construction which are insurmountable if we attempt to give a clear
and precise meaning to every clause. The rule of construction in tax
laws is that if there is doubt as to the liability of any instrument or
other thing to taxation, the construction is in favor of the exemption,
because a tax can not be imposed without clear and express words for
that purpose. (United States v. Isham, 17 Wall., 503.)
An analysis of the language under consideration reduces the provision
which is supposed to cover the deposit of stock certificates as security
for loans to this:
"On all sales * * * made * * * by any delivery * * * to secure the
future payment of money * * * on each hundred dollars of face value * *
* two cents."
The subsequent language of the proviso indicates that the kind of
sales intended is such only as possess the incident of a definite price:
"And in cases of an agreement to sell or where the transfer is by
delivery of the certificate assigned in blank there shall be made and
delivered by the seller to the buyer a bill or memorandum of such sale,
to which the stamp shall be affixed; and every bill or memorandum of
sale or agreement to sell before mentioned shall show the date thereof,
the name of the seller, the amount of the sale, and the matter or thing
to which it refers."
This would not be applicable to mere deposits of stocks to remain as
collateral for indebtedness, where no price is fixed, and where there is
in no sense a sale effected. There is nothing in the act requiring an
appropriate memorandum of a mere deposit of that kind, and in the
absence of such a memorandum in writing, there is no subject of taxation
clearly and definitely indicated by the act, and hence the transaction
will not, under the rule above cited, be taxable.
Aside from this, we have a right to assume that the legislature
intended to use the term "delivery" in its legal, technical sense.
Chancellor Kent, in his Commentaries, vol. 2, p. 439, says, in treating
of the subject of delivery: "If the thing given be a chose in action,
the law requires an assignment, or some equivalent instrument, and the
transfer must be actually executed;" and in Bouvier's Law Dictionary it
is said: "To constitute a legal delivery it is necessary that all
present and future dominion over the thing delivered pass from the
person making the delivery."
In my opinion it is entirely consistent with the provisions of the
act under consideration to apply this meaning to the term "delivery,"
and to hold that, in order to constitute a stampable transaction, the
delivery of certificates of stock must be accompanied by some
assignment, transfer, or agreement in writing such as is described in
the statute.
Very respectfully,
JAS. E. BOYD,
Assistant Attorney-General.
Approved.
JOHN W. GRIGGS.
CUSTOMS DUTIES-- CHAMPAGNE-- MAGNUMS; 23 Op.Att'y.Gen. 48, March 19,
1900
In determining the rate of duty to be imposed on champagnes, wines,
and other liquors under the tariff act of July 24, 1897 (30 Stat., 174),
paragraph 295 of that act should be read in conjunction with paragraph
296. The former paragraph fixes the rate of duty to be imposed upon all
wines included within the class therein named, when imported in legal
packages; while the second provison of the latter paragraph determines
the rate of duty on all wines and other liquors when imported in other
than legal packages.
"Magnums" are only bottles of an especially large size, and are as
clearly embraced in the expression "bottles or jugs" in the second
proviso of paragraph 296, as in the expression "other vessels" in
paragraph 295.
The word "wines" as used in the second proviso to paragraph 296,
being used without limitation, the provisions of that paragraph are
applicable to champagnes, notwithstanding the special champagne
provisions contained in paragraph 295.
The proper duty to be collected upon the magnums involved in this
inquiry, is a duty of $8 for each magnum, without any excess duty, but
with the statutory duty added for the bottle, as if imported empty.
DEPARTMENT OF JUSTICE,
March 19, 1900.
The SECRETARY OF THE TREASURY.
SIR: Your communication of March 8, 1900, transmits a letter from
the Acting Auditor for the Treasury Department, with a warehouse entry
from Puget Sound and other papers relating to an importation of two
double magnums of champagne containing 1 gallon each, and each
separately packed in a case. You inform me that each case of one double
magnum or bottle was assessed for duty at $8, as though it contained 12
bottles, and at the rate of $2.50 per gallon on the excess of 3 quarts
in each bottle, in accordance with paragraph 295 as read in conjunction
with the second proviso of paragraph 296 of the act of July 24, 1897.
You ask for an expression of my views as to the scope and operation
of these paragraphs upon the question whether "paragraph 295, wherein
provision is made for 'champagne and all other sparkling wines,' should
be read independently of or in conjunction with paragraph 296, which
relates to 'still wines,' etc., particular reference being had to the
second proviso thereof, in which the manner of packing 'wines, cordials,
brandy, and other spirituous liquors,' etc., is prescribed." And upon
the question whether "if the proviso in question be held applicable to
paragraph 295, the duty on the quantity in excess of 1 quart at the rate
of $2.50 per gallon should be estimated on the actual quantity contained
in the bottle imported in excess of 1 quart, or upon a fictitious or
constructive excess computed on the capacity of a dozen bottles of the
size of the one imported."
Paragraph 295 of the act of 1897 taxes at $8 per dozen champagne and
all other sparkling wines in bottles containing not more than 1 quart
and more than 1 pint, and at less rates in bottles of smaller capacity,
and then provides:
"In bottles or other vessels containing more than one quart each, in
addition to $8 per dozen bottles, on the quantity in excess of 1 quart,
at the rate of $2.50 per gallon; but no separate or additional duty
shall be levied on the bottles."
The language of paragraph 296 applies only to still wines and other
liquors specifically mentioned in the first lines thereof, until the
provisos are reached.
The first proviso is not now involved. The second provison, so far as we
are concerned with it at present, is as follows:
* * * "Wines, cordials, brandy, and other spirituous liquors * * *
imported in bottles or jugs shall be packed in packages containing not
less than one dozen bottles or jugs in each package, or duty shall be
paid as if such package contained at least one dozen bottles or jugs,
and in addition thereto duty shall be collected on the bottles or jugs
at the rates which would be chargeable thereon if imported empty." * * *
In reply, I have the honor to state at the outset that I think there
is no doubt that "magnums" are only bottles of an especially large size,
and are as clearly embraced in the expression "bottles or jugs" in the
second proviso of paragraph 296 as in the expression "other vessels" in
paragraph 295 (see definition of "magnum" in Standard and Century
dictionaries); and I have no doubt that the first word in the quoted
portion of the second proviso being "wines," without limitation, the
provisions thereof are applicable to champagnes, notwithstanding the
special champagne provisions, complete under ordinary circumstances, of
paragraph 295.
The assumption of paragraph 295 is that the bottles or other vessels
shall be in a legal package of not less than a dozen bottles, and in
that condition the quantity in excess of 1 quart in the separate bottles
shall be taxed at the rate of $2.50 per gallon in addition to the rate
per dozen; and no separate or additional duties shall be levied on the
bottles. Where, however, any wine is packed in packages containing less
than a dozen bottles, duty must be paid as if the package contained at
least 1 dozen bottles, and, in addition, duty shall be collected on the
bottles at the rates chargeable if imported empty. In short, paragraph
295 applies to legal packages of champagne, and when packages of
champagne as well as of other wines are not packed in accordance with
the requirements of the law, then the second proviso of paragraph 296
applies the additional duty, or the penalty-- if it is to be so
regarded. I therefore answer your first question by stating that in my
opinion paragraph 295 should be read in conjunction with the second
proviso of paragraph 296.
The real question, however, is as to the effect to be given to the
second proviso when read in conjunction with paragraph 295. It evidently
requires the imposition of duty upon a package containing less than a
dozen quart bottles, or bottles of a larger capacity, at what may be
called the standard rate for 12 bottles of such sizes-- namely, $8--
which was the rate properly assessed in the present case upon each
package containing one double magnum. But does the law, which recurs now
to the concluding portion of paragraph 295, require the excess duty to
be levied unless there is an actual excess in quantity over that
contained in a dozen quart bottles-- namely, 3 gallons? Must the excess
duty be levied on the actual quantity in excess of 1 quart in each
bottle of larger size, although the total contents of the bottle or
bottles in the package may not exceed 3 gallons; or on what you have
termed the fictitious or constructive excess, based either on the
assumption that the lacking number of bottles, so to speak, are quarts
as a supposed standard of capacity, or, on the other hand, are of the
size of the one actually imported? I think the law does not compel
either one of these three alternatives. It is my opinion that when the
duty of $8 has been levied on a package of less than a dozen bottles of
champagne of the quart size or larger, as the statutory tax or penalty
on an illegal package, the requirements of the law have been fully
satisfied, unless, irrespective of the number of bottles, as less than a
dozen, or of the size thereof, as greater than quarts, there is in all a
larger quantity of wine in the package than 3 gallons, the contents of a
dozen quarts. In the case of double magnums the $8 rate, therefore,
would carry a package containing three bottles, and the taxing of excess
per gallon would attach if the package contained four or more double
magnums. The excess duty would apply in any case in which there was a
quantity in the package in excess of 3 gallons, whatever the size of the
vessels larger than quarts, for of course there might be such packages
of less than a dozen bottles in which not all the containers were double
magnums or of one size.
Consequently, in this case the proper rate of duty on each package
appears to be $8, without any excess duty, but with the statutory amount
added for the bottle as if imported empty, because, as the second
proviso of paragraph 296 applies (with the restricted operation now set
forth), there appears to be no question that the concluding clause
thereof is applicable, notwithstanding the concluding clause of
paragraph 295.
I speak of the "restricted operation" which my construction gives the
statutes before us, because I am aware that in Sny. Dec., 15516 and
17487-- A. A., 3626, regarding spirituous liquors under the similar
provisions of the act of 1894, it is held that the constructive or
estimated excess should be taken into account and be computed on the
basis of a dozen bottles of the size of the one imported. But the rule
that packages of less than a dozen bottles should be taxed as if they
contained a dozen bottles first appeared in the act of 1894, and I am
not of opinion that the departmental construction has been so long
continued or become so fixed as to establish the proper construction of
the law.
Decision 21202, which arose under the act of 1897, does not affect
this case, because it merely decided that an importation of two cases,
each containing six magnum bottles of champagne, which were fastened
together by wooden straps so as to constitute one package, was properly
packed under paragraph 296; but the decision suggests that it might be
impracticable to pack in legal packages bottles of abnormal size.
What I have said sufficiently answers your second question, and a
categorical answer would not be apt, especially for the reason that you
do not submit therein, as another possible alternative, the conclusion
which I have reached.
Finally, I will restate this conclusion as follows: In my opinion it
gives due effect both to paragraph 295 and to the second proviso of
paragraph 296 to hold that when the importer in such a case as the
present pays $8 per package, contained therein up to three gallons,
whatever may be the condition of the package respecting the number of
bottles therein being less than 12, or respecting the capacity thereof
being larger than quarts.
It is true that paragraph 295 applies the excess duty, where the
bottles contain more than one quart each, "on the quantity in excess of
one quart," and this language may be construed to require the duty on
each such bottle, irrespective of the number or the aggregate contents.
But the view I take of the meaning and intent of these statutes-- that
the main contemplation of paragraph 295 is directed to the normal number
of twelve bottles, and the contemplation of the proviso to the penalty
of the dozen rate merely for a short package, and not to the extreme
extent of that penalty as brought out by such a case as the present
one-- is at least equally consistent with the terms of the law. If any
further justification for that view is needed, it will be found in the
doctrine that an absurd or unreasonable result is not to be drawn from a
statute unless plainly required by its language. That such a result
would be reached in this case is shown by the fact that if the most
extreme of the alternatives is adopted (and no reason is perceived for
stopping short of that, as it is the logical goal), the duty on each of
the double magnums of champagne in this importation, upon which the
dutiable value was entered as $2.60, which is presumably somewhere near
the cost to the importer, would be rather more than $30.50.
Very respectfully,
JOHN K. RICHARDS,
Acting Attorney-General.
IMPORTED LEAD ORES-- REEXPORTATION-- DUTIES; 23 Op.Att'y.Gen. 46,
March 16, 1900
The six months within which the refined metal produced from imported
lead-bearing ores must be reexported or the regular duties paid thereon,
under section 29 and paragraph 181 of the tariff act of July 24, 1897
(30 Stat., 166), means within six months from the date of the receipt of
the ore by the manufacturer at his bonded smelting establishment, and
not within six months from the date of the receipt of the ore at its
port of entry.
DEPARTMENT OF JUSTICE,
March 16, 1900.
The SECRETARY OF THE TREASURY.
SIR: In your communication of the 10th instant, after referring to
my opinion of December 29, 1898, to the effect that when refined lead
produced from imported lead ore, and set aside under the provisions of
section 29 of the act of July 24, 1897, is not exported within six
months from the receipt of the ore, the regular duties must be paid on
the ore, you inclose certain correspondence presenting a question which
has arisen in the course of the administration of the provisions of this
section, namely, "Whether the six months should be computed from the
date of the receipt of the ore at the first port of arrival in the
United States, or from the date of its receipt at the bonded smelting
establishment," and request my opinion thereon.
Paragraph 181 of the act of July 24, 1897, provides:
"Lead-bearing ores of all kinds, one and one-half cents per pound on
the lead contained therein: Provided, That on all importations of
lead-bearing ores the duties shall be estimated at the port of entry,
and a bond given in double the amount of such estimated duties for the
transportation of the ores by common carriers bonded for the
transportation of appraised and unappraised merchandise to properly
equipped sampling or smelting establishments, whether designated as
bonded warehouses or otherwise. On the arrival of the ores at such
establishments they shall be sampled according to commercial methods
under the supervision of Government officers, who shall be stationed at
such establishments, and who shall submit the samples thus obtained to a
Government assayer, designated by the Secretary of the Treasury, who
shall make a proper assay of the sample, and report the result to the
proper customs officers, and the import entries shall be liquidated
thereon, except in case of ores that shall be removed to a bonded
warehouse to be refined for exportation as provided by law.
And the Secretary of the Treasury is authorized to make all necessary
regulations to enforce the provisions of this paragraph."
It is to be observed that the duties are estimated at the port of
entry and a bond given for the transportation of the ore by bonded
carriers to sampling or smelting establishments. "On the arrival of the
ores at such establishments," they are sampled by Government officers
stationed there, the samples assayed and a report of the result made to
the customs officers, in order that the duties may be ascertained and
the entries in proper cases liquidated.
Section 29 provides, primarily, a method for sampling imported ores
in bonded warehouses for exportation without payment of duties.
Incidentally, there is a provision for the removal of the refined metal
for domestic consumption, upon entry and payment of duties. The ore is
removed in original packages or in bulk from the vessel or vehicle on
which imported into the bonded establishments, where, under the
supervision of Government officers, it is smelted and refined, for
exportation or domestic consumption. At the end of the section is to be
found this proviso:
"Provided further, That in respect to lead ores imported under the
provisions of this section, the refined metal set aside shall either be
reexported or the regular duties paid thereon within six months from the
date of the receipt of the ore."
"The date of the receipt of the ore" governs, but the receipt by whom
and where? Evidently by the manufacturer who has imported it for
smelting purposes and at the establishment bonded for such purpose.
Within six months after the ore has been received by the manufacturer at
his smelting establishment, he must export the refined metal produced
from it or pay the regular duties upon the ore, which are ascertained by
a Government assay of samples obtained after the receipt of the ore at
the smelter. If Congress had meant the date of the receipt of the ore at
the port of entry, would it not have used the words "the date of
importation," which are used elsewhere in this section?
If possible, the law should be construed so as to treat all persons
engaged in smelting imported ore alike, and this can only be done by
computing the six months period from the date of the receipt of the ore
at the smelter. To construe the law otherwise, to take the date of
arrival at the port of entry as the date of the receipt of the ore, is
to discriminate in favor of smelting establishments located near ports
of entry as against those located in the interior. That Congress had in
mind the existence of smelting establishments located in the interior
clearly appears from the provisions for the transportation of ore in
bond to such establishments.
Respectfully,
JOHN K. RICHARDS,
Acting Attorney-General
OBSTRUCTION TO NAVIGATION-- CONTRIBUTORY NEGLIGENCE-- DAMAGES; 23
Op.Att'y.Gen. 43, March 10, 1900
The U.S. tug Resolute while passing up the channel near Fort Winthrop
at high tide, struck a sunken scow and was damaged. The captain of the
Resolute knew of the sinking of the scow, its locality, and that boats
had been engaged in unloading and trying to raise the boat. At the time
of the striking the scow could not be seen, and there was no danger
signal to indicate the presence of an obstruction. Held:
That in view of the fact the master of the Resolute knew that tugs
had been engaged in unloading and trying to raise the scow, that the
harbor master had been notified of the sinking of the scow, and in view
of the imperative requirements of the law and the uniform practice as to
keeping danger signals displayed as long as necessary, the master,
seeing no danger signal displayed, had the right to suppose that the
danger had been removed, and was not negligent in assuming that, in this
particular case, there was no danger where there was no danger signal.
But if, at the time of the accident, the master of the Resolute knew
of the danger, or if under all the circumstances he ought to have known
of it, and he failed to take reasonable and proper care to avoid it, and
thus met with the accident, no recovery can be had against the owners of
the scow.
DEPARTMENT OF JUSTICE,
March 10, 1900.
The SECRETARY OF WAR.
SIR: To your request of March 3, 1900, indorsed on the papers
transmitted for my official opinion of the claim of the United States
against G. H. Breymann & Bros., of Boston, on account of damages
sustained by U.S. steam tug Resolute, caused by her striking a sunken
scow of said Breymann & Bros. in the channel of Fort Winthrop, Mass.,
and whether the compromise offer of about one-half the amount of
damages, by the owners of the sunken scow should be accepted, I have the
honor to reply as follows:
From the papers transmitted, there does not appear to be any dispute
that the Resolute sustained the damage alleged, and to the extent
claimed by coming in contact, in one of her regular and proper trips,
with the sunken scow of said Breymann & Bros.
The only matters disputed by them are:
First. That the sunken scow was actually in the channel, or regular
course of vessels;
Second. That there was nothing at such times as the wreck was covered
by high tide to sufficiently indicate its presence or give warning of
the danger; an,
Third. That the master of the Resolute himself exercised due care and
was not himself guilty of negligence contributing to the injury.
The first of these is suggested only as a possibility, and, from all
the papers submitted, may, I think, be dismissed from consideration.
This leaves, as the only questions: First. Was there, at times when the
sunken scow was submerged at high tide, anything to sufficiently
indicate its presence, or to mark the place as dangerous? And,
Second. Was the master of the Resolute, at the time, in the exercise
of due care?
The first is a question of fact, dependent upon evidence, of the
extent or credibility of which this Department has no means of
knowledge. The question of what the available proof will show as to the
presence or absence of proper danger signals, must be left to those
having charge of the case. But, so far as the evidence which is
suggested in the papers submitted alone is concerned, I do not think
this should suggest an acceptance of the compromise offered by the
attorneys of Breymann & Bros.
The remaining question is, upon the papers submitted, so much a
question of mixed law and fact, and the facts so dependent upon unknown
evidence, that I can do little more than state some general rules or
principles governing it.
It is claimed by the other side that, except at high tide, this
sunken scow was, as to a great part of it, above water and plainly
visible; that, between the sinking of the scow and the injury to the
Resolute, that tug, with the same master, made many trips, passing at
all tides in close proximity to and certainly knew of the sunken scow
and its locality; and therefore, even at high tide, would, with proper
care, have avoided it without any danger signal.
To this it is suggested that tugs had been engaged in unloading and
trying to raise the boat, and at the time in question the master, seeing
no danger signal, had a right to suppose the danger had been removed,
and the more especially in view of the imperative requirements of the
law and the universal practice as to keeping such signals as long as
necessary, and still more from the fact that the harbor master had been
notified and should see that signals are kept as long as needed.
That in view of all these and other considerations the master of the
Resolute was not negligent in assuming that, in this particular case,
there was no danger where there was no danger signal. I barely allude to
some of the general considerations which may offset the question.
It is also claimed that there was a buoy to mark this danger place.
But the great weight of the evidence submitted is that, for some
reasons, it was not visible at high tide, while the plain duty of
Breymann & Bros. was to have one visible there at all times.
But the failure of the Breymanns to keep a danger signal would not
necessarily make them liable in this case. For, if, at the time of the
accident the master of the Resolute knew of the danger, or if, under all
the circumstances, he ought to have known it, and he failed to take
reasonable and proper care to avoid it, and thus met with the accident,
no recovery can be had. So that the whole matter is reduced to the
question whether, at the time of the accident, the master of the
Resolute, under all the circumstances and facts which he knew or ought
to have known, should have done that which he did not do to avoid the
accident. This is so dependent upon unknown evidence that it must be
left to those having opportunities for knowledge of what evidence is
available. But, so far as indicated by the papers, it does not seem to
justify any claim that the master of the Resolute was at all negligent.
I return herewith the papers transmitted with your request.
Respectfully,
JOHN W. GRIGGS.
UNITED STATES COMMISSIONER-- JURISDICTION IN CHINESE EXCLUSION CASES;
23 Op.Att'y.Gen. 40, March 7, 1900
In the hearing of cases arising under the Chinese exclusion laws, the
duties of a United States commissioner are judicial rather than
ministerial. Consequently the Treasury Department has no authority to
issue instructions to United States commissioners as officers charged
with the enforcement of these laws.
DEPARTMENT OF JUSTICE,
March 7, 1900.
The SECRETARY OF THE TREASURY.
SIR: I am in receipt of your letter of March 6, with which you
enclose copy of a letter dated March 5 from Chinese Inspector Ralph
Izard, concerning the conclusion of United States Commissioner Frederick
C. Paddock, of Malone, N.U., that the latter has no authority to try
certain Chinese cases now pending before him without an order of the
district court to that effect.
It seems that under section 21 of the act of May 28, 1896, under a
certain ruling of the Comptroller of the Treasury thereupon, and under
the last form of "Instructions to United States commissioners" issued by
the Treasury Department, Chinese cases are held to be civil cases, and
in civil cases the commissioner's jurisdiction depends upon an order of
court. It seems also that the court will issue no instructions, because,
apparently, Chinese cases have always been regarded and treated by the
courts as of a quasi-criminal character; and therefore, unless the
Comptroller changes his decision, the commissioner is of opinion that he
has no authority to try these cases.
The alternative is that the twenty-odd Chinese whose cases are pending
may be discharged on the adjourned date of the hearing, namely, March
13, and that this course will entail the expense of rearresting them and
taking them to Plattsburg for trial.
Upon these facts you request to be informed whether in my opinion it
is within the province of the Treasury Department to take action in the
premises which may be made the basis of instructions to officers charged
with the enforcement of the Chinese exclusion laws.
In reply, I have the honor to state that the Treasury Department,
through its subordinate officials, is charged with the enforcement of
these laws, but that a United States commissioner appears to me, under
the language of the acts giving jurisdiction to a commissioner in such
cases, to be acting as a judicial rather than a ministerial officer.
The case of Todd v. United States (158 U.S., 278) holds that a
commissioner is not a judge of a court of the United States, but simply
an officer of the circuit court, pointing out that technically the
commissioner is an examining magistrate and not an examining court. The
opinion in United States v. Allred (155 U.S., 591) comes to a similar
conclusion, and holds that United States commissioners in their
administrative action are subject to the supervision and control of the
court appointing them. But both these opinions and other opinions cited
in the argument for the United States contained in the report of the
Todd case recognize the judicial character of many of a commissioner's
duties and functions, and the force of the decisions is only that a
commissioner is not in all respects a separate judicial officer over
whom a court has no control. There is nothing in these opinions, or in
any opinions of the courts of which I am aware, supporting the view that
United States commissioners are subject generally to instructions from
other sources than the courts by which they are appointed. The
"Instructions" referred to appear to be no more than an abstract of
statutory provisions and rulings of the Comptroller of the Treasury
thereupon.
I have referred to these cases in order to show that while a
commissioner performs duties of a double nature, some of them
administrative or ministerial, and some of them judicial, there can be
no doubt that in many important respects he is a judicial officer, and I
am of the opinion that in the hearing of Chinese cases his duties are to
be regarded as judicial rather than as performed in the administrative
enforcement of the law. Consequently, I am not aware of any authority
which may be made the basis of an executive instruction to a
commissioner as an officer charged with the enforcement of the Chinese
exclusion laws; although by this view I do not seek to impose any
restriction upon your administrative discretion, because it may well be
considered that you should determine this point of discretion
independently, and may properly keep in mind the somewhat undefined
status of a commissioner in performing different duties, and the
relations which such officers have customarily borne to the
administration of many laws by or through the Treasury Department.
If, however, your own conclusion is that instructions to Commissioner
Paddock are not in order, and that the question may properly be referred
again to the Comptroller of the Treasury for the purpose of obtaining,
if possible, a revision of his decision, the alternative in the present
instance then is that the Chinese in question should, in case they are
discharged by Commissioner Paddock, be rearrested and taken to
Plattsburg for trial.
You are, of course, aware that the law provides that such Chinese
cases may be heard by a district court as well as by a commissioner, and
if United States commissioners generally decline, because of the
foregoing facts, to hear such cases, the reason for the declination
would not exist in the case of hearings before a district judge.
Very respectfully,
JOHN W. GRIGGS.
NAVAL OFFICERS-- ADVANCEMENT-- CONFIRMATION-- STATUS; 23 Op.Att'y.
Gen. 30, February 19, 1900
On August 10, 1898, Commodore William T. Sampson was advanced eight
numbers by the President and appointed a rear-admiral; Capt. John
Philip was similarly advanced five numbers and appointed a commodore;
Commander Bowman H. McCalla was likewise advanced five numbers and
appointed a captain, all to take rank from date of appointment. None of
these appointments were confirmed by the Senate. Lieut. Commander John
E. Pillsbury was appointed a "commander from the 10th day of August,
1898, vice Commander Bowman H. McCalla, advanced and promoted," which
appointment was confirmed by the Senate December 14, 1898. Lieut.
Hawley O. Rittenhouse was nominated and confirmed by the Senate to be a
lieutenant-commander vice Pillsbury, and other officers in line likewise
promoted.
On August 10, 1898, there was no vacancy in the grade of commander to
which Pillsbury could have been appointed unless the advancement of
McCalla was confirmed. Held:
1. The advancement and promotion of Sampson, Philip, and McCalla by
the President alone, not being confirmed by the Senate, did not create
vacancies in their respective offices.
2. As the Senate could not increase the number of commanders, the
confirmation of Pillsbury necessarily either removed McCalla or it
promoted him, and the Senate has said which it was, "in the place of
McCalla, advanced and promoted." Therefore the appointment and
confirmation of Pillsbury operated to duly advance, promote, and confirm
McCalla to be a captain, and it created a vacancy which made regular the
appointment and confirmation of Pillsbury, Rittenhouse, and other
successive appointments.
3. The confirmation of an officer nominated for promotion may be made
as well by the appointment and promotion of his successor as in any
other way, provided it shows the assent of the Senate to such promotion.
4. Those below McCalla were promoted to fill vacancies, none of which
existed prior to December 14, 1898, when the Senate confirmed Pillsbury.
Therefore the act of June 22, 1874 (22 Stat., 181), does not apply to
entitle them to pay in the higher grades from the time they took rank,
respectively.
DEPARTMENT OF JUSTICE,
February 19, 1900.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your note of
February 6, 1900, with its inclosure, requesting my opinion upon certain
questions propounded by the Comptroller of the Treasury and transmitted
with your note.
The questions submitted have relation to the status and pay of
Commander Bowman H. McCalla, Lieut. Commander John E. Pillsbury, Lieut.
Hawley O. Rittenhouse, and other naval officers referred to, upon the
facts, which the Comptroller states as follows:
"Commodore William T. Sampson, U.S. Navy, was, on August 10, 1898,
advanced eight numbers by the President, pursuant to section 1506,
Revised Statutes, and appointed a rear-admiral, to take rank from that
date. At the same time Capt. John Philip was similarly advanced five
numbers and appointed a commodore. Commander Bowman H. McCalla was
similarly advanced five numbers, and appointed a captain, both to take
rank from August 10, 1898.
"None of these proposed advancements in numbers and appointments were
confirmed by the Senate, and * * * said attempted appointments did not
have the effect of promoting the officers named to the several positions
to which they would have been promoted had their proposed advancements
been confirmed.
"Lieut. Commander John E. Pillsbury was appointed to fill the vacancy
intended to be created by the advancement of Commander McCalla, and, on
December 14, 1898, was confirmed by the Senate, 'to be a commander from
the 10th day of August, 1898, vice Commander Bowman H. McCalla,
advanced and promoted.'
"Lieut. Hawley O. Rittenhouse was likewise nominated, and, on the
same day, confirmed by the Senate, 'to be a lieutenant-commander from
the 10th day of August, 1898, vice Lieut. Commander John E. Pillsbury,
promoted.'
"The officers next in the line of promotion, below Lieutenant
Rittenhouse, were nominated, and, on said date, confirmed for the
vacancies in the several grades below caused by his promotion. The
officers regularly promoted received ad interim appointments prior to
their confirmations, and also those advanced under section 1506, Revised
Statutes, but whose advancements were not confirmed.
"On August 10, 1898, there was no vacancy in the grade of commander
to which Lieutenant-Commander Pillsbury could have been appointed in due
course, unless the advancement of Commander McCalla to the grade of
captain, as above stated, had created one, and the first vacancy
thereafter would have occurred in regular course upon the retirement,
September 30, 1898, of Rear-Admiral Montgomery Sicard. No nomination
was, however, made to fill the vacancy caused by this retirement, nor to
fill the vacancy caused by the retirement, October 24, 1898, of
Rear-Admiral Edmund O. Matthews, for the reason that, as it was
supposed, that the number of rear-admirals had been increased by the
advancement of Commodores Sampson and Schley, under section 1506, it
became necessary to withhold further promotions to that grade until it
should be reduced to the number fixed by law."
The ad interim commissions to Sampson, Schley, Philip, and McCalla
were dated August 10, 1898, and each was to take rank from that date.
That to McCalla reads:
"I do advance him six numbers and appoint him a captain in the Navy,
to restore him to his original place in the Navy list, for eminent and
conspicuous conduct in battle, from August 10, 1898."
That to Lieutenant-Commander Pillsbury, confirmed by the Senate,
reads:
"To be a commander from the 10th day of August, 1898, vice Commander
Bowman H. McCalla, advanced and promoted."
That to Lieutenant Rittenhouse, also confirmed, dated November 25,
1898, reads:
"To be a lieutenant-commander in the Navy from the 10th day of
August, 1898, vice Lieutenant-Commander John E. Pillsbury, promoted."
Permanent commissions were issued to those officers confirmed by the
senate.
The Comptroller then continues his statement of facts:
"The officers next in line of promotion below Lieutenant Rittenhouse
were nominated, and, on same date, confirmed for the advancements in the
several grades below caused by this promotion, and received ad interim
commissions prior to their confirmations."
What, then, was the official status of these officers after such
attempted promotion? Various answers may be suggested.
Revised Statutes, section 1506, as amended by the act of June 17,
1878 (20 Stat., 144), provides that--
"Any officer of the Navy may, by and with the advice and consent of
the Senate, be advanced not exceeding thirty numbers in rank, for
eminent and conspicuous conduct in battle, or extraordinary heroism;
and the rank of officers shall not be changed except in accordance with
the provisions of existing law, and by and with the advice and consent
of the Senate."
The act above referred to (20 Stat., 144) reenacted original section
1506 of the Revised Statutes, and added the last clause as above quoted.
The effect of these proposed advancements and promotions is the
principal matter submitted, and the question arises directly as to the
pay of these confirmed officers.
It seems to me clear that the advancement in numbers and promotion of
Sampson, Philip, and McCalla, by the President alone, did not create
vacancies in their offices, as such advancement and promotion can be
only with the advice and consent of the Senate. This was decided by the
Comptroller of the Treasury, and I think correctly, in Rear-Admiral
Sampson's case (6 Comp.Dec., 7). Besides the reasons there stated, it
may be remarked that the last clause of amended section 1506, above
quoted, forbids that the rank of any officer be changed, except with the
advice and consent of the Senate. Therefore, as the advancements of
Sampson, Philip, and McCalla would be to change their respective grades
and ranks, they could not be made by the President alone, and did not
create any vacancies.
The Constitution, Article II, section 2, provides that--
"The President shall have power 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."
But this does not confer upon the President the power to create such
vacancies. Such power as he has to create a vacancy, by the removal of
an incumbent, is derived from his general power of removal, incident to
his power to appoint, or from acts of Congress. And, I have no doubt
that, except as restricted by the Constitution or act of Congress, the
President has ample power of removal, as incident to his power to
appoint officers. (Ex parte Herman, 13 Pet., 259; McElrath v. United
States, 102 U.S., 426; Blake v. United States, 103 U.S., 227.)
That he may remove an officer by the mere appointment of another
officer in his place is settled by the two cases last cited. Yet, the
exercise of this power may be regulated or restricted by the
Constitution and, so far, at least, as this case is concerned, by
Congress. And this has been done here by both-- by the Constitution,
which requires the consent of the Senate to the appointment-- the only
think which, in this case, could operate as a removal from office, or to
create a vacancy-- and by the statute, which forbids such a change of
rank by the President alone, as would be this advancement of these
officers.
There was, then, at the time, no vacancy thus created in the office
of commander to which Lieutenant-Commander Pillsbury could be promoted
or appointed, as the intended advancement of McCalla did not create one;
and if the promotion of Pillsbury was ineffectual, then his intended
promotion created no vacancy which Rittenhouse could fill, and so on
down the line, as far as such promotions went.
Revised Statutes, section 1363, fixes the maximum number of officers
in the Navy; and at the time of these promotions, the humber of each of
the grades we are now considering was full, so that no new appointment,
either original, or by promotion, could be made in those grades without
either increasing the number allowed by law or removing some other
officer.
Under these circumstances the appointment of Lieutenant-Commander
Pillsbury, confirmed by the Senate, to be a commander in the place of
McCalla, must either, first, increase the number of commanders beyond
that allowed by law, or, second, operate to remove Commander McCalla,
or, third, operate to confirm McCalla's appointment as captain, or,
fourth, be ineffectual and void. Any other result would seem out of the
question.
First. Has the President power, by and with the advice of the Senate,
to increase the number of commanders in the Navy beyond the number
expressly fixed and limited by Congress? I think not. While the
Constitution gives to the President the power, with the advice and
consent of the Senate, to appoint all officers, it does not confer the
power to create such offices as these, nor to increase their number. He
may appoint such officers as are created by the Constitution or by law,
but I think there can be no doubt of the power of Congress to fix and
limit the number of such officers as these, and that such action is
binding upon both the Executive and Senate, and can be changed by
Congress alone. This view has also legislative support. Revised
Statutes, section 1363, fixes and limits the number of officers in the
active list of the Navy, and the next section provides that--
'The provisions of the foregoing section shall not have the effect to
vacate the commission of any lieutenant-commander, lieutenant, master,
or ensign, appointed according to law, in excess of the respective
number therein fixed," thus, by a familiar rule of construction,
implying that the commissions of other officers, in excess of the number
fixed, might be thereby vacated. I do not think the appointment of
Pillsbury was valid, if it increased the number of commanders beyond
that allowed by law.
Second. Did the confirmed appointment of Lieutenant-Commander
Pillsbury to be a commander, "vice McCalla, advanced and promoted,"
operate to remove the latter from his office of commander, and therefore
from the service? If so, it was, no doubt, unintentional on the part of
both the President and Senate, and simply by operation of the doctrine
held in McElrath v. United States and Blake v. United States, supra. In
each of these cases it was supposed, as it was here, when the successor
was appointed, that there was a vacancy which might be thus filled; and
in each case, it might have been well held that there was such. But each
case proceeds upon the idea that there was no vacancy, but the former
incumbent still held that office, and upon this theory it was held that
the appointment of another officer in the place of the former
incumbent-- in one case, stated as "dismissed," and in the other as
"resigned"-- operated, ex proprio vigore, to remove the former officer
from the office and from the service. Did it do so here? It would seem
the very irony of law that an act intended for the promotion and honor
of an officer should, by operation of law, be the exact opposite, and
effect his removal and disgrace. I think I am justified in resorting to
any possible construction which will prevent such an injustice to a
gallant and worthy officer, especially when it was, obviously, not
intended by either the President or the Senate.
It must be assumed that, in making these appointments, both the
President and the Senate intended to act strictly in accordance with the
law; and further, that nothing intended by either other than the
promotion of officers deemed worthy of promotion.
That the appointment of Pillsbury in the place of McCalla was not
intended to be the removal of the latter, but was in consequence of his
supposed promotion, is made entirely certain by Pillsbury's nomination,
by his confirmation, and by his commission, each of which states it to
be made "vice Commander Bowman H. McCalla, advanced and promoted;" and
to give it the opposite effect of removing that officer would be
entirely unwarranted, especially when, consistently with legal rules, it
can be given full effect as it is expressed and intended.
Third. Did the confirmation by the Senate of Lieut. Commander John E.
Pillsbury, "to be a commander from the 10th day of August, 1898, vice
Commander Bowman H. McCalla, advanced and promoted," operate as the
advice and consent of the Senate to the advancement and promotion
therein stated? If there was any such promotion as the Senate asserted,
it was because the Senate either had consented, or did thereby consent
to it. And the confirmation of an officer nominated for promotion may be
as well made by the appointment and confirmation of his successor, as in
any other way, provided it shows the assent of the Senate to such
promotion.
No particular form, set phrase, or language is required by which the
Senate shows its assent to a Presidential appointment. It may be shown
by resolution, by viva voce vote on oral motion adopted and recorded, or
by any other mode which shows the assent of that body. It may be shown
by an act which can not be or do that which it purports and undertakes
to be or do, except by such assent. The appointment of Pillsbury could
not be what it purported, expressed itself and undertook to be, except
by the consent of the Senate, in some sufficient form, to the
advancement and promotion of McCalla. For it purported, and was so
expressed, and undertook, to make Pillsbury a commander in the place of
McCalla, "advanced and promoted,"-- not removed, but promoted. It could
not do this, unless McCalla was promoted; and inasmuch as such
promotion depended only upon the assent of the Senate it must be taken
that that body assented to the only thing which could make its act
effective. To say otherwise, is to impute to the Senate an ignorance of
the fact that it had not confirmed McCalla, or else an intention to
appoint an officer to fill a vacancy which it knew did not exist, and
which it knew he could not fill or occupy, and to assert that a vacancy
existed, which it knew did not exist, neither of which is permissible.
And the same thing would be true also as to the appointment of
Lieutenant Rittenhouse, to be a lieutenant-commander, in the place of
Pillsbury, promoted; and so on, down the line, as each one stepped into
the shoes of the one promoted. In no case would the fact stated in the
Senate confirmation be true, except that the Senate did advise and
consent to the only thing which could make it true.
The President had already nominated McCalla to be a captain, and all
that was necessary to make him such and to cause a vacancy in his office
of commander, was that the Senate consent thereto. And when the Senate
confirmed another officer, expressly asserting that it was to fill the
place of McCalla, promoted, and which promotion could not be without its
consent, it necessarily, and thereby asserted its consent to his
promotion. In confirming Pillsbury it confirmed everything necessary to
that confirmation. As the Senate could not increase the number of
commanders, its confirmation of Pillsbury to be a commander necessarily
either removed McCalla, or promoted him, and the Senate has said which
it was; it was in the place of McCalla, advanced and promoted.
I am, therefore, of opinion that Commander McCalla was duly advanced,
promoted, and confirmed to be a captain in the Navy, and that this
created a vacancy in his former office of commander, to which
Lieutenant-Commander Pillsbury might be and was duly appointed and
confirmed.
This would also make regular and in due course the appointment and
confirmation of Lieutenant Rittenhouse to be a lieutenant-commander,
vice Pillsbury, promoted, and also the successive appointments of
officers below him.
Revised Statutes, sections 1364, 1506, and 1507, authorize the
advancement of officers of the Navy to higher grades. for eminent and
conspicuous conduct in battle or extraordinary heroism, even though in
excess of the number in such grade, as fixed by statute; and section
1364 provides that--
"The provisions of the foregoing section (fixing the number of
officers of the various grades) shall not have the effect to vacate the
commission of any lieutenant-commander, lieutenant, master, or ensign
appointed according to law, in excess of the respective number herein
fixed; nor to preclude the advancement of any officer to a higher
grade, for distinguished conduct in battle, or for extraordinary
heroism, under the provisions of sections fifteen hundred and six and
fifteen hundred and eight."
But, in this case, none of the officers below McCalla were advanced
under either of those sections, but they were promoted in turn to fill
vacancies created by McCalla's advancement and the promotion of those
below him. Whatever effect either of these sections might have had in
validating the appointments of Lieutenant-Commander Rittenhouse and
those below him, in case there were no vacancies to be thus filled, and
treating such appointments as in excess of the number in each grade
fixed by law, it would seem that, since the act of August 5, 1882 (22
Stat., 284), no such promotions as those last mentioned could be made in
excess of the number fixed by law. That act provides, among other things
(p. 286), that--
"Hereafter, only one-half of the vacancies in the various grades of
the line of the Navy shall be filled by promotion until such grades
shall be reduced to the following numbers, namely: Rear-admirals, six;
commodores, ten; captains, forty-five; commanders, eighty-five;
lieutenant-commanders, seventy-four; lieutenants, two hundred and
fifty; masters, seventy-five; ensigns, seventy-five; and thereafter
promotions to all vacancies shall be made but not to increase either of
said grades above the numbers aforesaid."
Under this act, it would appear that the promotions of
Lieutenant-Commander Rittenhouse and those below him could not be
sustained if they increased the number of officers of these grades
beyond the number fixed by that act; and can be sustained only upon the
fact that there were vacancies to be thus filled, as already stated.
As there were no vacancies on August 10, 1898, when these officers
took rank, according to their commissions, the act of June 22, 1874 (18
Stat., 191), does not apply so as to entitle them to pay in the higher
grades from the time they took rank respectively. There were no such
vacancies until December 14, 1898, when the Senate confirmed the
appointment of Pillsbury to be a commander.
I return the papers transmitted with your note.
Respectfully,
JOHN W. GRIGGS.
AMERICAN REGISTRY; 23 Op.Att'y.Gen. 29, February 17, 1900
Under section 4132, Revised Statutes, a vessel lawfully condemned and
sold as a prize of war to an American citizen is entitled to an American
registry, which is not lost by the subsequent reversal of the decree by
the Supreme Court of the United States.
The reversal of the decree operates only upon the fund produced by
the sale of the vessel, and does not disturb the title and rights of the
purchasers.
Opinion of December 10, 1840 (3 Opin., 606,) distinguished.
DEPARTMENT OF JUSTICE,
February 17, 1900.
The SECRETARY OF THE TREASURY.
SIR: By your communication of December 14, you inform me of the
condemnation in the district court of the United States for the southern
district of Florida of the Spanish steamship Buena Venture as lawful
prize of war; of the sale of the vessel subsequent to this condemnation
to an American citizen; and of a grant of documents to her as a vessel
of the United States under the provision of section 4132, Revised
Statutes, which permits a vessel captured in was by citizens of the
United States, and lawfully condemned as prize, being wholly owned by
citizens, to be registered as directed in Title XLVIII, "Regulation of
commerce and navigation," as a vessel of the United States. Your
communication also informs me of the reversal of the judgment of
condemnation in the lower court by the Supreme Court of the United
States, and you thereupon inquire whether, in my opinion, the Bureau of
Navigation should issue instructions for the cancellation of the
American documents under which the Buena Ventura is now navigating.
The language of section 4132 is as follows:
"Vessels built within the United States, and belonging wholly to
citizens thereof, and vessels which may be captured in war by citizens
of the United States, and lawfully condemned as prize, or which may be
adjudged to be forfeited for a breach of the laws of the United States,
being wholly owned by citizens, and no others, may be registered as
directed in this title."
The object of the law is to be considered, and that evidently is to
encourage purchase of such vessels thus condemned and sold, and to
protect the title and statutory rights founded upon the sale.
This vessel was condemned by the decree of the prize court after the
regular and orderly course of procedure in prize law; that is, it was
lawfully condemned. Upon the sale in pursuance of the decree the rights
of the purchasers attached and were not thereafter divested. The
reversal of the decree of condemnation by the Supreme Court operates
upon the fund produced by the sale, which stands as the representative
of the vessel for all purposes of the appeal and the resulting
determination of the rights of the parties to the prize cause, that is,
the United States, the naval captors, and the claimants; but does not
disturb the title and rights of the purchasers under the decree of
condemnation below and the sale in pursuance thereof.
The opinion of my predecessor (3 Opin., 606) does not affect this
case, because there, it appears, the vessel was not condemned for a
breach of the laws of the United States, nor as prize.
My opinion is that the Buena Ventura was properly registered under
section 4132, and is entitled to retain her register, and therefore that
the Bureau of Navigation should not issue instructions for the
cancellation of the American documents under which she is now
navigating.
Very respectfully.
JOHN W. GRIGGS.
COURT-MARTIAL-- AMENDMENT OF RECORD; 23 Op.Att'y.Gen. 23, February
1, 1900
The Secretary of War is without authority to correct, amend, or to
take any action inconsistent with the record of a court-martial duly
convened upon a proper and sufficient charge.
This power is inherent in a court-martial; but such correction or
amendment can be made only when the court-martial is in session, and
when at least five of the members of the court who acted upon the trial
are present, and then in the presence of the judge-advocate.
DEPARTMENT OF JUSTICE,
February 1, 1900.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge the receipt of your
communication of June 10, 1899, with accompanying documents, in which
you request my opinion upon the case there stated, as follows:
"According to a duly attested court-martial record, correct in form
and in every respect regular on its face, now on file in the War
Department, First Lieut. Lewis E. Brown, Ninth United States Volunteer
Infantry, was duly charged with a proper and sufficient charge of
conduct unbecoming an officer and a gentleman, and tried on such charge
by a general court-martial duly convened by the proper department
commander in the military department of Santiago, Cuba, November 11,
1898, and found guilty and sentenced to be dismissed from the service;
and the sentence was duly approved and carried into execution by the
proper convening authority, the said department commander, in February,
1899.
"In May, 1899, the applicant filed an affidavit of himself, and also
one made by one of the members of the said court-martial, stating that a
certain witness testified at the trial. The record does not contain any
testimony of a witness of the name of the one mentioned in the
affidavits or in any way show that the person mentioned in the
affidavits as having testified at the trial was used as a witness in the
case at all. The accused contends that the Secretary of War has the
power to accept these affidavits as evidence that the said witness did
testify, and therefore (in view of the fact that the record does not
contain any testimony given by him) as evidence that the reviewing
authority never has had the whole of the record of the court-martial
trial before him, and therefore that he did not acquire jurisdiction to
approve and execute the sentence, and that hence his action purporting
to do this was absolutely void.
And for this reason he requests the Secretary of War to ignore the
sentence and what purports to be the execution of the same, and to
recognize him as yet an officer of the Volunteer Army.
"Your opinion is therefore requested as to whether the Secretary of
War may legally accept (against the record, which shows the contrary)
the said affidavits as evidence that the witness mentioned in them
testified at the trial, and permit it to be thus established in the War
Department that the court-martial record is not a full record of the
proceedings of the court-martial, and set the same aside as null and
void."
That the record of a court of competent jurisdiction is, as against
collateral attack, conclusive of its own verity is settled and accepted
law. The same doctrine as to conclusiveness is also applicable to
courts-martial. (Ex parte Reed, 100 U.S., 13; Keys v. U.S., 109 U.S.,
336.)
In civil courts the power is inherent to amend or correct their own
records and make them speak the truth. This right to amend has been
exercised in innumerable cases, to correct a great variety of mistakes,
some of trifling importance and others of great moment.
The same substantial principle is applied in the administration of
courts-martial; and when during the course of a trial before a
court-martial any error or omission in the record is made to appear, the
court will, as a matter of right and duty, correct it. Indeed, this is
made the duty of the court by express army regulation. (See paragraph
957, Regulations for the Army of the United States, promulgated October
31, 1895; Davis on Military Law, 158.)
Undoubtedly, as stated by Colonel Davis, so long as the proceedings
continue in the legal custody of the court, the findings and sentence
are subject to review and amendment.
A different question arises, however, when the court, as in this
case, has been dissolved and no longer exists. The proposition
maintained by the applicant in this case assumes that there is power
outside of the court to amend its record or proceedings.
No authority to this effect is pointed out. It is certain that such
would not be the case as to the record of any civil court. If the
existence of a particular court were terminated by legislative
enactment, in the absence of any statutory provision for the amendment
of the records of such court, it would not be contended for a moment
that either the President or governor who appointed the judges when the
court was in existence could modify or amend the record in any case
previously pending before such court. Nor can it be perceived how a
ruling which would permit the Secretary of War, after the dissolution of
a court-martial, to receive affidavits or other evidence as to the
incorrectness of the record and to proceed thereon to modify or amend
it, would in any wise differ from a collateral attack upon the judgment
and record made before any other officer or before any other independent
court.
Referring to the matter of correcting the record in court-martial
cases, Colonel Davis, in his treatise on military law, says that
"Corrections in the record can only be made by courts-martial when at
least five of the members of the court who acted upon the trial are
present, and then in the presence of the judge-advocate" (p. 159).
The extreme sanctity of the record and the care that is taken in the
usage and practice of courts-martial to guard it against being made the
expression of anything except the solemn statement of the court itself
is shown by the following further citation from Davis on military law:
"The amendment can only be made by the court when duly reconvened for
the purpose, and when made must be the act of the court as such. A
correction made by the president or other member, or by the
judge-advocate, independently of the court, and by means of an erasure
or interlineation, or otherwise, is unauthorized and a grave
irregularity. The correction must be wholly made and recorded in and by
the formal proceedings upon the revision. The record of the correction
as thus made will refer of course to the page or part of the record of
the trial in which the omission or defect occurs; but this part of the
record must be left precisely as it stands. The court is no more
authorized to correct the same by erasure or interlineation on the page,
or by the substitution for the defective portion of a rewritten
corrected statement, than would be the judge-advocate or a member.
"Where the court has been dissolved, or by reason of any casualty or
exigency of the service can not practically be reconvened, there can of
course be no correction of its proceedings."
There is a customary law or rule of procedure pertaining to
courts-martial, and the doctrine just cited may well be considered a
recognized part of it.
It is suggested in the brief of the counsel for the applicant that
the Secretary of War has power to receive the affidavits presented by
Lieutenant Brown, which are offered in order to contradict the record in
the case, and then, proceeding on the assumption that the judgment is
null and void, that he may set it aside and reinstate the officer, and
that the Secretary can do this because he is the direct agent and
representative of the President, who is Commander in Chief of the Army,
and by virtue of that office has power and control over courts-martial.
Undoubtedly the President has, to a certain extent, control over the
judgments and findings of courts-martial. He may convene a
court-martial, and, presumably, he can dissolve one; he can direct that
a sentence which requires a specific order to carry it into effect shall
not be executed; but it does not follow that because he has certain
power in connection with courts-martial and certain control over the
enforcement of their judgments, that he has or that he can exercise all
the powers of a court-martial itself, or that he can interfere with the
proceedings of such a court in any essential particular. The authority
of the court in this case is derived, not from the President, but from a
law of Congress enacted in pursuance of a provision of the Constitution
which declares that Congress "shall have power to make rules for the
government and regulation of the land and naval forces." The Articles of
War, contained in section 1342 of the Revised Statutes, regulate and
define military offenses, declare how courts-martial shall be
constituted, regulate in many respects their proceedings, and define
with more or less definiteness the punishments that shall be attached to
particular offenses.
In so far as the proceedings of a court-martial are thus regulated by
the Art Articles of War or by any other provisions of the public
statutes, they are subject to such regulations as matters of law, and
the courts in observing them are not therein acting in mere pursuance of
the command or authority of the President. They are acting as authorized
agents of the law military and under an individual oath and a personal
and independent responsibility. The Army Regulations, paragraph 954,
direct that every court-martial shall keep a complete and accurate
record of its proceedings, which shall be authenticated in each case by
the signatures of the president and judge-advocate, the latter affixing
his signature to each day's proceedings. Paragraph 955 directs that the
judge-advocate shall transmit the proceedings without delay to the
officer having authority to confirm the sentence. Paragraph 956
provides that the complete proceedings of a garrison or regimental court
shall be transmitted by the post or regimental commander to departmental
headquarters. Paragraph 957 provides that when the record of a court
exhibits error in preparation, or seemingly erroneous conclusions, the
reviewing authority may reconvene the court for a reconsideration of its
action, pointing out defects. Should the court concur in the views
submitted, it will proceed by amendment to correct its errors and may
modify or completely change its findings.
Such regulations, it has frequently been decided, have the force of
law. (Gratiot v. U.S., 4 Howard 80; Ex parte Reed, 100 U.S., 13.)
The Congress having thus provided certain methods of procedure, and
those particular methods being supplemented by regulations of the War
Department having the effect of law, it would be unreasonable to hold
that there was another and an inconsistent power outside of that
conferred by law to make up, keep, alter, and amend the record, full
provision for which has been made by statute and by regulations.
The court and the Judge-Advocate-General are required by law to keep
a true record of the proceedings. This is not made the duty of any other
officer or servant of the Government.
The responsibility and the power both belong to these officers, and not
to any other. The manner in which the record shall be kept is defined by
law, and where it shall be filed and preserved is particularly
prescribed. Whence is derived any authority on the part of the Secretary
of War or even the President as Commander in Chief to alter or amend
such a record? Can either of them do it while the court is in session?
Manifestly not. Could the commanding officer compel the court to find
any particular verdict or make any order or ruling in a case upon any
matter within the jurisdiction of the court? Could he, for instance,
require it to adjourn, or to refuse to hear a certain witness, or to
rule in a particular way upon any question arising in the course of a
trial? If the court, on application to make an alteration or amendment
of the record, should refuse to do so, could the commander lawfully
compel it to be done?
How can the Secretary of War have any greater authority to change the
solemn certified record of a court-martial than the commanding officer
by whom the court has been ordered to assemble?
The record is that which the court certify to have transpired on the
trial, and embodies the action of the court. The fact that the court in
due and legal form announces that it did so and so, or that so and so
transpired, makes that record and the fact, and no one except the court
itself can lawfully alter that record. If it were to be held otherwise
there is not a record filed in the War Office that could not be subject
to attack by ex parte affidavits, and that, too, at a time when the
officers of the court might be dead or scattered to the ends of the
earth and unable to defend the solemn certificates which they made; and
all the judgments of courts-martial as filed and acted on would be open
to perpetual contradiction on subsequent assertions of interested
parties which it would be impossible to meet or disprove.
In my judgment the Secretary is without power to alter or amend the
record in this case, or to take any action inconsistent therewith.
Respectfully,
JOHN W. GRIGGS.
CORRECTION OF RECORD-- TITLE TO LAND; 23 Op.Att'y.Gen. 21, February
1, 1900
Claimant having furnished the War Department sufficient proof that,
for a period of more than twenty years next before the passage of the
act of March 3, 1899 (30 Stat., 1346), he was in the actual and
uninterrupted possession of, and had paid the taxes upon, lot 5 in
square 1113 in the city of Washington, is entitled, under section 2 of
that act, to have the records of the War Department so corrected as to
show the title to said lot to be in him.
DEPARTMENT OF JUSTICE,
February 1, 1900.
The SECRETARY OF WAR.
SIR: By indorsement upon the papers, January 24, 1900, referring
also to the matters stated by General Wilson, Chief of Engineers, in his
indorsement thereon December 15, 1899, you request my official opinion,
in substance, whether Frank D. Orme is entitled, with reference to lot
5, in square 1113, in the city of Washington, D.C., to the provisions
and benefits of section 2 of the act of March 3, 1899 (30 Stat., 1346),
and which question involves also the sufficiency of the proof furnished
by said Orme of the continued possession of said lot, required by that
section. Complying with this request, I have the honor to state the
following:
From the papers transmitted, it appears that the naked legal title to
this lot 5, in square 1113, is in the United States. The history of this
title, legal and equitable, with its various transfers, is shown by the
papers transmitted. But it is not necessary to state this here, nor how
nor why the United States has so long held the legal title to this and
to other lots in the city, while the real and beneficial ownership is in
private individuals. This condition of affairs led to the passage of the
act of March 3, 1899, above referred to, the second section of which is
as follows:
"SEC. 2. That the Secretary of War be, and he is hereby, authorized
and directed to correct the records of the War Department in respect of
any of the lots mentioned in Senate Document Numbered Two hundred and
seventy-seven, Fifty-fifth Congress, second session (being a letter from
the Secretary of War, transmitting, in compliance with the resolution of
the Senate of January twenty-seventh, eighteen hundred and ninety-eight,
a letter from the Chief of Engineers, together with a list of lots in
the city of Washington, District of Columbia, the title to which the
records of his office show to be in the United States, and list of lots
in the city of Washington, District of Columbia, which are shown by the
records of his office to have been donated by the United States), upon
the filing by an actual occupant of any of the lots mentioned in said
document sufficient proof that the said occupant or the party under whom
he claims has been in actual possession of the said lot or lots for an
uninterrupted period of twenty years, so that the said records shall
show the title to said lots to be in the said occupant."
The lot in question here is among those mentioned in Senate Document
277, referred to in the section above quoted, and the record in the War
Department of the title thereto may be corrected as thus authorized if
the proof of possession by Mr. Orme and those under whom he claims is
such as is required by that section and the rules of the Department, and
this appears to be the only question involved.
A circular issued by the War Department under date of April 14, 1899,
informs persons interested of what proof will be required and what will
be sufficient for the correction of the records under this section. The
proof furnished by Mr. Orme and transmitted with the papers, seems to
comply with the requirements of both the statute and the rule of the
Department as thus promulgated, and to show in him and those under whom
he claims an uninterrupted possession of, and payment by them of the
taxes upon this lot for a period of more than twenty years next before
the passage of the act referred to, and, so far as any question
submitted to me is concerned, I am of opinion that he is entitled to the
correction of title contemplated by the section referred to.
I return herewith the papers transmitted to me.
Respectfully,
JOHN W. GRIGGS.
SECRETARY OF TREASURY-- COMPROMISE OF JUDGMENT; 23 Op.Att'y.Gen.
18, January 17, 1900
The Secretary of the Treasury has no power, under section 3469,
Revised Statutes, to compromise a final judgment in favor of the United
States, which is clearly collectible. That section only authorizes a
compromise of a claim which is in some way doubtful.
DEPARTMENT OF JUSTICE,
January 17, 1900.
The SECRETARY OF THE TREASURY.
SIR: I have given careful consideration to the question raised by
your letter of September 29, transmitting the papers relating to "a
compromise offer" of the sureties on the bond of Fred W. Smith, as
receiver of public moneys at Tucson, Ariz., and requesting my opinion as
to your power to compromise a collectible judgment under section 3469,
Revised Statutes.
Smith was receiver of public moneys in Arizona from 1887 to 1889,
when he was removed, and suit brought against him and the sureties on
his bond for moneys received for land from settlers for which he failed
to account to the Government. In the Arizona court judgment was
recovered against Smith and the sureties on his bond for nearly $6,000.
This judgment was affirmed by the supreme court of the Territory, and
ultimately by the Supreme Court of the United States in the case of
Smith v. United States (170 U.S., 372).
It is conceded that this final judgment can be collected from the
sureties, but a so-called compromise offer is submitted and urged on the
ground that it would work a hardship to enforce the collection of the
entire amount of the judgment. The grounds of hardship were presented to
the courts as a defense to the suit, and are set forth in the statement
and opinion of the Supreme Court (170 U.S., 372). The only question
presented to me is whether a final judgment in favor of the United
States, which is collectible, can be "compromised" under section 3469 of
the Revised Statutes, which reads as follows:
"Upon a report by 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 same
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 of the Treasury is authorized to compromise such
claim accordingly. But the provisions of this section shall not apply to
any claim arising under the postal laws."
In an opinion rendered by Solicitor-General Maxwell and approved by
Attorney-General Olney, the authority conferred by this section was thus
limited and defined (21 Opin., 51):
"The section does not authorize the Secretary of the Treasury to
remit or release moneys due to the United States and clearly
recoverable, but to 'compromise,' which implies a claim of doubtful
recovery or enforcement.
"In the case which you submit there is nothing to 'compromise,' for
the right of recovery and the amount have been finally adjudged by the
court of last resort, and the property is said to be sufficient to
satisfy the debt."
An attempt was subsequently made to secure a modification of this
holding, but without success, Attorney-General Harmon saying (21 Opin.,
264, 266):
"I am, however, clearly of the opinion that the opinion already given
is correct. The construction given to the statute accorded with that of
Mr. Evarts (12 Opin., 543) and with that of Mr. Devens and Mr. Phillips
(16 Opin., 617). If the opinion of Mr. McVeagh (17 Opin., 213) is to be
construed as holding that a claim may be compromised when there is no
doubt of its entire and ready collectibility, I am unable to concur with
it. It appears to ignore the clear distinction between the compromise of
a doubtful case and the remission of a penalty, forfeiture, or
disability. (Rev. Stats., secs. 3461, 5292.) The former power, as said
by Mr. Evarts in the opinion above cited, is strictly a fiscal one. The
latter is in the nature of a pardoning power. (The Laura, 114 U.S., 411,
413-414.)"
No reasons have been advanced or suggest themselves justifying a
change of the construction placed upon this section by my predecessors.
A compromise is an adjustment or settlement by mutual concessions. The
claim must in some way be doubtful. There must be room for the "play of
give and take." For this reason the statement from the attorney in
charge "showing in detail the condition of such claim, and the terms
upon which the same may be compromised," is required. In the case of a
collectible judgment there is no room for "give and take," no basis for
a compromise; the concession is all on the one side, the side of the
Government, which remits in place of compromising.
Respectfully,
JOHN K. RICHARDS,
Solicitor-General.
Approved:
JOHN W. GRIGGS.
CONTRACT-- REPATRIATION OF SPANISH PRISONERS; 23 Op.Att'y.Gen. 9,
January 6, 1900
The treaty of Paris of December 10, 1898 (30 Stat., 1756),
contemplates and provides for the repatriation by the United States of
all Spanish prisoners captures and held by them, or held and released by
the insurgents in Cuba and the Philippines-- soldiers and civilians--
men, women, and children, and whether their detention was originally
voluntary as to them or otherwise.
To carry out the provisions of that treaty the War Department entered
into a contract with Ceballos & Co., by which that company agreed to
transport to Spain "such number of prisoners of war and persons as may
be designated by the Secretary of War." Under that contract the
authorities of the United States only were authorized to decide what
persons came within the classes described in the treaty and the
contract, and the company was bound to receive and transport all who
were thus tendered.
The United States had the right to adopt, as against itself, as
liberal a construction of that treaty as it chose; and the company
having in good faith performed its part of the contract, the payment
therefor can not be affected by the fact that the agent of the United
States exceeded his authority by tendering for transportation some
persons who, as afterwards decided, did not come within the purview of
that treaty.
The contract being for the transportation of prisoners only was not
ultra vires the Secretary of War. The most that can be said is that the
United States made a mistake in tendering for transportation, some
persons not within the purview of the contract.
The word "officers" used in the contract, includes as well civil, as
military officers; and the term "other persons" includes all persons
other than officers.
DEPARTMENT OF JUSTICE,
January 6, 1900.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge the receipt of your note of
December 21, 1899, with its inclosures, in which you again ask my
official opinion as to the propriety of a certain claim of J. M.
Ceballos & Co., against your department arising out of a contract
between the Secretary of War and J. M. Ceballos & Co. for the
transportation of Spanish prisoners of war and others from the
Philippines to Spain, in pursuance of the treaty of Paris.
In my note of the 20th ultimo, in reply to yours of the 13th, making
a similar request for my opinion upon the same matter, I pointed out
that, under certain rulings of my official predecessors, such questions
as you present are, since the act of July 31, 1894 (chap. 174, sec. 8,)
properly addressed to the Comptroller of the Treasury, and should not be
submitted to the Attorney-General, except in cases of great importance.
Your present note points out that this is a case of importance, and,
further, that the questions involved a construction of the treaty of
Paris, and the extent of the obligations resting upon the United States
under that treaty, and which, if decided one way, may become the subject
of diplomatic discussion between this country and Spain.
Accepting this as presenting a case exceptional to the general rule
referred to, of my predecessors, and one coming within the exception
stated in that rule, I willingly comply with your request for an
opinion.
The questions presented in your notes have relation, chiefly, to the
propriety of paying J. M. Ceballos & Co. for the transportation from the
Philippines to Spain of certain non-combatants-- wives and children of
Spanish officers and soldiers, certain Spanish civilians, and their
wives and children-- and may be considered with reference to both the
treaty with Spain and the contract of the War Department with J. M.
Ceballos & Co.
The treaty of Paris, of December 10, 1898, Article V, paragraph 1,
provides that--
"The United States will, upon the signature of the present treaty,
send back to Spain, at its own cost, the Spanish soldiers taken as
prisoners of war on the capture of Manila by the American forces. The
arms of the soldiers in question shall be restored to them."
Article VI, paragraphs 2 and 3, are as follows:
"Reciprocally, the United States will release all persons made
prisoners of war by the American forces, and will undertake to obtain
the release of all Spanish prisoners in the hands of the insurgents in
Cuba and the Philippines."
"The Government of the United States will at its own cost return to
Spain, and the Government of Spain will at its own cost return to the
United States, Cuba, Porto Rico, and the Philippines, according to the
situation of their respective homes, prisoners released, or caused to be
released by them, respectively, under the article."
Strictly, there are three classes of persons for whose repatriation
provision is thus made in this treaty, viz:
First. "Spanish soldiers taken as prisoners of war on the capture of
Manila by the American forces."
Second. "All persons made prisoners of war by the American forces."
Third. "Spanish prisoners in the hands of the insurgents in Cuba and
the Philippines," when released.
But, so far as the treaty controls it, all these, and all for whom
any such provision is made, must have been, in some proper sense,
prisoners-- that is, held or deprived of their liberty by either the
United States or the insurgents-- for provision is made for no other.
But, passing for the moment the expression "prisoners of war," it is not
at all necessary, in order to their being prisoners within the meaning
of this treaty stipulation, that these should have been combatants in
any form. Our civil war, and most wars afford numerous examples of
civilians taken and held as prisoners on account of war, and they are no
less such, because non-combatants and unarmed.
Nor is it always necessary to their being such prisoners that their
capture or detention be involuntary as to them. A wife or child may
prefer to, and may follow the husband or father into captivity, and may
share his imprisonment, to either its full or a partial extent; still,
while held and deprived of liberty by the opposing force, they may well
be held to be prisoners, however voluntary may have been the original
submission, just as voluntary hostages are prisoners.
And civilians, non-combatant, and unarmed persons may be, and often
are, taken and held as prisoners in a war and because of it, and not for
any other offense, and these are among the persons referred to in these
treaty stipulations.
It will be noticed that the treaty, as above quoted, twice uses the
term "prisoners of war." There are definitions, notably that in the
Standard Dictionary, which limit the meaning of this phrase, "prisoners
of war," to "a combatant or person in arms taken by the enemy, either by
capture or surrender during a time of war." But I think this is too
narrow a definition to express the modern meaning of the term, or its
meaning as used in the treaty of Paris, in that it excludes one who,
though taking no actual part in the combat, and bearing no arms, may
have been the directing head and governing hand of the whole conflict.
Such a definition would make Jefferson Davis less a prisoner of war
after his capture, than was General Lee after his surrender.
Certainly the term was not used in this narrow sense in this treaty.
This is obvious, for Article V, paragraph 1, provides that the United
States shall send back to Spain all "Spanish soldiers taken as prisoners
of war on the capture of Manila by the American forces."
This, of course, embraces all armed combatants thus taken, and no
further provision was required as to them; and no other provision would
have been made, but that there were still other classes of prisoners not
yet provided for, and for whom provision was made in Article VI,
paragraphs 2 and 3, the first of which provides that "Reciprocally, the
United States will release all persons made prisoners of war by the
American forces," "and will endeavor to obtain the release of all
Spanish prisoners in the hands of the insurgents," and paragraph 3
provides for the return to Spain of all such prisoners as are thus
released. Here are two classes of persons. The first are combatants, and
clearly embrace all combatants who are here provided for. The second are
as clearly persons other than combatants, and yet all are "prisoners of
war" and are so described.
Now, if there were any soldiers or armed combatants thus taken and
still held, not provided for in Article V, paragraph 1, they are
included in Article VI. But the provisions of this article go also much
further, and embrace "all persons made prisoners of war by the American
forces," whether combatants or not. The fact that this provision is in
an article separate and different from that providing for soldiers, and
the change to a broader phraseology clearly express a broader meaning,
and clearly show an intention to embrace persons other than combatants,
and to include "all persons made prisoners of war," whether combatants
or not. It also clearly implies that the term "Prisoners of war" was not
intended to be restricted to actual combatants. This is further manifest
from the stipulation that the United States will "undertake to obtain
the release of all Spanish prisoners in the hands of the insurgents,"
without reference to whether they are combatants or not. Indeed, it is
quite clear that the provisions of the treaty in this respect, embrace
non-combatant prisoners as well as soldiers.
This construction would be aided, if it were necessary, by the fact
that it is difficult to perceive why a distinction should be made
between different kinds of prisoners, based upon any real or supposed
difference between a technical prisoner of war and any other prisoner
taken during war, and because of, on account of, and in the prosecution
of war; and is the more readily adopted because the United States can
afford and is disposed to adopt a liberal construction.
I am, therefore, of opinion that the treaty of Paris contemplates and
provides for the repatriation by the United States of all prisoners
captured and held by it, or held and released by the insurgents--
soldiers or civilians, men, women, and children-- and whether their
detention was originally voluntary as to them or otherwise.
I do not consider the question whether, when in a foreign land, an
officer or soldier is taken prisoner, his wife and minor children with
him there, might not, under such a liberal construction of this treaty
as the United States might well adopt, be considered as constructively
prisoners also; or whether, on the other hand, it was intended that the
officer or soldier should be returned to Spain, leaving his wife and
children in the Philippines, because, as will be seen, when speaking of
the contract itself, it is not necessary.
But does the question of paying J. M. Ceballos & Co. depend upon the
treaty stipulations above quoted? It appears that for the purpose of
carrying out these provisions the War Department entered into a contract
with J. M. Ceballos & Co. by which that company agreed and bound itself
to receive on shipboard, in the Philippines, and transport "such number
of prisoners of war and persons as may be designated by the Secretary of
War, from the Philippine Islands to such port in Spain as may be
designated by the Secretary of War, and to furnish to them subsistence
while en route and on board the ships, and to deliver them on shore in
Spain."
This company further agreed and was bound "to provide a sufficient
number of steamships for the safe and comfortable transportation of the
prisoners of war and such other persons as may be designated by the
Secretary of War, with cabin accommodations for all oficers, and third
class or steerage accommodations, with ample galley accommodations,
space, and ventilation for the enlisted men and any other persons on
board such ship."
And, for this service, the Secretary of War agrees to pay as follows:
"For the transportation, subsistence, and delivery on shore of each
commissioned officer, the sum of two hundred and fifteen dollars
($215.00), and for each enlisted man, private soldier or other person
designated by the Secretary of War for transportation, the sum of
seventy-three dollars and seventy-five cents ($73.75). * * * It is
further agreed that the prisoners of war and all other persons to be
transported shall be delivered by the United States on board the ship at
such ports in the Philippine Islands as may be designated by the
Secretary of War. * * * On account of the number of officers, enlisted
men, or other persons to be taken at the time of embarkation by a
representative of the Government of the United States and a
representative of the said J. M. Ceballos and Company, and payment to
the said company shall be made upon the basis of the number of officers,
enlisted men, and persons counted on such ship."
From all this it is entirely certain that, under this contract, J.
M. Caballos & Co. had no control over or anything whatever to do with
determining what persons, or how many should be thus received,
subsisted, and transported, nor in determining the class of such
persons, as soldiers or civilians, nor in determining whether the
persons so tendered for transportation came within any of the classes
described in the treaty of Paris. The authorities of the United States
only were authorized to decide this, and, with their decision, this
steamship company had nothing to do, but was bound to receive and
transport all who were thus tendered. And if that company has performed
this service under this contract, the payment therefor can not be made
to depend upon the wisdom or correctness of that decision.
Assuming that the Secretary of War was authorized to make a contract
for the return to Spain of the persons referred to in the Treaty of
Paris, and, under that authority, made the contract in question here,
and that this company has in good faith performed its part of it, the
payment therefor can not be affected by the fact, if it be so, that the
agent of the United States, the Secretary of War, or his subordinates
exceeded his authority by tendering for transportation, some persons
also who, as afterwards decided, did not come within the purview of that
treaty.
The United States had the right to adopt, as against itself, as liberal
a construction of that treaty as it chose; and it was neither the duty
of, nor was it within the province of this steamship company, a mere
carrier, to question the wisdom, propriety, or correctness of that
construction. To say the least of it, it was questionable whether all
the persons tendered and transported were not within the purview of the
treaty, at least, under such a liberal construction as the United States
might, under the circumstances, well adopt. And this was a question for
the United States authorities and not for the carrier, who would have
been guilty or might have been guilty of a breach of his contract, and
would certainly have put the Government to great trouble and expense had
the company stopped the whole business of embarkation by an inquiry as
to the proper construction of the Spanish treaty, and an investigation
as to whether all the persons tendered came within its provisions. Nor
is it probable, under the circumstances, and with the force there at its
command, that the United States would have tolerated any such
impertinence or delay.
Nor can it be said that when referred to the treaty, the contract was
ultra vires the Secretary of War, as being applicable to persons not
within the purview of that treaty, and of which, said contractors were
bound to take notice; for the contract, both in its preamble and terms,
is for the transportation of prisoners only, and by no fair construction
can it be made one for the transportation of other than prisoners, and
was, therefore, within the treaty provisions. It is possible that
persons who were not prisoners have been transported under it, but not
because the contract provides for it. The contract, then, being legal
and binding, the most that can be said, if even such be the fact, is
that in the performance of that contract the United States authorities
made a mistake and tendered for transportation, some persons not within
the purview of the contract.
But, as already said, it rested alone with the United States authorities
to say who should be taken as prisoners, and as to which the carrier had
neither voice, knowledge, nor means of knowledge, but was, by the
express terms of his agreement, bound to carry all who were designated
and tendered. When one contracting party requires of the other more than
should be required, but which the other is bound to do, if required, and
does it, it would be a novel rule which would permit the first party to
refuse payment upon the ground that he ought not to have required so
much.
Even if some persons were tendered, and therefore transported, who
did not come within the purview of either the treaty or the contract,
this did not affect the validity of the contract, which, rightly
construed, is one for the transportation of prisoners only, but was
merely an error in performance, and one for which the United States
authorities alone were responsible.
As between these contracting parties, it rested alone with the United
States to say whom it would send back to Spain, and, in doing so, to
alone determine who were prisoners and who came within the purview of
the treaty or the contract. And having done this by its authorized
agents, and compelled the carrier to accept such decision and perform
the service thus required, it does not lie with the United States now to
refuse payment upon the ground that it or its agents were mistaken and
required more than they should have done.
I am therefore of opinion, that the United States should pay J. M.
Ceballos & Co. the contract price for all of the persons so tendered,
transported, subsisted, and delivered.
The remainder of your questions has relation to the price to be paid
on account of "other persons" than officers, enlisted men, soldiers.
The contract speaks of "officer," "enlisted men," "soldiers,"
"prisoners of war," and "other persons." As to the officers and enlisted
men, soldiers, there appears to be no question. For the former $215 and
for the latter $73.75 per capita is to be paid. I think the word
"officers" may include as well civil as military officers, if there were
any such held as prisoners and transported.
As to the "other persons" transported, I think the construction of the
contract is reasonably certain.
There are but two kinds of accommodations on shipboard provided for
in the contract for all persons to be transported, viz, "cabin
accommodations for all officers, and third-class or steerage
accommodations, with ample galley accommodations, space, and
ventilation, for the enlisted men and other persons on board such ship."
And there are but two rates of price to be paid for this service, viz,
for "such commissioned officers, the sum of two hundred and fifteen
dollars ($215), and for each enlisted man, private soldier, or other
person designated by the Secretary of War for transportation, the sum of
seventy-three dollars and seventy-five cents ($73.75)."
These two rates of prices, the only ones for the payment of which the
contract provides, are the only payments which can be made under the
contract, viz, $215 for each officer, military or civil, and $73.75 for
each person other than officer so transported.
Respectfully,
JOHN W. GRIGGS.
WAR-REVENUE ACT-- EXPORT BILLS OF LADING; 23 Op.Att'y.Gen. 3,
January 2, 1900
The war-revenue act of June 13, 1898 (30 Stat., 459), requires the
payment of a stamp tax of 1 cent, under the clause headed "Express and
freight," upon bills of lading, receipts, manifests, and other similar
documents issued by railroad companies for the receipt of goods to be
transported by rail from any place within the United States to Canada or
Mexico; but no tax is payable thereon under the clause relating to
goods exported from a port or place in the United States to any foreign
port or place.
In maritime jurisprudence, a "bill of lading" signifies a memorandum
or acknowledgment in writing, signed by the captain or master of a ship
or other vessel, that he has received in good order on board of his ship
or vessel, therein named, at the place therein mentioned, certain goods
therein specified, which he promises to deliver in good order, the
dangers of the sea excepted, at the place therein appointed, for the
delivery of the same to the consignee therein named, or to his assigns,
he or they paying freight for the same.
A "charter party," in its primary meaning, was a contract for the
letting of the whole or part of a ship for the conveyance of goods in
consideration of the payment of freight.
The word "export," in its earliest sense, meant the carrying out of
goods from one country into a foreign country by means of a ship.
DEPARTMENT OF JUSTICE,
January 2, 1900.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your
communication of December 19, 1899, submitting for my opinion the
following questions:
"(1) As to whether export bills of lading issued by carriers covering
goods exported from the United States to Canada by railroad cars are
taxable under Schedule A, act of June 13, 1898, at the rate of 10 cents
for each shipment, or at the rate of 1 cent.
"(2) Whether the same ruling applicable to Canadian exports by
railroad would also apply to exports by railroad from the United States
to Mexico, another contiguous foreign territory."
The answer to these interrogatories depends upon the determination as
to which of two clauses of the war-revenue act of 1898 governs the
taxation of bills of lading for goods exported by railroads from places
within the United States to Canada or Mexico. The two clauses referred
to are the following:
"A. Bills of lading or receipt (other than charter party) for any
goods, merchandise, or effects, to be exported from a port or place in
the United States to any foreign port or place, ten cents."
"B. Express and freight: It shall be the duty of every railroad or
steamboat company, carrier, express company, or corporation, or person
whose occupation is to act as such, to issue to the shipper or consignor
or his agent, or person from whom any goods are accepted for
transportation, a bill of lading, manifest, or other evidence of receipt
and forwarding for each shipment received for carriage and
transportation, whether in bulk or in boxes, bales, packages, bundles,
or not so enclosed or included; and there shall be duly attached and
canceled, as in this act provided, to each of said bills of lading,
manifests, or other memorandum, and to each duplicate thereof, a stamp
of the value of one cent," etc.
Upon a broad and general interpretation of the language of these
provisions the ordinary freight receipts or bills of lading issued by
railroad companies evidencing the receipt of goods to be transported are
derived from the maritime law and originally related exclusively from
the United States to any place in Canada or Mexico would be taxable
under either clause. Because, such manifests or receipts as are referred
to and as are usually issued by railroad companies upon the receipt of
freight for transportation are, within the broader meaning of the term,
bills of lading, and therefore would be taxable under Clause A. They are
also undoubtedly within the class of instruments included within Clause
B. There being, therefore, a necessity of determining by legal
construction which clause of the war-revenue act is intended to cover
this particular kind of instruments, we must resort to the ordinary
rules of interpretation and seek to discover otherwise than by a resort
to the broadest and most general meaning of the words, the particular
clause of the act which the will of Congress intended should apply.
Resorting, therefore, to other parts of the same act, we find the
following provisions, which may be cited as tending to shed some light
upon the question:
"C. Charter party: Contract or agreement for the charter of any
ship, or vessel, or steamer, or any letter, memorandum, or other writing
between the captain, master, or owner, or person acting as agent of any
ship, or vessel, or steamer, and any other person or persons, for or
relating to the charter of such ship, or vessel, or steamer, or any
renewal or transfer thereof, if the registered tonnage of such ship, or
vessel, or steamer, does not exceed three hundred tons, three dollars,"
etc.
"D. Manifest for custom-house entry or clearance of the cargo of any
ship, vessel, or steamer for a foreign port,-- 'If the registered
tonnage of such ship, vessel, or steamer does not exceed,'" etc.
"E. Passage ticket, by any vessel from a port in the United States to
a foreign port, if costing not exceeding thirty dollars, one dollar,"
etc.
"F. Provided, That the stamp duties imposed by the foregoing schedule
on manifests, bills of lading, and passage tickets shall not apply to
steamboats or other vessels plying between ports of the United States
and ports in British North America."
The phrase "bills of lading" and the words "port," "export," etc.,
are derived from the maritime law and originally related exc lusively to
matters connected with navigation and shipping. A bill of lading, in
maritime jurisprudence, signifies a memorandum or acknowledgment in
writing, signed by the captain or master of a ship or other vessel, that
he has recieved in good order on board of his ship or vessel therein
named, at the place therein mentioned, certain goods therein specified,
which he promises to deliver in good order, the dangers of the sea
excepted, at the place therein appointed, for the delivery of the same
to the consignee therein named, or to his assigns, he or they paying
freight for the same. This was the primary meaning of the term. A
charter party was a contract for the letting of the whole or part of a
ship for the conveyance of goods in consideration of the payment of
freight. So, also, in its earliest use, the word "export" meant the
carrying out of goods from one country into a foreign country by means
of a ship. Modern methods of business and transportation have made the
use of receipts or manifests in the nature of bills of lading applicable
to transportation by carriers by land, and such receipts or manifests
are now frequently described as bills of lading. In the same way, goods
are now frequently exported by railroad cars as well as by vessels.
It is obvious that when the act in question refers to the subject of
charter parties and fixes the tax thereon, as well as when it refers to
manifests for custom-house entry or clearance of the cargo of any ship,
vessel, or steamer for a foreign port, or to passage tickets by any
vessel from a port in the United States to a foreign port, it is
referring exclusively to matters within the realm of maritime law and is
dealing only with vessels engaged in the foreign trade. In my judgment
it was in the same sense that Clause A, referring to bills of lading for
goods to be exported from a port or place in the United States to any
foreign port or place, was intended to be considered.
2. Clause B, under the title of "Express and freight," has fully and
specifically covered the taxation of manifests or receipts issued for
goods received for transportation by railroad companies. There can be no
question but what in every case of a shipment by rail from any point in
the United States, either to another point in the United States or to a
point out of the United States, the company is bound to issue a receipt
under the express and freight clause and to place thereon a 1-cent
stamp. In all instances where goods are received for transportation by
rail in the United States some part of the carriage must be through our
own territory, and certainly for that portion of the carriage a stamped
receipt is necessary under Clause B. It would also seem to be necessary
to hold, if Clause A is applicable to such cases, that an additional
stamp of 10 cents must be placed upon the receipt or manifest in case
the goods are to be transported to a place outside the United States;
but unless the language of the act positively requires it, it will not
be held that Congress intended to impose duplicate taxation upon this
branch of business. A meaning will be sought for that will give
reasonable and adequate effect to each clause, so that each can have
full and complete operation within its own sphere of application. Such a
result we obtain from a construction which restricts Clause A to a
maritime sense as referring only to transportation by vessels in the
foreign trade, exclusive of all ports of British North America.
2. The war-revenue acts of 1862 and 1864 contained a clause in
precisely the same language as Clause A under consideration;
nevertheless, the Treasury Department never attempted by virtue of that
provision to impose a stamp tax upon railroad companies transporting
goods to Canada by rail during the whole period those acts remained in
force. This was not because the Department was not desirous of imposing,
if possible, a revenue tax upon railroad freight receipts; for it
appears that several attempts were made by the Internal-Revenue Office
to subject such receipts to taxation under other clauses of the acts of
1862 and 1864, though unsuccessfully. The fact that during the whole
time that this clause remained unrepealed as a part of the acts of 1862
and 1864, a construction was put upon it by the Revenue Bureau which
limited its application to goods exported by vessels engaged in the
foreign trade, is very cogent and conclusive testimony as to the scope
and effect the same clause was intended to have by the Congress which
passed the war-revenue act of 1898.
What is known as departmental construction of a statute is, in proper
instances, a very important method of determining the true legal
construction to be placed upon acts of Congress. As was said by Mr.
Justice Brown in Schell's Executors v. Fauche (138 U.S., 562-572): "In
all cases of ambiguity the contemporaneous construction, not only of the
courts, but of the departments, and even of the officers whose duties it
is to carry the laws into effect, is universally held to be
controlling."
When there is added to this departmental construction the subsequent
readoption of the same language by Congress in another act, it is
conclusive that Congress, in the absence of language to the contrary,
intended the same construction and effect to be given to the words in
the latter as in the former instance.
In this connection, it is to be noted that the proviso F, exempting
from stamp duties manifests, bills of lading, and passage tickets issued
by steamboats and other vessels plying between ports of the United
States and ports in British North America, was also contained in the act
of 1862. It thus appears that Congress, in both instances, had in view
the policy of exempting from taxation bills of lading on vessels engaged
in the foreign trade with ports of British North America, leaving the
duties to be paid upon business of that nature transacted by vessels
going to other foreign ports.
3. To hold that Clause A covered bills of lading or manifests issued
by railroad companies for goods received by them for transportation by
rail from points in the United States to Canada would be to hold in
effect that Congress intended to make a manifestly unjust discrimination
against that particular class of traffic. This will appear from a
comparison of freight rates by railroad to Canada and by vessel to
Liverpool.
The minimum rate for merchandise weighing less than 100 pounds from
Boston to Montreal is 45 cents. A stamp tax of 10 cents upon such
shipment would equal 22 per cent of the gross freight, but inasmuch as
the American railroads which would have to pay this tax receive only a
portion of the total freight charge, the percentage of tax to the
freight received by the American road would be much greater.
The minimum rate of freight for merchandise from Boston to Liverpool
on similar quantities is 21 shillings; the tax of 10 cents on such a
shipment would amount to only 2 per cent of the total freight, but by
the proviso of the act all shipments by vessel to Canadian ports are
required to pay no stamp tax whatever. It is not probable that it was
the intention of Congress to make so serious a discrimination against
the railroad carriers. No reason for such a discrimination is suggested
or in any way appears, and in the absence of explicit language requiring
such a construction it will not be presumed that Congress intended so to
discriminate.
I therefore advise you that upon bills of lading, receipts,
manifests, and other similar documents issued by railroad companies for
the receipt of goods to be transported by rail from any place in the
United States to Canada, a stamp tax of 1 cent is payable under the
clause headed "Express and freight," and that no tax is payable thereon
under the clause relating to goods exported from a port or place in the
United States to any foreign port or place. The same rule should be
applied to shipments by rail to Mexico.
Very respectfully,
JOHN W. GRIGGS.
ATTORNEY GENERAL-- OPINION; 23 Op.Att'y.Gen. 2, December 29, 1899
The claim being one for the payment of money and actually pending
before the Treasury Department, the Attorney-General deems it
inexpedient to consider it. Under the act of July 31, 1894 (28 Stat.,
208), the question referred to the Comptroller of the Treasury for his
decision.
DEPARTMENT OF JUSTICE,
December 29, 1899.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your letter of
the 28th instant, transmitting certain papers filed in your Department
in the nature of a claim of Amelia Mary Hyde, administratrix of the
estate of Isaac P. Tice, deceased, against the United States, for meters
supplied to the Government for ascertaining the quantity and strength of
spirits subject to tax, and requesting my opinion as to whether the
United States occupies the relation of trustee toward the claimant as to
the money received for the meters and not paid over to the decedent by
the Government.
The party at whose instance this request for my opinion is made is
prosecuting in the regular way a claim for payment through the Treasury
Department. The question submitted for my opinion is necessarily
involved in the determination of the validity of the claim and arises
out of it.
By the legislative appropriation act of July 31, 1894 (chap. 174, sec.
8), it was provided as follows:
"The head of any executive department * * * may apply for and the
Comptroller of the Treasury shall render his decision upon any question
involving a payment to be made by (him) or under (him), which decision,
when rendered, shall govern the Auditor and the Comptroller of the
Treasury in passing upon the account containing said disbursement."
Inasmuch as the claim in question is one which can under this
legislation be referred to the Comptroller of the Treasury, it is deemed
inexpedient for the Attorney-General to consider it. This has been the
practice adopted by this Department in similar matters since the passage
of the act of July 31, 1894. (See 21 Opin., 178.)
The papers are herewith returned.
Very respectfully,
JOHN W. GRIGGS.
ATTORNEY-GENERAL-- OPINION; 23 Op.Att'y.Gen. 1, December 20, 1899
Except in matters of great importance, the Attorney-General will not
express an opinion upon any question involving a payment to be made by
or under the head of an executive department. That duty, by the act of
July 31, 1894 (28 Stat., 208), is imposed upon the Comptroller of the
Treasury, whose opinion is binding and conclusive.
DEPARTMENT OF JUSTICE,
December 20, 1899.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge the receipt of your letter of
the 18th instant, in which you ask my official opinion as to the
propriety of a certain claim of J. M. Ceballos & Co. against your
Department, arising out of a contract made between the Secretary of War
and J. M. Ceballos & Co. on March 4, 1899, for the transportation of
Spanish prisoners of war and others from the Philippines to Spain, in
pursuance of certain paragraphs of the treaty of Paris.
The act of July 31, 1894 (chap. 174, sec. 8), provides: "The head of
any executive department * * * may apply for and the Comptroller of the
Treasury shall render his decision upon any question involving a payment
to be made by (him) or under (him), which decision, when rendered, shall
govern the Auditor and the Comptroller of the Treasury in passing upon
the account containing said disbursement."
It has been repeatedly held by my predecessors that, except in
matters of great importance, all questions of the character described in
the statute quoted, should be submitted to the Comptroller of the
Treasury, and that it is no longer the function of the Attorney-General
to answer them. (See 21 Opin., 178, 181, 188, 530.)
The question upon which you now desire my opinion is one that, under
the above-quoted statute, should be answered by the Comptroller, and his
decision thereon will be binding and conclusive. I respectfully suggest,
therefore, that the question be submitted to him.
Very respectfully,
JOHN W. GRIGGS.
WHARVES-- LANDS-- STATUTORY CONSTRUCTION; 22 Op.Att'y.Gen. 665,
December 18, 1899
Whenever a power is given by statute, everything for the making of it
effectual, or requisite to attain the end, is implied.
The act of March 3, 1899, making an appropriation for "transportation
of the Army and its supplies," impliedly authorizes the Secretary of War
to purchase for the United States such land as in his judgment may be
necessary for the erection of the wharf or wharves as contemplated by
the appropriation, and the land so purchased can be paid for out of said
appropriation.
DEPARTMENT OF JUSTICE,
December 18, 1899.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge the receipt of your letter of
June 7, 1899. You request my opinion as to whether or not under existing
law the Secretary of War has authority to purchase land to be improved
and used for wharfage for the ships employed by the War Department in
its transport service.
Section 3736 of the Revised Statutes is as follows:
"No land shall be purchased on account of the United States, except
under a law authorizing such purchase."
The question, then, to be considered is whether or not, in the face
of this statute, there is any law which expressly or impliedly
authorizes the purchase of land upon which to construct wharves for the
use of the United States.
The act making appropriations for the support of the Regular and
Volunteer Army for the fiscal year ending June 30, 1899 (30 Stat.,
1064), which became a law March 3, 1899, under the head of
"Transportation of the Army and its supplies," appropriates $17,500,000
to be expended for certain purposes named under the said head, and among
other objects for which the said appropriation is made I find the
following:
* * * "And in opening roads and building wharves * * * the expense of
sailing public transports on the various rivers, the Gulf of Mexico, and
the Atlantic and Pacific Oceans; * * * and for constructing roads and
wharves."
It will be seen that there are two clauses in the act which authorize
the Secretary of War to use such part of this appropriation as may be
necessary in building or constructing roads and wharves. The terms
"building" and "constructing," as used in the act, in so far as they
refer to wharves, appear to be synonymous, and undoubtedly confer the
power upon the Secretary of War to erect for the use of the transport
service of the United States such wharves as in his opinion may be
necessary.
It is a settled rule of interpretation that whenever a power is given
by statute, everything for the making of it effectual, or requisite to
attain the end, is implied. (1 Kent's Com., 464.) Now, apply this rule
to this case. It is impossible to build a wharf without having the land
upon which to build it. Then, when Congress has made an appropriation,
and one of the objects for which the appropriation is to be used,
specially designated in the act, is the construction of wharves, does it
not necessarily follow that the right to purchase land upon which to
build such wharves is implied? In what other manner can land upon which
a wharf is to be erected be obtained? Proceedings in condemnation, if
such could be had, would result virtually in the purchase of the land
condemned, for such land as might be taken would be at an appraised
value to be paid for by the Government; and, in the absence of express
provision in the statute, the same objection can be urges to taking any
part of the appropriation with which to lease land as may be suggested
to the purchase of land on account of the United States to be used for
the location of wharves. I think, therefore, that the only reasonable
construction is to conclude that the authority to construct wharves
impliedly authorizes the purchase of the necessary land for the purpose.
In 15 Op.Att'y.Gen. 212, Mr. Attorney-General Devens construed that
part of the appropriation act of March 3, 1875, which reads as follows:
"That one hundred thousand dollars * * * shall be used for and
applied toward the construction of a movable dam, or a dam with
adjustable gates, for the purpose of testing substantially the best
method of improving permanently the navigation of the Ohio River and its
tributaries; the location of this work, with the plan of construction
and the application of the amount hereby appropriated, to be submitted
to the Secretary of War for his approval."
Referring to the above statute, Mr. Devens says:
"In my opinion, that provision impliedly authorized the purchase,
with the approval of the Secretary of War, of such land as is necessary
for the construction of the dam."
Upon a comparison of the statutes which Mr. Devens was construing
with the one now under consideration, it will be observed that the
authority to purchase land for the dam to be erected in the one case was
no more express than is the authority for the purchase of land for the
construction of wharves in the other. But such authority must be implied
in either case in order to permit the Secretary of War to carry out the
purposes of the act.
I therefore advise you that, in my opinion, the provision of the act
of March 3, 1899, which I have referred to above, impliedly authorizes
the Secretary of War to purchase, on account of the United States, such
land as in his judgment may be necessary for the erection of a wharf or
wharves, as contemplated by the appropriation, and that land so
purchased on account of the United States can be lawfully paid for from
the said appropriation.
Very respectfully,
JAMES E. BOYD,
Assistant Attorney-General.
Approved.
JOHN W. GRIGGS.
LETTER CARRIERS-- CIVIL SERVICE; 22 Op.Att'y.Gen. 663, December 9,
1899
In the exercise of his discretion the Postmaster-General abolished
the free-delivery service at Huron, S. Dak., on January 15, 1895, and in
consequence certain carriers were separated from the service. Held, That
on the reestablishment of free-delivery service at that place the former
carriers could not be reinstated under rule 9 of the civil-service
rules.
To entitle a person to reinstatement in the civil service under rule
9, by reason of the reduction of force, such reduction must be one
required by law and not one caused by the exercise of a discretionary
power vested in an executive officer.
DEPARTMENT OF JUSTICE,
December 9, 1899.
The POSTMASTER-GENERAL.
SIR: Under date of November 3, 1899, you submit for my opinion a
question arising under the third proviso of rule 9 of the civil-service
rules as amended by the order of May 29, 1899. As stated by you, the
facts are as follows:
"The Postmaster-General, in the exercise of his discretion, under the
provisions of the act of January 3, 1887 (par. 1, 24 Stat., 355), and in
compliance with the requirements of the act of March 3, 1877 (19 Stat.,
384), abolished the free-delivery service at Huron, S. Dak., on January
15, 1895, and in consequence three letter carriers and one substitute
carrier became separated from the service.
"In view of the fact that the gross receipts of the Huron, S. Dak.,
post-office again reached the amount required by law for the
establishment of the free-delivery service, an order was issued for the
reestablishment of the service on September 1, 1899, and for the
reinstatement, under rule 9 of the civil-service rules, of those
carriers who were separated from the service on January 15, 1895, and
who were then available."
The question propounded for my decision is whether these three letter
carriers and one substitute carrier are entitled to reinstatement under
that clause of rule 9 of the civil-service rules which declares, "Any
person who has been separated from the service by reason of a reduction
of force specifically required by law may be reinstated without regard
to the length of time he or she has been separated from the service."
The statute which governs the institution and abolition of the
free-delivery system is the act of January 3, 1887 (24 Stat., 355), the
first section of which provides as follows:
"That letter carriers shall be employed for the free delivery of mail
matter, as frequently as the public business may require, at every
incorporated city, village, or borough containing a population of fifty
thousand within its corporate limits, and may be so employed at every
place containing a population of not less than ten thousand, within its
corporate limits, according to the last general census, taken by
authority of State or United States law, or at any post-office which
produced a gross revenue, for the preceding fiscal year, of not less
than ten thousand dollars: Provided, This act shall not affect the
existence of the free delivery in places where it is now established:
And provided further, That in offices where the free delivery shall be
established under the provisions of this act, such free delivery shall
not be abolished by reason of decrease below ten thousand in population
or ten thousand dollars in gross postal revenue, except in the
discretion of the Postmaster-General."
The effect of the second proviso of this section is to leave it
within the discretion of the Postmaster-General to continue or abolish
the free-delivery system in offices where the population has fallen
below ten thousand in number or the gross postal revenue has fallen
below the sum of ten thousand dollars. The free delivery at Huron was
abolished by the Postmaster-General in the exercise of this discretion,
and not because of any specific requirement of the law. I do not think
it is a case arising under the proviso of the civil-service rules above
quoted. There may be doubt as what is meant by the phrase "specifically
required by law," the doubt arising from the indefinite nature of the
word "specifically;" but there can be no doubt that the reduction of
force referred to must be one required by law, and not one which is
caused by the exercise of the discretionary power vested in an executive
officer.
It must be a reduction which, under the law, is compulsory, and not one
which is optional.
I therefore advise you that the carriers referred to are not entitled
to reinstatement under the rule referred to.
Very respectfully,
JOHN W. GRIGGS.
NAVY-- RETIREMENT-- PROMOTION; 22 Op.Att'y.Gen. 657, December 7,
1899
The order of the President, dated July 1, 1899, retiring certain
officers under the naval personnel law, had the effect to retire
Lieutenant-Commander Driggs on June 30, 1899, and thus created a vacancy
in the fiscal year ending with that date, and the promotion of
Lieutenant McLean to fill such vacancy should date from the 30th day of
June.
Lieutenant McLean is entitled to the grade and rank indicated by his
commission, together with the emoluments attached, from and including
the 1st day of July, 1899.
Vacancies occurring through retirements, as provided under the naval
personnel law, are to occur or be accredited to the fiscal year which
ends with the 30th of June.
The retirements under section 8 of the law are to be made from the
list of voluntary applicants for the fiscal year then being considered,
to take effect on the last day of the fiscal year.
DEPARTMENT OF JUSTICE,
December 7, 1899.
The SECRETARY OF THE NAVY.
SIR: I have the honor to acknowledge receipt of yours of October 10,
1899, requesting an opinion upon a question which has arisen in your
Department under the provisions of sections 8 and 9 of the act "To
reorganize and increase the efficiency of the personnel of the Navy and
Marine Corps of the United States," approved March 3, 1899. The facts
submitted are in substance as follows:
A vacancy was occasioned in the grade of lieutenant-commander in the
Navy by the retirement under the provisions of section 8 of the said act
of Lieut. Commander William H. Driggs, which vacancy was filled by the
promotion of Lieut. Walter McLean. At the close of the fiscal year
ending June 30, 1899, in order to create the vacancies provided in the
said act, the Secretary of the Navy recommended to the President the
retirement of certain officers who had filed official applications and
had their names placed on the list of applicants for voluntary
retirement under the provisions of section 8 of the act, and on the 1st
day of July, 1899, the President made the following order in reference
to the said list of officers named therein and recommended for
retirement by the Secretary of the Navy:
"The above recommendation of the Secretary of the Navy is approved,
and, pursuant to the provisions of section 8 of the act entitled 'An act
to reorganize and increase the efficiency of the personnel of the Navy
and Marine Corps of the United States,' approved March 3, 1899, the
officers whose retirement is recommended by him will be retired from
active service and placed upon the retired list as for the fiscal year
ending June 30, 1899."
Lieut. Commander William H. Driggs, who had theretofore filed his
official application with the Secretary of the Navy for retirement under
section 8, was among the officers recommended for retirement by the
Secretary of the Navy and was included in the above order signed by the
President on July 1, 1899. On the 5th day of July, 1899, Lieutenant
Commander Driggs was notified by letter from the Secretary of the Navy
of his retirement, and was informed in the same communication that he
was placed upon the retired list of officers of the United States Navy
from July 12, 1899. Thereupon, Lieut. Walter McLean, of the United
States Navy, who was promoted to fill the vacancy occasioned by the
retirement of Driggs, was given a commission bearing date July 13, 1899,
the day following the date on which the retirement of Driggs, according
to the notification of the Secretary of the Navy, was to go into effect.
It is also stated that Driggs remained upon the active list up to and
including the 12th day of July, 1899, and the opinion desired is as to
whether, under these circumstances, Lieutenant-Commander McLean's
commission should bear date July 13, 1899, or July 1, 1899.
It is suggested that if the commission of McLean, who was promoted to
fill the vacancy occasioned by the retirement of Driggs, should bear
date of July 1, 1899, then, from the said date until and including the
12th day of July, 1899, the number of officers prescribed by law for
that grade would be exceeded; in other words, that for the twelve days
as stated there would be two officers filling a grade in which the law
seemingly provides for only one.
Then the question is presented as to whether sections 8 and 9 of the
act under consideration contain express or implied authorization of such
temporary excess.
In answer to the last question, I am of the opinion that the law does
not authorize such excess of officers of the same grade, either
expressly or impliedly; and, further, that in the administration of the
two sections under consideration, according to their true intent and
meaning, there can be no such excess of officers.
In order to have the matter fully before us, I think it well to copy
sections 8 and 9 of the act, which are as follows:
"SEC. 8. That officers of the line in the grades of captain,
commander, and lieutenant-commander may, by official application to the
Secretary of the Navy, have their names placed on a list which shall be
known as the list of 'applicants for voluntary retirement,' and when at
the end of any fiscal year the average vacancies for the fiscal years
subsequent to the passage of this act above the grade of commander have
been less than thirteen, above the grade of lieutenant-commander less
than twenty, above the grade of lieutenant less than than twenty-nine,
and above the grade of lieutenant (junior grade) less than forty, the
President may, in the order of the rank of the applicants, place a
sufficient number on the retired list, with the rank and three-fourths
the sea pay of the next higher grade, as now existing, including the
grade of commodore, to cause the aforesaid vacancies for the fiscal year
then being considered.
"SEC. 9. That should it be found at the end of any fiscal year that
the retirements pursuant to the provisions of law now in force, the
voluntary retirements provided for in this act, and casualties are not
sufficient to cause the average vacancies enumerated in section eight of
this act, the Secretary of the Navy shall, on or about the first day of
June, convene a board of five rear-admirals, and shall place at its
disposal the service and medical records on file in the Navy Department
of all the officers in the grades of captain, commander,
lieutenant-commander, and lieutenant. The board shall then select, as
soon as practicable after the first day of July, a sufficient number of
officers from the before-mentioned grades, as constituted on the
thirtieth day of June of that year, to cause the average vacancies
enumerated in section eight of this act. Each member of said board shall
swear or affirm that he will, without prejudice or partiality, and
having in view solely the special fitness of officers and the efficiency
of the naval service, perform the duties imposed upon him by this act.
Its finding, which be in writing, signed by all the members, not less
than four governing, shall be transmitted to the President, who shall
thereupon, by order, make the transfers of such officers to the retired
list as are selected by the board:
Provided, That not more than five captains, four commanders, four
lieutenant-commanders, and two lieutenants are so retired in any one
year. The promotions to fill the vacancies thus created shall date from
the thirtieth day of June of the current year: And provided further,
That any officer retired under the provisions of this section shall be
retired with the rank and three-fourths the sea pay of the next higher
grade, including the grade of commodore, which is retained on the
retired list for this purpose."
It will be seen that section 8 fixes the number of vacancies which
are to occur or be created in a fiscal year to be, above the grade of
commander, thirteen; above the grade of lieutenant-commander, twenty;
above the grade of lieutenant, twenty-nine; and above the grade of
lieutenant (junior grade), forty; and where such vacancies in the
several grades do not exist in the ordinary course of events the
Congress by this law provides two methods by the one or both of which,
at the end of the fiscal year, a sufficient number of such vacancies are
to be created as are necessary to reach the number prescribed in each of
the grades named.
The first plan prescribed is to permit officers of the line in the
grades of captain, commander, and lieutenant-commander to make official
application to the Secretary of the Navy to have their names placed on a
list of applicants for voluntary retirement; and from this list the
President, in the order of the rank of the applicants, is authorized to
place a sufficient number on the retired list to create vacancies to the
number provided for by the act. If a resort to this plan does not result
in creating the desired number of vacancies, then the Secretary of the
Navy is empowered to convene a board composed of five rear-admirals on
or about the 1st of June, and to place at the disposal of the board the
service and medical records on file in the Navy Department of all the
officers in the grades of captain, commander, lieutenant-commander, and
lieutenant, and this board is to select from the list thus furnished, as
soon as practicable after the 1st day of July, a sufficient number of
officers from the grades mentioned as constituted on the 30th day of
June of that year to cause the average vacancies enumerated in section 8
of the act.
The findings of the board are to be transmitted to the President in
writing, and the President is required to make a transfer of the
officers selected by the board to the retired list.
I think the intention of Congress is plainly expressed in these two
sections; so much so, at least, that there need be no confusion in the
administration of the law. The vacancies provided for are to occur or be
created for the fiscal year which ends with the 30th of June. Under
section 8 of the act the retirements are to be made from the list of
voluntary applicants and for the fiscal year then being considered. If
the number of vacancies are not created by the retirement of voluntary
applicants, then, under section 9, the board authorized to be appointed
by the Secretary of the Navy is to convene on or about the 1st day of
June of the current year, and from the records furnished enough
retirements are to be arbitrarily made by this board to complete the
number of vacancies for the fiscal year.
Now, in the case of the retirement of those who have voluntarily
applied, the retirement, according to the act, takes effect on the last
day of the fiscal year, which is the 30th of June. No injustice can be
done to the retiring officers in such case, for the reason that, with
the act of Congress before them, these officers voluntarily file their
applications for retirement under its provisions, which mean that the
retirement is to go into effect on the 30th of June, the end of the
fiscal year. This view of the law is strengthened by the provision of
section 9, which follows. The retirements under section 9 are not upon
voluntary application. They are made by the board, and the officers to
be retired are selected after an examination of their records as
furnished by the Navy Department. It is, therefore, provided that this
board shall meet on or about the 1st of June, evidently in order that
the report of the board may be made to the President so that the
retirements made in this section can also take effect at the end of the
fiscal year.
If there were any doubt about this interpretation of the law, the
provision in section 9, which is as follows: "The promotions to fill
vacancies thus created shall date from the thirtieth day of June of the
current year," removes it. The vacancies referred to in this paragraph
are the vacancies created under the plans provided in one or both of
sections 8 and 9 of the act. The language of the sections under
consideration not only, in my opinion, warrants the interpretation which
I have placed upon them, but it will be seen that such construction
conduces to a methodical and orderly administration of the law. It
results in making all the vacancies created under the provisions of the
two sections, 8 and 9, of the act take effect on the last day of the
fiscal year, and the promotions made to fill such vacancies go into
effect on the day immediately following the last day of the fiscal year,
viz, on the first day of July of the current year.
I therefore advise you that, in my opinion, the order of the
President, though dated on the 1st of July, 1899, had the effect to
retire Lieut. Commander William H. Driggs on the 30th day of June, 1899,
and thus create a vacancy for and within the fiscal year ending with
that day, and that the promotion of Lieut. Walter McLean to fill the
vacancy thus created by the retirement of Lieutenant-Commander Driggs
should date from the said 30th day of June. In other words, his
promotion, and his commission in pursuance thereof, should bear date as
of the 1st day of July, 1899; and I also am of opinion that he is
entitled to the grade and rank indicated by his said commission,
together with the emoluments attached, from and including that date.
Respectfully,
JAMES E. BOYD,
Assistant Attorney-General.
Approved.
JOHN W. GRIGGS.
CONCESSIONS-- CUBA; 22 Op.Att'y.Gen. 654, December 6, 1899
There is no objection to the submission to Congress of the claim of
the British Cuba Submarine Telegraph Company for damages by our vessels
occurring during the hostilities with Spain.
Since the exchange of ratifications of the peace treaty with Spain
the occupation of Cuba by the United States has been occupation of a
foreign country in time of peace, and is not made a temporary war
occupation or otherwise affected, internationally speaking, by the
circumstance that the Army has been used as the agency.
In ascertaining the obligation of the United States with regard to
any debts that the government of Cuba may inherit from the former
(Spanish) government of Cuba, as being the government of the same nation
or people, there should be taken into consideration the fact that Cuba
is being occupied pursuant to the resolutions of April 20, 1898, with
the sole object of its pacification preparatory to turning over the
control to the people of Cuba, which can not be done until its people
have organized a government to receive it.
DEPARTMENT OF JUSTICE,
December 6, 1899.
The SECRETARY OF STATE.
SIR: I have received your letter of the 13th ultimo, inclosing one
from the British charge d'affaires, who calls attention to the fact that
he has not as yet been honored with a reply to his note of the 25th of
last May, setting forth arguments concerning the obligations of the
United States in the matter of Spanish concessions secured by English
telegraph companies, and, aside from that, asks that a claim of the Cuba
Submarine Telegraph Company for damages by our vessels during the
hostilities with Spain be referred to Congress in the same manner as
that of the Eastern Extension Australasia and China Telegraph Company. I
had previously received from you his note of the 25th of May.
He says your Department has promised to refer the last-mentioned
claim "with a suitable recommendation," the nature of which
recommendation is not more particularly stated by you.
You call my attention to his statement of the inability of his
Government to concur in my views on the subject of the concessions as
set forth in your Department's note, which you say was based on mine of
the 17th of March last, and desire to be advised of my views as to the
propriety of an arrangement "to submit the subject in question to
Congress, as has been done in the claim of the Eastern Extension
Australasia and China Telegraph Company."
I see no objection to such submission to Congress of the claim for
damages during hostilities; but, of course, express no views as to the
arrangement and recommendation in the other case, not knowing what they
are. The two claims are similar, however, and I see no reason for other
than the same treatment of both in any reference to Congress.
I return the detailed statement of the damages for transmission to
Congress.
These claims do not appear to have any relation to the matter
referred to in the note of May 25, last.
My views, as set forth in your Department's note of last spring to
the charge, are quoted by him as follows:
"With regard to the Antilles, you informed me that the United States
Attorney-General holds that 'the present American control of Cuba is
essentially and merely that exercisable by a temporary military
occupation; that the United States Government, not having established a
protectorate over Cuba, is not called upon to discuss the question of
the transitory obligations which devolve upon a protecting state.'"
It seems that the text of my communication and its date were unknown
to the charge, and hence he was not aware that I wrote before the treaty
with Spain had been ratified by the government of that country, and that
I spoke of our Government as "still theoretically at war with Spain."
By reason of this misapprehension the charge's arguments are not
addressed to the state of affairs which I was discussing, so that any
further discussion of the apparently divergent views heretofore
expressed by me and by Her Majesty's representative upon this subject is
unnecessary.
I agree with the charge in thinking that our occupation of Cuba is
now other than analogous to a military occupation of a foreign country
in time of war. Since the exchange of ratifications of the peace treaty
it has been an occupation of a foreign country in time of peace, and in
no way affected, internationally speaking, by the circumstance that the
Army has been used as the agency. (Calvo, sec. 3144.)
I concede, the treaty having been duly ratified, that Great Britain
has a right to appeal, on behalf of her subjects, to the rules
prevailing in time of peace. But she has not necessarily the right to
ignore the new facts which have followed the cessation of the
sovereignty of Spain. Nor do I understand that the charge questions our
duty and right as asserted in the joint resolutions of April 20, 1898,
now partly executed. In pursuance of those resolutions, Spain has been
induced to relinquish her authority in Cuba, and to cease her opposition
to the complete carrying out of our duty, which contemplated an
occupancy of Cuba until "the pacification thereof," and then the turning
over of the island to the control and government of its people. In
performance of this duty, we are accordingly occupying Cuba and
preparing to turn over the control. This can not be done until the
people have organized a government to receive it.
These are facts which are to be reckoned with in ascertaining our
obligations with regard to such debts as that government may take over
from the former government of Cuba, as being the government of the same
nation or people.
I am not sure that I am able to understand precisely from any papers
or communication on this subject now in my possession what action, if
any, is desired of this Government by the Government of Her Majesty. If
you will have the kindness to intimate to me the exact request of the
charge I shall be happy to give it my attention, and to advise you
accordingly.
Respectfully,
JOHN W. GRIGGS.
HARBOR IMPROVEMENTS-- CONSTITUTIONAL LAW; 22 Op.Att'y.Gen. 646,
December 4, 1899
The authorities of the city of Chicago have no legal power to
prohibit the Government contractors from dumping material dredged from
the harbor at Chicago within the limits selected and designated by the
Secretary of War, in accordance with the authority conferred upon him by
law.
The power of the United States to regulate commerce is general,
absolute, and without limit, either as to the time, place, or detail of
its exercise, except as to waters whose entire navigability for commerce
is limited to the confines of a single State.
This power includes the right to regulate the use of all the means
and instrumentalities used in commerce, whether on sea, river, harbor,
or land, and entirely irrespective of whether a State has attempted to
regulate the same matter or not.
Commerce is not restricted to the purchase, sale, and barter of
commodities, but it includes navigation, intercourse, and the reception
and transportation and delivery of passengers and freight by land and
water, and also the means or instrumentalities used in such commerce.
Congress has power to regulate and improve the harbors of the
navigable waters of the United States, and this carries with it the
right to deposit the material removed in making the improvements in any
other part of the harbor or navigable waters or other place within its
control.
DEPARTMENT OF JUSTICE,
December 4, 1899.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge the receipt of your request,
indorsed upon the papers, November 13, 1899, for an opinion "whether the
authorities of the city of Chicago can legally prohibit the dumping of
material dredged from the harbor of Chicago, under contracts with the
Government, within the limits selected and designated by the Secretary
of War in accordance with the authority conferred upon him by the laws
of Congress."
From the papers accompanying your request it appears that in 1897
some questions arose between the officers of your Department in charge
of harbor improvements there and the authorities of the city of Chicago
as to where the material dredged from that harbor should be deposited,
with a view to the prevention from pollutions of the water of Lake
Michigan in that vicinity, largely used for domestic purposes by the
people of that city. In view of this the Secretary of War, with the
assent of the city authorities, selected and designated the place for
the deposit of such material in the waters of the harbor.
Afterwards contracts involving very large sums were made by the
United States for dredging and deepening the harbor of Chicago, and for
the deposit of the removed material within the limits thus designated by
the Secretary of War. These contracts are in course of execution, and
while being performed by the contractors, under direction of the United
States, the city of Chicago has, so far as it can, prohibited the
deposit of any such material in the waters of Lake Michigan within 8
miles of the shore in front of that city, and arrested several of the
persons engaged in making such deposit under said contracts within this
8-mile limit.
This was done under an ordinance of the city forbidding such deposits
within 8 miles of the shore, which ordinance was in force at the time of
the designation, as above stated, of the place of deposit of dredged
material, and when said contracts were made, but of which the United
States officers do not appear to have been aware.
The case presented involved, upon the one hand, the jurisdiction and
power of the United States in the exercise of its power to regulate
commerce, and upon the other the jurisdiction and power of the city over
and within the navigable waters of the United States, with a view to the
health, comfort, and welfare of its people. Such questions in a
Government like ours are always of a delicate character, and require
delicate and considerate treatment. And it is to be presumed that the
officers of the Government in charge of such work, in the exercise of
the powers of the Government, will act, and in fact do act, with a
proper regard for the health, comfort, interest, and convenience of the
people who may be directly affected thereby, as well as of the general
public. But, after all, it is generally in such cases more a question of
power than of whether that power has been exercised in the best or the
most reasonable manner.
In an opinion given to your Department June 8, 1899, in relation to
the power of the Secretary of War to establish or modify harbor lines in
the harbors of Tacoma and Seattle, in the State of Washington, I had
occasion to consider at some length the powers of Congress and of the
Secretary of War in respect of harbors, their regulation and
improvement, in the navigable waters of the United States, and from
which I quote, as applicable to the case here presented.
Speaking of the power of Congress to improve and regulate harbors, I
there said:
"The conceded and unquestioned right of a nation to control, within
certain limits, the waters of its coasts, and the navigable waters
within its territory, would, of itself be ample for this purpose."
"Besides this, the Constitution, article 1, section 8, provides that
Congress shall have power 'To regulate commerce with foreign nations and
among the several States and with the Indian tribes.'
"This grant of power to regulate commerce is general, absolute, and
without limit either as to the time, place or detail, or extent of its
exercise (Gibbons v. Ogden, 9 Wheat., 1, 196), except, of course, waters
whose entire navigability for commerce is limited to the confines of a
single State. In delivering the opinion of the court in that case, Chief
Justice Marshall said (p. 196):
"'This power, like all others vested in Congress, is complete in
itself. It may be exercised to its utmost extent, and acknowledges no
limitations other than those prescribed in the Constitution. These are
expressed in plain terms. * * * If, as has always been understood, the
sovereignty of Congress, though limited to specified objects, is plenary
as to those objects, the power over commerce with foreign nations and
among the several States is vested in Congress as fully as it would be
in a single government, having in its constitution the same restrictions
on the exercise of the power as are found in the Constitution of the
United States.'
"But the same instrument that confers this power imposes also certain
specific restraints upon its exercise; so that both together result in
the plenary power of Congress, except as thus limited in particular
instances. And, as these limitations have no reference to matters here
involved, we may treat the power of Congress in this respect as without
limit.
"This general and absolute control of Congress of the whole matter of
commerce upon waters, as it has always been exercised with the consent
and sanction of every Department of the Government, and therefore
legally exercised, is tersely stated by Justice Miller in delivering the
opinion of the court in Wisconsin v. Duluth (96 U.S., 379). He says,
page 383:
"'It is to be observed * * * that the whole system of river and lake
and harbor improvements, whether upon the sea coasts, the lakes, or the
great navigable rivers of the interior, have for years been mainly under
the control of that Government, and that whenever it has taken charge of
the matter its right to an exclusive control has not been denied.'
"And speaking of certain acts of Congress for the improvement of the
harbor of Duluth, he says, page 387:
"'Nor can there be any doubt that such action is within the
constitutional power of Congress. It is a power which has been exercised
ever since the Government was organized under the Constitution. The only
question ever raised has been how far and under what circumstances the
exercise of the power is exclusive of its exercise by the States. And
while this court has maintained in many cases the right of the States to
authorize structures in and over the navigable waters of the States,
which may either impede or improve their navigation, in the absence of
any action of the General Government in the same matter the doctrine has
been laid down with unvarying uniformity that when Congress has, by an
expression of its will, occupied the field, that action is exclusive of
any right to the contrary asserted under State authority.'
"And he refers, among others, the following cases:
South Carolina v. Georgia (93 U.S., 4).
Pond v. Turk (95 U.S., 459).
Gibbons v. Ogden (9 Wheaton, 1).
Wilson v. The Blackbird Marsh Company (2 Pet., 345).
The Wheeling Bridge Case (18 How., 421).
Gilmon v. Philadelphia (3 Wall., 713).
"These cases, and many others which might be cited, fully sustain
this doctrine, and also that the power to regulate commerce includes the
power to regulate the use of all the means and instrumentalities used in
commerce, whether on the sea, the navigable rivers and lakes, in the
ports and harbors, or on land, and entirely irrespective of whether a
State has attempted to regulate the same matter or not. Indeed, outside
of customs and revenue laws, the most of the regulations of commerce are
those regulating the use of the means and instrumentalities by which it
is carried on.
"At this day it must be regarded as settled that commerce is not
restricted to the purchase, sale, and barter of commodities, but that it
includes also navigation, intercourse, and the reception,
transportation, and delivery of passengers and freight by land and
water, and also the means or instrumentalities used in such commerce.
From the many cases affirming this the following may be cited with those
above:
Gibbons v. Ogden (9 Wheaton, 1, 196).
Cases of the Export Tax (15 Wall., 232).
Pensacola Telegraph Company v. Un. Telegraph Company (96 U.S., 1, 9).
Gloucester Ferry Company v. Pennsylvania (114 U.S., 196, 203).
"Then, as commerce includes navigation, and as harbors are incidental
and as essential to navigation as are vessels themselves, it is obvious
that, under this power, Congress may establish and regulate (and
improve) harbors."
I have quoted thus largely from the opinion referred to because it
states also the law applicable to the present case. Under the decisions
referred to it can not be doubted that, under the constitutional power
to regulate commerce, including, as that does, navigation and all the
means and instrumentalities necessary to navigation, Congress has power
to regulate and improve the harbors of the navigable waters of the
United States by dredging the bottom and deepening the water, or in such
other ways as it deems necessary in aid of navigation. And this, of
course, carries with it the right to deposit the material thus removed
in any other part of the harbor or the navigable waters of the United
States, or other places within its control.
Probably this detail of the regulation of commerce-- the improvement
of harbors-- is one in which the State or a municipality has and may
exercise jurisdiction until and except as the Federal Government has
indicated its intention or exercised its jurisdiction; but whenever the
latter is done it is exclusive of every other jurisdiction, control, or
interference, as are all the powers vested in Congress. It is impossible
to conceive of two supreme or sovereign powers in respect of the same
matter; and as to harbors and all that pertains to their improvement,
the power to direct and control is supreme in either the State, the
municipality, or the United States. It can not be in all, or in any two;
and the power of either to dictate what improvements shall be made, or
how, or when, is a supreme power in this respect.
The Constitution "and the laws of the United States made in pursuance
thereof," which are "the supreme laws of the land, * * * anything in the
constitution or laws of any State to the contrary notwithstanding," have
vested this supreme power in Congress, and not in any State or
municipality.
This constitutional power and control extend over all the navigable
waters of the United States, except those the navigability of which for
commerce is confined within the limits of a single State; and it is
unnecessary to add that, as to the improvement of rivers and harbors,
this power carries with it a discretion as to what improvements shall be
made, how, where, and by what means. And because, as before stated, the
navigable waters of the United States, both inside and outside of
harbors, are under the control of Congress, that body may decide where
or in what places in those waters any structure may or may not be built,
and where any deposits of material may or may not be made. This is but a
detail of the improvement, regulation, or protection of such rivers and
harbors, and is clearly within the power of Congress.
But, like very many other powers conferred upon Congress, the power
to improve rivers and harbors is one which Congress can not itself
execute directly and in person, but must be executed by agents thereto
appointed; and, for many years, nearly all of this has been by Congress
referred to and placed under the direction of the Secretary of War, who
in the performance of his duty exercised the power of Congress and of
the United States. As is said by the Supreme Court in Wisconsin v.
Duluth (96 U.S., 379), on page 383:
"The operations of the Government in this regard have been conducted
by the Bureau of Engineering as a part of the War Department, to which
Congress has confided the execution of its wishes in all these matters."
This reference of such matters to the Secretary of War, and to his
direction, is most commonly made by the acts making appropriations for
such improvements, which, generally, provide merely that the money there
appropriated is to be expended under the direction of the Secretary of
War.
This is also the case in the act of March 3, 1899, making appropriations
for the improvement of the harbor at Chicago here under consideration.
It provides:
"That the following sums of money are hereby appropriated, * * * to
be immediately available, and to be expended under the direction of the
Secretary of War and the supervision of the Chief of Engineers."
And while the act specifies some of the improvements to be made, yet
the whole matter of the manner of making them, both generally and in
detail, is, by the act, placed under the direction and discretion of the
Secretary of War, and under the supervision of the Chief of Engineers,
as is usual in such cases, who, in directing such improvements,
generally and in all their details, and those acting under them, are
exercising the powers of Congress and of the United States, lawfully
conferred upon them, and they can not be interfered with in the
performance of this duty by any State or municipal authority. And it
follows also that the Secretary of War, in thus selecting and
designating a place for the deposit of material dredged from the harbor,
was quite within the limit of his power and duty.
If it be thought that, in the performance of the work of improving
the harbor at Chicago, any detail of the mode adopted by the Secretary
of War-- for instance, the place selected for deposit of dredged
material-- will be injurious or dangerous to the health or comfort of
the people of that city, the remedy is by appeal to the good sense,
discretion, and fairness of the Secretary, and not by municipal
interference with public work ordered by Congress, or the arrest of
persons engaged in that work. And while an ordinance of the city of
Chicago may, as to all persons subject to its jurisdiction, forbid the
deposit of any heavy substance in the waters of Lake Michigan within 8
miles of the shore in front of that city, it can not control or limit
the power of Congress over the navigable waters of the United States,
nor dictate where it shall or where it shall not deposit, within such
waters, material removed in the improvement of one of its harbors.
I have, therefore, to advise you that the authorities of the city of
Chicago have no legal power to prohibit the Government contractors
referred to from depositing, by direction from your Department, the
material removed in the work of improving the harbor at that place,
within the area heretofore designated therefor by the Secretary of War.
Respectfully,
JOHN W. GRIGGS.
CHECKS-- ASSIGNMENTS; 22 Op.Att'y.Gen. 637, November 27, 1899
Negotiable paper may be transferred so as to pass the title and
ownership, by the indorsement of the payee or indorsee thereon, which
may be made as well by the agent of such payee or indorsee as by such
principal.
In the making of such indorsement it is only necessary that the agent
act by the authority of the principal, which authority may be conferred
in writing, orally, or by a continual practice or use, with the
permission of the principal.
Section 3477, Revised Statutes, with reference to the assignment of
claims, applies only to such claims as require allowance by some
accounting officer, an ascertainment of the amounts due thereon, and the
issue of a warrant for their payment.
Checks of disbursing officers drawn upon the public Treasury or an
assistant treasurer of the United States may be properly indorsed and
transferred by either the payee, indorsee, or by an agent of either,
acting as such under a power of attorney from such payee or indorsee.
DEPARTMENT OF JUSTICE,
November 27, 1899.
The SECRETARY OF THE TREASURY.
SIR: I have to acknowledge the receipt of your note of November 17,
1899, with the inclosures therein referred to, asking my opinion, in
substance, whether checks drawn by disbursing officers of the Government
upon the Treasurer or an assistant treasurer of the United States may be
legally indorsed and transferred by an agent of the payee, acting as
such under a power of attorney given by such payee.
In reply I have the honor to say that it is a part of the general law
applicable to mercantile, negotiable paper-- of which checks drawn for a
certain specified sum and payable on presentation to the order of a
person therein named are a species-- that such paper may be transferred
so as to pass the title to and ownership thereof, by the indorsement of
the payee or indorsee thereon, and the general law of agency is so far
applicable thereto that such indorsement may be made as well by the
agent of such payee or indorsee as by such principals themselves, the
only question in such cases being as to the existence of such authority.
Equally well settled is it that the authority of such agent to make
such indorsements may be conferred and shown by either a formal power of
attorney, by a less formal writing, or orally, or by a continual
practice or use with the permission of the principal. No special form or
mode is required, but all that is necessary is that the agent act by the
authority of the principal. Nor is it material whether the authority of
the agent be conferred at the time that it is exercised, or previously,
if it continues when exercised.
These are well-known rules and are mentioned here only for the
purpose of stating the law which is applicable to the checks drawn by
disbursing officers, to which your inquiry relates. In these respects
there is no difference between checks drawn by public officers upon a
public depositary, and those drawn by a private person on an ordinary
bank; both, if payable to order, being transferable by indorsement,
which may be made alike, in either case, by the payee or indorsee, or by
his agent.
But, while this is the general law applicable to such paper, it may,
of course, be changed by express legislation, and the assignment and
transfer of such instruments may be prohibited in whole or in part, or
the manner of such transfer be prescribed or regulated by such
legislation. And I am referred to Revised Statutes, section 3477, and
asked whether that section forbids or regulates the assignment and
transfer of checks drawn by disbursing officers of the Government upon
the Treasurer or an assistant treasurer of the United States, and
whether this section is applicable to such checks? That section
provides that--
"All transfers and assignments of any claim upon the United States,
or of any part or share thereof or interest therein, whether absolute or
conditional, and whatever may be the consideration therefor, and all
powers of attorney or other authorities for receiving payment of any
such claim or of any part or share thereof, shall be absolutely null and
void, unless they are freely made and executed in the presence of at
least two attesting witnesses after the allowance of such a claim, the
ascertainment of the amount due, and the issuing of a warrant for the
payment thereof.
Such transfers, assignments, and powers of attorney must recite the
warrant for payment, and must be acknowledged by the person making them
before an officer having authority to take acknowledgments of deeds, and
shall be certified by the officer; and it must appear by the
certificate that the officer, at the time of the acknowledgment, read
and fully explained the transfer, assignment, or warrant of attorney to
the person acknowledging the same."
Construed literally this section absolutely forbids, and makes
absolutely null and void, all transfers and assignments and all warrants
of attorney therefor of any claim whatsoever against the United States,
or of any share or interest therein until "after the allowance of such a
claim, the ascertainment of the amount due, and the issuing of a warrant
for the payment thereof." Consequently, so construed, it absolutely
forbids, and makes absolutely null and void, all transfers and
assignments and warrants of attorney therefor of all and every claim
against the United States which does not need and does not have any
allowance or any "ascertainment of the amount due," and is not paid by
any warrant, but is paid in money, for the transfer of such claims can
not be made until after an allowance, ascertainment of the amount due,
and issue of a warrant, none of which things in very many cases is done;
and so, with such construction, such claims can not be assigned or
transferred at all.
And yet it is obvious that this class of claims, and there are many
of them, already liquidated in every respect, neither needing nor having
any allowance or ascertainment of the amount due, and as to which no
warrants are issued, but being paid in money, are, of all others, claims
the prohibition of the transfer of which is least useful, requisite, or
proper.
No better case to illustrate this is needed than this case of
disbursing officers charged, we will say, with the duty of purchasing
supplies for the Government, and the payment therefor by checks drawn on
an assistant treasurer against money already appropriated and placed
there for that purpose, where the assistant treasurer has nothing to do
respecting the matter except to pay the checks in money when presented.
But under the strict construction referred to the person who sold the
supplies and took the check therefor could not indorse it and have it
placed to his credit in his bank, and if he did the bank could not
receive the money, for it is a "claim upon the United States" and is not
transferred "after the allowance of such a claim, the ascertainment of
the amount due, and the issuing of a warrant for the payment thereof,"
unless, indeed, all of this is, in legal contemplation, done by the
disbursing officer in the discharge of his duty in making the purchase
and the issuing of his check.
This section forbids the transfer of any claim against the United
States until "after the allowance of such a claim, the ascertainment of
the amount due, and the issuing of a warrant for the payment thereof."
But, after all this is done, there is nothing of the claim that can be
assigned but the warrant itself. The claimant can not go and get the
original claim back from the accounting officer and make an assignment
of that. This is not what is contemplated, nor is this what is
prohibited. This assignment, then, contemplated by this section, and
which alone is not prohibited, is that of the warrant itself.
But, "such transfers, assignments, and powers of attorney must recite
the warrant for payment." Just what this means, when the only assignment
contemplated or permitted is that of the warrant itself, is not clear.
And all assignments, that is, of the warrants themselves-- for they are
all that are permitted to be assigned-- must be attested by at least two
witnesses and acknowledged before an officer competent to take the
acknowledgment of deeds.
It is not necessary in order to reply to the questions you ask to
determine just what this very peculiar section means in all these
respects, nor to just what claims against the United States its
provisions are intended to apply, but it is obvious to me that its
prohibition was intended to apply to only such claims as require
allowance by some accounting officer, an ascertainment of the amount due
thereon and the issue of a warrant for their payment, and does not refer
to claims which neither need nor have either of these, but are paid in
money on presentation of a check, and where the person paying has
nothing to do but pay the check as presented.
The claims of the President for his salary, those of the heads of
Departments for theirs, and those of employees of the Government who
receive fixed salaries are all claims against the United States for the
payment of which warrants are issued. While the section under
consideration may forbid the President, for instance, to transfer the
claim for his salary until the warrant issues for its payment, is it
possible that his indorsement of such warrant, for deposit in bank, is
hampered by the formalities of transfer. the attestation by two
witnesses, and his acknowledgment before an officer, and his having read
and fully explained to him the effect of such indorsement as defined in
that section?
Take, also, the case of the hundreds of thousands of pension warrants
issued every quarter to as many pensioners of the United States. It
would seem impossible that it could have been intended that every such
pensioner, in order to get his money without going to some large city,
where only there is an assistant treasurer, or in order that he may get
his money at the nearest bank, that every widowed woman or orphan
pensioner, must have the indorsement of the pension warrant attested by
two witnesses and acknowledged before an officer competent to take
acknowledgments of checks and have the effect of such transfers fully
explained and made known. The uniform practice ever since there have
been any pensioners has been to the contrary. And yet if this section
applies at all to such claims all this would be necessary.
United States Treasury notes and other issues of Government paper
money are certainly "claims upon the United States," and their transfer
and assignment equally forbidden under any literal construction of this
section, and if the section refers to all claims upon the United States,
and not to those alone which need or have an allowance or ascertainment
of the amount due or are paid by warrants, then their transfer is
practically prohibited. As they are "claims upon the United States" why
are they not within this prohibition of transfer, unless it is because
they neither need nor have any "allowance" or "ascertainment of the
amount due" and that no warrant issues for their payment?
And if this be the reason, and a sufficient one, why is not the same
reason equally effective as to other claims standing, in this respect,
in precisely the same situation? Nor is it any answer to this to say
these notes are payable to bearer and need no indorsement or formal
assignment. This section does not forbid merely the indorsement of such
claims, but equally forbids, as to the claims to which it refers, any
and all forms of transfer and assignment. Nor is it any answer to say
these notes are intended to pass from hand to hand, as a medium of
business exchange. This is no more true of these notes than, by the
ordinary and legal understanding, it is true also of checks, except that
the latter require some more formality of transfer and have a less
extended circulation. The difference is more in degree than in kind, and
even this loses its importance when we reflect that probably 90 per cent
of the entire money business of the country is transacted by checks and
without the use of any money.
I no more than merely allude to the very great inconvenience to
business men and the very great injury to business which would result if
the transfer for deposit merely of the very large number of checks upon
the Treasurer and assistant treasurer and Treasury warrants which are
issued daily in the vast business of the Government were hampered with
the formalities prescribed by this section. But this would be a very
serious matter and requires almost any possible construction of this
section which will avoid it. And I use this and previous illustrations
merely to show that the section could not have been intended to refer
literally to all "claims upon the United States" and to forbid their
transfer unless after allowance and ascertainment of amount due and a
Treasury warrant has been issued for their payment
And against this construction, which would forbid the indorsement,
even for deposit, of checks drawn upon the Treasury, and hamper such
transfer of Treasury warrants with the formalities prescribed by that
section, may be interposed the uniform different practice of the
Department, with the knowledge and tacit assent and approval of Congress
from the first.
This could hardly have been done, or permitted by Congress, had it been
believed to be in violation of this section. The act of February 26,
1853, (10 Stat., 170), was similar to Revised Statutes, section 3477,
except that it did not contain the formalities as to transfer prescribed
by that section; and yet such checks have been freely indorsed and
Treasury warrants freely transferred without such formalities ever since
the enactment of those statutes, and with the tacit consent and approval
of Congress; and the Supreme Court has more than once said that the
construction given to a statute by public officers charged with its
administration is entitled to great weight. Indeed, the long-continued
and uniform practice of one of the departments of the Government under a
statute, and with the tacit assent of Congress, goes far toward making
such practice and such construction of the statute the legal one.
Revised Statutes, section 3620, provides that--
"It shall be the duty of every disbursing officer having any public
money intrusted to him for disbursement to deposit the same with the
Treasurer or one of the assistant treasurers of the United States, and
to draw for the same only as it may be required for payments to be made
by him in pursuance of law (and to draw for the same only in favor of
the persons to whom payment is made)."
The Treasury Department has uniformly construed the words above
quoted in parentheses as meaning merely that such checks must be drawn
in favor of the person to whom the disbursing officer is required to
make payment, and not in favor of any other person, thus prohibiting the
transfer of the claim to any other person before its settlement, and not
as forbidding any words of negotiability. This is shown by the uniform
practice of the Department in recognizing the negotiability of such
checks just as it did under the act of 1853, from which section 3477 was
taken, and is shown also by the rule of that Department published with
special reference to this section 3620, viz:
"Any check drawn by a disbursing officer upon moneys thus deposited
must be in favor of the party, by name, to whom the payment is to be
made, and payable to 'order' or 'bearer' with these exceptions."
The exceptions are of cases where the officer may make the checks
payable to himself or "bearer."
Whenever might be my construction of this section 3620, in connection
with section 3477, were the question an original one unaffected by
long-continued practical construction, after such uniform construction
and practice, with the acquiescence of Congress since 1853, when section
3477 was enacted, I am not prepared to say that such construction and
practice are now wrong.
Two facts in relation to this matter may be safely predicated.
First, Congress has not been ignorant that, by the long and uniform
practice of the Department, checks drawn upon the Treasury have been
freely transferred and such transfers recognized. And had it supposed
that this was in violation of the section referred to, it would have
been long since remedied by explicit enactment. And, second, had
Congress intended so radical departure from the practice prevailing in
most nations, and especially in this country, as would be the
prohibition of the transfer of checks drawn upon the Treasury, it would
have indicated such intention by language more explicit in that
direction than is contained in this section.
We are bound to assume that the acts of every legislature are
intended to be reasonable, and to give them, if possible, such
construction as will make them so, and to construe them with reference
to their purpose and object. The object of the original act of February
26, 1853, from which this section 3477 is taken, was, as expressed in
its title, "To prevent frauds upon the Treasury of the United States."
As said by the Supreme Court in Hobbs v. McLean (117 U.S., 567), on page
576:
"The sections under consideration were passed for the protection of
the Government. (Goodman v. Niblack, 102 U.S., 556.) They were passed in
order that the Government might not be harassed by multiplying the
number of persons with whom it had to deal, and might always know with
whom it was dealing until the contract was completed and a settlement
made. Their purpose was not to dictate to the contractor what he should
do with the money received on his contract after the contract has been
performed."
Nor was it any more such purpose to dictate to him what he should do
with the check he received instead of money for such performance. The
attainment of this expressed object might well be aided by forbidding
the assignment of unsettled claims upon the Treasury, but it is not
perceived how that or any needed protection to the Government would be
aided by forbidding, after a claim was settled, the indorsement of a
check given in its payment. And that a rule which forbids such
indorsements is not reasonable, would appear from the common practice of
the business world and its common agreement that such indorsements are
necessary in the transaction of business.
While the Supreme Court has said, in language even broader than that
used in this section, that the act applies to all claims upon the United
States, of whatever description, and however arising, yet, from the
illustration referred to, and others that might be given, it is apparent
that this language was used, as it is in the statute, generally, and was
not intended literally and with no possible exception. And, after such
expressions, that court itself made several exceptions, and said that
the section, notwithstanding its general language, did not apply to
transfers or assignments by descent, by will, by involuntary bankruptcy,
or even of voluntary assignment under insolvent laws. And it is apparent
that there must be still other exceptions from this general language.
But there is another view which may be taken of this section which
would relieve it, even under a literal construction, from any objection
on account of its too-sweeping language. The section refers only to
"claims" upon the United States. Now, in the ordinary, and to a great
extent in a legal sense, a mere claim is something asserted on the one
hand, and which may be disputed or denied in whole or in part upon the
other, and which requires allowance, settlement, or adjustment. It
differs, or may differ, from a demand, debt, or obligation, which, if it
be such and definite, requires neither of these. And while every debt,
demand, or obligation of another is in one sense a claim upon him, yet
it is not every claim upon such person that is a demand, debt, or
obligation. There is a difference, and a material one.
A mere claim is subject to dispute and settlement; a demand, debt, or
obligation, if it be such, is not. Now this section uses the word
"claim" several times as expressive of that, the transfer of which is
forbidden, and never once uses "demand," "debt," or "obligation," or any
other word expressive of anything more than a mere unliquidated claim;
and it is not unfair to presume that Congress used this one word, and
omitted all others purposely, and with a full knowledge of the
difference in meaning. And this is rendered more probable by the fact
that such transfers are forbidden until after such allowance and
settlement, clearly indicating that such forbidden transfers are of
"claims" which require such allowance and settlement. At any rate, the
section is fairly susceptible of this construction; and, in view of the
consequences of a construction which would prevent the indorsement of
checks, pension and other warrants drawn upon the Treasury, except by
the formalities prescribed by this section, the construction indicated
would be fully justified.
Upon consideration of the whole matter, I have to advise you that
checks of disbursing officers, drawn upon the Treasurer or an assistant
treasurer of the United States, may be properly indorsed and transferred
by either the payee, or indorsee, or by an agent of either, acting as
such under a power of attorney from such payee or indorsee.
Respectfully,
JOHN W. GRIGGS.
HAWAII-- PUBLIC LANDS; 22 Op.Att'y.Gen. 627, November 21, 1899
Congress having failed to legislate on the subject of public lands
for the Hawaiian Islands, the government of Hawaii is not reinvested
with its former power of their disposition.
The Hawaiian Republic, as a separate and sovereign power, ceased to
exist when the resolution of annexation took effect, and it exists as an
organized government only for the purpose of municipal legislation and
for such special purposes as were expressed in the resolution, the sale
and disposition of the public lands not being one of the latter class.
The term "municipal legislation" is limited to that class of laws
that relates solely to the internal affairs of the country and the
relations of the people to each other.
By the resolution of annexation the public property of Hawaii,
including the lands, became vested in the United States, and only by
their authority or direction can those lands be disposed of.
All interest of the Republic of Hawaii in public lands at the time
the resolution of annexation took effect were thereby transferred to the
United States, and thenceforth the officials of Hawaii were without
power to convey by grant or cession the legal or equitable title of the
United States.
The resolution of annexation took effect as of the date of its
approval, to wit, July 7, 1898, with respect to public lands and not
August 12, 1898, the date on which the ceremonies took place formally
transferring possession.
The Hawaiian government has no power to convey or confirm title to
public lands where conditional sales or entries were made prior to the
resolution of annexation, and the conditions entitling such persons or
entrymen to a grant have been subsequently performed.
DEPARTMENT OF JUSTICE,
November 21, 1899.
The PRESIDENT.
SIR: By an Executive order bearing date of September 11, 1899, you
directed "that all proceedings taken or pending for the sale or
disposition of public lands in the Hawaiian Islands shall be
discontinued; and that if any sales or agreements for sale of said
public lands have been made since the adoption of the resolution of
annexation the purchasers shall be notified that the same are null and
void, and any consideration paid to the local authorities on account
thereof shall be refunded."
This order was issued in conformity to an opinion rendered to you by
myself on September 9, 1899, wherein the power of the local government
of Hawaii to make sale and disposition of the public lands in the
Hawaiian Islands was considered, and the conclusion was reached that
upon the approval of the resolution of annexation those lands became the
property of the United States and could be disposed of only in
accordance with the laws of Congress.
I am now put in possession by you of a communication, with
accompanying documents, from Hon. Alfred S. Hartwell, special agent of
the government of the Republic of Hawaii in Washington, wherein he
requests, on behalf of President Dole, a reconsideration of your
Executive order of September 11, 1899. You have requested me to examine
and hear for you the questions involved and the views of the
representatives of the local government of Hawaii, and to advise you
thereon.
There are several grounds of objections to the legality and propriety
of the order of September 11, 1899, which are raised on behalf of
President Dole. I will state them and consider them in the order in
which they are offered.
In the first place, it is contended that the provisions of the
resolution of annexation, taken in connection with the failure of
Congress up to the present time to pass any special laws concerning the
management and disposition of the public lands of Hawaii, show that it
was intended by the two governments of the Hawaiian Islands should
continue to administer its public land laws. This contention is based
principally upon that clause of the resolution which declares that the
"municipal legislation of the Hawaiian Islands not enacted for the
fulfillment of the treaties so extinguished, and not inconsistent with
this joint resolution, nor contrary to the Constitution of the United
States, nor to any existing treaty of the United States, shall remain in
force until the Congress of the United States shall otherwise
determine."
This contention was adversely disposed of by me in my opinion of
September 9, 1899, an appropriate portion of which I here repeat:
"It is only necessary to refer to the language of the resolution and
to the well-understood principles of public law which govern the subject
of territory ceded by one Government to another to reach the easy
conclusion that the public lands in the Hawaiian Islands, upon the
approval of the joint resolution of cession, became the property of the
United States, and could thereafter be disposed of only in accordance
with such special laws as Congress might thereafter enact. The preamble
of the resolutions declares:
"'Whereas the Government of the Republic of Hawaii having in due form
signified its consent in the manner provided by its constitution to cede
absolutely and without reserve to the United States of America all
rights of sovereignty of whatsoever kind in and over the Hawaiian
Islands and their dependencies, and also to cede and transfer to the
United States the absolute fee and ownership of all public Government,
or Crown lands, public buildings or edifices, ports, harbors, military
equipment, and all other public property of every kind and description
belonging to the Government of the Hawaiian Islands, together with every
right and appurtenance thereunto appertaining.'
"And the resolution following this preamble resolves:
"'That said cession is accepted, ratified, and confirmed, and that
the said Hawaiian Islands and their dependencies be, and they are
hereby, annexed as a part of the territory of the United States and are
subject to the sovereign dominion thereof, and that all and singular the
property and rights hereinbefore mentioned are vested in the United
States of America.'
"This language expressly recites the cession and transfer to the
United States of the absolute fee and ownership of all public,
Government, or Crown lands, and all other public property of every kind
and description belonging to the Government of the Hawaiian Islands.
"The resolution of annexation further provides:
"'The existing laws of the United States relative to public lands
shall not apply to such lands in the Hawaiian Islands; but the Congress
of the United States shall enact special laws for their management and
disposition: Provided, That all revenue from or proceeds of the same,
except as regards such part thereof as may be used or occupied for the
civil, military, or naval purposes of the United States, or may be
assigned for the use of the local government shall be used solely for
the benefit of the inhabitants of the Hawaiian Islands for educational
and other public purposes.'
"The effect of this clause is to subject the public lands in Hawaii
to a special trust, limiting the revenue from or proceeds of the same to
the uses of the inhabitants of the Hawaiian Islands for educational or
other public purposes. This merely restricted the uses to which the
proceeds of such lands could be put, but did not in anywise affect the
previous provisions of this clause, which conferred upon Congress the
sole and absolute authority to provide for the management and
disposition of these lands. The effect of the language quoted is to vest
in Congress the exclusive right, by special enactment, to provide for
the disposition of public lands in Hawaii. Possibly such would have been
the effect of the resolution even if this language had not been
inserted. But the language having been expressly inserted there can be
no doubt whatever but what the effect of the resolution is to deprive
the local government of Hawaii of all authority to dispose of these
lands in any manner whatever, except by virtue of special laws enacted
by Congress. The fact that Congress has failed up to this time to
legislate on the subject has not reinvested the Hawaiian government with
its former power of disposition. That power ceased upon the cession. The
lands then became the property of the United States and could be
disposed of only in accordance with the laws of Congress."
I referred in my opinion to the language of the Supreme Court of the
United States in the case of Harcourt v. Gailliard (12 Wheaton, 523) as
expressive of the general principle which governs and controls this
subject.
I can not but think that the representative of the Hawaiian
Government has failed to appreciate the fact that the Hawaiian Republic
as a separate and sovereign power ceased to exist when the resolution of
annexation took effect. It existed as an organized government only for
purposes of municipal legislation within the well-accepted meaning of
that phrase, and for such special purposes besides as were expressed in
the resolution, the sale and disposition of the public lands not being
one of the latter class.
In a case involving the question of a grant made by Spain after the
date of a treaty ceding territory and prior to the ratification of the
treaty, the Supreme Court of the United States, discussing the effect of
the signature of treaty conventions and the date when they took effect
and the power of the ceding country over public lands pending
ratification, expressly limits the meaning of the term "municipal
legislation" to that class of laws that relate solely to the
international affairs of the country and the relations of the people to
each other, and declares that the exercise of sovereignty by the ceding
country ceases after the signature of the treaty "except for strictly
municipal purposes, especially for granting lands." (David v. The Police
Jury of Concordia, 9 Howard, 280-289.)
Similar language is commonly used in expressing the legal conditions
in a country conquered by arms. It is commonly said that in such cases
the municipal laws governing the people in their relations with each
other remain in force, subject to the will of the conqueror, but that
the power and authority of the former sovereign either to make laws,
exercise dominion, or grant rights or privileges or make conveyance of
public property are terminated.
The existing government of Hawaii very clearly, by the resolution of
annexation, parted with all ownership of the public lands of Hawaii.
Indeed, it is scarcely an adequate expression of the fact to say that it
parted with the ownership, because that government, as a sovereign
power, was dissolved and ceased to exist.
Its public property, including lands, became vested in the United
States, and only by the authority or direction of the United States
could those lands be disposed of. If there is any authority left in the
officials exercising government in Hawaii to grant to purchasers and
others good title to lands which by the resolution were conveyed to the
United States, it must be by reason of some delegation in the nature of
agency, and that delegation must be found in the resolution of
annexation, because there has been no other legislation by Congress on
this subject. But, as I have previously decided and as I have herein
pointed out, no such authority is contained in the resolution, but the
reasonable and natural construction of its language is opposed to such a
contention. The case may be summed up by the statement that whatever
right, title, interest, or property the Republic of Hawaii had in public
lands at the time the resolution of annexation took effect were
transferred thereby to the United States, and thenceforth the officals
of the Hawaiian Republic were without any power whatever to convey by
any kind of grant or concession the legal or equitable title of the
United States.
Second. It is suggested that the Executive order of September 11,
1899, should be modified so as not to apply to sales or agreements for
the sale of public lands made between the date of the approval of the
resolution and the 12th day of August, 1898, which was the date on which
the ceremonies took place at Honolulu evidencing the formal taking
possession by the United States of the Hawaiian Islands. Exactly what
these ceremonies were I am not informed, except that they comprised the
lowering of the Hawaiian flag and the running up of the flag of the
United States in the presence of the former diplomatic representative of
the United States in Hawaii and of the officials of the Hawaiian
Republic.
Our Supreme Court, speaking with reference to this particular subject
of international jurisprudence and construction, has said:
"All treaties, as well those for cessions of territory as for other
purposes, are binding upon the contracting parties, unless when
otherwise provided in them, from the day they are signed.
The ratification of them relates back to the time of signing. (Vattel,
B. 4, c. 2, sec. 22; Mart. Summary, B. 8, c. 7, sec. 5.)
"It is true that in a treaty for the cession of territory its
national character continues, for all commercial purposes; but full
sovereignty for the exercise of it does not pass to the nation to which
it is transferred until actual delivery. But it is also true that the
exercise of sovereignty by the ceding country ceases, except for
strictly municipal purposes, especially for granting lands. And for the
same reason in both cases, because, after the treaty if made, there is
not in either the union of possession and the right to the territory
which must concur to give plenum dominium et utile. To give that there
must be the jus in rem and the jus in re, or what is called in the
common law of England the juris et seisinoe conjunctio. 'This general
law of property applies to the right of territory no less than to other
rights, and all writers upon the law of nations concur that the practice
and conventional law of nations have been conformable to this
principle.' (Puffendorf par Barbeyrac, lib. 4, c. 9, sec. 8, note 2.)
"(Davis v. The Police Jury of Concordia, 9 Howard, 289.)"
The reasons for this doctrine, as given by the courts, are that if
the ceding power were to be permitted to make grants and concessions of
land, privileges, and franchises between the date of the signature of
the treaty and the day of ratification, the concessionary might be
deprived of a very valuable portion of the estate which it had
contracted to receive. So far does the doctrine go that it is declared,
that before the signature of the treaty, but after negotiation has begun
for cession of territory, grants of land can not be made in it without
being subject to confirmation by the sovereign to whom transfer is to be
made. It is too manifest to require anything more than statement that if
a sovereign could exercise the power of alienation of the public domain
after a treaty had been signed and before its ratification, he might
change materially the relations which the people of the ceded territory
had to each other, and establish a different condition than that which
had been contemplated when the agreement was definitely concluded.
"The law of nations does not recognize in a nation ceding a territory
the continuance of supreme power over it after the treaty has been
signed, or any other exercise of sovereignty than that which is
necessary for social order and for commercial purposes and to keep the
cession in an unaltered value until a delivery of it has been made."
(Davis v. Police Jury of Concordia, supra.)
I do not think that the difference in the method of cession employed
in this case required a different rule of interpretation from that which
would have been employed if the cession had been by treaty. The reasons
that are applicable in the one case are equally applicable in the other.
The language of the resolution is in the present tense. If declares that
"the said cession is accepted, ratified, and confirmed, and that the
said Hawaiian Islands and their dependencies be, and they are hereby,
annexed as a part of the territory of the United States and are subject
to the sovereign dominion thereof, and that all and singular the
property and rights hereinbefore mentioned are vested in the United
States of America."
This resolution follows a preamble in which it is solemnly stated
that the government of the Republic of Hawaii had, in due form,
signified its consent, in the manner provided by its constitution, to
cede absolutely and without reserve to the United States of America all
rights of sovereignty, etc. If the ceremonies that were performed on the
12th of August, 1898, were necessary as evidencing the ratification of
the agreement between the two governments, and if the government of
Hawaii can be considered to have participated in those ceremonies, then,
unquestionably, their action made the effect of the resolution relate
back to the date of its adoption and required that it should be given
effect in accordance with its language, which related to the date of its
adoption rather than to the date of the subsequent ceremonies. Nothing
is said in the resolution as to any formal delivery or any further
solemnity for the purpose of transferring absolutely the title to the
United States. The resolution assumes that the annexation was complete
with the adoption of the resolution by which the assent of the United
States to the offer of the Republic of Hawaii was given.
I therefore advise you that in my opinion with respect to the public
lands the resolution took effect as of the date of its approval, to wit,
July 7, 1898.
Third. The special agent of the Hawaiian government refers to certain
correspondence between Mr. Sewall, the special agent of the United
States at Honolulu, and the Department of State at Washington as
establishing a justification for the exercise of the power of sale by
the government of Hawaii subsequently to the annexation. At the request
of the Hawaiian government the following question was submitted to the
Department of State on August 6, 1898:
"Should not President Dole continue to execute land patents and deeds
in the ordinary dealing with government lands under the Hawaiian land
laws?"
To which it was answered by Mr. Sewall, in conformity with his
instructions, as follows:
"Resolution provides that land laws of the United States shall not
apply to public lands in Hawaii, and that municipal legislation of
Hawaii generally shall remain in force."
The Hawaiian authorities regarded this answer as tantamount to a
declaration of opinion on the part of the Department of State that they
were authorized to make grants of public domain in the absence of any
legislation by Congress to the contrary.
It will be observed that, taken by itself, this response to the
question of the Hawaiian government does nothing more than recite two
unquestioned provisions of the resolution, neither of which by itself,
in my judgment, was pertinent to the question or decisive of it. It is
impossible to say that the special agent of the State Department
intended by this reply to answer the question in the affirmative,
although it is perhaps natural to infer such an intention. But the
question is one involving naked power-- a power to dispose of the lands
of the United States, which, under the Constitution, can only be
disposed of in conformity to the will of Congress. It is not a question
of the good faith of the Hawaiian officials, for that is unquestioned.
A wrong inference as to the meaning of the answer forwarded by Mr.
Sewall could not effectuate the exercise of an unauthorized power of
sale, nor vest in a grantee title to lands which the Hawaiian
government, under a careful consideration of the law, is decided to have
been without power to convey.
Fourth. It is represented that there are large numbers of sales of
public lands which were made by the Hawaiian government to carry out its
own agreements concerning the same, made prior to August 12, 1898. I
understand this class of cases to comprise those where conditional sales
or entries were made by purchasers or entrymen prior to the resolution
of annexation, and where the conditions entitling the purchaser or
entryman to a grant have been subsequently complied with.
What I have said as to the cessation of the power of the Hawaiian
government to make original sales and conveyances subsequently to the
cession applies, from a legal point of view, to this class of cases.
The difficulty is that the power of the Hawaiian government, as a
sovereign possessed of sovereign right to make conveyances and grants of
land, ceased, and all its powers and sovereign rights in this respect
were transferred to the United States. This was the same with reference
to lands under conditional agreements or under lease as in the case of
lands unaffected by any equitable interest. Undoubtedly the Government
of the United States can be trusted to do justice to all persons having
just claims of this nature. Doubtless Congress will, by legislation,
provide means and instruments for vesting and confirming such titles.
The only question for my decision is whether such power now exists in
the Hawaiian government, and I think it does not.
Fifth. Attention is called to the fact that the Executive order under
consideration directs that any consideration paid to the local
authorities on account of lands sold subsequently to the adoption of the
resolution of annexation shall be refunded to the purchasers, and there
is no provision of law which authorized or permits the use of any money
in the Hawaiian treasury for that purpose. If this be true, then that
portion of the order will be ineffective. I assume it was not intended
that payment should be made contrary to the local law and regulations of
Hawaii, or that money should be provided by any arbitrary or unnatural
means, but only that in due course of law the money should be
appropriated and applied for that purpose.
Very respectfully,
JOHN W. GRIGGS.
NAVY-- BOATSWAINS, GUNNERS, AND MACHINISTS; 22 Op.Att'y.Gen. 620,
November 15, 1899
Neither boatswains, gunners, nor warrant machinists are officers of
the line of the Navy within the meaning of the Revised Statutes, the
acts of August 5, 1882, and March 3, 1899.
Boatswains and gunners are officers in the line of command, and there
is nothing in the classification in the act of 1862 to indicate an
intent to make unlawful the exercise of command by them.
These officers are not improperly classed in the Regulations of the
Navy as officers of the line, and may therefore be given the star upon
their uniforms.
Warrant machinists created by the naval personnel act were not placed
in the list of line officers of the Navy.
Warrant machinists are not entitled to command.
DEPARTMENT OF JUSTICE,
November 15, 1899.
The SECRETARY OF THE NAVY.
SIR: I have received your letter asking my opinion as to the
following question:
"Whether under the provisions of the law boatswains and gunners are
properly classified by the Navy Regulations (article 16) as line
officers; and if so, whether warrant machinists should, under the law,
be so classified."
Accompanying your letter are copies of communications discussing
whether boatswains, gunners, and warrant machinists should be placed
over commissioned staff officers and whether they should wear the star
on the sleeve, which is stated to be appropriate for line officers only.
Your letter is also accompanied by printed uniform regulations giving
the star to mates, gunners, and warrant machinists and addenda to the
same, striking out the words "and warrant machinists."
In 1862 Congress passed an act purporting to establish the grade of
line officers in the Navy. Prior to that time there is little or nothing
in the statutes about the line of the Navy.
In that statute, without explaining which of the various meanings of
the word "line" Congress had in mind, it left no doubt as to the
officers it intended to embrace among line officers of the Navy, for it
mentioned them all, beginning with the admirals and extending through
captains, commanders, lieutenants, masters, and ensigns to midshipmen.
This specification was practically repeated in the acts of July, 1866,
in the Revised Statutes of 1873, in an act of August 5, 1882, and in the
recent naval personnel act. It omits boatswains, gunners, etc.
It seems to be clear that, within the meaning of the Revised Statutes
and subsequent laws, line officers of the Navy are the officers
specified in this way and that no others are such officers of the line.
It follows that none of the officers referred to by you are within
the meaning of those laws, officers of the line.
It is also obvious that all officers specified by Congress as line
officers were thereby distinguished from all officers not specified,
whether those officers were staff officers properly so called or
officers belonging to special corps, such as the pay corps, the medical
corps, and the like, warrant officers or petty officers.
It does not follow from all this, however, that Congress intended to
deprive boatswains and gunners of any position they may have acquired in
the Navy.
From the earliest times the officers of the Navy have been divided
into commission officers, warrant officers, and petty officers, the
difference being rather a difference in the mode of appointment or
designation than one growing out of the function to be performed.
The commission officers were those holding commissions from the
President like the commissions of other officers of the United States;
warrant officers had no such commissions, but only warrants given by the
President or Navy Department; and petty officers were rated or
designated by the commanders of their respective vessels from among the
enlisted men on board.
From the earliest times boatswains, gunners, carpenters, and
sailmakers were among the warrant officers, but they were by no means
all of them, for midshipmen, mates, and various others were warrant
officers.
The earliest Naval Regulations I find throwing any light upon this
subject are those of 1818, but in the corresponding British orders of
1806 I find the following:
"The order in which officers shall take precedence and command in the
ship to which they belong is as follows: Captain or commander,
lieutenant, sublieutenant, master, second master, gunner, boatswain,
master's mate, midshipmen."
I find that gunners, boatswains, and carpenters are therein mentioned
as warrant officers, and the sailmakers directed to report to the
boatswains.
In our Regulations of 1818 I find, under the head of rank and
command:
"Paragraph 4. The order in which officers shall take precedence and
command in the ship to which they belong is as follows:
"Captain or commander, lieutenant (agreeably to date or number of
command), master's mate, boatswain, gunner, carpenter."
The sailmaker was, as in the British service, to report the condition
of the sails to the boatswain. He has at the present day ceased for
obvious reasons to have importance in the Navy.
It thus appears that boatswains and gunners were in 1818 classed by
the regulations as in the line of command, and that they had probably
been long before that in such line of command.
The Regulations of 1818 are, in a note to the Rules of the Navy
Department of 1832, spoken of as then in full force, except as expressly
amended, and how little they were amended in any way affecting
boatswains and gunners is clear from the Regulations of 1841, in which,
under the head of rank and command, I find the following:
"ARTICLE 1. Sea officers of the Navy of the United States shall take
rank and command in the following order:
Commission officers.
1. Admirals. Flag officers when authorized by law.
2. Vice-admirals. Flag officers when authorized by law.
3. Rear-admirals. Flag officers when authorized by law.
4. Captains.
5. Commanders.
6. Lieutenants.
Warrant officers.
7. Masters.
8. Second masters.
9. Passed midshipmen.
10. Master's mate, if warranted as such.
11. Boatswains.
12. Gunners.
13. Midshipmen.
14. Carpenters.
15. Sailmakers.
"ARTICLE 2. The above-named commission officers shall take precedence
and command in their respective ranks according to the priority of the
dates of their commissions; second masters and passed midshipmen
according to the number or date of certificates of their examination or
of their warrants as such, and the other warrant officers according to
their date.
"ARTICLE 3. No officer of any rank below that of a second master
shall be entitled to exercise any authority or command over any other
officer of the same or inferior rank, excepting when employed on
detached service when there is no superior officer present, or when he
shall have succeeded to the command of a vessel or navy-yard by the
death or absence of all superior officers, or when he shall have charge
of a watch, or when it shall be necessary for the suppression of a riot,
quarrel, or other manifest impropriety of conduct, or when duly
appointed to act in some higher grade."
On November 11, 1851, the Department promulgated regulations, orders,
and decisions which seem to have made no changes so far as our present
inquiry is concerned.
The Regulations of 1865 coming, be it observed, after the act of
1862, specifying line officers of the Navy, contains the following:
"Surgeons, paymasters, naval constructors, chief engineers,
chaplains, passed assistant surgeons, secretaries, assistant surgeons,
assistant naval constructors, assistant paymasters, first assistant
engineers, second assistant engineers, third assistant engineers,
clerks, carpenters, and sailmakers are to be regarded as staff officers,
and all other officers of the service as line officers."
This expression "all other" included, of course, boatswains and
gunners among line officers.
The same regulations provided that petty officers of the Navy should
be divided into two classes-- petty officers of the line and petty
officers of the staff-- and said: "The class of petty officers of the
line and the order of rank and of succession to command shall be as
follows: First, boatswains' mates," etc.
In the Regulations of 1869 the provisions just quoted as to petty
officers are preserved, but those regulations do not clearly place
boatswains and gunners in either the line or the staff or elsewhere than
among warrant officers. Articles 897, 898, 899, concerning funeral
honors to staff, warrant, and petty officers would seem, however, to
indicate that, if not in the line, warrant and petty officers were not
supposed to be for that reason all in the staff, since separate
provisions for funeral honors are made for the three sets of officers,
staff, warrant, and petty.
The Regulations of 1870, under the head of Rank and Command, contain
the following:
"Paragraph 630. The line officers of the Navy are classed by law as
follows:
Admiral. Commander.
Vice-admiral. Lieutenant-commander.
Rear-admiral. Lieutenant.
Commodore. Master.
Captain. Ensign.
Midshipman
"631. The usage of the naval service considers also that mates,
boatswains, and gunners are officers of the line.
"632. Military command of, or in, vessels of war in the United States
is exercised by the above-designated officers, in the order in which
they are named.
"633. Medical, pay, engineer officers, and others not of the line and
not classed by law, are placed in the Annual Navy Register as follows:
Surgeons, etc.
"634. Military command of, or in, a vessel of war of the United
States is not exercised by the above-designated officers.
"647. The class of petty officers, and the order of rank, and of
succession to command, shall be as follows: Boatswain's mates, etc."
The Regulations of 1876 resemble those of 1869.
The United States Naval Uniform Regulations issued July 1, 1885,
provide that "line officers, including mates, boatswains, and gunners,
will wear a star," etc.
The Regulations of 1893 provide:
"ARTICLE 16. The officers of the line are as follows and they shall
take rank and exercise military command in the order mentioned:
Rear-admiral. Ensign.
Commander. Naval cadet.
Captain-commander. Boatswain.
Lieutenant-commander. Gunner."
Lieutenant-commander (junior grade).
Article 18 of these Regulations provides: "Officers of the line only
can exercise military command."
From this review of the Regulations, and from such information as I
have obtained, it would seem that boatswains and gunners have been in
the line of command, as a matter of fact, for a century. Both of them
are officers whose functions and business are ancient and are involved
in the customs of the British and American navies.
As a navy is an organic growth its antecedents and customs should not
be ignored in an inquiry such as the present.
If now we turn to the statutes of Congress passed at a time when
statutes did not commonly regulate all the minor details of the
executive branch, passed, that is, in the formative period of our
present Navy, we find that it was common to authorize a number of
vessels and then authorize the President to officer and man them as he
might see fit.
Details in the business of the Navy, manifestly, had to be regulated in
some way long before Congress put into shape its present system of
statutes on the subject.
We find, also, in the first half century of the history of the Navy a
number of statutory references to the Regulations and to the warrant
officers, and express mentions to boatswains, gunners, sailmakers, and
carpenters, but in none of these instances, nor in any other, have I
been able to find that the duties assigned to the boatswain and gunner,
or the command allowed to be exercised by them, met with Congressional
disapproval.
From all that has been said I think we may conclude that treating
those officers as in the line of command was not without lawful
authority before 1862. The act of that year in speaking of "the line"
evidently does not mean "the line of command," and I see nothing in its
classification to indicate an intent to make unlawful the exercise of
command by boatswains and gunners.
These things being so I think those officers are not improperly
classed in the regulations as officers of the line, and that they can
properly be given the star upon their uniforms.
The machinist has existed in the Navy for some time, of course, and
yet for no great period. He has been a rated or petty officer. (Art.
794, Regulations of 1893.) The personnel act of this year, creating the
office of warrant machinist, shows plainly that Congress did not intend
to place the machinists in its own list of line officers, for it
repeated that list in section 7 and omitted them.
They had previously been connected with the engineer corps or its
business, a staff or special corps no part of which had been exercising
military command.
The personnel bill had not been regarded as ipso facto transferring
all the officers of that corps to the line of command. (See General
Order 524.)
As these machinists do not appear to have previously exercised
military command, I think that, before they are to be held entitled to
command, and others, including senior officers, held to be under
obligations to obey them, something positive to that effect should be
produced from the personnel act or from the general nature of their
duties or elsewhere. The presumption is the other way, and I find
nothing to overcome it.
Respectfully,
JOHN W. GRIGGS.
LICENSES-- PHILIPPINE ISLANDS; 22 Op.Att'y.Gen. 617, November 11,
1899
A patent or license granted July 11, 1898, to a Spaniard for the
manufacture of hemp by steam, etc., in the Philippine Islands for the
term of five years is protected by article 13 of the treaty with Spain,
if on that date it would, in ordinary times, have been good under
Spanish law, notwithstanding American law gives no identical rights.
The laws of Spain concerning industrial property were contemplated by
the framers of article 13 in providing protection for Spanish rights.
The laws of Spain concerning industrial property explained.
DEPARTMENT OF JUSTICE,
November 11, 1899.
The SECRETARY OF WAR.
SIR: I have received your letter of the 17th ultimo, inclosing one
from the Secretary of State, and asking my opinion upon the following:
"A Spanish gentleman by the name of Bernabe de Codes, has a 'patent'
(license or concession) for five years for the manufacture of hemp by
steam, to make cords, etc., in the Philippine Islands.
"The said Mr. Codes has complied with all the requirements of the
Spanish laws of July 30, 1878, and May 14, 1880, by which his patent is
extensive to the Spanish provinces of Ultramar.
"The said patent for five years was granted to Mr. Codes by the
Spanish Government on July 11, 1898. This gentleman desires to know if
the decree of the Spanish authorities will hold good in the Philippines
under the present regime."
The law of Spain concerning industrial property (propiedad
industrial) of July 30, 1878, seems to be still in force. In that law we
find:
"ART. 1. Every Spaniard or foreigner who undertakes to establish in
the Spanish dominions an industry new in the same shall have the right
of exclusive carrying on (explotacion) of his industry during a certain
number of years, under the rules and conditions prescribed in this law.
"ART. 2. The right spoken of in the preceding article is acquired by
obtaining from the Government a patent of invention.
"ART. 3. These may be objects of patents:
"Machines, apparatus, instruments, mechanical or chemical processes
or operations, which in whole or in part are of the applicant's own
invention, or new, or which, without these characteristics, are not
found established or practiced in the same mode and form in the Spanish
dominions.
"New industrial products or results, obtained by new or known means,
provided that their carrying on (explotacion) goes to establish a branch
of industry in the country.
"ART. 4. Patents concerning the products or results mentioned in the
second paragraph of the preceding article shall not prevent other
patents concerning the objects mentioned in the first paragraph directed
to obtain the same products or results.
"ART. 5. The word 'new' in article 3 means that which is not known
nor found established or practiced in Spanish or foreign dominions.
"ART. 6. The right which the patent of invention confers, or that
which is derived from the application to obtain it, may be transferred
(transmitirse) in whole or in part by any of the means established by
our laws in regard to individual property.
"ART. 8. Every patent shall be considered as conceded, not alone for
the Peninsula and adjacent islands, but for the provinces beyond the
sea.
"ART. 9. These can not be objects of patents:
"1. The result or product of the machines, apparatus, instruments,
processes, or operations mentioned in paragraph 1 of article 3, if they
are not embraced in paragraph 2 of the same article.
"2. The use of natural products.
"4. Pharmaceutical or medical preparations of any kind.
"ART. 11. Patents for inventions are to be given without previous
examination as to novelty and utility; they are not to be considered,
therefore, in any case as a declaration of the novelty or utility of
their objects, etc.
"ART. 12. The duration of patents of invention shall be twenty years,
with no extension (improrrogables), if they are for objects of the
applicant's invention and new."
The duration of patents for whatever is not of the applicant's own
invention, or, even if it is, is not new, shall be only five years, with
no extension.
The article, nevertheless, does allow an extension, but only in case
of an invention by the applicant.
It is clear from this law and your communication that Mr. Codes's
patent is for something we should not call a patentable invention and
should not issue a patent to protect. At the same time it is for
something which a slight extension of our own policy concerning such
things might naturally embrace. It gives a monopoly of a line of
industry, new to Spain, if not to the world, to one who introduces it
into Spain.
Article 13 of our recent treaty with Spain says:
"The rights of property secured by copyrights and patents acquired by
Spaniards in the island of Cuba, and in Porto Rico, the Philippines, and
other ceded territory, at the time of the exchange of the ratifications
of this treaty, shall continue to be respected."
This article if limited as to Cuba to the time of the American
occupation.
In the Spanish copy of the treaty, the article, instead of "rights of
property secured by copyrights and patents acquired by Spaniards," says,
"the rights of property, literary, artistic, and industrial, acquired by
Spaniards."
Without undertaking to pass upon the questions, which your
communication does not enable me to decide, whether Mr. Codes complied
with Spanish law and regulations and had a business patentable under
them, it seems to me that if on July 11, 1898, he would, under ordinary
circumstances, have become entitled as a patentee, this article 13 of
the treaty was intended to and does protect his rights, notwithstanding
the unusual events preceding and following that date.
The treaty in Spanish, like the Spanish law of 1878, speaks of
"industrial property." It concerns only Spanish rights acquired under
Spanish laws; and the framers of it must be presumed to have known
something of those rights and laws of which they were treating and to
have had in mind such laws as that of July 30, 1878, corresponding to
our laws relating to patents. In English, the words "industrial
property" become "patents." I think it reasonable to infer from these
things that the article was drawn up with a view to embracing property
recognized by the Spanish laws which correspond with our patent laws,
even if that property was not identical with that recognized by our
laws.
I see nothing in the nature of the right claimed, in that it might be
objected to as a monopoly, to cause a different interpretation of the
treaty or to prevent that article of the treaty from being
constitutional and obligatory.
Respectfully,
JOHN W. GRIGGS.
FREE-DELIVERY OFFICES-- CIVIL SERVICE; 22 Op.Att'y.Gen. 613, October
23, 1899
When free delivery is discontinued at a post-office, such office
ceases to be under the civil-service rules.
Free delivery offices as a class, and not offices formerly free
delivery offices, were intended to be within Postal Rule 1, and the
present Rule 111.
DEPARTMENT OF JUSTICE,
October 23, 1899.
The POSTMASTER-GENERAL.
SIR: I have your letter of the 9th instant, in which you say:
"I have the honor to request a ruling on the following question:
"'When free delivery is discontinued at a post-office, does the
post-office cease to be a classified office, or is it still classified
under civil-service rules? In the event of a vacancy in the clerical
force after the discontinuance of free delivery, would such vacancy have
to be filled by a selection from the eligible register upon
certification from the Civil Service Commission?'
"On the 5th of January, 1893, the President amended postal rule 1 of
the civil-service rules so as to include in the classified postal
service all free-delivery post-offices. The amendment to the rule reads
as follows:
"'The classification of the postal service, made by the
Postmaster-General, under section 6 of the act of January 16, 1883, is
hereby extended to all free-delivery post-offices, and hereafter when
any post-office becomes a free-delivery office the said classification
of any then existing classification made by the Postmaster-General under
said section and act shall apply thereto, and the Civil Service
Commission shall provide examinations to test the fitness of persons to
fill vacancies in all free-delivery post-offices, and these rules shall
be enforced therein; but this shall not include any post-office made an
experimental free-delivery office under the authority contained in the
appropriation act of March 3, 1891. Every revision of the classification
of post-office under section 6 of the act of January 16, 1883, and every
inclusion of a post-office within the classified postal service, shall
be reported to the President.'
"The law provides for the establishment of free delivery in cities
having a population of 10,000 or more, or at any post-office which
produces a gross revenue for the preceding fiscal year of not less than
$10,000, and gives the Postmaster-General authority to discontinue free
delivery within his discretion."
It is clear that, according to the language of the rule, the Civil
Service Commission were to examine persons only in cases of vacancies in
free-delivery offices; also, that, according to the language, no
civil-service rule was to be enforced except in cases arising in
free-delivery offices. As, obviously, the first part of this amendment
intended to extend classification only with a view to the examinations
and to the enforcement of the civil-service rules, it seems to follow
that, according to the natural meaning thereof, the whole first sentence
is intended to regulate present and future free-delivery post-offices,
and no other.
If so, we must have some strong reason for giving a different meaning
to it, for the law insists on giving it its natural meaning, in the
absence of absurdity or unreasonableness or the like.
No such absurdity is apparent; and it seems not unreasonable,
whether wise or not, for the President to have intended, what his words
naturally mean, that the set of post-offices known as free-delivery
offices-- a set whose membership was liable to diminution and increase
under the statutes (act of January 3, 1887)-- should have the
civil-service rules extended to the force of employees therein.
It would, in fact, be anomalous and strange to see those rules
enforced in post-offices for the sole reason that they had been
free-delivery offices, and not enforced in any other offices identical
in character with them, as they actually are.
Your communication takes no note of the fact that this postal rule
No. 1 has been altered by the President; but I am not of the opinion
that the alteration was intended to change the general sense of it so
far as it relates to the matter now under consideration.
On the contrary, the sense I am attributing to that rule seems to be
again, and in a different form, expressed by the opening words of it:
"The post-office service shall include the officers and employees in any
free-delivery post-office who have been, or may hereafter be, classified
under the civil-service act."
Certainly this would not include employees in any office which then
(1896) had been, but was no longer, a free-delivery office, and if
offices which have been are excluded, we may well suppose the same
intent as to offices which shall have been.
The natural sense of the words of the new rule confines it and confines
"the postal service" to any present and future free-delivery office. At
least to lawyers familiar with the interpretation of wills it must seen
the natural meaning of the provision, that it concerns only the
free-delivery post-offices as a well-known changeable "class."
If the intent we attribute is thus reiterated in a new form by the
new rule, it is needless to consider whether or not, in the interim,
those charged with applying the rule had interpreted it differently, a
fact which would otherwise (provided the interpretation were considered
a doubtful question) be worthy of attention.
The rule being self-acting, so as to take in any new free-delivery
post-office, from the mere fact of its existing, so, by operation of
law, or rather, so to speak, by operation of fact, an office ceasing to
be a free-delivery office may well have been intended to go out again.
Neither do I think that paragraph 7 of Rule III-- "All officers and
employees who have heretofore been classified under the civil-service
act shall be considered as still classified and subject to the
provisions of these rules"-- affects our question.
That concerns employees classified at the date of promulgating that
paragraph, since it says that they shall be considered as "still"
classified. After (or notwithstanding) the promulgation of a set of new
rules, they were to be considered as remaining classified and subject,
etc.
It does not say that they shall be considered as forever so, but
still, that is, be considered as continuing so, for how long is not
stated. If I am right in supposing that under the previous rule the
employees of a free-delivery office would and did, if any case arose,
cease to be under the civil-service rules upon the office ceasing to be
such free-delivery office, I do not think the language of paragraph 7
inconsistent with the perpetuation of such a rule or intended to have
any bearing upon it.
It seems to me that the more logical, consistent, sensible view of
the matter is that free-delivery offices as a class, and not offices
formerly free-delivery offices, were intended to be within the postal
Rule 1 and the present Rule 111.
Respectfully,
JAS. E. BOYD,
Acting Attorney-General.
BONDS-- DISBURSING OFFICERS; 22 Op.Att'y.Gen. 611, October 21, 1899
The five years' limitation within which suits may be brought upon the
official bonds of disbursing officers begins to run from the time the
accounting officers of the Treasury make the statement of the account
showing an indebtedness to the United States, as provided by section 1
of the act of August 8, 1888.
DEPARTMENT OF JUSTICE,
October 21, 1899.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your note of
October 6, 1899, in which you request my opinion as to the proper
construction of section 2 of the act of August 8, 1888 (25 Stat., 387),
as to when the five years' limitation in that section for suits upon the
official bonds of disbursing officers begins to run.
The first section of this act provides for notice to the obligors of
the official bonds of disbursing officers and officers chargeable with
public funds, and directs that "whenever any deficiency shall be
discovered in the accounts of any official of the United States, or any
officer disbursing or chargeable with public money, it shall be the duty
of the accounting officers making such discovery to at once notify the
head of the Department having control over the affairs of such officer
of the nature and amount of such deficiency, and it shall be the
immediate duty of said head of Department to at once notify all obligors
upon the bond or bonds of such official of the nature of such deficiency
and the amount thereof."
Section 2 provides "that if upon the statement of the account of any
official of the United States, or of any officer disbursing or
chargeable with public money by the accounting officer of the Treasury,
it shall thereby appear that he is indebted to the United States, and
suit therefor shall not be instituted within five years after such
statement of said account, the sureties on the bond shall not be liable
for such indebtedness."
Obviously, the five years within which suit must be brought under
this section begins to run from the time of making such "statement of
the account * * * by the accounting officer of the Treasury," showing an
indebtedness to the United States, for if "suit therefor shall not be
instituted within five years after such statement of said account the
sureties on the bond shall not be liable for such indebtedness."
The statute is absolute in its discharge of the sureties if suit on
the bond be not instituted "within five years after such statement of
said account" by the accounting officer of the Treasury. And it makes no
exception in case the accounting officer does not make such statement as
early as he should, or when a deficiency is discovered by him.
And yet, a very important and more difficult question is that
suggested by your statement of the practice in your Department, viz, in
substance, that where in the account of a disbursing officer there
appears, prima facie, a deficiency which may or may not prove to be
real, such items are suspended for further evidence, and later a final
statement is made showing the true state of the account. And the
question is whether upon the discovery by the accounting officer of an
apparent deficiency he should notify the head of the Department, as
provided in section 1 of that act. That section provides that "whenever
any deficiency shall be discovered," etc., the accounting officer shall
notify the head of the Department.
Does this mean a final and certain discovery, or does it mean that
whenever from the statement of the account of the disbursing officer it
appears, prima facie, that there is a deficiency, he shall notify the
head of the Department? Or, if neither of these, then at what time
should he give such notice?
Taking the whole statute together, with its obvious intent and
purpose, I do not think it was intended that the accounting officer
should delay this notice until it has become certain that there is a
deficiency; nor, on the other hand, do I think he should always report
a deficiency whenever from the account of a disbursing officer it may
appear, prima facie, that there is one. This may be from insufficient
vouchers or evidence, or from clerical error or omission, or in one or
more of various ways not inconsistent with a proper disbursement of the
moneys in his hands. But I think that whenever in the exercise of a
sound judgment, and after a reasonable time allowed for explanation and
correction, it appears to the accounting officer that there is a
probable deficiency, he should notify the head of the Department, as
provided in section 1 of the act.
But, as before said, whether the accounting officer makes the
statement showing an indebtedness to the United States as early as he
should, or does not, I am of opinion that the limitation fixed by
section 2 of that act begins to run only from the time that the
accounting officer of the Treasury makes the statement of account
showing an indebtedness to the United States, as provided in that
section.
Respectfully,
JOHN W. GRIGGS.
CHINESE-- CERTIFICATES; 22 Op.Att'y.Gen. 608, October 12, 1899
Certain Chinese subjects, who were bona fide merchants, were refused
admission into the United States on the ground that the nature and
character of their business plainly, specified in the Chinese portion of
the certificates issued by the representative of the Chinese government,
were not stated in the English translation of the certificates
accompanying the same. Held, the collector was justified in refusing
permission to land.
Applicants for admission to the United States should comply strictly
with the requirements of the act of 1884 with reference to the form and
contents of entrance certificates.
DEPARTMENT OF JUSTICE,
October 12, 1899.
The SECRETARY OF THE TREASURY.
SIR: Acknowledging the receipt of your communication of October 9,
with its accompanying papers, in relation to the case of a Chinese
person named Yee Ah Lum, I have the honor to state that, although
somewhat contrary to the necessary rule of this Department (20 Op.
Att'y.Gen. 711; 21 Op.Att'y.Gen. 220), I shall assume that the
statement of facts contained in the note of the Chinese minister, dated
October 2 and addressed to the Secretary of State, has been in effect
adopted by you, at least so far as given below.
From this statement it appears that Yee Ah Lum and some thirty other
merchants, all subjects of China, are detained at the port of San
Francisco and refused admission into the United States by the collector
of customs at that port, on the ground that the nature and character of
their business, plainly specified in the Chinese portion of the
certificates issued by the only authorized representative of the Chinese
Government and duly vised by the United States consular officer, were
not stated in an English translation of the certificates accompanying
the same, although it appears that the applicants are bona fide
merchants and did everything in their power to establish their character
as such and to comply with the provisions of the law; the form of
statement of your own letter being that the application was refused for
the reason "that the certificate submitted by the applicant was not in
the form and did not contain the information explicitly prescribed by
the statute."
It further appears that upon petition for rehearing addressed to you
the subject was referred upon two occasions to the Solicitor of the
Treasury, whose opinion sustained the collector, and this view was
approved by the Treasury Department. The question is now referred to me
by you, in consideration of a request from the Chinese minister, through
the Secretary of State, for my opinion as to the right of the Chinese
person named, upon the facts stated, to land in this country.
Section 6 of the act of July 5, 1884 (1 Supp.Rev.Stat., 459),
provides that the certificate which every Chinese person other than a
laborer, who may be entitled to come within the United States, must
produce, shall be in the English language, and shall show certain facts
and circumstances relating to the applicant's identity and character,
and in relation to a merchant shall state the nature, character, and
estimated value of the business carried on by him prior to and at the
time of his application. The treaty between the United States and the
Empire of China, dated December 8, 1894 (28 Stat., 1210), does not vary
the foregoing requirements of the law, except by permitting the
certificate to be either that of applicant's own Government or of the
Government where he last resided, because the language is (Article III)
that "the provisions of this convention shall not affect the right at
present enjoyed of Chinese subjects, being * * * merchants, of coming to
the United States and residing therein."
The character and purpose of the Chinese exclusion legislation demand
that the statutory provisions upon which the right of entry is
conditioned should be strictly obeyed and construed. This has been the
ruling of the courts. (In re Ah Kee, 21 Fed.Rep., 701; In re Wo Tai Li,
48 Fed.Rep., 668; Wan Shing v. United States, 140 U.S., 424.) The act
of 1884 does not contravene our treaty obligations, because it was an
amendment of the previous act of May 6, 1882, which was entitled "An act
to execute certain treaty stipulations relating to Chinese." The treaty
in force at that time was the treaty of November 17, 1880 (22 Stat.,
826); but, as we have seen, the subsequent treaty did not change the
law in reference to the present question. In short, it has never been
considered that the act of 1884, in requiring a certain form and
contents of the entrance certificates, violated any of our treaty
obligations, and the uniform rule of the Treasury Department and the
opinions of this Department show the view that the act should be
strictly complied with by applicants for admission. (21 Opin., 6; 22
id., 72; id., 130.) As to the suggestion which appears aliunde that the
Treasury has heretofore customarily accepted translations of
certificates, I am not advised by your letter that such is the fact.
Therefore, even if the strict letter of the statute, namely, that the
certificate shall be in the English language, might properly be waived,
as to which there is grave doubt in view of the plain and positive
language, I am unable to see how a translation (which shows failure in
other respects to conform to the requirements of the act, namely, in
that the nature and character of the merchant's business are not stated
therein) can be viewed as fulfilling the demand of the law. The argument
on behalf of the applicant is substantially: First, that
notwithstanding the language of the statute, the certificate may be in
the Chinese language and a translation be accepted for the original;
and second, that this translation, omitting a vital part of the
certificate, may nevertheless incorporate the original and rely upon it
for the omitted portion. I can not agree with this argument, and I am
therefore of the opinion that Yee Ah Lum is not entitled to land in this
country.
It seems that the hardship involved in this case, and resulting from
what is called a slight omission, as to which the applicant is innocent,
and for which, perhaps, a transcribing official at the American
consulate in question is responsible, is emphasized and brought into
relief by the statements made and the papers submitted.
Whether you in your administrative discretion may recognize this
hardship and the merit of the applicants by taking a proper bond for
their departure and, perhaps, placing them under surveillance pending
the return of their certificates to China for completion and correction,
is a subject with which it is not proper for me to deal.
I return the correspondence on the subject, as you request.
Very respectfully,
HENRY M. HOYT,
Acting Attorney-General.
COURT-MARTIAL-- CHARGES-- TESTIMONY; 22 Op.Att'y.Gen. 589, September
29, 1899
There is no objection to the joinder of separate and incongruous
charges in the same prosecution before a court-martial, as such is
permitted by military usage and procedure.
Testimony tending to show such a relation or understanding between
alleged conspirators as would be indicative of a purpose to defraud the
Government by means of contracts for public works to be given out and
carried on under charge of the accused would be admissible, even though
it related to matters antedating the time of the particular conspiracy
charged.
In conspiracy cases, proof of the acts and declarations of the
alleged conspirators may be introduced, although not properly admissible
at the time because community of intent and design had not been
established; but if received, the error may be cured by the subsequent
introduction of proof of the conspiracy existing at the time the alleged
declarations were made.
The evidence failing to show satisfactorily fraudulent knowledge and
purpose on the part of Captain Carter with reference to certain minor
specifications of offense upon which he was found guilty by the
court-martial, he should have been acquitted on that ground as to these
charges.
In the absence of any such error of the court in the admission or
rejection of testimony as would work or was liable to work injury to
Captain Carter, there is no reason on these grounds to disturb the
findings of the court.
The court-martial that tried Captain Carter was justified in its
finding of guilty upon the charges and specifications relating to the
contracts of September, 1896, and the finding and sentence of the court
with respect thereto should be approved.
DEPARTMENT OF JUSTICE,
September 29, 1899.
The PRESIDENT.
SIR: Capt. Oberlin M. Carter, an officer of the Engineer Corps of
the United States Army, was found guilty by a general court-martial of
the following charges and specifications:
"CHARGE 1.-- Conspiring to defraud the United States, in violation of
the sixtieth article of war.
"Specification 2.-- In that the accused did unlawfully combine with
The Atlantic Contracting Company, John F. Gaynor, William T. Gaynor,
Edward H. Gaynor, and Anson M. Bangs, and others, to obtain the
allowance and payment of certain false and fraudulent claims against the
United States, to wit, $230,749.90 for certain works of improvement in
Savannah Harbor and $345,000 for certain improvements in Cumberland
Sound, which sums, respectively, the accused did, in pursuance of said
conspiracy, cause to be paid out of the moneys of the United States to
The Atlantic Contracting Company on or about July 6, 1897.
"CHARGE II.-- Causing false and fraudulent claims to be made against
the United States, in violation of the sixtieth article of war.
"Specification 6.-- In that the accused, being the officer in local
charge of the river and harbor improvements in the Savannah River and
Harbor districts, did cause two false and fraudulent claims, one of
$230,749.90 and the other of $345,000, to be made against the United
States, knowing the same to be false and fraudulent, and so knowing did
certify to their correctness.
"Specification 7.-- In that the accused caused to be entered on a
Government pay roll the names of sundry persons as laborers, and did
cause to be paid to them certain sums for services as laborers, whereas
none of such persons had rendered services as laborers, and the accused
knew such claims were false and fraudulent.
"Specification 8.-- For fraudulently allowing an account of $121.60
of The Atlantic Contracting Company against the United States for piling
in repairing the Garden Bank training wall.
"Specification 9.-- For fraudulently allowing an account of $384 to
The Atlantic Contracting Company for pile work.
"Specification 10.-- For fraudulently allowing an account of $108.80
to The Atlantic Contracting Company for pile dams.
"CHARGE III.-- Conduct unbecoming an officer and a gentleman, in
violation of the sixty-first article of war.
"Specification 2.-- For willfully and knowingly causing to be paid
out of the moneys of the United States under his control two certain
false accounts, one for $230,749.90 and the other for $345,000 to The
Atlantic Contracting Company.
"Specification 3.-- For making a false statement to the Chief of
Engineers as to new soundings for work in Savanah Harbor, with intent to
deceive.
"Specification 4.-- For falsely entering on the pay roll the names of
certain persons as laborers to an amount of $29.50.
"Specification 5.-- For falsely certifying as correct an account of
The Atlantic Contracting Company for $121.60.
"Specification 6.-- For falsely certifying as correct an account of
The Atlantic Contracting Company for $384.
"Specification 7.-- For falsely certifying as correct an account of
The Atlantic Contracting Company for $108.80.
"Specification 9.-- For indorsing a certain false statement on a
letter from the Chief of Engineers as to rentals on property proposed to
be acquired by the United States at Savannah.
"Specification 11.-- For failing to account for the sum of $132.10,
money of the United States, received by the accused from Alfred Hirt.
"Specification 22.-- For making false reports as to his absence from
his station.
"CHARGE IV.-- Embezzlement, as defined by section 5488, Revised
Statutes of the United States, in violation of the sixty-second article
of war.
"Specification 1.-- Misappropriation by fraudulent means, of
$230,749.90 and $345,000, moneys of the United States, intrusted to the
accused as a disbursing officer of the Government."
Upon these findings the court-martial sentenced the accused to
dismissal from the service of the United States; to suffer a fine of
$5,000; to be confined, at hard labor, at such place as the proper
authority may direct, for five years, and the crime, punishment, name,
and place of abode of the accused to be published in the newspapers in
and about the station and in the State from which the accused came or
where he usually resides.
The one hundred and sixth article of war provides that in time of
peace no sentence of a court-martial directing the dismissal of an
officer shall be carried into execution until it shall have been
confirmed by the President. This statutory provision made it necessary
that the proceedings of the court-martial, including the evidence,
should be submitted to the President for approval before the sentence in
this case, which involved dismissal, could become effective. The record
and proceedings were accordingly transmitted to you, and grave questions
of law arising in the course of the trial relating to the admission of
evidence and other alleged defects in the proceedings, and a denial of
the correctness of the findings of the court-martial upon the matters of
fact involved in the case being suggested to the President on behalf of
the accused, I have been directed by Your Excellency to examine the
record, and to advise you whether it contains any matter of legal error
or any unjustified conclusion of fact on the part of the court-martial
which would render it the duty of the President to withhold his approval
of the findings of the court-martial, or any part thereof, and generally
to advise Your Excellency as to the action you should take upon the
record as transmitted to you from the court-martial.
In pursuance of this instruction I have given careful attention to
the very voluminous matters contained in the proceedings; have
attentively read all of the testimony as transcribed by the official
stenographer at the trial-- testimony which comprises about 5,000 pages
of typewritten manuscript; have examined the numerous paper writings
and other exhibits offered in evidence, including the bank accounts,
checks, and vouchers of the accused and others; have read and
considered the briefs of the different counsel for the accused, and have
heard oral argument in his behalf, and, having reached a conclusion as
to the various questions raised by this reference and argued on behalf
of the accused before me, I have the honor to transmit herewith my
report and advice thereon.
The grounds upon which the authority to disapprove a finding of a
court-martial may be properly exercised are very satisfactorily stated
by Colonel Winthrop in his treatise on military law, volume 1, page 640.
He states that these grounds are mainly of two classes--
"Some going to the legal validity or to the regularity of the
proceedings, and others to the justice or expediency of allowing the
judgment to stand or the sentence or punishment to be enforced. Thus
where the court was not legally constituted or composed, or was without
jursidiction of the offense or the offender, or proceed with the trial
when below the minimum of members; or where the record discloses
irregularities which, though not amounting to fatal defects, are of a
gross character; or where the accused has been denied material
testimony, or otherwise prejudiced in his defense; or the findings or a
part of them are unwarranted by the testimony; or the sentence itself
is inadequate to the offense, or too severe or quite unmerited, or
imposes a punishment not authorized by law-- in any such case the
reviewing officer may, in his discretion, withhold his approval from and
formally disapprove the sentence, in whole or in part, as the law or
facts may require or render proper.
His discretion, indeed, is here without restriction; its exercise does
not depend upon the quality of his reasons; whether or not any reasons
are stated by him, or whether his actual reasons are in point of fact
good and sufficient or the reverse, the disapproval is equally effective
in law. At the same time he will, of course, not properly disapprove
without good reason-- without better reason than the court had for the
action which he fails to approve. Where, for example, the evidence in
the case was conflicting, and it is apparent that the court, having the
witnesses before it, must have been the best judge of their relative
credibility and of the weight of the testimony, it will in general be
wiser for the reviewing officer to defer to, rather than disapprove, its
conclusion. Nor will he properly disapprove a sentence on account of a
mere error on the part of the court which does not affect the merits or
impair the final judgment-- as, for instance, an improper rejection of
testimony offered by the defense which, however, would have added to the
case no material facts."
No objection is made on behalf of the accused to the constitution or
composition of the court, or as to its jurisdiction of the offense or
the offender.
The objections urges are: First. That the findings of the court as
to those specifications upon which the defendant was found guilty were
not justified by the evidence in the case, and that the accused should
have been acquitted upon each and every of them. Second. That the
judge-advocate in charge of the case improperly joined in the same
prosecution different charges of an unconnected and incongruous nature,
and proceed to try the same at one trial and before one and the same
court, contrary to the law of the land.
Third. That the court-martial, against the objection of the accused,
admitted illegal evidence on the part of the Government. Fourth. That
the court-martial, upon the objection of the judge-advocate, refused to
admit in evidence certain material matters offered on behalf of the
accused, the rejection of which prejudiced his rights.
As to certain of the minor specifications of offense against the
accused, upon which he was found guilty by the court-martial, I have
come to the conclusion, after a careful examination of the evidence,
that the facts proved did not justify beyond a reasonable doubt the
finding of guilty. These particular specifications are:
Charge II, specification 7, to the effect that the accused caused to
be entered on a Government pay roll the names of sundry persons as
laborers, and did cause to be paid to them certain sums for services as
laborers, whereas none of such persons had rendered services as
laborers, and accused knew such claims were false and fraudulent.
Specifications 8, 9, and 10 of Charge II, for fraudulently allowing
accounts of The Atlantic Contracting Company against the United States
for $121.60, $384, and $108.80, respectively.
Charge III, specification 3, for making a false statement to the
Chief of Engineers as to new soundings for work in Savannah Harbor with
intent to deceive. Specification 4, for falsely entering on a pay roll
the names of certain persons as laborers to the amount of $29.50.
Specifications 5, 6, and 7, for falsely certifying as correct accounts
of The Atlantic Contracting Company for $121.60, $384, and $108.80,
respectively. Specification 9, for indorsing a false statement on a
letter from the Chief of Engineers as to rentals on property proposed to
be acquired by the Government at Savannah. Specification 11, for failing
to account for $132.10, money of the United States, received from Alfred
Hirt. Specification 22, for making false reports as to his absence from
his station.
As to each and every of these last-mentioned specifications, I am of
the opinion that the evidence fails to show satisfactorily fraudulent
knowledge and purpose on the part of Captain Carter, and that he should,
on that ground, have been acquitted on these charges, and I therefore
recommend that the findings of the court-martial as to these particular
specifications be disapproved.
I do not think the objection taken on behalf of the accused to the
joinder of separate and incongruous charges in the same prosecution is
well founded.
It is laid down in works on military law that care should be taken
that all the charges and specifications to which the party may be
subject be preferred together. Unlike the ordinary criminal procedure,
where but one indictment, setting forth (in one or more counts) a single
offense or connected criminal transaction, is in general brought to
trial at one time, the military usage and procedure permit of an
indefinite number of offenses being charged and adjudicated together in
one and the same proceeding. And, with a view to the summary and final
action so important in military cases, whenever an officer or soldier
has been apparently guilty of several or many offenses, whether of a
similar character or distinct in their nature, charges and
specifications covering them all should, if practicable, be preferred
together, and together brought to trial. (1 Winthrop on Military Law,
201.)
This practice appears to have been followed uniformly in
court-martial proceedings, especially during the late civil war. An
instance is cited where in one case sixty-one different acts of offense
were grouped together in one proceeding.
It is not necessary to discuss whether this practice is wise or
whether it is prejudicial to the rights of the accused. It appears to be
established by long-continued practice, and, so far as I am able on
investigation to discover, without previous challenge.
Even if this objection were well founded, which it is not, I do not
think the accused should be allowed to avail himself of the objection
now, because he proceeded to trial without objection to this alleged
misjoinder and permitted the court to enter on an investigation of all
of the different specifications, and himself brought forward his defense
as to each of them. An objection of this kind should be promptly taken,
not only in order to save the trouble and expense of a fruitless trial,
but also to save the Government from the danger of an interposition of
the bar of the statute of limitations in case the findings upon charges
so grouped should be afterwards disapproved on this ground.
Objection was made and strenuously urged by counsel on behalf of the
accused to the admission by the court of evidence with relation to
certain contracts and other transactions in which the accused had
participated as to which in the charges he had been formally charged
with misconduct, and as to which he had pleaded the statute of
limitations, it being alleged that after such a plea effectively
interposed no evidence relating to the subject-matter of the
transactions so barred was admissible.
The evidence thus objected to was not offered for the purpose of
proving against the accused the particular offense as to which he had
interposed this protective plea, nor of having him declared guilty
thereof, but for the purpose of showing the relation between the accused
and the other alleged conspirators, the intent and motive of the accused
and the other alleged conspirators, and their course and conduct with
reference to matters of a nature similar to those, and in many respects
connected with those, involved in the transaction under trial.
For this purpose I think the evidence was admissible and that no
error was committed in that respect by the trial court.
Other objections relate to the admission of evidence of conversations
and acts of alleged conconspirators antedating the time of the
particular conspiracy charged.
I think such evidence was admissible. Testimony tending to show such
a relation or understanding between the alleged conspirators as would be
indicative of a purpose to defraud the Government by means of contracts
for public works to be given out and carried on under the charge of the
accused would be admissible, even though it related to matters
antedating the time of the particular conspiracy charged.
The intent, knowledge, or motive under which the defendant did the
act charged against him not generally admitting of other than
circumstantial evidence, may often be aided in the proofs by showing
another crime, actual or attempted.
(1 Bishop's Criminal Procedure, sec. 1126, and cases cited.)
Persons performing connected overt acts, all contributing to the same
result and consummation of the same offense, may, by the circumstances
and their general connection or otherwise, be satisfactorily shown to be
conspirators with the same general end or object in view. (United States
v. Cole, 1 McLean, 513.)
It is well understood, as a rule of evidence in conspiracy cases,
that proof of the acts and declarations of an alleged co-conspirator may
be introduced, and even though they may not be properly admissible at
the time when introduced in evidence, because community of intent and
design has not been established, yet if such evidence be received the
error may be cured by the subsequent introduction of proof of the
existence of the conspiracy at the time the alleged declarations were
made.
Objection was strenuously made to the admission by the court of a
letter written by the witness Cooper to Captain Gillette. I have doubts
as to the propriety of this letter as evidence for any purpose, but the
purpose for which it was admitted was to explain the testimony of Cooper
as to a point which upon cross-examination counsel for the accused had
endeavored to show tended to discredit the testimony of that witness. It
was admitted for the purpose of rebutting this reflection upon the
veracity of the witness, and had no probative force for any other
purpose. I do not see how the admission of the letter, even if
erroneous, could have injuriously affected the accused.
Another objection urged on behalf of the accused is that certain
private papers belonging to him were illegally seized by the authorities
and illegally retained against his protest, and illegally used as
evidence on the trial. It is contended that the facts show that the
alleged seizure of these papers constituted an unreasonable seizure of
private papers, contrary to the provisions of the Federal Constitution
in that respect.
I am of opinion, in the first place, that the facts do not show such
an unreasonable seizure as is forbidden by the constitutional
prohibition.
In the second place, even if the seizure was unlawful, I think the
accused practically consented to the use subsequently made of the
papers, although it is true that he tried to withdraw that consent prior
to the use of the papers as evidence.
In the third place, conceding that the seizure was unlawful and was
not acquiesced in by the defendant, yet that did not render the papers
incompetent to be offered and used as evidence in the case.
When in an actual trial in court one party or the other produces a
paper in his own possession and offers it, the trial can not be
interrupted in order to dispose of a collateral issue as to the
lawfulness of the possession by the party having actual control of the
document. An action of trover or of replevin can not conveniently be
injected into the trial of another case. That this is the law appears
satisfactorily from the cases of Leggatt v. Tollervey (14 East, 3002)
and Commonwealth v. Dana (2 Metcalf (Mass.), 329). In the latter case
Mr. Justice Wilde says:
"If the search warrant were illegal, or if the officer serving the
warrant exceeded his authority, the party on whose complaint the warrant
issued or the officer would be responsible for the wrong done; but this
is no good reason for excluding the papers seized as evidence if they
were pertinent to the issue, as they unquestionably were. When papers
are offered in evidence the court can take no notice how they were
obtained-- whether lawfully or unlawfully; nor would they form a
collateral issue to determine that question."
I do not think the decision of the United States Supreme Court in the
case of Boyd (116 U.S., 616) is in conflict with this rule.
These are the most prominent objections to admitted evidence urged
before me by Captain Carter's counsel. There are others, similar in
nature, presented in the briefs, which I do not deem it necessary to
particularly refer to, as none of them is any stronger nor any better
founded in law than those which I have already discussed. It is
sufficient to say that I find in the record no illegal evidence admitted
by the court which could reasonably be supposed to have worked an injury
to the accused, and it is a well-understood principle of law as
administered by the civil courts, even in criminal cases, that no
judgment should be reversed in a court of error when the error
complained of works no injury to the party against whom the ruling was
made.
Nor do I find that the court erred in refusing to admit in evidence
any of the matters offered in behalf of the accused on the trial and by
the court excluded. Almost all the testimony offered by the accused was
admitted, the most notable exception being a letter written by R. F.
Wescott to the accused, dated October 18, 1897. I see no ground upon
which this could be evidence in behalf of the accused. It was a mere
voluntary statement in a letter, addressed to the accused by his
father-in-law, and had no sanctity of an oath about it, and in no
respect amounted to anything more than a voluntary statement by a
relative and friend of the accused made in writing, without any
opportunity on behalf of the judge-advocate to cross-examine. It could
in no sense be regarded as legal evidence of the facts stated in it, and
it was for the purpose of proving those facts that the letter was
offered.
I find, therefore, in the record no such error of the court in the
admission or rejection of testimony as has worked, or was liable to
work, any injury to the accused, and have the honor to advise you that
on these grounds there is no reason to disturb the findings of the
court.
We are therefore brought to a consideration of the evidence, and to
the inquiry whether the testimony justified the conclusion of guilt as
to the main charges upon which the accused was convicted by the court.
The personal intimacy of the accused with Greene and the Gaynors;
the method of advertising for proposals for the work; the manner in
which copies of the specifications were given out by and under the
direction of Carter; the method of receiving and awarding the
contracts; the form in which the specifications were drawn, leaving it
optional with the engineer to order any one of the three different
classes of mattresses; the fact that the cheapest class was ordered to
be furnished by Carter after the contracts had been awarded to The
Atlantic Contracting Company; the fact that that company was only a
mere form or skeleton of a corporation, used practically as a business
name for the alleged co-conspirators Greene and Gaynor; that it held no
meetings, declared no dividends, the moneys paid to it being
unofficially divided up between Greene and Gaynor as fast as collected
from the Government; the frequent practice of cashing the Government
checks over the counter of the subtreasury in New York, instead of
following the usual course of collection through a bank of deposit and
the clearing house; the special exertion of the accused to expedite the
payments of the two sums of $230,749.90 and $345,000 in July, 1897; the
presence of Captain Carter in New York when these checks were delivered
to John F. Gaynor, who promptly passed them into the hands of Greene, by
whom they were collected; the admittedly large profits made by the
contractors on the contracts-- profits which, if the very persuasive
testimony of the witnesses for the Government be accepted, were not
merely large, but enormous.
All these, with numerous other proven facts, might justly be considered
as failing to fix upon the accused criminal knowledge and purpose to
defraud the Government if it were shown that he had no corrupt personal
motive; that he had not profited by these loose methods and irregular
and questionable proceedings. As to some of the, he seems justified in
citing the prevalent custom of other officers of unquestioned integrity
in the Corps of Engineers. If his conscience is as clear as theirs
admittedly was, he can not be held responsible as a criminal. But if it
be shown that what they did from carelessness or incapacity or in
pursuance of long-established custom he did with a criminal purpose;
that he took advantage of bad customs or loose regulations or
insufficient official supervision in the Department in order to
facilitate the assignment to his friends of fraudulent contracts and to
arrange for the collection of fraudulent profits resulting therefrom to
be subsequently divided among the conspirators and himself, then he is
guilty; and the fact that his brother officers have practiced more or
less the criticisable methods followed by him has no force whatever as
excuse or explanation.
So it becomes of vital importance to inquire whether the proofs in
this case fasten upon Captain Carter participation in the moneys alleged
to have been wrongfully and unjustly obtained by his friends out of the
United States Treasury.
If he did not profit by his conduct, then all the accusatory force of
the circumstances alleged against him is dissolved. But if he is shown
to have shared in the proceeds, then all those circumstances assume the
aspect of apt and skillful artifices employed by him to assist in the
scheme of fraud.
The contracts involved in the charges now under consideration are
those for improvements in Savannah Harbor and Cumberland Sound, entered
into in September, 1896. No payments on account of the work were made to
the contractors until the delivery of the checks above referred to by
Captain Carter in person to John F. Gaynor, in New York City, on or
about July 6, 1897. Greene and the Gaynors, under one name or another,
had been engaged in prosecuting contract work for the Government in
Captain Carter's district almost continuously from 1888 down to the time
of Captain Carter's retirement from that station in the fall of 1897.
Prior to 1890 Captain Carter's income and expenses were practically
confined to his army pay of $184 per month and to occasional fees earned
by him from private parties or municipal corporations as consulting
engineer, probably in no year amounting to more than $3,000 or $4,000.
In October, 1890, Captain Carter married the daughter of Robert F.
Wescott, of New York City, a man of considerable wealth, but just how
much it does not appear. In 1891 he was receiving a captain's pay of
$252.67 per month. Beginning with the year 1891 and continuing down to
1897 his personal expenditures increased at a very rapid rate. For 1891
they were $6,047.83; for 1892, $8,354.24; for 1893, $14,569.14; for
1894, $14,410.31; for 1895, $20,113.92; for 1896, $29,611.67. It is
conceded that at the time of his marriage Captain Carter was possessed
of no real or personal property worthy of mention.
In 1892 Carter began to make notably large deposits in the Union
Trust Company in New York, where he kept an account in his own name, and
also began to buy through brokers in New York investment securities. For
instance, June 8, 1892, there was deposited to his account $2,500 ;
July 22, 1892, there was deposited to his account $8,100.
August 1, 1892, he ordered brokers in New York to purchase $10,000,
par value, of railroad bonds, and sent to the brokers his check for
$9,000 on that account. These bonds were purchased, and Captain Carter
subsequently paid to the brokers by his check the balance of $193.75 of
the purchase price. Similar deposits are traceable from time to time,
and similar purchases of investment securities, commonly railroad bonds,
were made by him through his brokers.
This process of deposit of moneys and the purchase of securities
continued to the extent that in August, 1893, Captain Carter had in his
control securities of the par value of $70,000, and of the market value
of $86,000, producing and annual income of $4,400. In August, 1894, his
holdings had increased to $130,000 par value-- market value, $152,000--
with an annual income therefrom of $8,200. In October, 1895, his
holdings had increased to $378,000 par value, the market value being
$463,000, producing an annual income of $22,435. From October, 1895, to
November, 1896, the amount of his holdings seemed to remain stationary.
During that period there were only a few small payments made to the
contractors at Savannah, probably not more than $36,077.45. In the year
1896 there was deposited to Carter's credit over $25,000, derived from
interest coupons and dividends collected on securities which he had
control of.
The possession of this large amount of securities, accumulated in so
short a period, required from Captain Carter an explanation, and he
attempted to give one. He testified that his father-in-law, Robert F.
Wescott, after his marriage to his daughter, conceived for him a very
strong personal attachment, and on account of his satisfactory
management of a delicate family matter involving business transactions
in connection with another daughter of Mr. Wescott, and her husband, Mr.
Wescott had been led to repose great confidence in Captain Carter's
business intelligence and ability, and that, therefore, he to a large
extent turned over to him the management of his finances, including the
purchase and sale of his securities. In proof of this, the accused
produced two powers of attorney, executed by Mr. Wescott to him, giving
to him unusually full authority to transact his father-in-law's
business, including the power to sign checks and buy and sell
securities.
Captain Carter, during the absence of Mr. Wescott in Europe for a
period of about fifteen months, had charge of Mr. Wescott's bank account
in the Union Trust Company, and signed and drew checks against it,
signing them "R. F. Wescott, per O. M. Carter, attorney." Out of this
bank account was paid the purchase money of many of the securities
bought by Captain Carter during this period of fifteen months, and to
this account was credited during the same period many large sums of
money deposited in cash, as well as coupons cut from securities. The
checks upon this account, however, are not sufficient to account for the
purchase money of the large number of securities bought by Captain
Carter during that period, and he accounts for the remainder by saying
that Mr. Wescott had left in his charge his safe-deposit box, in which
he kept his securities; that in this box Mr. Wescott had left more than
$100,000 in United States gold certificates, and that from this fund he
took from time to time cash with which to make up whatever balance over
and above the drafts on the bank account was needed to pay for his
purchase of securities.
He also alleges that Mr. Wescott not only from time to time actually
presented to him large sums of money in cash, but that Mr. Wescott also
made deposits of cash and checks to Captain Carter's individual bank
account, all of which were in the nature of gifts. That Mr. Wescott
reposed confidence in Captain Carter and that he had given him some
money is testified to by a son of Mr. Wescott and another witness, but
neither of them seems to have possessed any knowledge as to whether the
amount thus donated was more or less.
Captain Carter testifies that most, if not all, of these securities
traced to his possession belonged to Mr. Wescott; that when securities
were purchased by him they were ordinarily purchased in his name, though
sometimes specifically for account of Mr. Wescott, but were always
deposited in Mr. Wescott's safe-deposit box, where he could have access
to them.
One of the brokers who made some of the purchases testifies that from
personal conversations with Mr. Wescott he recognized the agency of
Captain Carter in these purchases, but this testimony goes only to a
very small portion of the securities in question.
The above is substantially a statement of Captain Carter's account of
his accession of wealth and of the possession of this large amount of
securities. His bank account and the papers connected therewith prove
that he collected and deposited to his own credit the interest coupons
on securities to the amount of over $300,000, par, down to March, 1897.
If this explanation given by Captain Carter is true, then it
exonerates him. But, on the face of it, it is an unusual and improbable
story. It was incumbent upon him for his own protection to sustain it by
all attainable testimony. If Mr. Wescott, the alleged donor, had come
upon the witness stand and corroborated the story it would probably have
been sufficient, but he did not come. It is contended on behalf of
Captain Carter that Wescott was, at the time of the trial, in Europe
with a sick daughter and was in a nervous state himself, so that he
naturally shrunk from the annoyance and trouble to which he would be
subjected by coming home to testify in his son-in-law's behalf. The
evidence as to the ill health of his daughter and his own condition of
nervousness is very sparse and can not be deemed satisfactory. The
letter which Mr. Wescott sent to Captain Carter, wherein he declined to
appear before the board of inquiry in the fall of 1897, does not put his
refusal upon either of these grounds, but rather upon the ground that
his testimony was unimportant and could be supplied in other ways.
If it be true, as contended, that Mr. Wescott had such an extravagant
affection and regard for his son-in-law as to induce him to confide to
him so great a trust and to make him the donee of such large sums of
money, then the natural suggestion would be that he would be interested
intensely in the result of the trial in which the honor as well as the
liberty of his son-in-law was involved. One would naturally think that a
father-in-law so regardful of his son-in-law's interests would be quick
to rush to his defense and by his oath to add confirmation to the story
which, if true, would exculpate him from these serious charges.
It is said that Captain Carter made great efforts to secure the
attendance of Mr. Wescott as a witness, but there is no proof of it.
There is no evidence that he wrote him or requested him in anywise to
appear as a witness before the court-martial. The inference is that his
testimony would not have benefited Captain Carter if he had appeared.
Such is the irresistible conclusion, and, therefore, finding that the
one witness in all the world who could have created conviction in the
minds of the court as to the truth of this extraordinary story withholds
himself, and that there is no satisfactory evidence that the defendant
made any exertion to produce him, we must conclude that his testimony
would not have been useful. It is also noteworthy that Wescott canceled
the power of attorney which Carter held almost immediately after the
accusation against Carter became public in the fall of 1897.
In the absence of the testimony of Mr. Wescott, we are forced to test
the truthfulness of Captain Carter's story by an analysis of his
dealings with the money and affairs of his father-in-law as they appear
in the accounts and other exhibits in the case. It should be borne in
mind that Carter's wife died in 1892.
Instead of showing that Captain Carter helped himself bounteously to
the accumulated wealth of his father-in-law, this analysis shows that in
all transactions where Captain Carter handled money which admittedly
belonged to Mr. Wescott, he dealt with him on the basis of strict
accountability to the last penny for everything he received belonging
specifically to Mr. Wescott. In the account which he kept in the Union
Trust Company, in the name of "R. F. Wescott, per O. M. Carter,
attorney," he made a separation on his check book of those moneys which
belonged to Mr. Wescott and those moneys which belonged to himself
individually. He did not admit this in his testimony, but an analysis of
the checks and accounts shows conclusively that those sums which he set
down as belonging to "C" belonged to him, Captain Carter, and not to
Wescott, as he pretended, and that those sums which he set down as
belonging to "W" belonged individually to Mr. Wescott and comprised the
whole of Wescott's funds involved in that account, and on the
termination of that account Carter deposited his individual check from
his own bank account to make good the exact sum of $144.84 of the funds
of Mr. Wescott which he had used out of Mr. Wescott's account for his
own purpose.
The funds of Carter were very largely in excess of those of Wescott in
this same account during all the time Carter kept it.
It further appears from correspondence between Captain Carter and Mr.
Wescott as to proposed enterprises, such as the construction of houses
at Orange, N.J., that they were dealing upon a strict business basis,
just as strangers might do.
As to several of the sums, whcih the evidence shows were deposited in
the bank account of Captain Carter by Mr. Wescott, it appears that
almost contemporaneously therewith Captain Carter, by his check or
otherwise, had put Mr. Wescott in funds to the amount of the specific
deposit, the inference being that for some reason or other he preferred
to furnish funds to Mr. Wescott, which Mr. Wescott might ostensibly
deposit himself to the account of Captain Carter.
The testimony does not strike me as that of a man possessed of a
clear idea of the truth and determined to tell it, but rather as a
clever evasion of one who is endeavoring artificially other source.
There are other circumstances in the proofs which are suspicious. I
have heretofore refereed to the fact that many of the checks paid to
these contractors were collected in cash over the counter at the
subtreasury. No reason for this unusual course is suggested. It is to be
further noted that Carter was present in New York on July 6, 1897, when
the large checks were delivered to Gaynor on that date, and that he was
on many other occasions, from 1892 to 1897, present in New York when
payments were made to the contractors.
The following is a statement showing the deposits of currency made by
Captain Carter simultaneously with the cashing of checks given to the
contractors in New York: 1893, January 3, Carter deposited $3,550 in
currency; February 10, he deposited $5,850 in currency, and also paid
for some bonds purchased by him; March 14, he deposited $7,000 in
currency; April 14, he deposited $400 in currency, and also paid for
some bonds purchased.
1894, March 5, he deposited $2,400 in currency. March 5 to 7, 1895, he
deposited $20,000 in currency and a check for $16,025; June 7 and 8, he
bought bonds and paid for them; July 5 and 6, he deposited $14,500 in
currency. 1896, May 13, he deposited $2,900 in currency. On each of
these dates payments were made to the contractors by checks, which were
either deposited or cashed in New York City.
Carter's statement of the gold certificates contained in Mr.
Wescott's safe-deposit box, to the amount of over $100,000, is such an
extraordinary story, and so inconsistent with the methods of a business
man, such as Mr. Wescott is testified to be, that it staggers credulity.
If that money was there in a box to which Captain Carter has access, it
is more probable that he put it there, using this means to withhold
temporarily from his own bank account large sums which he had received
from other sources. Such a device as that would be entirely consistent
with the theory of fraud and concealment which is maintained by the
prosecution. Captain Carter is admittedly a shrewd and clever man, and
it is apparent from an examination of these accounts that he has
resorted to various devices to cover up his tracks and conceal the true
character of his transactions. Whether this was one of them or not, or
whether the whole story is a fabrication can not be determined; but in
view of all the evidence, considering the improbability of his story,
the failure to produce corroborative proof, which was within his reach,
the long-continued possession of the large amounts of securities which
he admittedly purchased, and the collection and appropriation by himself
of the interest coupons thereon, with various other considerations which
tend to discredit the truth of his explanation, the conclusion is forced
upon the mind that Captain Carter, during these years from 1892 to 1897,
had enriched himself to a large degree in some manner not accounted for
by his own testimony; and the irresistible conclusion, therefore, is
that the true explanation of this rapid accession of wealth is one that
he could not safely make, and that it is to be accounted for only by
accepting the theory that he participated in the fraudulent proceeds of
the contracts under his charge.
I am, therefore, led to the conclusion that the court-martial was
justified in its finding of guilty upon the charges and specifications
relating to these contracts of September, 1896, and that the finding and
sentence of the court with respect thereto should be approved.
Very respectfully,
JOHN W. GRIGGS.
INTERNATIONAL LAW-- HAWAII-- COURT OF CLAIMS; 22 Op.Att'y.Gen. 583,
September 20, 1899
In case of the annexation of a State or cession of territory, the
substituted sovereignty assumes the debts and obligations of the
absorbed State or territory, taking the burdens with the benefits.
The exception to this rule occurs where it is otherwise expressly
provided by treaty stipulation, or the instrument of cession, when the
absorbed territory becomes an integral part of the acquiring State, and
is altogether merged in it, as in the case of the transfer of contiguous
territory to a monarchy.
Where there is a distinct and independent civilized government,
potent and capable within its territorial limits, conducted by a
separate executive, not acting as the mere representative by appointment
of the distant central administration, such government should respond
out of its separate assets to any valid claims upon it.
Certain claims against Hawaii which accrued prior to annexation and
which have been presented to the Department of State should properly be
presented to, considered, and paid by the Hawaiian government, but all
such claims should first be received by the Department of State, through
diplomatic channels, and then be transmitted to the government of Hawaii
for adjustment.
Citizens of the United States may present their claims against the
Hawaiian government, or take such other proceedings in court as the
municipal laws of Hawaii allow.
Questions such as are involved in these claims may be submitted to
the Court of Claims for determination.
DEPARTMENT OF JUSTICE,
September 20, 1899.
The SECRETARY OF STATE.
SIR: Your letter of the 3d instant, with its inclosures, brings to
my attention certain claims against Hawaii arising prior to annexation--
some in favor of citizens or subjects of foreign States and others in
favor of citizens of the United States-- which have been presented to
the State Department and allowance thereof asked against this Government
as the successor to the sovereignty of Hawaii; and suggests the
questions whether these claims were extinguished by the act of
annexation or, under the terms of said act and principles of
international law, have become, so far as valid against Hawaii, just and
legal claims against the United States; and if so, whether the
Department of State must entertain and adjust them diplomatically or may
refer them to the Court of Claims for findings of facts and conclusions
of law.
Upon these facts and questions you request to be advised whether this
Government became responsible for such valid claims against Hawaii, and
whether you may not properly refer all of them to the Court of Claims,
as suggested.
In reply, I have the honor to advise you that the general doctrine of
international law founded upon obvious principles of justice is, that in
case of annexation of a state or cession of territory, the substituted
sovereignty assumes the debts and obligations of the absorbed state or
territory-- it takes the burdens with the benefits. Mr. Adams, when
Secretary of State, expressed the principle thus, extending it even to
the case of acquisition by conquest:
"The conqueror who reduces a nation to this subjection receives it
subject to all its engagements and duties toward others, the fulfillment
of which then becomes his own duty." (1 Whart.Int.Law Dig., sec. 5.)
The subject is discussed by Mr. Hall (International Law, 4th Ed., pp.
104, 105) and in River (Principles du Droit des Gens, 1, pp. 70-72,
note, and authorities and instances cited).
No fair exception to this rule can be perceived, unless expressly
provided for by treaty stipulations or the instrument of cession, when
the absorbed territory becomes an integral part of the acquiring state,
and is altogether merged in it, as in the ordinary case of transfer of a
contiguous territory to a monarchy, in which, although municipal lines
of division into departments or provinces may run, the sovereignty
extends everywhere alike and leaves only a circumscribed field for local
autonomy. The General Government administers everywhere equally,
performs the local as well as the general functions of the nation, and
virtually absorbs the new territory on these terms. Where the federal
idea obtains, this is not so. It is only necessary to indicate by
reference to our own scheme of government the notion of sovereign States
and responsible Territorial administrations making their own local laws
through representative assemblies, entering into contracts, possessing
separate revenues and treasury, liable for their engagements and
obligations, and exercising through the whole domain of local autonomy
the powers of a distinct government. Nor is the attribute of sovereignty
to be regarded as the sole test throughout the whole situation of the
nature of the relation to the General Government or the rest of the
world. If there is a distinct and independent civilized government,
potent and capable within its territorial limits, conducted by a
separate executive, not acting as the mere representative by appointment
of the distant central administration, I perceive no reason to doubt
that such government rather than the central authority should respond
out of its separate assets to any valid claims upon it, whether accruing
in the past, present accruing, or to accrue in the future. It does not
matter what is the exact nature or extent of the connection between the
principal state and the dependent possession so long as the latter
possesses its own organized government and is not a mere unorganized
dependency. The foreign colonial systems have long recognized the
distinction between possessions which are the subject of executive
rather than legislative administration and control-- that is, which are
directed and ruled by the executive responsible to the constitutional
parliament or assembly-- and those which are autonomous.
There is nothing in the Hawaiian resolution of annexation which gives
the negative to this theory. On the contrary, the power to continue the
existing government and its continuation in fact are an assumption of
the views here stated; as a logical consequence of which, although the
doubt as to the exact nature of Congressional action may impose a not
unreasonable delay upon the Hawaiian authorities in the consideration
and settlement of pending claims, such claims if valid (being
apparently, as indicated in the memorandum accompanying your letter, the
claims mentioned on pages 111 et seq. of the Hawaiian report, Senate
Doc. No. 116, third session Fifty-fifth Congress), and similar claims
which may arise hereafter should properly be presented to and be
considered and paid by the Hawaiian government. And the dilemma by
which, under the separated governmental entities, the Federal authority
is not liable for the demand, and the State authority has no
international relations, and therefore escapes a perfect obligation, is
apparent rather than real. The historic complaint as to this situation
is not in reality well founded, and in the forum of nations the just
liabilities to claimants and obligations to civilization of a State of
this Union have been for the most part met by the State or recognized by
the Untied States in its sovereign grace. But the legal liability is
that of the inferior member of the federation rather than of the
federation itself.
Take the case of Texas as an example, in which, finally, part of the
proceeds of a grant of land to the United States and a pledge of the
customs duties locally collected were applied to the discharge of the
funded debt of the State. The United States resisted responsibility on
the theory here advanced, and the foreign contention was based upon the
ground that the specific transfer of assets for the purpose raised the
national liability, and this contention was accompanied by an express
disclaimer that the annexation of itself imposed the responsibility on
the substituted and absorbing power. Of course, Texas, while losing its
nationality, retained its corporate existence as a State of the Union
and I have here endeavored to point out that the crucial test is the
separated and autonomous government and not the attribute of
sovereignty.
It is beyond question that a claim on foreign behalf against a State
or Territory of the Union would be presented through, rather than to,
the State Department; that is, it would be presented to the local and
not to the Federal Government, and would be finally adjusted and
recognized or denied by the former, although the Federal Government is
the international representative, and in various ways, short of coercion
of a State-- as unnecessary, ordinarily, as it is impossible-- admits a
certain international liability. So, I conceive, the separate colonial
government of a European monarchy would settle and pay just foreign
claims against itself, although they would be presented through the
foreign office of the home Government. In no respect, save a temporary
delay in the process of adjustment, am I able to see that the situation
as to Hawaii differs from that just stated, and I am hence of the
opinion that the function of the State Department with relation to such
foreign claims is to receive them through diplomatic channels, and
transmit them to the government of Hawaii for adjustment. As to such
claims on behalf of citizens of the United States, there is nothing to
prevent the claimants from presenting the same at once to the Hawaiian
authorities, or taking such other step by proceedings in court as the
municipal laws of Hawaii, preserved for the most part by the resolution,
may allow. And an application to Congress is open on behalf of both
classes of claimants.
From the foregoing it will be seen that strictly your questions fall;
but the form of your query requests me to advise you whether you must
adjust these claims diplomatically or may refer them to the Court of
Claims. It is not necessary for me in this connection to consider in
detail the jurisdiction of the Court of Claims, which has been
exhaustively reviewed and classified in the case of The United States v.
New York (160 U.S., 598, 615). Just as any claim may be submitted to the
court on the voluntary petition of the claimant, including those of
aliens, however the court may finally dispose of it on grounds of their
own jurisdiction, or on the merits, so, I conceive, may such questions
as the present one be submitted by the heads of Departments to the court
for their final or partial determination under the law, which they may
or may not consider proper for them to entertain.
Furthermore, on some of the grounds inviting this reference it may be
argued with force that such reference is pertinent and proper; but,
holding the views at the threshold of the case which I have here
expressed, and considering that in providing for the settlement of
claims against the United States, whether founded upon contract or tort,
and in carving out the jurisdiction of the Court of Claims, Congress has
found it necessary or desirable to legislate affirmatively and to define
and limit the jurisdiction of the court accurately, it would not be
consistent for me to advise you to elect to make the reference both
because such determination lies largely in the region of your own
administrative discretion, and because, with my notions of the
situation, I might, as the law officer of the Government charged with
the defense of suits against the United States, deem it advisable to
challenge the jurisdiction of the court. Although in the previous and
different case to which you refer I advised you that certain disputed
facts and controverted questions of law arising in consequence of
adjudications in prize courts-- which substantially terminated the
jurisdiction therein, and did not embrace, originally or under the right
of appeal, certain foreign claims, although the decrees justified the
same-- might properly be referred to the Court of Claims, it is
sufficient to say that the questions there, on the merits of such
reference, were quite different from those now presented, and that the
legal reasons in my judgment affecting your administrative discretion to
make the reference were far stronger.
The subject goes off then, so far a I am properly concerned, on the
view that all the claims against Hawaii embraced in your query should be
presented to the government of Hawaii according to the respective
methods appropriate to their character, as indicated herein.
Very respectfully,
JOHN W. GRIGGS.
OPINIONS-- COMPTROLLER OF THE TREASURY; 22 Op.Att'y.Gen. 581,
September 13, 1899
The decision of the Comptroller of the Treasury upon any question
involving a payment is final and binding.
On questions of disbursements of money or payment of claims the
Attorney-General should not render opinions.
DEPARTMENT OF JUSTICE,
September 13, 1899.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your
communication of August 1, with its inclosures, wherein you submit the
facts as to the claim made on behalf of Mr. James Ross Collins for
additional compensation "on account of the prevention and detection of
frauds upon the customs revenue," by which it appears that Mr. Collins
furnished original information relative to certain fraudulent
importations and has heretofore been awarded compensation under section
4 of the antimoiety act (June 22, 1874, 18 Stat., 186) in the maximum
amount allowed under said act; and that upon his application for an
additional amount under the act of March 3, 1879 (20 Stat., 386), making
an appropriation "for the detection and prevention of frauds upon the
customs revenue," the Comptroller of the Treasury, upon reference by
your predecessor, held (1 Comp.Dec., 563) that the language of the
antimoiety act applied accurately to Mr. Collins's case; that the
appropriation thereunder was specific and exclusive, and that therefore
the Secretary of the Treasury was not authorized to pay the claimant
compensation under the act of 1879, supra.
It is also, I am informed, matter of record that the same question
was considered by the present Comptroller of the Treasury in another
case and the prior decision approved and followed. (Decision, December
16, 1897; MMS. vol. 5, Comp. Dec., p. 787.) Mr. Collins's claim has now
been presented to you again, and it is contended on his behalf that the
Comptroller's opinions are "extra-official" and are not binding upon the
Secretary; that the construction adopted virtually destroys the
efficiency of the act of 1879 so far as it relates to this question, and
that the Secretary may properly award the claimant such further sum out
of the appropriation under that act as in his judgment is just. Upon
this situation you request an expression of my views.
The view that the opinions of the Comptroller rendered to the
Secretary of the Treasury upon legal questions are purely extra-official
and rendered by courtesy only (20 Op., 654, dated September 8, 1893) is
no longer tenable, for by section 8 of the act of July 31, 1894 (28
Stat., 208), " * * * the head of any Executive Department * * * may
apply for and the Comptroller of the Treasury shall render his decision
upon any question involving a payment to be made by (him) or under
(him), which decision, when rendered, shall govern the Auditor and
Comptroller of the Treasury in passing upon the account containing said
disbursement."
And various opinions of my predecessors rendered since the passage of
the act of 1894 announce the conclusion that the decision of the
Comptroller upon such a question is final and binding.
"If a claim is presented, the question of the legality of payment is
one exclusively for the Comptroller, whose decision thereon is, by
statute, made final as to all executive officers. It has been repeatedly
held by Attorneys-General that on questions of disbursement of money or
payment of claims * * * the Attorney-General should not render opinions,
especially in view of the fact that, if the matter is doubtful, it can
be referred to the Court of Claims for authoritative decision." (21
Opin., 530; see also 21 Opin., 178; Id., 181; Id., 188.) Concurring
in the views and reasons set forth by these authorities, it is
unnecessary and inappropriate for me to express my views more at large
or enter upon the merits of the question. I return the inclosures of
your letter herewith.
Respectfully,
JOHN W. GRIGGS.
VESSELS-- REGISTERS-- HAWAII; 22 Op.Att'y.Gen. 578, September 12,
1899
The issuance of registry to a vessel, entitling it to carry national
colors, is an act of sovereignty, although the register itself is not
the only document recognized by the law of nations as indicative of the
ship's national character.
The Hawaiian authorities can not in anywise certify to the national
character of a vessel, as Hawaiian national character can no longer be
attributed to vessels owned by inhabitants of the islands.
The registration laws of Hawaii have been abrogated as a necessary
consequence of its annexation to the United States.
An order of the Executive suspending the issuance of Hawaiian
registers would be a legal exercise of power under the resolution of
Congress annexing Hawaii.
DEPARTMENT OF JUSTICE,
September 12, 1899.
The SECRETARY OF THE TREASURY.
SIR: Your letters of August 5 and August 9, with their inclosures,
relative to the issuance of Hawaiian registers to vessels, are at hand.
The decision of the supreme court of the Hawaiian Islands, a copy of
which you send, determines, in relation to applications for writs of
mandamus to compel the issuance of Hawaiian registers to certain
vessels, that the Hawaiian registry laws are a part of the municipal
legislation of those islands remaining in force by the terms of the
resolution of annexation, and that Congress manifested no particular
intention to abrogate the Hawaiian registration laws immediately upon
annexation, but manifested a general intention to continue those laws.
The said applications were, however, by this opinion denied upon other
grounds, but the cases have been reopened for the determination of a
certain question of fact not material to the present inquiry.
Nevertheless, the question of law now before us was definitely ruled by
that opinion, and since the Treasury Department has taken the ground
that vessels should not be authorized to receive Hawaiian registers and
fly the Hawaiian flag after July 7, 1898, you suggest that the only
remedy for the situation is an Executive order suspending the issuance
of Hawaiian registers, as a recent Executive order suspended the holding
of a general election in the island provided for under the Hawaiian
constitution; and you request my opinion as to the legality of such an
order of the President, to be procured and issued at your instance,
under the resolution of Congress for the annexation of Hawaii.
Under these circumstances, therefore, the question is fairly a legal
question and one arising in the administration of your Department. It is
obviously a question of high importance and commands careful
consideration from the legal standpoint as well as from the standpoint
of wise governmental policy.
The decision of the supreme court of Hawaii is based upon the view of
Chancellor Kent (3 Com.,*p. 149), who says: "The registry is not a
document required by the law of nations as expressive of a ship's
national character. The registry acts are to be construed as forms of
local or municipal institutions for purposes of public policy." But it
is evident that while Chancellor Kent finds the source of registration
in municipal law and not in the law of nations, the character of
registration as a governmental act is national and expresses
sovereignty. The issuance of registry to vessels entitling them to carry
national colors is an act of sovereignty, although the register itself
is not a document required by the law of nations as indicative of a
ship's national character; for this can be shown in other ways, as, for
instance, by a consular certificate attached to the bill of sale of a
vessel to an American citizen. This is evidence of national character
and entitles the vessel under the consular regulations to the protection
of the flag. Sea letters are also at times evidence of the national
character of a vessel, and a bill of sale also is such evidence.
Chancellor Kent himself says, as chief justice of the supreme court of
New York, in the case of Barker v. Phoenix Ins. Co. (8 Johns., 307,
319), referring to two kinds of American vessels, the one registered and
the other unregistered and carrying a sea letter or an official
certificate of ownership: "But in reference to the law of nations and
to security upon the high seas, both species of vessels were equally
entitled to protection as American property."
While thus there are other documents which impress national character
upon a vessel, the register is the usual and most complete evidence of
such character, and the fullest charter of the rights dependent thereon.
It is to be noted in passing that the Hawaiian register is by the
terms of the Hawaiian law, even more clearly an international document
than the American register (secs. 1000-1003, Civil Laws of the Hawaiian
Islands, 1897, c. 69, Registry of Foreign Vessels, p. 412).
Beyond question a vessel's register announces nationality, and
registration laws, though municipal in origin or even in character (in
the terminology of classification of different branches of the law),
assert necessarily and before anything else the sovereignty of the
government by which they are enacted and enforced. Therefore Chancellor
Kent's statement in the Commentaries (supra) is to be taken as meaning
that the law of nations recognizes various ways of holding out a ship's
national character, and does not require the peculiar form known as a
register; but it is not to be taken as meaning that registration is a
matter merely of local law, and does not affect, or is not affected by,
matters beyond the local domain.
Now, the joint resolution of Congress for the annexation of the
Hawaiian Islands provides generally that "the municipal legislation of
the islands * * * not inconsistent with this joint resolution * * *
shall remain in force until the Congress of the United States shall
otherwise determine." And by the preamble to the resolution the absolute
and unreserved cession of all rights of sovereignty of whatsoever kind
by the Hawaiian government to the United States is evidenced. Again,
although there is a Hawaiian government-- the continuation under the
terms of the resolution of a government long existing there as an
independent autonomy-- the language and the spirit of the resolution
necessarily require the extinction of Hawaiian nationality and
sovereignty; the two very things above all others which the register of
a vessel expresses.
In my opinion, therefore, the Hawaiian authorities can not in any way
certify to the Hawaiian character of a vessel, for the Hawaiian national
character can no longer be attributed to vessels owned by inhabitants of
the islands. Under the law of nations, vessels bearing any form of
certificate of Hawaiian national character at the time of annexation
must look to the United States for protection on the high seas and in
foreign ports. Their national character has become American.
It is not necessary now to consider what all the consequences of this
view may be, and what form of certificate of American national character
may properly be issued to vessels belonging to Hawaiians, pending
Congressional action, although there appears to be authority under the
consular regulations for giving such vessels the protection of our flag.
With due respect to the judgments of the supreme court of Hawaii, I am
unable to admit that a Hawaiian registry can now be issued to a vessel
and the flag of Hawaii, the usual token of registration, be flown by
her; for although the Hawaiian registry law is conceded to be a
municipal law (in its origin, as indicated, but by no means merely a
municipal law in its field of operation and effects), its application
since annexation is totally inconsistent with that portion of the
resolution by which the Hawaiian government ceded absolutely and without
reservation all rights of sovereignty of whatsoever kind to the United
States. By the very language of the resolution municipal legislation
inconsistent with the resolution shall not remain in force, and upon
these views I am constrained to hold that the registration laws of
Hawaii have been abrogated as a necessary consequence of annexation.
It therefore follows that in my opinion an order of the Executive
suspending the issuance of Hawaiian registers would be a legal exercise
of power under the resolution of Congress for the annexation of Hawaii.
Very respectfully,
JOHN W. GRIGGS.
HAWAII-- PUBLIC LANDS; 22 Op.Att'y.Gen. 574, September 9, 1899
The laws of a government which have for their object a certain
governmental policy, such as those for the disposition of the public
domain and the granting of quasi public franchises, rights, and
privileges to private individuals or corporations, cease to have any
force or effect after the sovereignty of such government ceases.
By the resolution of annexation the local government of Hawaii was
deprived of all authority to dispose of public lands in any manner
whatsoever, except by virtue of special laws enacted by Congress.
The officers of the Hawaiian government have no authority to sell or
otherwise dispose of the public lands in the Hawaiian Islands, and any
such sales or agreements to sell are absolutely null and void as against
the Government of the United States.
DEPARTMENT OF JUSTICE,
September 9, 1899.
The PRESIDENT.
SIR: I have the honor to acknowledge receipt by reference from you
of a communication addressed to you by the Acting Secretary of the
Interior, dated August 24, 1899, calling attention to the fact that the
local government of the Hawaiian Islands are about to dispose at public
auction of portions of the public lands of Hawaii, and suggesting that
in view of the provisions of the resolution of annexation, approved July
7, 1898, such action on the part of the Hawaiian authorities is without
legal warrant or authority, and that the matter be submitted to the
Attorney-General with a view to an expression of his opinion upon the
question, to the end that the existing government of the Hawaiian
Islands may be advised as to their power and duty in the premises. The
letter of the Acting Secretary is accompanied by several letters in the
nature of protests against the contemplated action of the Hawaiian
authorities and a copy of the proposed conditions of sale of the lands
referred to.
An inspection of the conditions of sale indicates that a very large
quantity of land, in 50-acre lots, was to be disposed of on Saturday,
September 2, 1899, at the Hilo court-house, and that it is the
understanding of the authorities that they can convey to such purchasers
a good and valid title to any and all lands that may be sold in
accordance with the advertised conditions.
I have given attentive consideration to the question raised by these
papers, and have no hesitation in advising you that the officers of the
existing government in said islands have no authority to sell or
otherwise dispose of the public lands in the Hawaiian Islands, and that
any such sales or agreements to sell will be absolutely null and void as
against the Government of the United States.
It is only necessary to refer to the language of the resolution and
to the well-understood principles of public law which govern the subject
of territory ceded by one government to another, to reach the easy
conclusion that the public lands in the Hawaiian Islands, upon the
approval of the joint resolution of cession, became the property of the
United States, and could thereafter be disposed of only in accordance
with such special laws as Congress might thereafter enact. The preamble
of the resolution declares:
"Whereas the Government of the Republic of Hawaii having in due form
signified its consent, in the manner provided by its constitution, to
cede absolutely and without reserve to the United States of America all
rights of sovereignty of whatsoever kind in and over the Hawaiian
Islands and their dependencies, and also to cede and transfer to the
United States the absolute fee and ownership of all public, Government,
or crown lands, public buildings edifices, ports, harbors, military
equipment, and all other public property of every kind and description
belonging to the Government of the Hawaiian Islands, together with every
right and appurtenance thereunto appertaining."
And the resolution following this preamble resolves:
"That said cession is accepted, ratified, and confirmed, and that the
said Hawaiian Islands and their dependencies be, and they are hereby,
annexed as a part of the territory of the United States and are subject
to the sovereign dominion thereof, and that all and singular the
property and rights hereinbefore mentioned are vested in the United
States of America."
This language expressly recites the cession and transfer to the
United States of the absolute fee and ownership of all public,
government, or crown lands, and all other public property of every kind
and description belonging to the government of the Hawaiian Islands.
The resolution of annexation further provides:
"The existing laws of the United States relative to public lands
shall not apply to such lands in the Hawaiian Islands; but the Congress
of the United States shall enact special laws for their management and
disposition: Provided, That all revenue from or proceeds of the same,
except as regards such part thereof as may be used or occupied for the
civil, military, or naval purposes of the United States, or may be
assigned for the use of the local government, shall be used solely for
the benefit of the inhabitants of the Hawaiian Islands for educational
and other public purposes."
The effect of this clause is to subject the public lands in Hawaii to
a special trust, limiting the revenue from or proceeds of the same to
the uses of the inhabitants of the Hawaiian Islands for educational or
other public purposes. This merely restricted the uses to which the
proceeds of such lands could be put, but did not in anywise affect the
previous provisions of this clause, which conferred upon Congress the
sole and absolute authority to provide for the management and
disposition of these lands. The effect of the language quoted is to vest
in Congress the exclusive right, by special enactment, to provide for
the disposition of public lands in Hawaii. Possibly such would have been
the effect of the resolution even if this language had not been
inserted. But the language having been expressly inserted, there can be
no doubt whatever but what the effect of the resolution is to deprive
the local government of Hawaii of all authority to dispose of these
lands in any manner whatever, except by virtue of special laws enacted
by Congress. The fact that Congress has failed up to this time to
legislate on the subject has not reinvested the Hawaiian government with
its former power of disposition. That power ceased upon the cession.
The lands then became the property of the United States, and could be
disposed of only in accordance with the laws of Congress. Until Congress
passes laws in conformity to the provisions of the resolution providing
for the sale or disposition of these lands they must remain undisposed
of. That clause of the resolution of annexation which directs that
"Until Congress shall provide for the government of such islands all the
civil, judicial, and military powers exercised by the officers of the
existing government in said islands shall be vested in such person or
persons and shall be exercised in such manner as the President of the
United States shall direct," does not refer to or affect this subject.
It relates only to the ordinary internal administration of civil,
indicial, and military affairs, and does not cover in any degree or in
any aspect the disposition of public lands, which is elsewhere provided
for in the resolution.
The general principle of public law which governs and controls this
subject is concisely stated in the case of Harcourt v. Gailliard (12
Wheaton, 524):
"Those laws of the former government which have for their object a
certain governmental public policy, of which character are laws for the
disposition of the public domain and the granting of quasi public
franchises, rights and privileges to private individuals of
corporations, ceased to have any force or effect after the sovereignty
of the former government ceased."
I have the honor to advise you that the local head of the existing
government in Hawaii should be notified that such government has no
power to make any sale or disposition of the public lands in the
islands; that all proceedings taken or pending for such sale or
disposition should be discontinued, and that if any sales or agreements
for sale have been made since the adoption of the resolution of
annexation, the purchasers should be notified that the same are null and
void, and any consideration paid to the local authorities on account
thereof should be refunded.
Very respectfully,
JOHN W. GRIGGS.
REDEMPTION OF WAR-REVENUE STAMPS; 22 Op.Att'y.Gen. 568, August 19,
1899
The Commissioner of Internal Revenue has authority, with the approval
of the Secretary of the Treasury, to make regulations looking to the
redemption of unused documentary stamps issued under the act of June 13,
1898.
In the absence of such rules, the Commissioner of Internal Revenue
may cause such unused stamps to be redeemed.
A regulation made in pursuance of an act of Congress has the force of
law.
DEPARTMENT OF JUSTICE,
August 18, 1899.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge receipt of yours of the 17th of
April, 1899, relative to the power of the Commissioner of Internal
Revenue to redeem or exchange under certain circumstances documentary
stamps issued under the provisions of the act of June 13, 1898, known as
the war-revenue act. You ask this question:
"Whether the last proviso of section 17 of the act of March 1, 1879
(20 Stat. 327), which provides that from and after June 30, 1879, no
allowance shall be made in any manner for documentary stamps other than
for those of the denomination of 2 cents, is still in force."
The case pending before the Commissioner of Internal Revenue for
decision is based upon the following facts:
Maitland, Coppell & Co., of New York, purchased from the collector of
internal revenue 31 adhesive documentary stamps of the denomination of
$1,000 respectively. At the time of the purchase of these stamps the
purchasers were under the belief that $31,000 worth of stamps were
required upon a certain instrument which it was their duty to stamp.
After the purchase, however, it was ascertained that $30,000 was the
correct amount of stamps required on that instrument, and thus one of
the stamps of the denomination of $1,000 was left in their hands unused.
They have applied to the Commissioner for the redemption of this $1,000
stamp.
Section 31 of the act of June 13, 1898, reads as follows:
"That all administrative, special, or stamp provisions of law,
including the laws in relation to the assessment of taxes not heretofore
specifically repealed, are hereby made applicable to this act."
The question, therefore, first presented is as to whether this
provision of the war-revenue act makes applicable to the administration
and enforcement of said act the proviso of section 17 of the act of
March 1, 1879, above referred to.
It will be observed that the power vested in the Commissioner of
Internal Revenue to redeem stamps issued under the laws in existence
previous to the act of June 13, 1898, is derived from section 3426 of
the Revised Statutes, in which this language will be found:
"The Commissioner of Internal Revenue may, upon the receipt of
satisfactory evidence of the facts, make an allowance for or redeem such
of the stamps issued under the provisions of this title, or of any
internal-revenue act, as may have been spoiled, destroyed, or rendered
unless," etc.
The authority to redeem documentary stamps was, by the act of July
12, 1876 (19 Stat., 88), confined to thos of the denomination of 2
cents; and by the act of March 1, 1879 (20 Stat., 327), both of which
latter acts were amendments to the original act, claims for allowance on
account of stamps were required to be presented within three years,
existing claims for the redemption of stamps other than 2-cent
documentary stamps were required to be presented within one year, and
after June 30, 1879, no allowance could be made in any manner for
documentary stamps other than those of the denomination of 2 cents.
It will be seen that all of these acts refer to documentary stamps
issued under the provisions of Title XXXV of the Revised Statutes, and
the legislation subsequent to the act first authorizing the redemption
of such stamps resulted from the facts that documentary stamps issued
under the provisions of the said title gradually went out of use until
those of the denomination of 2 cents alone were required at the time the
amendatory acts were passed.
The question is then directly presented as to how far, if at all,
such legislation, pertaining to a system of laws with reference to the
issue and use of internal-revenue stamps provided for by said system,
can affect a subsequent and independent act providing for the issue and
use of internal-revenue stamps differing in many instances materially
from those issued under the former legislation.
It will be ascertained, in following up the legislation relative to
the use of documentary stamps, that the act of June 6, 1872 (sec. 36, 17
Stat., 256), provided for the repeal on and after October 31, 1872, of
stamp taxes on instruments, except the stamp tax on bank checks, drafts,
and orders, and that the law requiring the use of the 2-cent stamps was
repealed by the act of March 3, 1883 (22 Stat., 488). Therefore, the
laws under which the documentary stamps provided for by previous
legislation were issued having been repealed, all the acts of Congress
pertaining solely to the redemption of such stamps have become obsolete;
and I therefore, in answer to the question as to whether the last
proviso of section 17 of the act of March 1, 1879 (20 Stat., 327), is
still in force, advise you that it is not; nor is any of the
legislation providing for the redemption of documentary stamps under
Title XXXV of the Revised Statutes in force. Consequently said proviso
can in no way enter into the administration of the war-revenue act.
The only question, therefore, which remains to be considered is
whether the Commissioner of Internal Revenue is authorized under any
circumstances to redeem documentary stamps issued under the provisions
of the last-named act.
Section 321 of the Revised Statutes, in defining the duties of the
Commissioner of Internal Revenue, says:
"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."
By this law the Commissioner of Internal Revenue, under the direction
of the Secretary of the Treasury, has the general management,
supervision, and control of the assessment and collection of
internal-revenue taxes. He has authority to give instructions and to
make regulations such as may be necessary to carry out the general
purposes of law.
It will be seen, therefore, that the general powers of the Commissioner
pertaining to the assessment and collection of internal-revenue taxes
are exceedingly broad and comprehensive. In addition to the powers thus
granted under the general law, section 25 of the act of June 13, 1898,
is as follows:
"That the Commissioner of Internal Revenue shall cause to be prepared
for the payment of the taxes prescribed in this act suitable stamps
denoting the tax on the document, article, or thing to which the same
may be affixed, and he is authorized to prescribe such method for the
cancellation of said stamps, as substitute for or in addition to the
method provided in this act, as he may deem expedient. The Commissioner
of Internal Revenue, with the approval of the Secretary of the Treasury,
is authorized to procure any of the stamps provided for in this act by
contract whenever such stamps can not be speedily prepared by the Bureau
of Engraving and Printing; but this authority shall expire on the first
day of July, eighteen hundred and ninety-nine. That the adhesive stamps
used in the payment of the tax levied in Schedules A and B of this act
shall be furnished for sale by the several collectors of internal
revenue, who shall sell and deliver them at their face value to all
persons applying for the same, except officers or employees of the
Internal-Revenue Service: Provided, That such collectors may sell and
deliver such stamps in quantities of not less than one hundred dollars
of face value, with a discount of one per centum, except as otherwise
provided in this act. And he may, with the approval of the Secretary of
the Treasury, make all needful rules and regulations for the proper
enforcement of this act."
The last clause of the section quoted confers upon the Commissioner,
with the approval of the Secretary of the Treasury, the power to make
all needful rules and regulations for the proper enforcement of the act.
He is not only authorized to make regulations for the enforcement of the
act, but such regulations as are needful for its proper enforcement, his
authority in this respect being restrained only by the failure of the
Secretary to approve such regulations as he may make.
It is a well-settled principle that a regulation made in pursuance of
an act of Congress has the force of law. (United States v. Eliason, 16
Pet., 291; Ex parte Redd, 100 U.S., 13; United States v. Barrows et
al., 10 Int.Rev.Rec., 86; Harvey v. United States, 3 Ct.Clms., 38.) I
think it may well be held as proper in carrying out the purposes of the
act of June 13, 1898, that the Commissioner of Internal Revenue with the
approval of the Secretary of the Treasury, has authority in his
discretion to cause an unused documentary stamp in the hands of a
purchaser to be redeemed. It is true that the act does not in express
terms vest the Commissioner with this power, yet the great discretion
which is given to him to make such rules and regulations as are needful
for the proper enforcement of the act, in my opinion, includes every
power which is necessary, not only to collect the taxes levied under the
provisions of the act, but to so administer it as to deal justly with
the citizen and taxpayer.
The war-revenue act, as is well known, was passed to meet an
emergency. A war with a foreign nation made the raising of additional
revenue for the Government's use a necessity. The act, though apparently
hurriedly, and in some respects I may say unskillfully, drafted, still
in my opinion is sufficiently explicit to indicate the purpose of the
lawmakers, not only to secure the collection of the taxes provided for
by it, but also to protect the taxpayer from any unequal or unjust
enforcement of its provisions.
There is another view which I think can be safely taken, which is
founded on a portion of section 3426, Revised Statutes, which does not
seem to be affected by the repeal of the laws relating to documentary
stamps issued under Title XXXV of the Revised Statutes, and that is the
provision in said section extending the authority of the Commissioner of
Internal Revenue to make allowance for the redemption of stamps issued
under any internal-revenue act. If that portion of section 3426 which is
rendered inoperative by reason of the acts repealing the laws
authorizing the issue of documentary stamps under the provisions of said
title is eliminated, there still remains enough of said section to read
as follows:
"The Commissioner of Internal Revenue may, upon receipt of
satisfactory evidence of the facts, make allowance for or redeem such of
the stamps issued under the provisions * * * of any internal-revenue act
as may have been spoiled, or rendered useless or unfit for the purpose
intended, or for which the owner may have no use, or which, through
mistake, may have been improperly or unnecessarily used, or where the
rates or duties represented thereby have been excessive in amount, paid
in error, or in any manner wrongfully collected; and such allowance or
redemption shall be made either by giving other stamps in lieu of the
stamps so allowed for or redeemed, or by refunding the amount or value
to the owner thereof, deducting therefrom, in case of repayment, the
percentage, if any, allowed to the purchaser thereof; but no allowance
or redemption shall be made in any case until the stamps so spoiled or
rendered useless shall have been returned to the Commissioner of
Internal Revenue, or until satisfactory proof has been made showing the
reason why the same can not be so returned." * * *
Consequently, although all laws for the redemption of documentary
stamps issued under the provisions of Title XXXV are obsolete, because
the authority to issue such stamps is repealed, the power yet remains to
redeem documentary stamps issued under another, though a subsequent,
internal-revenue act. The act of June 13, 1898, is an internal-revenue
act, and among the methods of raising revenue thereby is that providing
for the use of documentary stamps. If therefore, so much of section 3426
as I quote above is still the law, it becomes a part of the said act by
virtue of section 31 of the same.
I deem it, therefore, entirely consistent with the terms of the act
of June 13, 1898, considered in connection with powers conferred by
previous legislation, to give it as my opinion that the Commissioner of
Internal Revenue has authority, with the approval of the Secretary of
the Treasury, to make suitable regulations looking to the redemption of
unused documentary stamps issued under the provisions of said act, and
in the absence of such regulations I advise you that, with the sanction
of the Secretary of the Treasury, the Commissioner of Internal Revenue
may, in any particular case, cause such unused stamp or stamps to be
redeemed.
Respectfully,
JAS. E. BOYD,
Acting Attorney-General.
AMERICAN REGISTRY; 22 Op.Att'y.Gen. 566, August 11, 1899
The Scipio, a foreign-built steamship purchased by the Navy
Department for use in the war with Spain, and subsequently sold to and
owned by an American citizen, is not entitled to registry under the lasw
of the United States.
The regulation of commerce and navigation being entirely within the
control of Congress, there is no authority for an Executive Department
to make or enforce rules or regulations relative to the registry of
vessels or kindred matters connected with such subjects.
DEPARTMENT OF JUSTICE,
August 11, 1899.
The SECRETARY OF THE TREASURY.
SIR: I have the honor to acknowledge the receipt of your
communication of this date, in which you request my opinion as to
whether the Scipio, a foreign-built steamship purchased by the Navy
Department for its use in the recent war with Spain, and subsequently
sold to and now owned by an American citizen, is entitled to registry
under the laws of the United States relative to the registry of vessels.
The regulation of commerce and navigation is a subject entirely
within the control of Congress, and, except in accordance with such laws
as have been passed by Congress upon this subject, no authority exists
in the Executive Departments to make or enforce rules or regulations
relative to the registry of vessels or kindred matters connected with
commerce and navigation. Congress has specifically legislated upon the
subject of the registry of vessels. Section 4132 of the Revised Statutes
describes the vessels that are entitled to be registered in conformity
to the directions of the subsequent sections of the same title. That
section reads as follows:
"Vessels built within the United States, and belonging wholly to
citizens thereof, and vessels which may be captured in war by citizens
of the United States and lawfully condemned as prize, or which may be
adjudged to be forfeited for a breach of the laws of the United States,
being wholly owned by citizens, and no others, may be registered as
directed in this title."
This is a positive and specific direction as to what vessels may be
and what may not be registered. Doubtless it would be advantageous to
permit vessels of the character of the Scipio to be admitted to the
rights of local registry equally with vessels condemned as lawful prize
and sold as such under the authority of the Government. But Congress has
provided for the registry of vessels of the latter class and has
forbidden the registry of vessels of the former class. It is unusual to
find in a public statute a provision whose terms are as clear and
explicit as are the provisions of section 4132.
The Commissioner of Navigation, in his letter to you of August 10,
transmitted with your request, discusses fully and, in my judgment,
correctly the legal considerations connected with a construction of the
law. I have to advise you, therefore, that, under the facts stated to
me, the Scipio is not entitled to registry.
Very respectfully,
JOHN W. GRIGGS.
PORTO RICO-- DUTIES; 22 Op.Att'y.Gen. 560, August 10, 1899
In territory held by conquest, the military authorities in
possession, in the absence of legislation by Congress, may make such
rules or regulations and impose such duties upon merchandise imported
into the conquered territory as they may deem wise and prudent.
The admission of merchandise into the ports of the United States from
such conquered territory is governed solely by existing laws passed by
Congress, and the President has no power to add to or detract from the
force and effect of such laws.
Merchandise from the island of Porto Rico introduced into the ports
of the United States is by law required to pay the same duties that
would be charged upon merchandise imported from a foreign country, and
the President has no authority to alter or modify the laws under which
such duties are required to be paid.
DEPARTMENT OF JUSTICE,
August 10, 1899.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge the receipt of your letter of
August 3, 1899, wherein you request my opinion upon the question whether
the President, without further legislation by Congress, has now
authority to permit the introduction of merchandise from the island of
Porto Rico into the ports of the United States without payment of the
customs duties which would be payable thereon if the same merchandise
were imported from a foreign country.
The island of Porto Rico was ceded to the United States by Spain by a
treaty of peace signed at Paris December 10, 1898, and ratified by the
Senate February 6, 1899. At the time of the signing of the treaty Porto
Rico was in possession of the military forces of the United States, who
were administering the government of the island as a conquered territory
under the law of belligerent right. In contradistinction to the treaties
by which Louisiana, Florida, California, and Alaska were ceded to the
United States, the treaty of Paris contains no provision conferring upon
the inhabitants of the ceded territory the privileges and immunities of
citizens of the United States, but merely provides that the civil rights
and political status of the native inhabitants shall be determined by
Congress.
The right of the President as Commander in Chief of the Army and Navy
of the United States under the Constitution to exercise government and
control over Porto Rico did not cease or become defunct in consequence
of the signature of the treaty of peace, nor from its ratification. It
was settled by the judgment of the Supreme Court of the United States in
a similar case arising out of the enforcement of local tariff laws in
California subsequently to the cession of that territory and prior to
any legislation with reference to it by Congress, that the civil
government organized from a right of conquest by the military officers
of the United States was continued over it as a ceded conquest without
any violation of the Constitution or laws of the United States.
(Cross v. Harrison, 16 Howard, 164.) According to the well-settled
principles of public law relating to territory held by conquest, and
according to the adjudication of the Supreme Court of the United States
in Cross v. Harrison, the military authorities in possession, in the
absence of legislation by Congress, may make such rules or regulations
and impose such duties upon merchandise imported into the conquered
territory as they may, in their judgment and discretion, deem wise and
prudent. But as to the admission of merchandise into the ports of the
United States, that is governed solely by the existing laws passed by
Congress, and the President is powerless either to add to or detract
from the force and effect of such laws. If the laws require that
merchandise introduced from the island of Porto Rico into the ports of
the United States should pay the same duties that would be charged upon
similar merchandise imported from those countries which are distinctly
foreign, then the President is powerless to remit such obligation. The
question, therefore, to be decided, relates not to the power of the
President in the matter, but to the law of the United States governing
the introduction of merchandise at their domestic ports. Its solution
depends upon whether Porto Rico is to be considered, as to the customs
laws of the United States, domestic or foreign territory. The facts of
the case are, fortunately, not without parallel, and the question has
practically been authoritatively disposed of by the judgment of the
Supreme Court of the United States. The authority to which I refer is
Fleming v. Page, 9 Howard, 603. This case was decided in 1850, the
opinion of the court being rendered by Chief Justice Taney. The case
involved the legality of the exaction of duties at the port of
Philadelphia on merchandise imported into that port from Tampico,
Mexico, in March and June of 1847, when Tampico was in the military
possession of the United States as conquered territory. "By the laws and
usages of nations," said the Chief Justice, "conquest is a valid title
while the victor maintains the exclusive possession of the conquered
country. The citizens of no other nation, therefore, had a right to
enter it without the permission of the American authorities, nor to hold
intercourse with its inhabitants, nor to trade with them.
As regarded all other nations, it was a part of the United States, and
belonged to them as exclusively as the territory included in our
established boundaries. But yet it was not a part of this Union. And the
relation in which the port of Tampico stood to the United States while
it was occupied by their arms did not depend upon the laws of nations,
but upon our own Constitution and acts of Congress."
The Chief Justice further points out the fact that there was no act
of Congress establishing a custom-house at Tampico nor authorizing the
appointment of a collector; and consequently there was no officer of
the United States authorized by law to grant the clearance and
authenticate the coasting manifest of the cargo in the manner directed
by law where the voyage is from one port of the United States to
another. The person who acted in the character of collector acted as
such under the authority of the military commander and in obedience to
his orders; and the duties he exacted and the regulations he adopted
were not those prescribed by law, but by the President in his character
of Commander in Chief. The permit and coasting manifest granted by an
officer thus appointed, and thus controlled by military authority, could
not be recognized in any port of the United States as the document
required by the act of Congress when the vessel is engaged in the
coasting trade, nor could they exempt the cargo from the payment of
duties.
The Chief Justice then refers to the uniform construction of the
revenue laws given by the Executive Departments of the Government in all
similar cases that had previously arisen, and concludes as follows:
"This construction of the revenue laws has been uniformly given by
the administrative department of the Government in every case that has
come before it. And it has, indeed, been given in cases where there
appears to have been stronger ground for regarding the place of shipment
as a domestic port. For after Florida had been ceded to the United
States, and the forces of the United States had taken possession of
Pensacola, it was decided by the Treasury Department that goods imported
from Pensacola before an act of Congress was passed erecting it into a
collection district, and authorizing the appointment of a collector,
were liable to duty.
That is, that although Florida had, by cession, actually become a part
of the United States, and was in our possession, yet, under our revenue
laws, its ports must be regarded as foreign until they were established
as domestic by act of Congress; and it appears that this decision was
sanctioned at the time by the Attorney-General of the United States, the
law officer of the Government. And although not so directly applicable
to the case before us, yet the decisions of the Treasury Department in
relation to Amelia Island and certain ports in Louisiana, after that
province had been ceded to the United States, were both made upon the
same grounds. And in the latter case, after a custom-house had been
established by law at New Orleans, the collector at that place was
instructed to regard as foreign ports Baton Rouge and other settlements
still in possession of Spain, whether on the Mississippi, Iberville, or
the seacoast. The Department in no instance that we are aware of, since
the establishment of the Government, has ever recognized a place in a
newly acquired country as a domestic port, from which the coasting trade
might be carried on, unless it had been previously made so by act of
Congress.
"The principle thus adopted and acted upon by the executive
department of the Government has been sanctioned by the decisions in
this court and the circuit courts whenever the question came before
them. We do not propose to comment upon the different cases cited in the
argument. It is sufficient to say that there is no discrepancy between
them. And all of the, so far as they apply, maintain that, under our
revenue laws, every port is regarded as a foreign one unless the
custom-house from which the vessel clears is within a collection
district established by act of Congress, and the officers granting the
clearance exercise their functions under the authority and control of
the laws of the United States."
The authority of this decision, so far as I know, has never been
expressly questioned. It appears from the statements of the Chief
Justice that this view of the law had guided the Executive Departments
in dealing with the same question in the administration of the ceded
territories of Louisiana and Florida.
There are certain expressions in the opinion of Mr. Justice Wayne in
the case of Cross v. Harrison (16 Howard, 164) which would appear to be
in conflict with the views expressed by the Chief Justice in the case of
Fleming v. Page. But these expressions are in the nature of obiter
dicta, and although Cross v. Harrison was decided in 1853, the opinion
of Mr. Justice Wayne makes no reference whatever to the decision of
Fleming v. Page. If he had intended in any wise to overrule the decision
established by Fleming v. Page, it is inconceivable that he would not
have referred to it expressly and have given some discussion of the
reasons why a judgment in which he concurred three years previously was
thus to be set aside. The point decided in Cross v. Harrison was that
the formation of a civil government in California was the lawful
exercise of a belligerent right over a conquered territory; that this
government did not cease as a consequence of the restoration of peace,
and was rightfully continued until Congress legislated otherwise; and
that the tonnage duties and duties upon foreign goods imported into San
Francisco were legally demanded and lawfully collected by the civil
government whilst the war continued, and afterwards from the
ratification of the treaty of peace until the revenue system of the
United States was put into practical operation in California under the
acts of Congress passed for that purpose. The decision harmonized with
the principles laid down by Chief Justice Taney in Fleming v. Page, the
only apparent divergence arising from the dicta of Mr. Justice Wayne
above referred to.
The practice that prevailed with reference to Louisiana and Florida
has been followed by the executive department of the Government thus far
in relation to all the recently acquired territory of the United States
in the West Indies and the Pacific Ocean. The resolution of Congress of
July 7, 1898, providing for the annexation of the Hawaiian Islands
expressly declared that the existing customs relations of these islands
with the United States and other countries should remain unchanged until
legislation should be enacted extending the United States customs laws
and regulations to them.
This was only declaratory of what would have been without expression the
proper construction of the resolution, so far as the tariff laws of this
country are concerned. And the failure of Congress to extend by express
enactment the customs laws of the United States to Porto Rico and the
other islands ceded by Spain after the ratification of the treaty of
Paris, in view of the fact that the executive department was following
the precedents above cited, and requiring the payment of our tariff
rates on merchandise imported from those places, may fairly be taken as
indicative of the opinion of Congress that it desired for the present to
have that practice continued.
I therefore advise you that, in my opinion, merchandise from the
island of Puerto Rico introduced into the ports of the United States is,
by law, required to pay the same duties that would be charged upon
merchandise imported from a foreign country, and that the President has
no power to alter or modify the laws under which such duties are
required to be paid.
Very respectfully,
JOHN W. GRIGGS.
CIVIL SERVICE-- TEMPORARY APPOINTMENTS; 22 Op.Att'y.Gen. 556, August
10, 1899
An appointment by the Secretary of State, without reference to or
conformity with the regulations prescribed for appointments in the
classified service, made pursuant to the act of July 1, 1898,
authorizing the temporary employment of stenographers and typewriters in
his Department, is lawful.
The amendment of the civil-service rules of May 29, 1899, authorizing
the permanent employment of persons serving under temporary
appointments, was intended to apply only to such persons as were serving
under temporary appointments pursuant to Rule 8 of the civil-service
rules, and such amendment does not comprehend temporary appointments
made under the act of July 1, 1898.
General words may be restrained so as to apply only to the subject
within the purview of the act, though literally they would embrace a
much larger class.
All parts of an act relating to the same subject should be considered
together and not each by itself.
DEPARTMENT OF JUSTICE,
August 10, 1899.
The SECRETARY OF STATE.
SIR: The sundry civil act, approved July 1, 1898, under the heading
of appropriations for the State Department, contained the following:
"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."
On July 28, 1898, your predecessor, Secretary Day, appointed Caroline
C. Galbreath to one of the positions provided for by the above-quoted
appropriation. No notice of this appointment was given to the Civil
Service Commission, nor was it in any way authorized by that body.
Recently, and since the promulgation of the amendments to the
civil-service rules of May 29, 1899, Mrs. Galbreath was appointed by you
to a permanent position in the classified service as stenographer in the
Department of State, upon the assumption that you were authorized to
make such appointment by virtue of the recent amendment to the
civil-service rules comprised in paragraph 15 of Rule 8, which reads as
follows:
"All persons serving under temporary appointments at the date of the
approval of this section may be permanently appointed, in the discretion
of the proper appointing officer; and the special rule approved January
20, 1899, relative to temporary appointments in the Navy Department is
hereby rescinded."
Mrs. Galbreath was not in the classified service, and neither her
temporary nor her permanent appointment was made in conformity with the
provisions of the civil-service rules relative to appointment of persons
in the classified service.
You request my opinion, first, whether the appointment of Mrs.
Galbreath as a temporary clerk by your predecessor was according to law,
and secondly, whether her transfer to the permanent service by your
order was legal.
I think the original appointment of Mrs. Galbreath as a temporary
clerk in the Department of State, without reference to or conformity
with the proceedings directed to be complied with where appointments are
made to positions in the classified service, was lawful. The language of
the appropriation act above quoted indicates that the object of Congress
was to provide for extraordinary and unusual services which were only
temporarily required. The appropriation designates no number of
stenographers and typewriters which the Secretary may employ, leaving it
to his discretion to employ one or two if the exigencies of the service
and the necessity of speedy action required, or a much larger number if
in the judgment of the Secretary a larger number would better facilitate
the work.
The only limit on the discretion of the Secretary is the amount of the
expenditure for this purpose, which is fixed at $2,000. The
appropriation clause does not create offices or positions, but merely
provides for temporary employment. In such cases it is quite reasonable
to suppose that Congress intended that the Secretary should be unimpeded
in his speedy selection of his force by any of the ordinary delays which
occur in complying with the civil-service rules where positions in the
classified service are to be filled upon certification of names from the
eligible list. As an evidence that Congress so intended, they directed
that the stenographers and typewriters should be selected by the
Secretary. The power of selection implies full power and discretion in
the Secretary to select from any source. I can not agree with the
contention of the Civil Service Commissioners that the word "selected"
as used in this appropriation has only the same force and effect as if
the word "appointed" had been used. The mere right to select one of
three persons certified to him by the Civil Service Commission from a
specific list of eligibles is not a power of selection, free and
untrammeled, within the meaning of this act, and I think, therefore,
that the Secretary in choosing for this work a person outside of the
eligible list, without reference to the civil-service rules, was acting
within his power and within the obvious intention of Congress.
I am of the opinion, however, that the appointment of Mrs. Galbreath
to the permanent service by your recent order was unauthorized. The
decision of your second question depends upon the construction to be
given to the language of paragraph 15 of rule 8 of the civil-service
rules, which, as has been stated, was an amendment or supplement to
these rules, added by the order of the President May 29, 1899. The
language of paragraph 15 of rule 8 is general. It says: "All persons
serving under temporary appointments at the date of the approval of this
section may be permanently appointed; in the discretion of the proper
appointing officer." But language in a statute, or in rules and
regulations made pursuant to law, is not necessarily to be construed
literally, but with reference to the subject-matter of the rule or
enactment.
It is an elementary rule of construction that general words may be
restrained so as to apply only to the subject within the purview of the
act, though literally they would embrace a much larger class. It was
said in the case of Atkins v. Disintegrating Co. (18 Wall., 301):
"A thing may be within the letter of a statute and not within its
meaning. In cases admitting of doubt the intention of the lawmaker is to
be sought in the entire context of the section, statutes, or series of
statutes in pari materia.
"The general language found in one place may be restricted in its
effect to the particular expressions employed in another."
It is also an elementary rule of construction that all the parts of
an act relating to the same subject should be considered together and
not each by itself.
Applying these elementary principles of construction to the question
in hand, we are able to determine from an examination of the
civil-service rules what meaning ought to be given to the clause of
paragraph 15 of rule 8, "All persons serving under temporary
appointments." We find that paragraph 13 of rule 8, which was in
existence prior to the adoption of paragraph 15, specially regulates the
subject of temporary appointments. It provides:
"Whenever there are no names of eligibles upon a register for any
grade in which a vacancy exists, and the public interest requires that
it must be filled before eligibles can be provided by the Commission,
such vacancy may, subject to the approval of the Commission, be filled
by appointment without examination and certification for such part of
three months as will enable the Commission to provide eligibles. Such
temporary appointment shall expire by limitation as soon as an eligible
shall be provided, and no person shall serve longer than three months in
any one year under such temporary appointment or appointments, unless by
special authority of the Commission previously obtained. Said year
limitation shall commence from the date of such first appointment."
Paragraph 14 of rule 8 further provides that such temporary
appointments shall in no case continue longer than six months, and shall
expire by limitation at the end of that period.
I think, therefore, that when the President in formulating and
adopting paragraph 15 spoke of persons serving under temporary
appointments he meant to include only such persons as were serving under
temporary appointments within the meaning and purview of the preceding
provisions of rule 8, and that he did not refer to persons who might be
performing temporary service under such enactments as that of July 1,
1898, under which Mrs. Galbreath was appointed to temporary service. It
seems to be entirely clear and perfectly rational to hold that when a
code of law or regulations provides, as in this instance, for the
creation of a particular class of appointments and designates them by a
particular phrase, as the civil-service rules designated these
"temporary appointments," any subsequent supplement or amendment to such
code or regulations in which the same term is employed should be given
the same import and significance, unless there be something in the
language of the supplement or amendment requiring a different sense,
either an enlarged or a contracted one, to be attributed to the phrase.
There is nothing in the language of paragraph 15 that tends to show that
the temporary appointments there spoken of were any other than those
referred to in the two paragraphs immediately preceding.
Very respectfully,
JOHN W. GRIGGS.
CALIFORNIA DEBRIS COMMISSION-- MINING; 22 Op.Att'y.Gen. 554, August
9, 1899
The superior court of Sutter County, Cal., granted a temporary
injunction on a suit by the county of Sutter, restraining the Red Dog
Mining Company, which was operating under a license from the California
Debris Commission, from mining by the hydraulic process. Held, in the
absence of any question touching the validity of the powers granted to
the California Debris Commission, the Government should not intervene in
the suit.
DEPARTMENT OF JUSTICE,
August 9, 1899.
The SECRETARY OF WAR.
SIR: Under date of August 1, 1899, you referred to me the
indorsement of Gen. John M. Wilson, Chief of Engineers, United States
Army, upon a communication from the secretary of the California Debris
Commission, dated July 17, 1899, advising the Chief of Engineers that a
suit had been commenced in the superior court of Sutter County by the
county of Sutter, State of California, to restrain the Red Dog Mining
Company from mining by the hydraulic process, and that the court had
issued a temporary injunction to stop the operation of their mine, and
calling the attention of the Chief of Engineers to the matter for such
action as he might deem proper.
General Wilson, by his indorsement, states that the license was duly
issued by the Debris Commission to the Red Dog Mining Company, pursuant
to the provisions of the act of March 1, 1893, entitled "An act to
create the California Debris Commission and regulate hydraulic mining in
the State of California.
The question suggested by General Wilson's memorandum is whether
there is any duty or obligation resting on the commission to take any
action in a case of this kind. He states that a number of cases of this
nature are likely to arise, and that it would be advisable to have the
opinion of the Attorney-General on the question, and it is in pursuance
of his recommendation that the matter is referred to me.
An examination of the act of March 1, 1893, discloses the fact that
the object of the creation of the Debris Commission was the regulation
of hydraulic mining in California, so as to prevent injury to the
navigability of streams as to which the United States has jurisdiction.
Under its provisions, upon compliance with certain terms and conditions,
permits or licenses are granted to applicants to work mines by the
hydraulic process.
The scope of the act appears to be limited merely to providing means
by which hydraulic mining may be regulated so as not to injuriously
interfere with public rights of navigation in streams or waters as to
which the Federal Government has jurisdiction. It does not appear that
any right or privilege is intended to be granted which will bind any
party except the United States. I fail to see, therefore, in what manner
or upon what consideration the Debris Commission or the War Department
is either interested or bound to intervene and defend the rights of the
mining company whose operations are sought to be restrained by the suit
brought against them by the county of Sutter.
The grounds upon which the injunction is sought are not stated in any
of the papers submitted to me, nor does it appear that the validity of
the license or permit granted by the Debris Commission is in anywise
brought in question.
It may be possible that in the progress of this suit, or others of a
kindred nature, the validity of the powers granted to the Debris
Commission by the act of 1893 may in some manner be brought in question.
If such question should thus be raised, it would then be a matter for
consideration whether the Department of Justice, in the interest of the
Government, should not intervene in order to sustain the validity of the
acts done by the agent of the Government under the powers delegated by
the act in question. But no such necessity at present appears, and I,
therefore, advise you that the Red Dog Mining Company and the Debris
Commission should be advised that it is not deemed expedient for the
commission or any Department of the Government to intervene in the suit.
Very respectfully,
JOHN W. GRIGGS.
PORTO RICO-- TRAMWAYS-- CONCESSIONS; 22 Op.Att'y.Gen. 551, July 28,
1899
Under Spanish law a tramway is a railroad constructed on a public
highway.
A concession for the construction of a certain electric tramway in
Porto Rico being inchoate and incomplete and lacking certain public
action necessary to be taken by the public authorities representing the
Crown of Spain before it could go into effect as a complete grant, the
War Department has no authority to grant or complete such concession.
DEPARTMENT OF JUSTICE,
July 28, 1899.
The SECRETARY OF WAR.
SIR: By letter of June 29, 1899, you transmitted to me certain
papers in behalf of Messrs. Vicente and Jose Usera, of the city of
Ponce, Porto Rico, relating to an alleged concession for the
construction of a tramway from Ponce to Port Ponce, claimed to have been
heretofore lawfully granted to Messrs. Usera, and in connection
therewith you request my opinion as to whether, under the evidence
submitted, a lawful concession to construct such tramway had been
granted to them, and, if so, whether it is proper for your Department to
confirm that concession. As the basis of my decision, the following
facts are submitted, which I am, for the purposes of this opinion, to
assume to be correct:
Prior to November 24, 1896, proceedings were had of such kind and
character as to induce the Crown of Spain, then possessing full and
complete sovereignty in Porto Rico, to grant, by royal decree, a permit
for a franchise or concession for an electric tramway according to plans
submitted by Messrs. Vicente and Jose Usera. This royal grant does not
confer the concession upon Messrs. Usera, but simply permits the
construction according to the plans submitted by these gentlemen. Under
the Spanish law in Porto Rico a tramway is a railroad constructed on
public highways. While the entire territory to be traversed by this
proposed tramway is within the limits of the municipality of Ponce, yet
the proposed tracks will occupy a state highway for a large portion of,
if not its entire extent. It is therefore subject to the following
provisions of the Spanish law:
"ARTICLE 73. The concession of tramways belongs to the secretary of
the colonies when the works are to occupy the highroads of the state or
shall simultaneously traverse highroads of the state and highways of the
province and municipalities.
"ARTICLE 76. Tramway concessions can not be granted for more than
sixty years, and shall be subject to an auction in regard to the maximum
schedule of rates and to the duration of the concession."
From the "Regulations for the execution of the railroad law of the
island of Porto Rico," promulgated January 27, 1888, the following is
quoted:
"ARTICLE 93. The secretary of the colonies, who has the power to
grant the concession in the cases specified in article 73 of the law,
shall immediately advertise the auction of the works for the period of
two months on the basis of the approved plan.
"The auction shall take place in accordance with the provisions of
article 76 of said law respecting the schedules of rates, the equality
of the propositions as to the duration of the concession, and with the
understanding that in all cases the right of legal preference shall be
reserved at the auction to the author of the approved plan, and if the
latter should not take advantage of the preference the successful bidder
shall pay him within one month the value of the plan in accordance with
the appraisal made."
The term "approved plan" as used in the foregoing article means as
follows:
The person desiring to secure a concession allowing the construction
of a tramway on a State highroad prepares the plans and details
comprising the general project and submits the same to the secretary of
the colonies. The plans are examined by certain specified officers,
engineers, and boards, who report thereon to the secretary of the
colonies, who considers their reports and approves or disapproves the
plan. Among other reports is one showing the estimated cost of
constructing the tramway. If the plan is approved, its price or
commercial value is fixed by appraisal; that is, the value of the work
performed in preparing said plan is fixed. Thereupon the right to carry
out the general project in accordance with said approved plan is sold at
auction in accordance with the provisions of article 93, as above
quoted. In order to secure the right to bid at said auction, a deposit
of 1 per cent of the estimated cost must be made by the prospective
bidder.
From the documents on file herein it clearly appears that the plan
prepared and presented by the Messrs. Usera became an "approved plan"
for the construction of the proposed tramway, and that said Messrs.
Usera made the required deposit of 1 per cent of $100,000, the estimated
cost of construction.
They therefore owned the plan and were qualified to bid at the
auction to be held in accordance with article 93 of regulations. It does
not appear that said auction was ever had or dispensed with. By royal
decree the provincial government in Cuba might exempt the letting of
contracts for public works of extraordinary urgency from said
requirement, but no such provision is known in regard to tramways in
Porto Rico. The Spanish law of railroads in Porto Rico provides a means
of securing the right to build a railroad of the kind contemplated
herein without a public auction. That method is as follows (regulations
of railroad laws):
"ARTICLE 20. In the case to which the preceding articles refer,
namely, when it is a question of a petition for concession without
subsidy, and for which only one proposition shall have been presented,
said concession shall be granted without the formalities of public
auction, but always by means of a law, as provided for in article 27 of
the law of railroads.
"To this end the secretary of the colonies shall present to the
Cortes the proper form of law, accompanied by all the documents
mentioned in article 25 of the law of railroads and in the corresponding
articles of these regulations.
"ARTICLE 21. The law to which the preceding article refers being
passed, and the bond of 3 per cent of the amount of the estimate being
deposited within the time fixed by article 16 of the law of railroads,
there shall be issued to the interested party or to the company which
may have solicited the concession the proper instrument making the
contract a public document, and including in it verbatim the document of
general conditions, the special law of concession, the special and
economic conditions, and schedule of maximum rates."
No such special act for the benefit of Messrs. Usera as is referred
to in article 20, above quoted, was ever passed.
It therefore appears that the concession claimed by the Messrs.
Usera is not a complete and vested right or franchise, but is inchoate
and incomplete, lacking certain public action necessary to be taken by
the public authorities representing the Crown of Spain before it could
go into effect as a complete grant or concession of that Government.
In conformity with the views expressed in the opinion of July 26,
1899, relative to the application of Frederick W. Weeks for permission
to construct and maintain a wharf at the port of Ponce, and the opinion
of July 27, 1899, relative to the application of Senor Valdez for a
concession of the right to use the water of the river Plata in Porto
Rico, I have the honor to advise you that the Messrs. Usera have not a
complete and vested franchise or concession for the construction of a
tramway from Ponce to Port Ponce, and that the War Department is without
power to exercise the prerogatives of the Government to grant or
complete such concession.
Very respectfully,
JOHN W. GRIGGS.
PORTO RICO-- CONCESSIONS; 22 Op.Att'y.Gen. 546, July 27, 1899
In Porto Rico the Crown of Spain was the owner, for public use, of
the proprietary rights of the natural beds or channels of rivers, both
navigable and unnavigable, to the extent covered by the waters in their
ordinary greatest swells.
When public property is ceded by one nation to another its
disposition and control are thereafter regulated and governed by the
laws of the new owner.
If in the grant of a right or privilege the sovereign has retained
any authority which may affect its untrammeled exercise and enjoyment,
such right is inchoate and can be exercised only by the grace of the
succeeding sovereign.
Any complete and vested right which a person had at the time the
treaty of Paris took effect, to the use of the waters of the River
Plata, should be respected by the United States.
Neither the President nor the War Department has power to grant a
concession of the right to use the water power of the River Plata in
Porto Rico.
DEPARTMENT OF JUSTICE,
July 27, 1899.
The SECRETARY OF WAR.
SIR: I am in receipt of your communication of July 20, 1899,
forwarding to me the application of Ramon Valdez y Cobian for a
concession of the right to use the water power of the River Plata, in
Porto Rico, together with accompanying papers.
You request my opinion as to whether your Department has authority to
approve or disapprove of the concession which the applicant seeks and
desires to use.
By the papers submitted, it appears that under Spanish law, which
prevailed in Porto Rico prior to the going into effect of the treaty of
Paris, by which the island was ceded to the United States, the Crown of
Spain was the owner, for public use, of the proprietary rights of the
natural beds or channels of rivers, both navigable and unnavigable, to
the extent covered by the waters in their ordinary greatest swells. The
Spanish law of waters applicable to Porto Rico provided in article 218,
page 52, as follows:
"In navigable streams, and those which are not navigable, it is
within the power of the governor of the province to grant authority for
the erection of mills or other industrial establishments, or any
buildings situated near the banks to which the necessary water is
conducted by canal, this water afterwards being returned to the stream.
In no case shall this authority be granted prejudicially, either to the
navigation of the stream or to existing industries. To obtain the
authority it is an indispensable requisite that whoever solicits it
shall be the owner of the ground on which the building is to be erected
or shall be thereto authorized by the owner thereof."
My opinion is based upon the assumption that these statements as to
the law of waters that prevailed in Porto Rico prior to the cession of
the island are correct. This may fairly be assumed, because the
application of Senor Valdez purports to be made in compliance with the
provisions of the Spanish law, article 218, above cited.
The River Plata is not a navigable stream. In the brief of counsel
for the applicant a distinction is sought to be made between those
waters of rivers which belong, by the law of Spain, to the State or
Crown and those which belong to the public of Porto Rico. For practical
purposes, in the disposition of this case, I can see no difference.
Whatever property or property rights belonged to the Crown of Spain or
to the indefinite body known as "the public of Porto Rico" were, by the
treaty of Paris, transferred to and became the property of the United
States of America.
It is well-settled law, and only needs to be stated to be understood,
that when public property is ceded by one nation to another its
disposition and control are thereafter regulated and governed, not by
the laws of the ceding nation, but by the laws of the new owner. If,
therefore, any substantial act remains to be done, resting in the grace,
favor, or discretion of the Government to secure to an applicant or
alleged concessionary a franchise or right in public property thus ceded
by one nation to another, such additional action must be obtained in
accordance with the laws of the present and not of the former owner. If
at the time the treaty of Paris took effect the applicant had a
completed and vested right to the use of the waters of the River Plata,
that right will be respected by the United States. If, however, his
right had not been completed by the action or assent of the Crown
authorities of Spain, then his right is not vested but inchoate, and can
not be made vested by the completion of those requisites prescribed by
Spanish law.
The general rule in respect to vested private rights in cases of
change of sovereignty is stated in Ely's Administrator v. United States
(171 U.S., 220, 223):
"In harmony with the rules of international law, as well as with the
terms of the treaties, upon cession the change of sovereignty should
work no change in respect to rights and titles; that which was good
before should be good after; that which the law enforced before should
be enforcible after the cession."
The converse of the latter proposition is undoubtedly true, namely,
that which the law before the cession would not enforce will not be
enforcible, as a matter of right, after the cession.
Distinctions have been made in all laws passed by Congress for
settling legal and equitable titles to lands in Spanish territory ceded
to the United States under former treaties, between perfect or complete
grants, fully executed, and inchoate incomplete grants, where a right
has been sought to be acquired under or by color of local law or
authority, but needed some act of the Government to be done to complete
it. (United States v. Arredondo, 6 Peters, 691, 717. See also Ainsa v.
United States, 161 U.S., 208, 233; United States v. Santa Fe, 165 U.
S., 675, 714.)
Those laws of the former government which have for their object a
certain governmental public policy, of which character are laws for the
disposition of the public domain and the granting of quasi public
franchises, rights, and privileges to private individuals or
corporations, ceased to have any force or effect after the sovereignty
of the former government ceased. (Harcourt v. Gailliard, 12 Wheaton,
523.)
If in the granting of a right or privilege the sovereign has retained
an iota of authority which may affect its untrammeled exercise and
enjoyment, the right is not of the nature of an absolute one, but wholly
of an inchoate and imperfect quality. As to inchoate, imperfect,
incomplete, and equitable rights, the succeeding sovereign is the
absolute dictator. They can not be exercised against his sovereignty,
but only by his grace, and his affirmative exercise is necessary to the
validity of the concession.
It appears from the papers submitted in the case that the applicant
had not obtained authority from the governor of the province for the use
of the river Plata which he desires to make. He had only complied with
the preliminary requisites (whether all of them or not I am unable to
say), which, under Spanish dominion, would have qualified him to apply
to the governor of the province for a grant of authority for the
erection of the proposed works. Before such authority was granted the
power of the Spanish governor and the efficiency of the Spanish laws
were terminated, so far as public property in the island is concerned.
The question, therefore, is whether the War Department or the
executive department of the Government of the United States, represented
by the President, now has power to grant to the applicant the use of
this public stream which he desired. In my opinion it has not.
By the Constitution the power to dispose of and make all needful
rules and regulations respecting the territory or other property
belonging to the United States is vested in Congress. Congress has
conferred no authority of this nature upon the Executive, and in the
absence of such power conferred by Congress the President can no more
dispose of this particular portion of the public property of the United
States than he can dispose of the public grounds, buildings, and other
property ceded by Spain to the United States.
In the report made to you by your law officer upon this subject I
find it stated that inasmuch as this application was filed October 4,
1898, in accordance with the Spanish law providing for such concessions,
if this law was in force in that locality on that date this application,
when duly filed, segregates this portion of the Plata River from the
public domain, and the effect of the filing of the application, by
analogy, is similar to that produced by a homestead entry or preemption
right, filed in accordance with law, upon the public domain in the
United States. I am unable to agree with this view of the case. The
citation from the Spanish law of waters above made indicates clearly
that the granting of such a concession, even after all the preliminaries
are complied with, is a matter of discretion, resting in the judgment of
the governor of the province, who was the royal representative. The
article quoted uses this language: "It is within the power of the
governor of the province to grant authority, etc. In no case shall this
authority be granted prejudicially, either to the navigation of the
stream or to existing industries." Clearly the grant of the concession
under Spanish law rested in the discretion of the governor and could not
be asserted, upon compliance with preliminaries, as a right.
What I have said is not intended as a decision upon the question as
to whether the applicant has or has not any equitable rights which will
entitle him hereafter to the favorable action of Congress, either by
special or general legislative action. In dealing with inchoate and
incomplete claims, especially to land, where the rights of the claimants
were not fully vested, but were such as are usually denominated
"equitable;" it has been the custom of Congress to provide special
tribunals of a judicial character to ascertain and determine both the
legal and equitable rights of the claimants. So far as I know, the
exercise of such powers has never been intrusted to the Executive
Departments.
Very respectfully,
JOHN W. GRIGGS.
PORTO RICO-- PUBLIC LANDS-- LICENSE; 22 Op.Att'y.Gen. 544, July 26,
1899
Under Spanish laws, lands under tide water to high-water mark in the
ports and harbors in the Spanish West Indies belonged to the Crown, and
as such, by treaty of cession, have become a part of the public domain
of the United States.
The power to dispose permanently of the public lands and property in
Porto Rico rests in Congress, and in the absence of a statute conferring
such power, can not be exercised by the Executive Department of the
Government.
During the military control of Porto Rico leave or license may be
granted an individual to make temporary use of portions of the public
domain.
The grant of a right or privilege to exist in perpetuity, or as long
as the conditions of the grant are fulfilled, is beyond the power of the
Secretary of War, and ought not be made.
DEPARTMENT OF JUSTICE,
July 26, 1899.
The SECRETARY OF WAR.
SIR: I am in receipt of your letter of this date inclosing an
application from Frederick W. Weeks for permission to construct and
maintain a wharf or pier upon which warehouses and superstructures may
be erected and the business of carrying on wharfage, storage, and
shipping may be conducted at the port of Ponce, in Porto Rico. You ask
me to give you my views as to whether there is legal objection to
granting such permission.
If constructed, the pier of wharf will be upon the public domain of
the United States. I understand that under Spanish law lands under tide
water to high-water mark in ports and harbors in the Spanish West Indies
belonged to the Crown. As Crown property, they were by the treaty of
cession transferred by Spain to the United States of America, and are
now a portion of the public domain of that nation. I do not know of any
right or power which the Secretary of War or the President has to
alienate in perpetuity any of the public domain of the United States,
except in accordance with acts of Congress duly passed with reference
thereto. There is no legislation by Congress made for or properly
applicable to the public domain in Porto Rico. The power to dispose
permanently of the public lands and public property in Porto Rico rests
in Congress, and in the absence of a statute conferring such power, can
not be exercised by the Executive department of the Government.
Undoubtedly it will be within your lawful power to make temporary use of
the Government domain in Porto Rico during the period of occupancy by
the military forces of the United States, and, if it conserves the
interests of the Government and its administration of affairs in the
island, to grant leave or license to an individual to make temporary use
of portions of the public domain; but any privilege of this kind should
be limited in its extent to the period of military occupation, and
should not be extended so as to continue as a vested right against the
United States when Congress shall have imposed some other form of
government upon the island.
As a matter of policy, I would also advise you that no license or
privilege of this kind, even of the temporary nature above designated,
should be granted except to some person owning the abutting lands from
which the proposed pier or wharf is to be projected.
I therefore advise you that the grant of right or privilege to exist
in perpetuity, or as long as the conditions of the grant are fulfilled,
is beyond your power, and ought not to be made. Whether a temporary
license shall be granted is a matter of administration, to be determined
by the War Department upon the principles above pointed out.
Very respectfully.
JOHN W. GRIGGS.
DUTIES-- WRECK; 22 Op.Att'y.Gen. 542, July 26, 1899
The merchandise taken from the wrecked steamer Paris, both hull and
cargo of which were abandoned to the underwriters, the cargo being
lightered from the wreck to the nearest available vessel of the same
line, thus completing the interrupted voyage, may be regarded as
merchandise taken from a wreck and entitled to entry by appraisement,
under section 2928, Revised Statutes.
The provision of section 23 of the customs administrative act
relieving the importer from the payment of duties on damaged goods by
abandoning them to the United States refers to loss or damage arising
from ordinary causes during the voyage, and not to the case of a wreck
and loss or damage thereby.
DEPARTMENT OF JUSTICE,
July 26, 1899.
The SECRETARY OF THE TREASURY.
SIR: Your inform me in your communication of July 18, that an
application has been made on behalf of the importing underwriters to
enter by appraisement under section 2928 of the Revised Statutes certain
merchandise taken from the wrecked steamer Paris, cast away on the
Manacles, off the south coast of England, during her voyage from
Southampton to New York on May 21 last. The Paris was en route and laden
for the port of New York when cast away, and both hull and cargo were
abandoned to the underwriters and paid for at full insured value. It is
to be assumed from your statement that the cargo was lightered from the
wreck to the nearest available vessel of the same line, thus completing
the interrupted voyage.
From these facts you request my opinion as to whether the merchandise
in question may be properly regarded as merchandise taken from a wreck
and entitled to entry by appraisement under section 2928 of the Revised
Statutes.
In reply I have the honor to state that said section provides that
"before any merchandise which may be taken from any wreck shall be
admitted to an entry, the same shall be appraised and the same
proceedings shall be ordered and executed in all cases where a reduction
of duties shall be claimed on account of damage which any merchandise
shall have sustained in the course of the voyage" * * *
It is provided by section 23 of the customs administrative act that
"no allowance for damage to goods, wares, and merchandise imported into
the United States shall hereafter be made in the estimation and
liquidation of duties thereon," but the importer may be relieved from
the payment of duties on any or all such goods by abandonment thereof to
the United States.
This provision of the customs administrative act, however, in my
opinion, refers to loss or damage arising from ordinary causes during
the voyage, and not to the special and extreme case of a wreck and loss
or damage thereby. This view is confirmed by the fact that the repealing
section of the customs administrative act repeals those sections of the
Revised Statutes which relate to the first kind or measure of loss and
damage, such as mere deterioration in the condition or quantity of
shipped goods arising from casualties or circumstances less than wreck,
but does not repeal section 2928, allowing special entry and proceedings
by appraisement in case of wreck.
Further, the last paragraph of section 29 of the customs
administrative act provides that nothing in the act shall be construed
to repeal the existing provisions of law in respect to the abandonment
of merchandise to underwriters or the salvors of property, and the
ascertainment of duties thereon as to the bearing of which provisions on
the question before us I refer below.
From the foregoing it seems to me evident that Congress, while
abolishing the ordinary damage allowance, did not intend to rescind the
authority given in section 2928 for the special case of merchandise
taken from a wreck. This view appears to be in accord with the practice
of your Department, for decision S. 12061, under which entry and
appraisement of merchandise wrecked upon a lighter during transport to a
vessel outward bound from a foreign port to the port of New York was
allowed, was rendered after the customs administrative act went into
effect.
There can be no question in the present case that the wreck occurred
in the course of the voyage which ended in the importation of the goods
into the United States, and that the transshipment to a vessel of the
same line bound to New York did not constitute a reshipment or prevent
the application of the statute's remedy. The loss by wreck was quite
clearly sustained in the course of the voyage. In this respect the case
is even stronger than that considered in S. 12061.
In the opinion of my predecessor (21 Op.Att'y.Gen. 121) the cargo and
vessel after the wreck were taken back to the port of departure and
started therefrom de novo, upon which ground alone it was held, since
the wreck did not occur in the course of the voyage which ended in the
importation of the goods into the United States, that entry was not
allowable.
It appears to me, further, that section 3058 of the Revised Statutes,
as amended by the act of February 23, 1887 (1 Supp.Rev.Stat., p. 541),
has a material bearing upon the question as showing the purpose of
Congress relating to such merchandise. That section provides for the
recognition of the underwriters as consignees of merchandise abandoned
to them (as does also section 1 of the customs administrative act), and
expressly provides that where merchandise is saved from a wrecked or
abandoned vessel, and is promptly brought into the United States by the
salvors, in good faith and without intent to evade the just payment of
duty, it may be regarded as their property, "and the valuation thereof
and payment of duties thereon can be made accordingly and with due
reference to the condition of the said merchandise as thus saved and the
necessities of the case."
For these reasons, therefore, I am of the opinion that the
merchandise in question in the present case may be properly regarded as
merchandise taken from a wreck and entitled to entry by appraisement
under section 2928.
Very respectfully,
JOHN W. GRIGGS.
VOLUNTEER ARMY-- OFFICERS-- COMMISSIONS; 22 Op.Att'y.Gen. 536, July
18, 1899
Organizations of State militia, received as a body into the service
of the United States as a part of the Volunteer Army under the act of
April 22, 1898, are to be maintained as received, and the officers of
the same are entitled to enter the service with the grades which their
commissions severally indicate.
Although such troops retain their distinctive features as State
organizations, the governor of the State from which they came can not
subsequently displace an officer holding his commission at the time the
organization entered the service of the United States, but he might fill
any vacancy occurring in it.
A regiment so entering the military service of the United States has
the right to maintain its organization with the number and grade of
officers authorized by the laws of the State from which it came.
An officer commissioned by the governor of a State to fill a vacancy
as major occurring in such regiment in the field need not be mustered
into the service of the United States, he having originally been
mustered into the service with the regiment as a captain.
DEPARTMENT OF JUSTICE,
July 18, 1899.
The SECRETARY OF WAR.
SIR: I have the honor to acknowledge your favor of the 15th of June
ultimo, inclosing certain communications from the governor of Minnesota,
in which you request my opinion upon the following state of facts:
On the 7th of May, 1898, pursuant to the call of the President issued
under the provisions of the act of April 22, 1898, the First Regiment of
the Minnesota National Guard, an existing military organization of said
State, was tendered by the governor of the State and accepted by the
United States as the Thirteenth Regiment of Minnesota Volunteer
Infantry.
This regiment had been organized and officered under the provisions of
the military code of Minnesota, and at the time it was tendered to the
United States and accepted for service in the Volunteer Army there were
three majors duly commissioned by the governor who were a part of the
roster of the organization. These three majors were entered upon the
army rolls of the United States according to their grade as such and as
indicated by their several commissions from the governor. The regiment
has been in active service, is now in the Philippine Islands, and, in
the vicissitudes of war, a vacancy has occurred in one of the
majorships, leaving still two majors to the regiment. To fill the
vacancy in the third majorship, the governor of Minnesota, on the 26th
day of May, 1899, issued a commission to Joseph P. Masterman, who at
that time was a captain and in command of Company K in said regiment.
Upon these facts you request to be advised, "whether or not the
governors of the several States are entitled, under the provisions of
the act of March 2, 1899, 'for increasing the efficiency of the Army of
the United States, and for other purposes,' to make additional
appointments in the volunteer regiments organized and mustered into the
United States service under the act of April 22, 1898, so as to make
such volunteer regiments still remaining in service correspond in their
organization to the organization of regiments in the Regular Army, as
authorized by the former act, and whether, if such additional officers
are appointed by the governors, the law requires that they shall be
mustered into the United States service."
I do not think that the question presented upon the state of facts
given is confined to whether the provisions of the act of March 2, 1899,
apply. It seems to me that the real question arises upon the
construction to be given to the second proviso of section 6 of the act
of April 22, 1898, which section provides as follows:
"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 further, That when the members of any
company, troop, battery, battalion, or regiment of the organized militia
of any State shall enlist in the Volunteer Army in a body as such
company, troop, battery, battalion, company, or regiment, the
regimental, troop, battery and battalion officers in service with the
militia organization thus enlisting may be appointed by the governors of
the States and Territories, and shall, when so appointed, be officers of
corresponding grades in the same organization when it shall have been
received into the service of the United States as a part of the
Volunteer Army.
Under this provision of the law the Minnesota regiment was mustered
into the service of the United States in a body as a regiment of the
organized militia of said State, and the regimental and company officers
holding commissions from the governor were recognized and accepted by
the authorities of the United States and entered upon the army rolls of
the United States according to their grades, as indicated by their
several commissions. Included among these commissioned officers were
three majors who were appointed and commissioned by the governor under
the provisions of the military code of said State. At the time, however,
that the regiment went into the service of the United States the laws
governing the Regular Army of the United States authorized only two
majors to a regiment.
I understand the purpose of the proviso in section 6 of the act of
the 22d of April, 1898, above quoted, to have been that where there was
an existing organization of State militia, organized and officered
according to the laws of the State, which was tendered to the United
States under the President's proclamation for service as a part of the
military force of the Government in the war with Spain, in a body, as a
completed organization, the officers provided by the State laws were,
when so commissioned by the governor, to enter the service of the United
States with grades corresponding to the grades named in their several
commissions. The number and grade of commissioned officers in such
organizations to be recognized by the Federal authorities depend
entirely upon the law of the State from which an organization came, and
the persons holding commissions from the governor of the State, issued
under the authority of the law, were to constitute the commissioned
officers of the organization while in the service as a part of the
Volunteer Army.
I think the language of the proviso is plainly capable of the
construction that existing State organizations, such as are being
considered, which were accepted or enlisted in a body by the United
States, are excepted, so far as said proviso affects the number and
grade of the commissioned officers of the organization, from the
operation of the first clause of the section, and that the exception not
only applied at the time the organization entered the service of the
United States but is continuing.
That such was the intention of the lawmakers is apparent from the
fact that the first paragraph of section 6, above quoted, directs that
the Volunteer Army and 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,
and closely following is the proviso in said section authorizing the
United States to accept in a body completed State organizations, with
officers bearing the commissions of the governors, such officers, when
in the service of the United States, to continue to hold severally the
grades named in their commissions.
I have already held, in an opinion previously rendered to you
(September 26, 1898), involving the question of the right of the
governor of Missouri to appoint a captain in the Fifth Missouri
Volunteer Infantry after the said regiment had gone into the Volunteer
Army of the United States, that troops furnished by the States under the
provisions of the act of April 22, 1898, although temporarily a part of
the Volunteer Army of the United States, retain their distinctive
features as State organizations, and while a governor could not
subsequently displace an officer holding his commission at the time the
organization to which such officer belonged entered the service of the
United States, yet, in case of a vacancy occurring, it was the province
of the governor of the State from which the regiment came to fill it.
I do not believe the legislation under consideration will bear the
construction that it only applies to a State organization at the time
such organization is accepted for service in the Army of the United
States under the provisions of the Volunteer Army act.
We have the right to assume that Congress had some wise purpose in
view when it modified the first clause of section 6, as is done by the
second proviso. I do not think it fair to conclude that the object was
only to provide in the outset for officers who might be found in
existing organizations of State militia. On the other hand, it is more
reasonable to conclude that such organizations were to go into the
Federal service intact, and thus preserve their autonomy or the features
of organization which pertain under the laws of the State from which
they come. It certainly could not have been the intention of Congress to
have one of these organizations go into the Federal service, organized
and officered under the laws of the State from which it came, and as
soon as its roster was broken by the casualties of war or other causes
to take away from it one of its distinguishing statal features. I think
it must follow, therefore, that these organizations were to be
maintained as they were received, and I can see no sound reason in the
proposition that the proviso in section 6 to which we are referring was
only intended to apply at the time a State organization was accepted for
service by the United States, and to continue in force only so long as
the officers then holding commissions remained. I hold that under the
proviso of section 6, by virtue of which this Minnesota regiment was
accepted (or enlisted, as it is termed in the statute) as a body by the
United States for service as a part of the Volunteer Army, the officers
of said regiment holding commissions issued to them by the governor of
the State, under the authority of the laws of the State, were entitled
to enter the service of the United States with the grades which their
commissions severally indicated, and that said regiment, with its said
officers, although temporarily in the military service of the United
States and constituting for the time a part of the Volunteer Army of the
United States, still remains a regiment of Minnesota militia, and as
such, under the laws of Minnesota, and by virtue of the condition under
which the regiment entered the service of the United States-- that is,
that it should retain the number of officers with the grade which the
law of the State provided-- has still reserved to it the right to
maintain its organization with the number and grade of officers
authorized by the laws of the said State.
The act of March 2, 1899, while, as I have stated, having in my
opinion no direct application to the question I am considering, yet may
be cited to sustain the position that a third major is not an
unnecessary officer in an infantry regiment, because the said act, which
is intended to increase the efficiency of the United States Army,
provides for three majors to a regiment instead of two, as under the
previous law.
As to whether it is necessary to muster Masterman (who has been
commissioned as major by the governor) into the service of the United
States, I do not see that it is. Masterman entered the service, as seems
to be the fact, when the regiment went in; he has been a commissioned
officer in the regiment during the whole of its active service. He has
therefore already been mustered in, as it is termed, and I can see
nothing left to be done except, upon its being made satisfactorily to
appear to the authorities of the United States that he is duly
commissioned by the governor of Minnesota as major of the Thirteenth
Regiment of Minnesota Volunteer Infantry, to fill a vacancy which has
occurred therein, that his name be entered upon the Army rolls as an
officer of that grade from the date of the acceptance by him of said
commission.
I return inclosures as requested.
Respectfully,
JAS. E. BOYD,
Assistant Attorney-General.
Approved.
JOHN W. GRIGGS.