f *•* ¥* Sf- '•■"*i, . ■W» •.* r^i A*» dtaMll Utriwmtg |f Stag FROM THE UNITED STATES GOVERNMENT THROUGH THE SUPERINTENDENT OF DOCUMENTS A..a2*3.o.£. § 506 Rev. Stat, prohibits the withdrawal of this book for home use. 'M*. 7808 Cornell University Library KF5106.A53 A21 olin 3 1924 032 488 896 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924032488896 DIGEST OF OFFICIAL OPINIONS OF THE ATTORNEYS-GENERAL UNITED STATES COVERING I VOLUMES 17 TO 25, INCLUSIVE 1881-1906 PREPARED BY JAMES A. FINCH BY DIRECTION OF THE ATTORNEY-GENERAL AND AUTHORITY OF CONGRESS WASHINGTON GOVERNMENT PRINTING OFFICE 1908 T ffini 15 LIST OF ATTORNEYS-GENERAL, SOLICITORS-GENERAL, AND ACTING ATTORNEYS- GENERAL WHOSE OPINIONS COMPRISE YOLUMES 17-25 OPINIONS. 17 Opinions (1881-1884). — Devens — MacVeagh — Brewster. Samuel F. Phillips, Solicitor- General and Acting Attorney- General. 18 Opinions (1884-1887). — Brewster — Garland. John Goode, Solicitor- General and Acting Attorney-General. George A. Jenks, Solicitor- General and Acting-Attorney- General. William A. Maury, Acting Attorney-General. 19 Opinions (1887-1890).— Garland— Miller. George A. Jenks, Solicitor-General and Acting Attorney- General. Orlow W. Chapman, Solicitor-General and Acting Attorney- General. William H. Taft, Solicitor- General and Acting Attorney- General. 20 Opinions (1891-1894).— Miller— Olney. William H. Taft, Solicitor-General. Charles H. Aldrich, Solicitor- General. Lawrence Maxwell, jr., Solicitor-General. William A. Maury, Acting Attorney-General. Edward B. Whitney, Acting Attorney-General. John B. Cotton, Acting Attorney-General. 21 Opinions (1893-1897).— Olney— Harmon— McKenna. Lawrence Maxwell, jr., Solicitor-General. Holmes Conrad, Solicitor- General. John K. Richards, Solicitor- General. Edward B. Whitney, Acting Attorney-General. J. M. Dickinson, Acting Attorney-General. 22 Opinions (1897-1899).— McKenna— Griggs. John K. Richards, Solicitor-General. James E. Boyd, Acting Attorney-General. Henry M. Hoyt, Acting Attorney-General. 23 Opinions (1899-1902).— Griggs— Kxox. John K. Richards, Solicitor-General. James E. Boyd, Acting Attorney-General. Henry M. Hoyt, Acting Attorney-General. James M. Beck, Acting Attorney-General. IV LIST OF ATTORNEYS-GENERAL, SOLICITORS-GENKKAi,, jsxu. 24 Opinions (1902-1903).— Knox.. John K. Richards, Solicitor-General. Henry M. Hoyt, Acting Attorney- General. James M. Beck, Acting Attorney-General. William A. Day, Acting Attorney-General. 25 Opinions (1903-1906).— Knox— Moody. Henry M. Hoyt, Solicitor-General. r William A. Day, Acting Attorney- General. Milton D. Purdy, Acting Attorney-General. James C. McReynolds, Acting Attorney-General. Charles H. Robb, Acting Attorney-General. Charles W. Russell, Acting Attorney-General. DIGEST OF OPINIONS § OF THE ATTORNEYS-GENERAL OF THE UNITED STATES. (VOLS. 17-25, INCLUSIVE.) ABANDONMENT. See Customs Law, III, in. ABATEMENT; See Internal Revenue, III, a; Customs Law, VI, a, 335. "ABBEY" STEAMSHIP. See Seizure, 8. ACCEPTANCE. Of Check by National Bank. See Banks, 19-21. Of Presents by President. See Presi- dent, XI, 81. Of Vessel. See Liens, 5 ; Navy, VII, 195-199. ACCOUNTING OFFICEES. Of the Treasury. See Treasury Depart- ment, II, h. ACCOUNTS. I. Where an account has once been duly adjusted, settled, and closed by the proper officers, upon a full knowledge of all the facts, and no errors of calculation have been made, 18456—08 1 it can not be reopened in the absence of statu- tory authority. 18 Op. 223. 2. Change of method in settling accounts. — The Secretary of the Treasury can not legally, by departmental order, change a practice or course of office *procedure prescribed by stat- ute for the settlement of accounts. 19-177. 3. A question with reference to the manner of drawing funds from the Treasury, and the administrative examination of the accounts of the officer disbursing them, is one which should be submitted to the Comptroller of the Treasury. 22 Op. 414. 4. Section 12 of the Dockery Act of July 31, 1894 (28 Stat. 162, 209), does not require the Secretary of the Treasury to report to Con- gress annually the balances due on postal accounts for the prior fiscal year. 21 Op. 296. 5. The methods adopted in settling accounts for transportation of the Army under the act of March 3, 1879 (20 Stat. 420), are not applicable to accounts for the transportation of enlisted men of the Navy and Marine Corps. 21 Op. 297. 6. Same. — An omission by Congress of some accounts from an act providing for the settle- ment of certain accounts for transportation shows that it was not the intention of Con- gress to make that act apply to all accounts for transportation furnished under preceding acts. lb. See alscr Army, II, d, 168-179; Treasury Department, II, h; Indians, V, b; Revenue Marine, 20, 21 ; Post-Office Department, 7. 8; Department of the Interior, III, c, 37; Railroads, II, 10, 11, 24, 40; IV, 65; United States Marshals, 4-7; and for the accounts of any particular officer, see appropriate heading for that officer. ACCRUED PENSION ADMINISTRATION. ACCRUED PENSION. See Pensions, I, e. ACQUITTAL. See Customs Law, IX, c, 403. ACTIONS. 1. An action for the recovery of duties on goods previously smuggled would be a suit "in which the United States is a party, or interested," within the meaning of section 379, Revised Statutes, and as such the Solicitor of the Treasury has power to iristruct in regard thereto. 20 Op. 714. 2. Third persons claiming title to the land patented under the act of March 3, 1851 (9 Stat. 631), may bring a suit to declare a trust in said lands. Such suit may be brought in the State courts and without the aid of the Attorney-General. The decision of a State court upon such a suit unappealed from binds the parties thereto, whether righteous or erroneous. 21 Op. 13. 3. When such third persons fail to sue until the period of the statute of limitations of the State has expired, they are barred by their laches from suing thereafter. That they had meanwhile been applying to Congress for relief is immaterial, lb. 4. An appearance by parties to a suit in one jurisdiction does not operate as an abandonment of proceedings instituted by them in another jurisdiction, the parties and cause of action being the same. 21 Op. 447. 5. One may proceed on the same cause of action against the same defendants in as many jurisdictions as he can have service of process executed upon the defendants. 26. 6. One final judgment on the merits ren- dered in one action can be pleaded in bar in all the others upon the same cause of action lb. 7. As a recourse to law for the settlement or collection of certain bonds issued by cer- tain States and owned by' the "United States would involve the grave act of suing a State, and as Congress has had this matter before it repeatedly and has not directed such a course, the Secretary of the Treasury is ad- vised not to institute suit. 21 Op. 478. See also Arkansas, 1, 2. AD INTERIM APPOINTMENT. See Army, II, a, 49; President, I. ADDITIONAL COMPENSATION. See United States, II, 36-39; Office, and Officers, VII; United States Attorney;. United States Marshal, 7, 8. ADDITIONAL DUTY. See Customs Law, IV, f ; IX, b. ADDITIONAL PAY. See Army, II, d (2); IV, 228, 229. ADDITIONAL PERIOD. ADMINISTRATION. Payment of an award. — Where an award was made to M., as surviving partner of the firm of M. & G. , and on the subsequent death of M., the representatives of G. demanded to share in the distribution of the award: Ad- vised that the administrator of M., the sur- viving partner in whose name the claim was presented and to whom the award thereon was made, should alone receive payment. 17 Op. 537. See also Cuba, 24; Reservations and Parks III, 35; and United States Naval Asy- lum at Philadelphia, Pa. ADMINISTRATIVE PRACTICE ALASKA. 3 ADMINISTRATIVE PEACTICE. See Executive Departments, VI; and Attor- ney-General, II, h and i. ADMIRALTY. See Prize. ADULTERATED SEEDS. See Department op Agriculture, VII, 46-48. ADVANCEMENT. See Army, II, b; Navy, II, b. ADVANCES. See Contracts, VI, Union Congress. b; Universal Postal ADVERTISEMENT. See Contracts, I, a; Executive Depart- ments, IV; District op Columbia, IV; Army, I, g; Navy, I, f; Indians, IX; Lot- tery, 8-10, 13. AFFIDAVITS. See Notaries. See Guam. AGANA. AGRICULTURAL COLLEGES. See Appropriations, 7; Public Lands, VI. ALABAMA CLAIMS COMMISSION. The officers composing the Court of Commis- sioners of Alabama Claims, reestablished by the act of June S, 1882 (22 Stat. 98), were appointed in conformity to the provisions of that act, but were not commissioned for any stated period. That act limited the duration of the court to two years from the time of its organization thereunder; but by the act of June 3, 1884 (23 Stat. 33), its existence was extended to December 3i, 1885; and under the latter act the officers of the court con- tinued to perform their duties after the ex- piration of the two years referred to, without any other appointment than that originally received: Held that the limitation upon the duration of the court prescribed by the act of 1882 was not a limitation upon the terms of the officers thereof, and that the court remained after the expiration of the two years limited by that act, by virtue of the act of 1884, a legally constituted body, notwith- standing the officers composing it received no other commissions than those originally given. 18 Op. 298. ALASKA. / 1. Section 14 of the act of May 17, 1884 (23 Stat. 28), which prohibits the importation of "intoxicating liquors" into the Territory of Alaska, does not apply to wines imported for sacramental use. 18 Op. 139. 2. The opinion of the Attorney-General of May 15, 1889 (19 Op. 306), does not conflict with the collection of the special tax on retail liquor dealers in the Indian country and Alaska under section 3244, Revised Statutes. 21 Op. 25. 3. The sale of liquors on board of American vessels in Alaskan waters, except upon permit obtained according to law from the customs officials, is a violation of law and the regula- tions thereunder. "22 Op. 118. 4. Such sales on British vessels may be pro- hibited under additional Treasury regula- tions, which may be adopted for that pur- pose, lb. 5. Use of military force. — The question as to what extent and under what circum- stances the military forces of the United States may be used for the protection of life and property in Alaska, considered; and the views expressed in a former opinion, dated April 18, 1889 (19 Op. 293), submitted aa covering the question. 19 Op. 368. ALASKA ALIENS. 6. The laws relating to rational banking associations are by virtue of the act of May 17, 1S84 (23 Stat. v 24), in force in the Terri- tory of Alaska, and such associations may be lawfully organized in that Territory. 19 Op. 678. 7. World's Columbian Commission. — Alaska is a Territory within the meaning of sections 2 and 3 of the act of April 25, 1890 (26 Stat. 62) , and, as such, is entitled thereunder to be represented by two commissioners in the World' s Columbian Commission. 19 Op. 700. 8. Alexander Archipelago Forest Reserve — Permit for use and occupancy. — The Secretary of Agriculture has authority under the act of June 4, 1897 (30 Stat. 35) , to grant a permit for the use and occupancy of certain land within the Alexander Archipelago Forest Reserve, Dall Island, Alaska, for the purpose of conducting a fish saltery, oil, and fertilizer plant. 25 Op. 470. 9. Same. — The Secretary may grant such privilege for a longer period than one year, and may charge and collect a reasonable sum for, the privilege granted. lb. 10. Lease of St. Paul and St. George Is- lands — Authority of Secretary of Commerce and Labor.— The act of February 14, 1903 (32 Stat. 829), transferred to the Secretary of Commerce and Labor the same authority over the islands of St. Paul and St. George, Alaska, that was theretofore possessed by the Secretary of the Treasury, and he may there- fore lease those islands to the North Ameri- can Commercial Company for the propaga- tion of blue foxes. 25 Op. 497. 11. Same. — The Secretary of Commerce" and Labor has authority to lease, for the pur- pose of propagating foxes, such other islands in the waters of Alaska as had been so leased by the Secretary of the Treasury prior to May 14, 1898. lb. 12. Same. — The Secretary of Commerce and Labor has no authority to regulate the killing of fur-bearing animals in Alaska, other than fur-bearing seals. lb. 18. — Removal of seat of Government to Ju- neau. — The ownership and occupation by the "United 'States of a court-house at Juneau, Alaska, by court officials, and the granting of permission by the judge of the first Alas- kan judicial district to the governor and sur- veyor-general of Alaska to use two rooms of such building for offices, does not constitute such a compliance with the proviso in the act of Congress of June 6, 1900 (31 Stat. 321), as will authorize the Secretary of the Interior to order the removal of the seat of govern- ment of Alaska from Sitka to Juneau. 25 Op. 613. See also Seal Fisheries. ALEXANDER ARCHIPELAGO FOREST RE- SERVE. See Alaska, 8. ALIEN CONTRACT LABOR LAWS. See Immigration III, a. ALIENS. 1. Who are aliens. — An alien who has re- sided in this country without becoming nat- uralized, and who departs with the intention of returning, is not to be deemed an immi- grant upon his return, although he was an alien immigrant when he first entered the country. 22 Op. 353. 2. Congress has power ' to exclude aliens altogether from the United States, or to pre- scribe the terms and conditions on which they (may come into this country. lb. 3. Ownership of real estate inTJnited States. — The provisions of the act of March 3, 1887 (24 Stat. 476), restricting the ownership of real estate in the Territories to American citi- zens, etc., apply to mines, they being real estate or inheritable interests in real estate. 19 Op. 26, 4. Same. — Stock in a corporation is person- ality, and an alien may, therefore, hold shares of stock issued by an American corporation owning mineral lands in the Territories ; but if the holding by aliens exceeds 20 per cent of its stock, such corporation can neither own nor hold' thereafter acquired real estate while such holding by aliens in excess of 20 per cent continues. lb. 5. Same. — An alien may hereafter advance money for the purpose of developing mining property in the Territories; but he can not thereby acquire any interest in such real estate. lb. ALASKA ANNUAL LEAVE. 6. Same. — An alien may lawfully contract with an American owner to work mines by a personal contract, contract for hire, or a bona fide lease for a reasonable time. lb. 7. Protection of — Bight of master of foreign vessel to shackel alien in port of the United States. — The master of a foreign vessel has a right, under the laws of the United States, to put in irons an alien on board his ship who is not allowed by law to enter the United State?, in order to prevent such person from unlawfully landing; but this may be done only in exceptional cases and where nothing less will prevent the landing of such person. 24 Op. 531. /See aZso Immigration; Chinese; Patents, 1, 2. ALLOTMENTS. See Indians, III, a.. ALLOWANCE. Breakage, Leakage, ob Damage to Im- portations. Set: Customs Law, III, d. ALTERATION. Op En'Gixeer'6 License. Inspection Service, 16. See Steamboat- AMEBICAN AND MEXICAN CLAIMS COM- MISSION. See Claims, II, 79. under existing law, to cause to be printed 2.500 copies of the American Ephemeris and Nautical Almanac and 3,182 copies of "the papers supplementary thereto;" and of the American Nautical Almanac, such "ad- ditional " copies thereof as he may determine necessary "for the pubbc service and for sale to navigators and others." 21 Op. 663. AMERICAN BEGISTBY. See Shipping, I, c. AMNESTY. 1. The word "amnesty" in the Edmunds Act of March 22, 1882 (22 Stat. 30) was used advisedly with intent to indicate that the President might, by act of Executive clem- ency, embrace a whole class of offenders, instead of dealing with each case separately. 20 Op. 668. 2. The President has constitutional power, without Congressional sanction, to issue a general pardon or amnesty to classes of offenders. 20 Op. 330, 668. See also Pardon. ANIMALS. See also Health and Quarantine. ANNAPOLIS, MD. Sea Wall. -See Contract, II, 83. AMERICAN AETIST. See Customs Laws, IV, 245. ANNEXATION. See Hawaii, 2, 34, 40; International Law, 17, 23-25, 28-30. AMEEICAN EPHEMEBIS AND NAUTICAL ALMANAC. Number of copies authorized to be printed. — The Secretary of the Navy is authorized, ANNUAL LEAVE. See Leaves of Absence. ANN ULMENT APPROPRI ATIONS. ANNULMENT. s Contracts, IV. ANTI-MOIETY ACT. Act of June 22, 1874 (18 Stat. 186). See Customs Laws, IX, h. APPEAL. 1. In case of an appeal to a higher tribunal for review, the original judgment stands in suspense until the appellate court, by a judg- ment of its own, shall supersede it. 22 Op. 340. 2. An appeal by a Chinese person, taken under section 13 of the act of September 13, 1888 (25 Stat. 479), to a judge of a district court, from the judgment of the commissioner, does not vacate, but merely suspends the judg- ment of the commissioner and proceedings thereunder until the appeal is dismissed. lb. 3. Appeal from act of an executive officer. — Where a statute imposes a particular duty upon an executive officer, and he has per- formed the duty according to his understand- ing of the law, there is no appeal from his action or his decision, unless such appeal is expressly provided by law. His decision is final and conclusive. (See 16 Op. 317; 1 Op. 624; 2 id. 481-482; 5 id. 275; 11 id. 14; United States v. Ferriera, 13 How. 40). 17 Op. 353. 4. An appeal does not lie to the President to set aside a decision made by the Secretary of the "Interior touching the correctness or validity of a resurvey of a private land claim, being the Chariwin grant. 1'8 Op. 31. 5. The consideration and determination of appeals to the Secretary of the Interior from the Commissioner of the General Land Office may be made by the Assistant Secretary of the Interior, under a regulation prescribed by the Secretary, pursuant to section 439, Revised Statutes. 19 Op. 133. APPEAEANCE. 1. An appearance by parties to a suit in one jurisdiction does not operate as an abandonment of proceedings instituted by them in another jurisdiction, the parties and cause of action being the same. 21 Op. 447. 2. The head of an Executive Department is not legally bound, in obedience to a subpoena of a court, to appear in a suit between private parties and testify to facts which have come to his knowledge officially; but he may appear and give such testimony as he shall deem proper. 25 Op. 326. APPOINTMENT. See Army, I, e, 30, 32; II, a, 49; II, b; and II, c, 103, 106, 115; Civil Service, II, b, 48, 50; III, d, and V; Congress, III, 24-27; Cus- toms Law, II, d; Executive Departments II, a, 15-18; b, 27-29, 39-43; Military Academy, 13, 14; Naval Academy, 22-28; Navy, II, a, 25; II, b; and III, b; Office and Officers, II; Postal Service, II, b, 30, 31, 43-45; II, c, 52-54; President, I; Public Buildings, 26, 27, 37; Revenue Ma- rine, II, 11-15. APPRAISEMENT. See Customs Law, III, b; IX, e; X, 457. 458. 461. APPRAISERS. See Customs Laws II, e. APPROPRIATIONS. 1. After an appropriation has been ex- hausted, the Secretary of the Navy has no power to incur any obligation for work on an uncompleted dry dock, even though immediate action is very important. 21 Op. 288 2. After an appropriation is exhausted, a contract not for the completion of any specific work, as the erection of a building, the con- struction of a road, or rendering a channel adequate for the passage of vessels of a cer- tain draft, is at an end. Work done after the APPROPRIATIOMS. 7 appropriation is exhausted would not come within such a contract. 21 Op. 244. 3. Same. — If farther appropriations are made, there must be a new contract for their expenditure. lb. 4. The act of July 1, 1898 (30 Stat. 613), making an appropriation ' ' to enable the Sec- retary of the Treasury to pay" a certain in- dividual a specified amount, being mandatory, the Secretary has no discretion to pass upon the fact whether such amount or any portion thereof ought to paid. 22 Op. 295. 5. An appropriation "for the expenses of the Geological Survey," not being in terms for the rent of any building or part thereof, can not be used for the payment of rent. 17 Op. 87 6. The Secretary of State can not lawfully, under the terms of the joint resolution of Congress approved February 25, 1893 (27 Stat. 756), authorize the construction of a wharf different in character from that specified in the resolution, even if from a change in the cir- cumstances the construction of that sort of wharf with that appropriation has become impracticable. 20 Op. 653. 7. The respective appropriations for agri- cultural experiment stations, act of March 2, 1887 (24 Stat. 440), and for agricultural col- leges and schools, act of July 2, 1862 (12 Stat. 503), being separate and distinct, no portion of the appropriation for the former can be ap- plied to the payment of salaries of professors or teachers in the latter. 22 Op. 470. 8. The act of March 3, 1899 (30 Stat. 1128), for deepening the channel north of Pelican Island, from Galveston Harbor to Texas City, Tex., makes an appropriation of $250,000 for the work. 22 Op. 489. 9. Same. — There is no authority for pay- ing out of this appropriation any expenses for making the contract, inspecting or superintend- ing the work, unless it be indirect through a ■provision in the contract that these expenses shall be paid by the contractors and charged against their compensation. lb. 10. Appropriation for improvement of Mis- souri River above Sioux City. — The Secretary of War has no authority to use any portion of the $170,000 appropriated by the act of March 3, 1899 (30 Stat. 1147), for the improvement of the Missouri River above Sioux City, for improvements at or in front of that city. 22 Op. 519. 11. The act oi Match 3, 1899 (30 Stat. 1064), making an appropriation for "transpor- tation of the Army and its supplies," impliedly authorizes the Secretary of War to purchase for the United States such land as in his judg- ment may be necessary for the erection of the wharf or wharves as contemplated by the ap- propriation, and the land so purchased can be paid for out of said appropriation. 22 Op. 665. 12. The emergency fund of $3,000,000 pro- vided by the act of January 5, 1899 (30 Stat. 772), is intended to cover emergencies arising in the military administration of Cuba and other territory that has come into the possession of the United States through the operations of war. 22 Op. 301. 13. Fortifications act — Range finders. — 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 in- struments in Porto Rico. 23 Op. 390. 14. Revenues collected on importations from Porto Rico — Schoolhouses. — The act of April 12, 1900 (31 Stat. 77), entitled " An act tem- porarily to provide revenues and a civil gov- ernment 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 there- from prior to January 1, 1900. 23 Op. 329. 15. Same. — The President may lawfully direct that a portion of the latter appropria- tion be used for the purpose of erecting and equipping schoolhouses in that island. lb. 16. Porto Rican customs revenue. — The act of March 24, 1900 (31 Stat. 51), which directs that certain Porto Rican customs reve- nues "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 gov- ernmental and public purposes therein, until otherwise provided by law," vests in the Executive the power to place the disburse- ment of such appropriation under the control of the "administrative authorities" instead of the "executive council." 23 Op. 450. 17. Appropriation for naval and coaling station. — The onstruction of a pier, required in providing a naval and coaling station for 8 APPROPRIATIONS. the United States in the harbor of Pago Pago, is within the intent of Congress as expressed in the paragraph of the sundry civil appro- priation act of August 5, 1892 (27 Stat. 349), containing the following provision; "For providing naval and coaling stations, $250,000,' to be expended under direction of the Presi- dent;" and such portion of the $250,000 as may be needed for building the pier may be lawfully used whenever the President shall so direct. '20 Op. 553. 18. Same — Lease or purchase of property in Pago Pago Harbor. — The President may law- fully use such part of the appropriation of $500,000 provided in the act of February 26, 1889 (25 Stat. 699), for the establishment of a coaling station at Pago Pago Harbor, Samoa, in making and executing contracts for the control of such property in that har- bor, whether by lease or purchase, as may in his judgment be necessary for the protection of the interest of the United States. 20 Op. 484. 19. Support of armies. — The inhibition of Article I, section 8, clause 12, of the Consti- tution is confined to appropriations to raise and support armies in the strict sense of the word ' ' support, ' ' and does not extend to appro- priations for the varions means which an army may use in military operations, or which are deemed necessary for common defense. 25 ' Op. 105. 20. Expenses of delegates to Pan-American international conference. — 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 [Pan-American] international conference, and for incidental clerical assistance," do not con- template or provide for the payment of the expenses or compensation of counsel for the del- egates to that conference, the services to be performed by such counsel not being "cler- ical" in character. 23 Op. 533. 2 1. Census Office. — The unexpended balance of the census appropriation referred to by the proviso in the act of March 8, 1903 (32 Stat. 1059), is available for census purposes, not- withstanding the specific appropriations made therefor by the act of February 25, 1903 (32 Stat. 896). 24 Op. 699. 22. Where name of claimant is erroneously Btated in the act. — Where an act of Congress in making appropriation for the payment of a claim incorrectly stated an initial letter in the name of the claimant, advised that the claim may be paid, provided its identity with that provided for in the act be clearly established. 18 Op. 501. 23. Penitentiary at Walla Walla, Wash. — In view of the fact that the State of Washing- ton already has a penitentiary, the attention of Congress should be called to the matter before any further expenditure is made of money ap- propriated by the act of March 3, 1893 (27 Stat. 661 ) for the purpose of the creation of a penitentiary at Walla Walla in supposed con- formity with the promise made in section 15 of the act of February 22, 1889 (25 Stat. 680). 21 Op. 352. 24. The appropriation in the act of March 2, 1895 (28 Stat. 752), for raising the height of the dam at Great Falls and for damages on ac- count of the consequent flooding of land and other injuries was intended to cover all dam- ages that might result from raising the dam 2$ feet higher than had been contemplated un- der the act of July 15, 1882 (22 Stat. 168). 21 Op. 223. 25. The question whether or not the ap- propriation act of 1896 authorizes the Secre- tary of the Treasury to purchase newspapers and other articles for use outside of Washington, in view of sections 192 and 3683 Revised Stat- utes, is one which should be submitted to the Comptroller of the Treasury under section 8 of the act of July 31, 1894 (28 Stat. 207). 21 Op. 178. 26. The appropriation for special speed premiums made by the act of July 26, 1894 (28 Stat. 123, 140) , is not limited in its appli- cation to premiums earned prior to January 1, 1894. 21 Op. 84. 27. Transfer and retransfer from one Execu- tive Department to another. — Where portions of certain funds appropriated by the acts of June 14, 1880 (21 Stat. 193), and of March 3, 1881 (21 Stat. 481), for the construction of dams and reservoirs, were transferred by the Sec- retary of the Treasury from the books of the War Department to those of the Interior De- partment for the settlement of damages to Indians occasioned by such construction, and only a portion of the amount thus transferred was used in the settlement of those claims the unexpended balance may be retransferred to the War Department and again become a part of the original appropriation. 20 Op. 300. APPROPRIATIONS ARIZONA. 28. For bringing to United States Americans in foreign countries accused of crimes. — The French Government may properly be reim- bursed from the $5,000 appropriated by the act of July 16, 1892 (27 Stat. 226), for expenses incurred in conveying to the United States, on requisition of a United States consul, five American seamen charged with murder. 20 Op. 600. Executive Departments. See the various Departments, I, and the various offices or bureaus of such Departments. RlVER AND HARBOR IMPROVEMENT. See Navigable Waters, II. Public Buildings. See Public Buildings. Expositions and Fairs. See Expositions and Fairs. Artificial Limbs. See War Department, 1. Army, Army Boards, etc. See Army, I, f. . Navy. See Navy, I, g; VII. Reimbursement of Navy Department Ap- propriation for Ordnance furnished Revenue - Cutter Service. See Navy Department, I, 1, 2. Naval and Coaling Stations. See the various stations. Guns, Carriages, etc. See Armament and Fortifications. Indian Schools. See Indians, II, b. Collection of Customs Revenue. See Cus- toms Law, V, b. Quarantine Service. See Health and Quarantine, 7. Care and Medical Treatment of Transient Paupers in Washington, D. C. See Army, I, f, 36. Revenue-Cutter Service. See Revenue Ma- rine, I. Loyal Creek Fund. See Indians, V, 135- 136, 147. Erection of Monuments or Memorial Tab- lets. See Gettysburg Battlefield. Unexpended Balances. See Navy, III, d, 149; VII, 209, 210; Health and Quaran- tine, 7. For appropriations for any parricular object, see appropriate heading for that subject. ARBITRATOR. See Diplomatic and Consular Officers, II, 14. ARBITRATION. See General Arbitration Board. ARENAS KEY ISLAND, MEXICO. Jurisdiction— Murder. — Where the master of an American vessel abandoned three men upon the island of Arenas Key, Mexico, but without opposition on their part, one of whom was killed by another of the three in self- defense: Advised that the master and owners of the vessel do not appear to have committed any offense cognizable under the statutes of the United States, and that if a crime was committed by one of the men on the island, it was committed within the jurisdiction of Mexico, and the courts of the United States have no jurisdiction over 1 the same. 19 Op. 391. ARIZONA. 1. The legislative assembly of Arizona Territory can lawfully remain in session only for a period of sixty days' duration, such period including Sundays and all intermediate ad- journments. 19 Op. 259. 2. The word "sessions" in section 1852, Revised Statutes, as amended by the act of December 23, 1880 (21 Stat. 312), includes the whole period between the time fixed by law for the meeting of the legislative assemblies and their sine die adjournment, Sundays and intermediate adjournments not excepted. lb. 8. Same. — Statutory provisions regulating the assembling of Territorial, legislatures re- viewed; and, upon consideration thereof, advised that the governor of Arizona Territory is without power to convene a special session of the Territorial legislature. 19 Op. 319. 4. The act of the legislature of Arizona Territory, approved March 21, 1889, providing for the holding of a convention for the purpose of forming a State constitution to be submitted to the legal voters of the Territory for their approval or rejection, is not inconsistent with the organic act of the Territory or any other law of Congress, or with any provision of the Constitution, and is therefore valid. 19 Op. 335. 10 ARIZONA ARMAMENT AND FORTIFICATIONS. 5. Same. — Whether such legislation is "pre- mature" is a question that addresses itself solely to the legislature that passed, the gov- ernor who approved, and to Congress which had the power finally to ratify or annul the measure. lb. 6. Assignment of judges. — Under the or- ganic law of the Territory of Arizona and the statutes passed by the legislature thereof, the governor is not invested with power to assign to their respective districts the judges ap- pointed for that Territory. 19 Op. 530. 7. Same. — The authority given the gov- ernor by section 1873, Revised Statutes, to assign judges, etc., was intended to be exer- cised only during that period which is em- braced between the date of the organization of the Territory and the time when legisla- tive action was had upon the subject-matter referred to in that section. After such action by the legislature the authority terminated and the operation of the section ceased. lb. ARKANSAS. 1. The institution of proceedings on behalf of the United States to recover the title and possession of certain land (part of the Hot Springs Reservation) granted to the county of Garland, Arkansas, for the site of a public building, would not be warranted, for the reason that it is not clear whether the statute donating the land annexes a condition to the grant or creates a mere trust, and for the fur- ther reason that the county has brought suit to annul the lease and recover control of the property. 18 Op. 264. 2. Same. — In the absence of any action on the part of Congress declaring forfeiture or directing suit, the Attorney-General is not war- ranted in instituting proceedings to recover to the United States the title and possession of the land granted by section 19 of the act of March 3, 1877 (19 Stat. 380), to the county of Garland, Ark., for a public building site. 20 Op. 307. 3. The State of Arkansas is not liable for interest on certain interest-bearing bonds of that State after their maturity. ( United States v. North Carolina, 136 U. S. 211, followed. ) 21 Op. 135. Laws in force in the Indian Territory — Distribution op Loyal Creee Fund. See Indians, V, 147. ARMAMENT AND FORTIFICATIONS. 1. Contract — Royalty on guns and car- riages — Appropriation for armament of fortifi- cations. — The United States is authorized to enter into a contract for the payment of roy- alty on account of the construction of certain guns, carriages, etc., payable out of appropri- ations "for the armament of fortifications, and for other purposes," approved May 25, 1900 (31 Stat. 185), March 1, 1901 (31 Stat. 874), and June 6, 1902 (32 Stat. 308), notwithstand- ing the fact that the fulfillment of such con- tract mightextend over a period of more than two years. 25 Op. 105. 2. Same — Support of armies. — The inhibi- tion of Article I, section 8, clause 12, of the Constitution is confined to appropriations to raise and support armies in the strict sense of the word "support," and does not extend to appropriations for the various means which an army may use in military operations, or which are deemed necessary for common defense. 76. 3. The contract with the Pneumatic Gun Carriage and Power Company for the construc- tion of a disappearing gun carriage, under the act of August 1, 1894, makes no provision for the payment of a premium and does not bind the Government beyond the amount appro- priated. 21 Op. 457. 4. Pursuant to the act of June 6, 1896 (29 Stat. 256, 261), the Secretary of War entered into a contract for the construction of a certain type of gun, for which 85 per cent of the sum appropriated was to be paid as the work pro- gressed, and the remainder upon its comple- tion and test. The gun was completed and suc- cessfully stood the regular proof test, but upon recommendation of the Board of Ordnance it was subjected to the ordnance test of being fired .300 times, and, as a result, on the fifteenth round the gun wasdestroyed. > Held, that the contractor was entitled to the final payment, as neither the statute nor the con- tract made it necessary that the gun should be capable of any particular performance, nor that it should successfully withstand any test ARMAMENT AND FORTIFICATIONS ARMY. 11 of strength; and the payment therefore, was not dependent upon any such performance or test. 22 Op. 465. , Armament op Vessels. See Navy, VII, 208. Claims foe Royalty. See Claims, I, h, 74, 75. ARMOR FLATS ROYALTY. See Claims, I, h, 74, 75. ARMS. See Army, III, 220-223; South Carolina. ARMSTRONG FUND. See Claims, I, b, 13-28. Dis- ARMY. I. In General. a. Use of, 1-9. ' b. Enlistment — Reenlistment charge, 10-15. c. Enlisted men, 16-26. d. Medals, 27-29. e. Army Posts — Exchanges — Can- teens, 30-34. f. Appropriations, 35-37. g. Supplies — Purchase of, 38-39. II. Officers. a. In General, 40-54. Secretary of War see War De- partment Ila. b. Appointment, Promotion, Trans- fers, etc., 55-90. c. Resignation, Retirement, Dismissal, etc., 91-128. d. Rank and Pay, etc. : 1. Rank, 129-152. 2. Pay— Pay Accounts, 153-179. 3. Commutation for Quarters — Mileage, etc., 180-188. e. Civil Office or Employment, 189- 191. f. Civil Service, 192. m. Volunteer Army— Militia, 193-225. IV V, VI VII. vtn IX x XI XII Signal Corps, 226-229. Engineer Corps, 230, 231. Summary Court, 232. Courts-Martial. See Courts-Martial. Military Commission, 233. Army Regulations and General Orders, 234-238. Articles of War, 239-241. Examining Board, 242-244. Army Board, 245. Civil Authorities, 246. , I. In General. a. Use of. 1. Suppression of unlawful organizations — Cowboys. — Section 15 of the act of June 18, 1878 (20 Stat. 152), renders unavailable the aid of the military forces of the United States for the suppression of unlawful organizations, unless the state of facts be such as to enable these forces to be used under the provisions of section 5287 or of sections 5298 and 5300, Revised Statutes. 17 Op. 242. 2. Same. — Upon consideration of the facts stated : Advised that the military forces of the United States may be employed under section 5298, Revised Statutes, after proclamation as required by section 5300, Revised Statutes, to aid in the execution of the laws and for the suppression of combinations of outlaws and criminals in the Territory of Arizona, with- out the need of further legislstion. 17 Op. 333. 3. Employment of, to aid marshal for Indian Territory. — It is competent for the President, under section 5298, Revised Statutes, to direct the military forces to render the marshal for the Indian Territory such aid as may be nec- essary to enable him to maintain the peace and«enforce the laws of the United States in that Territory, but themarshal himself can not call on the troops for aid, their use as a posse comitatus being forbidden by section 15 of the act of June 18, 1878 (20 Stat. 145, 152). 19 Op. 293. 4. The troops of the United States can not be employed in the Indian Territory to aid in the preservation of peace and the arrest of alleged "outlaws" and "bandits," unless such per- sons are illegally intruding or attempting to intrude upon the Indian country, or are ab- 12 ARMY, I, a, b, c. sconding offenders within the provisions of section 2152, Revised Statutes. 21 Op. 72. 5. Employment of United States troops in Alaska. — The question as to what extent and under what circumstances the military forces of the United States may be used for the pro- tection of life and property in Alaska, con- sidered ; and the views expressed in a former opinion, dated April 18, 1889 (19 Op. 2*93), submitted as covering the question. 19 Op. 368. 6. Troops of the United States can net, with- out violating the provisions of section 15 of the act of June 18, 1878 (20 Stat. 152), be employed as a posse comitatus, to aid the United States marshal or his deputies in arresting certain persons in the State of Kentucky charged with robbing an officer of the Gov- ernment. 17 Op. 71. 7. Power to enforce civil rights not abridged. — The provision in section 15 of the act of June 18, 1878 (20 Stat. 145, 152), for- bidding the employment of the Army as a posse comitatus for the purpose of executing the laws, does not abridge the power to use any part of the land or naval forces, or militia, for the purposes set forth in section 1989, Revised Statutes, relating to the enforcement of civil rights. 19 Op. 570. 8. In the distribution of supplies to the des- titute inhabitants of Cuba, under the provisions of section 1 of the act of May 18, 1898 (30 Stat. 419), the commanding officers of the Army may use either army officers or such other volunteer agencies as may be available for the purpose, and the field of their opera- tions is not necessarily restricted to the terri- tory over which they exercise actual control. 22 Op. 190. 9. Same. — Notwithstanding the signing of the protocol and the suspension of hostilities, a state of war still exists between this country and Spain, as peace can only be declared pur- suant to the negotiations between the author- ized peace commissioners. b. Enlistment — Reenlistment — Discharge. 10. The enlistment of white men in colored regiments is prohibited by implication by sections 1104 and 1108, Revised Statutes. 17 Op. 47. 11. Beenlistment — Must have served in the Army. — A man can not b^ reenlisted as a pri- vate under the act of February 27, 1893 (27 Stat. 478), unless he has served as such in the Army for twenty years. Service in the Navy can not be so counted. 20 Op. 684. 12. Beenlistment. — A convicted deserter from the Army, undergoing sentence, must become the recipient of Executive clemency and must make application for reenlistment be- fore the question of the effect of the Presi- dent's pardon upon his right to reenlist can arise. 21 Op. 568. 13. Enlistment — Former service. — A recruit- ing officer has the right to reject a candidate for enlistment in the Army whose service during his previous term was not honest and faith- ful, notwithstanding the pardon of the offense. 22 Op. 36. 14. Beenlistment during desertion. — A sol- dier who enlisted for three years in August, 1862, who deserted in a short time and then reenlisted in October, 1862 for nine months and served faithfully and was discharged and was then arrested in January, 1864, for de- sertion, was admitted to a hospital and again deserted, is, by his second desertion, barred of relief under the act of March 2, 1889 (25 Stat. 869). 20 Op. 288. 15. Where deserter voluntarily returns — Discharge. — Where a person entered the mili- tary service in August, 1862, as a volunteer, to serve for three years, and subsequently de- serted, but afterwards voluntarily returned to service under the President's proclamation (of pardon) of March 11, 1865, and was mus- tered out of service along with his company July 2, 1865 : Advised that the time which elapsed between his desertion and his return should not be credited to him in a discharge or otherwise, but that he is entitled to have his actual service credited to him in an hon- orable discharge. 18 Op. 427. c. Enlisted men. 16. Excess of payment to soldier— Mistake of law. — A soldier should not be held ac- countable for money paid him in excess of the amount to which he was entitled, where such payment was made through a mistake of law on the part of the executive officers of the Government. 21 Op. 323. 17. Promotion — Assignment. — The Presi- dent has authority to assign enlisted men of the Army, who have passed the examination as candidates for commissions, to vacancies ARMY, I, c, d. 13 that may exist in any corps or arm of the service in which they have been commis- sioned, notwithstanding the fact that addi- tional lieutenants remain in other corps Unas- signed. 21 Op. 491. 18. Promotion — Limitation. —The Secre- tary of War has no authority to make a regu- lation limiting to a specified time, expiring on a given date, the right of promotion of an enlisted man who holds the certificate of eligibility provided by the act of July 30, 1892 (27 Stat. 336). 22 Op. 54. 19. Same — Can not require second examina- tion. — A regulation can not be promulgated requiring a successful candidate who holds such certificate of eligibility to undergo a second examination after a specified time. Ibi 20. Same. — The fact that such eligible has become 30 years of age does not vacate his right to promotion under the act. lb. 21. Promotion. — A soldier who passes a successful examination and becomes the holder of a certificate under the provisions of the act of July 30, 1892 (27 Stat. 336), is entitled, under that act, to promotion as second lieuten- ant after the graduates of the Military Academy shall have been provided for and assigned. 22 Op. 57. 22. Promotion. — Under the facts presented, there has been no definite conclusive find- ing or ascertainment that Sergt. A. D. Syden- ham, the holder of a certificate of eligibility under the act of July 30, 1892 (27 Stat. 336), was physically disqualified to perform mili- tary service, the weight of evidence being that he is physically qualified. Consequently he ia entitled to the benefits accorded him in that act unless he is now shown to be physically disqualified by a legally constituted army medical board. 22 Op. 91. 23. . Same. — Although a soldier is primarily entitled to promotion by reason of a certificate of eligibility,, yet, if he is in fact disqualified to perform military service by reason of physical disability, this would operate to disbar him. lb. 24. Pay and allowance. — Section 35 of the draft act (act of March 3, 1863^12 Stat. 736), prohibits allowance of extra pay to soldiers for special services rendered between Sep- tember 1, 1863, and October 20, 1863. 20 Op. 18. 25. Same. — The question is not affected by the fact that in the act of February 9, 1863 (12 Stat. 643), an appropriation was made for such services rendered during the fiscal year, July 1, 1863, to June 30, 1864, for the reason that section 35 of the draft act, passed three weeks later, above considered , took away any authority impliedly conferred by this ap- propriation. (10 Op. 472, overruled; 15 Op. 362, followed.) lb. 26. General service messengers — Compensa- tion — Not entitled to the $2 additional compen- sation monthly for distinguished service allowed under section 1285, Revised Statutes. — A pri- vate soldier who received a certificate of merit from the President for distinguished services, which entitled him, under section 1285, Re- vised Statutes, to "additional pay at the rate of $2 per month," is not entitled after his dis- charge as such private soldier, and enlistment as a "general service messenger," under the act of July 29, 1886 (24 Stat. 167), to receive the $2 per month in addition- to his compensa- tion as general service messenger, the act of 1886 expressly providing that such messengers shall receive no other compensation, pay, or allowance except in the specific instance therein named. 19 Op. 471. Artificial Limbs. See Artificial Limbs. Pensions. See Pensions. Retained Pay. See Treasury Depart- ment, II, h, 131. Volunteers. See Akmy, III. d. Medals. 27. Delay in presenting claim. — A claim for a medal of honor under the act of March 3, 1861 (12 Stat. 751) should not be entertained" where there is an unexplained delay of twenty-eight years in presenting the claim and it is unaccompanied by any official evi- dence of the statements made. 20 Op. 421. 28. Where applicant is not in military serv- ice when the case reaches the President for consideration. — Under section 6 of the act of March 3, 1863 (12 Stat. 751), the President may present a medal of honor to an officer or private in the military service of the United States who has distinguished himself in action, notwithstanding he is not in the mili- tary service at the time the case reaches the President for consideration, provided the application or recommendation therefor was made while he was in the military service. 24 Op. 580. 14 ARMY, I, e, f, g. 29. Same. — A medal of honor can not be awarded where the application or recommen- dation therefor is made after the officer or private has been discharged from the military service. 76. e. Army Posts — Exchanges — Canteens. 30. Post-trader — Appointment. — Whereone person had been appointed post-trader for a certain military post, and subsequently, on a change in the location of the post, another person was appointed post-trader for the same post: Held that as the law allows but one post-trader to be appointed for a military post, the second appointment must be deemed to work a revocation of the first, and accordingly that the last appointee is entitled to the place. 17 Op. 424. 31. Same.— Opinion of May 19, 1877 (15 Op. 278), that a post-trader is simply a per- son licensed by the Secretary of War, etc., con- curred in. lb. 32. Post-trader — Appointment — Removal. — While under section 3 of the act of July 24, 1876 (19 Stat. 100), a post-trader can not be appointed by the Secretary of War ex- cepting on the recommendation of a council of administration appointed by the command- ing officer of the post, yet he may be removed by the Secretary without the concurrence of the council of administration and command- ing officer. 17 Op. 517. 33. Post exchanges — Canteens. — Under sec- tion 17 of the act of March 2, 1899 (30 Stat. 981), no officer or private soldier can be detailed -in the canteen section of post exchanges to sell intoxicating drinks, either directly or in- directly, nor can a license or permission be given by the commanding officer to a private person to sell liquors in any encampment, fqrt, or premises used for military purposes by the United States. 22 Op. 426. 34. Same— Employment of civilians. — Sec- tion 17 does not, however, prevent the con- tinuance of the sale of intoxicating drinks through the canteen section of the post ex- changes as heretofore organized, by civilians employed for that purpose. 16. f. Appropriations. • 35. Board to examine improvements of ord- nance and projectiles — Appropriations — Ex- penses. — The appropriation made by the act of March 3, 1881 (21 Stat. 468), in the pro- vision authorizing the creation of a board of army officers to make examinations of im- provementsof heavy ordnanceand projectiles, is applicable to expenses necessarily incurred by the board" in performing the duties de- volved thereon, among which the actual and necessary expenses of its members for board and lodging and for traveling while so en- gaged may be fairly included. 17 Op. 252. 36. The act of July 7, 1884 (23 Stat. 194, 220), making an appropriation "for the care, support, and medical treatment of seventy- five transient panpers, medical and surgical patients in the city of Washington, under a contract to be made with such institution as the Surgeon-General of the Army may select," etc., authorizes that officer, within the limits of such appropriation, to contract with one or more' hospitals, as in his judgment will best fulfill its purposes. 18 Op. 33. 37. Army transportation — Purchase of land for wharves.— The act of March 3, 1899 (30 Stat. 1064), making an appropriation for "transportation of the Army and its sup- plies," 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 contemplated by the appropriation, and the land so purchased can be paid for out of said appropriation. 22 Op. 665. g. Supplies — Purchase of. 38. Emergency purchases. — Purchases of supplies for the Army made in open market after advertisement, where no bids have been received in response to such advertisement, are emergency purchases within the meaning of the act of July 5, 1884 (23 Stat. 109), and should be "at once reported to the Secretary of War for his approval." 18 Op. 349. 39. Same. — When parts of machinery or of stoves or ranges or patented articles are needed, such articles are required by that act to be purchased in the same way as other quartermaster's supplies— that is, by contract after advertisement, except in cases of emer- gency, in which cases the purchases are to be reported to the Secretary of War for approval. 26. ARMY, II, a. 15 II. Officers. a. In General. Secretary of War. See War Department II, a. 40. Judge-advocate — Brevet commission — Transfer from volunteer to regular service. — A judge-advocate, appointed in the volunteer service under the act of July 17, 1862 (12 Stat. 597), with the rank of major, and afterwards, but prior to the act of July 28, 1866 (14 Stat. 332), as amended by the act of February 25, 1867 (14 Stat: 410), brevetted a lieutenant-colonel and also a colonel of volunteers, by which later acts he became transferred from the volunteer to the regular service, is not entitled to have such brevets treated as brevets in the regular service. 17 Op. 3. 41. Same.— The acts of 1866 and 1867 produced no effect upon the brevet com- missions in the volunteer service previously conferred. Such brevets can not be treated as brevets in the regular service. lb. 42. Judge-advocate — Brevet commission. — On reconsideration, the opinion of January 13, 1881 (17 Op. 3), holding that the brevets of Major Winthrop, judge-advocate, in the volunteer force, could not be treated as brevets in the Regular Army, reaffirmed. 17 Op. 46. 43. Surgeon-General — Appropriation for medical treatment of panpers — Contracts for. — The act of July 7, 1884 (23 Stat. 194, 220) , mak- ing an appropriation "for the care, support, and medical treatment of 75 transient paupers, medical and surgical patients in the citiof Washington, under a contract to be made with such institution as the Surgeon-Gen- eral of the Army may select," etc., author- izes that officer, within the limits of such appropriation, to contract with one or more hos- pitals, as in his judgment will best fulfill its purposes. 18 Op. 33. 44. Surgeon-General. — The acceptance by a surgeon of the United States Army of an ap- pointment as Chief of the Becord and Pension Office of the War Department, with the rank and pay and allowance of a colonel, creates a vacancy in the former office. 20 Op. 427. 45. Assistant Surgeon-General — Appoint- ment — What officers eligible. — A vacancy ex- isting in the office of Assistant Surgeon-Gen- eral may be filled by appointing thereto any one of the surgeons with the rank of colonel or the chief medical purveyor (all of whom hold offices of the same grade in the medical corps as that of the vacant office) , or by promot- ing thereto the senior officer in the Medical Corps having the rank of lieutenant-colonel, which is the next grade below. 17 Op. 465. 46. Same. — No officer possesses an inchoate right to the vacant office of Assistant Surgeon- General. The senior surgeon among those holding the rank of lieutenant-colonel, how- ever, has a right to the vacancy in the grade to which that office belongs; so that the office can not be filled by an appointee from an in- ferior grade other than himself. lb. (469). 47. Quartermaster - General's assistant — Bank.— Section 11 of the act of March 2, 1899 (30 Stat. 979), takes from the four principal assistants of the Quartermaster-General the rank of colonel and the increased rank of the Quartermaster on the staff of the Com- manding General of the Army, given them by the act of July 7, 1898 (30 Stat. 715). 22 Op. 381. 48. Inspector-General's Department. — The act of December 12, 1878 (20 Stat. 257), limits the nomination of brigadier-general in the In- spector-General's Department to the senior officer of that Department. Provisions of that act compared with those of section 1193, Revised Statutes, and distinction between them indicated. 17 Op. 2. 49. Paymaster-General — Ad interim appoint- ment. — A vacancy in the office of Paymaster- General, created by retirement, may be filled by an ad interim appointment or assignment under the provisions of section 179, Revised Statutes, said retired officer may be said to be "absent" within the meaning of that section. 19 Op. 500. 50. Paymaster's Department. — Belative rank in the Paymaster's Department of the Army, as between officers having the same grade and date of appointment and commis- sion, was regulated by the act of March 2, 1867, 14 Stat. 434 (sees. 1219 and 1292, Rev. Stat.), and was determined by length of service as a commissioned officer, computed accord- ing to the provisions of that act. 17 Op. 10. 51. Same. — Except as between such offi- cers as have the same date of appointment and commission, the matter of relative rank was left by that act to be governed by the 16 AEMY, II, a, b. dates of the commissions under which the officers are at the time serving. lb. See also Army II, d, 2 — Pay accounts of officers. 52. Paymaster of the Army — Payment to a soldier of his retained pay. — The accounting officers of the Treasury should allow a pay- master of the Army credit for payment made by him to a soldier of his retained pay under section 1281, Bevised Statutes, where the lat- ter has received an honorable discharge, al- though it may appear that after enlisting the soldier deserted, but was restored to duty without trial and served out the full term of his enlistment. 19 Op. 567. 53. An Army quartermaster may lawfully pay the accounts of land-grant railroads for army transportation without previous action thereon .by the accounting officers of the Treasury. 19 Op. 264. See also Treasury Department, II, h. 54. Professors at the Military Academy at West Point are commissioned officers of the Army and entitled to pension under section 4693, Revised Statutes. 17 Op. 359. b. Appointment, Promotion, Transfer, etc. 55. Appointment applies to original entry and not to promotion thereafter. — The word ' 'ap- pointment," as used in section 1219, Bevised Statutes, applies only to the original entry of an officer of the Army into the regular service or his subsequent appointment by selection, and does not include his appointment on pro- motion thereafter made. 17 Op. 196. Opinion of Attorney-General Devens, of Feb. 21, 1881 (17 Op. 34) , dissented from. lb. 56. Appointment — Original vacancy. — 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 Feb- ruary 2, 1901. He accepted the appointment on June 27, 1901, and resigned on July 8 fol- lowing. B, 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 con- ferred 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 de- tail under the provisions of section 26 of the last-mentioned act. 23 Op. 574. 57. Same — Captain in the Quartermaster's Department — Confirmation of Senate not neces- sary. — It being the intention of Congress, as expressed in the sixteenth section of that act (31 Stat. 751), not to require confirmation of appointments in the grade of captain in the Quartermaster's Department, the appoint- ment of Captain A was not a recess appoint- ment, the concurrence of the Senate was not necessary, and the action of the President alone constituted a final and complete ap- pointment, lb. 58. Same — Subsequent vacancies must be filled by promotion. — The only vacancy which the President is authorized to fill under sec- tions 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. lb. 59. Appointment of officers in Volunteer Army. — Where less than a majority of the members of a State militia organization enlist in the Volunteer Army of the United States under the. act of April 22, 1898 (30 Stat. 361), they can not be said to have enlisted "in a body;" and the provision of the act as to the appointment of officers by governors does not apply. 22 Op. 146. 60. Same. — The term "officers" in the pro- visions of the above-named statute, author- izing the appointment in certain cases of militia officers to corresponding grades in volunteer organizations, applies to commis- sioned officers only. lb. 11. Same. — Officers of militia organizations are entitled to appointments of corresponding grades in the Volunteer Army even though the former were raised and organized in conse- quence of and subsequent to the call of. the President for volunteers. lb. See also Army, III. 62. Same. — Where a volunteer regiment is made up of separate companies or battalions contributed by two or more States, the governor of each State is entitled to appoint the officers of the companies or battalions by them respectively contributed, but the regimental officers would be appointed by the President. The same would apply to battalions similarly constituted. lb. ARMY, II, b. 17 63. Same. — In all cases where appointments to such organizations are to be made by the President, the same law as to number and rank of officers applies that applies to regi- ments of the Regular Army. lb. 64. Reappointment of Rev. Charles M. Blake as post chaplain. — It is not competent for the President, with the concurrence of the Sen- ate, now (in May, 1881) to reappoint Rev. Charles M. Blake a post chaplain in the Army as of the 28th day of September, 1878, so as to entitle him to pay from that date. 17 Op. 97. 65. Acceptance. — A former army officer appointed from civil life to the position of major of engineers in the Army, under the act of February 14, 1889 (25 Stat. 670), and there- upon placed on the retired list of the Army as of that grade, must take the oath required by section 1756, Revised Statutes, which act would be in law a legal acceptance of the office, and, as such, a sufficient formal accept- ance. 19 Op. 283. 66. The acceptance of an appointment as Chief of the Record and Pension Office of the War Department, with the rank and pay and allowance of a colonel, by a surgeon of the United States Army creates a vacancy in the former office. 20 Op. 427. 67. Nomination for advancement — Deceased retired army officer — Approval of Senate. — The President may send to the Senate for approval of his action the names of officers on the retired list of the Army nominated by him for advancement under the act of April 23, 1904 (33 Stat. 264), after the adjournment of the last session of Congress, but who died before the convening of the present session; and, upon approval by the Senate, the per- sonal representatives of the deceased officers will be entitled to receive the advanced pay due such officers without further action by Congress. 25 Op. 312. 68. Same. — Where, however, a person is appointed to office either during a session or in a recess of the Senate and dies before con- firmation, his personal representatives must be remitted to Congress for the payment of salary earned by such officer. 76. 69. Same.— The opinion of July 11, 1904 (25 Op. 185), holding that an advancement under the act of April 23, 1904, of an officer on the retired list of the Army does not create or constitute an office and is not accomplished 18456—08 2 by an exercise of the appointing power, con- firmed, lb. 70. Promotion is a mode of appointment, and it is not less an appointment because .the person promoted has previously held another appointment in the service. 17 Op. 34. (But see 17 Op. 196). 7 1. Promotion — Assistant Surgeon - Gener- al — What officers eligible. — The vacancy exist- ing iu the office of assistant surgeon-general may be filled by appointing thereto any one of the surgeons with the rank of colonel or the chief medical purveyor (all of whom hold offices of the same grade in the Medical Corps as that of the vacant office), or by promoting thereto the senior officer in the Medical Corps having the rank of lieutenant-colonel, which is the next grade below. 17 Op. 465. • 72. Same. — No officer possesses an inchoate right to the vacant office of assistant surgeon- general. The senior surgeon among those holding the rank of lieutenant-colonel, how- ever, has a right to the vacancy in the grade to which that office belongs; so that the office can not be filled by an appointee from an inferior grade other than himself. lb. (469). 73. Promotion — Transfer. — Where there are two or more offices of the same grade in a corps, each requiring a separate commission, on a vacancy occurring in such grade the rules of promotion do not preclude the appointing power from determining to which of these offices the senior in the next grade below shall be appointed. An incumbent of one of them may be transferred by appointment to another which is vacant without prejudicing the rights of such senior, whose claim to promotion would be fully met by appointing him to either. 17 Op. 465. 74. Promotion — Claim based upon errors in former promotions. — Where a lieutenant-colo- nel, though his commission is junior in date to that of another lieutenant-colonel, claims that he is entitled to the next colonelcy over the latter, by reason of errors committed in his promotion in 1847 and 1867: Advised that such errors, if any, can not now be rectified by disregarding the fact that the latter, in virtue of his present commission, is senior to the former in the line of promotion, and that his claim is therefore inadmissible. 17 Op. 611. 75. Promotions. — There is no warrant for holding that promotions are appointments 18 ARMY, II, b, c. where the officers promoted are in different departments of the Marine Corps, but are not appointments where they are in the same department. 24 Op. 74. 76. Promotion. — The rule prescribed in paragraph 20, Army Regulations of 1863, by which "promotions to the rank of captain shall be made regimentally , ' ' is not in conflict with the provisions of section 1204, Revised Statutes, and remains in full force. 17 Op. 65. 77. Same. — The regulations and legislation concerning the promotion of subaltern com- pany officers, from the year 1801 to the pres- ent time, reviewed, and the practice there- under stated. lb. 78. Muster. — 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 occurring after the date from which an officer was to take rank. 23 Op. 332. 79. Same — "Vacancy." — The word "va- cancy" means a legal vacancy, one "to which he could be appointed or commissioned" in accordance with the then existing law and regulations. lb. 80. Same. — The rank of an officer con- structively 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 pro- moted, discharged, or is disposed of in some other manner provided by law. lb. 81. Same — Vacancy must have existed at time of appointment. — The second proviso re- quires that a vacancy in the grade to which he was appointed must have existed at the time of his appointment or commission, lb. 82. Same — Strength of command. — 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. 26. 83. Assignment.— The Secretary of War is authorized to assign recent graduates of the United States Military Academy, noncommis- sioned officers, and civilians to the cavalry or infantry, although "additional" second lieu- tenants remain in the engineers and artillery, and no vacancies exist in the last-named branches. 20 Op. 149. 84. Same. — The words "such arm or corps" in the act of May 17, 1886 (24 Stat. 50), refer to the arm the duties of which the graduate has been adjudged competent to perform. lb. 85. Same. — The word "vacancy" used in the act contemplates a vacancy in the arm of the service in which the additional second lieutenant is then commissioned. lb. 86. Detail. — It is within the discretion of the President, under the act of November 3, 1893 (28 Stat. 7), to make the detail of officers of the Army for colleges wholly from the active list of the Army, or wholly from retired officers who, ' ' upon their own application, " may be detailed for those services, or from both lists in such proportion as he sees fit and the ap- plications for such detail from the retired officers will allow. 20 Op. 687. 87. Same. — No other limit than 100 is set to the number of such officers that can be de- tailed from either list. lb. 88. Same. — The "five years' service in the Army," required by section 1225, Revised Statutes, as well as the limit of detail to four years, applies to officers detailed from either list. lb. 89. Same. — Officers of the retired list de- tailed for college duties prior to November 3, 1893, and still on duty under such detail, are entitled to full pay, beginning from the passage of the act. lb. 90. Same.— Section 1260, Revised Stat- utes, refers to additional compensation from the United States, not from the colleges; lb. c. Resignation, Retirement, Dismissal, etc. 91. Resignation — Acceptance. — The resig- nation of a military officer does not take effect until accepted by the proper superior au- thority. 22 Op. 237. 92. Retirement. — An aggravation of a dis- ease from jolting in a saddle during active service is not "wounds received in battle," within the meaning of section 32 of the act of July 28, 1866 (14 Stat. 337), which pro- ARMY, II, c. 19 vides for the retirement of army officers upon the full rank of the command held by them at the time such wounds were received. 17 Op. 7. 98. Same. — The opinion and recommendar tion of an examining board, made under a mis- conception of the law, can not control distinct statutory provisions, as in section 32, which limits retirements to instances where the disability was "occasioned by wounds re- ceived in battle." lb. 94. Retirement — Insanity — Subsequently wholly retired — Restoration to retired list. — Where an officer in the Seventh Infantry, having been found by a retiring board "in- capacitated for active service from insanity, which insanity is not incident to the service," was retired, by direction of the President, ' ' on pay proper alone," under the act of August 3, 1861, and subsequently, upon request of the officer, the order of retirement was, by direc- tion of the President, so amended as to wholly retire him from service with one year's pay and allowances, and on a still later date, by direction of the President, the order wholly retiring the officer was declared void on the ground that the officer was insane when he requested it; and he was restored to the re- tired list in accordance with the original or- der: Advised that after the President had once acted upon the finding of the retiring board by placing the officer on the retired list with pay proper alone, his power over the case was exhausted, and the subsequent order wholly retiring him was void for want of authority; and that therefore the officer is entitled to be borne on the retired list con- formably to the order retiring him on pay proper alone. 19 Op. 203. 95. Retirement. — An examination of a lieu- tenant of the Army by an examining board to determine his fitness for promotion, by which it was found that he was incapacitated for active service on account of certain phys- ical disabilities, which findings were ap- proved by the proper military authorities, but not by the President, was not such an ex- amination as is required by law for the retire- ment of an officer from active service. 21 Op. 385. 96. Same. — No officer can be retired from the Army upon the report of any board, even if approved by the Secretary of War, except it is also approved by the President. lb. 97. Same. — If he recovers from such dis- abilities, the Secretary of War may allow him a reexamination for promotion. lb. 98. Same. — A board constituted as a board of examination for promotion can not be in- vested with power of a retiring board, which the law requires to be differently constituted. lb. 99. Retirement — Age limit, — An officer of the Regular Army, holding at the same time a- commission as a general in the Volunteef Army, under section 11 of the act of April 22, 1898 (30 Stat. 363), may continue to hold and exercise his commission in the Volunteer Army after having been placed upon the retired list by reason of the age limit. 22 Op. 176. 100. Retirement — Age. — The act of June 20, 1882 (22 Stat. 117), relative to retirement, applies to an officer of the Regular Army who is 64 years of age, temporarily serving under a volunteer commission, without affect- ing his status in the volunteer service, but does not apply to a volunteer officer, not in the Regular Army, who is 64 years of age. 22 Op. 199. 101. Same. — The volunteer service con- templated by the above and similar acts was clearly the volunteer service of the civil war, and can not be held to be prospective and to have anticipated a new volunteer service. lb. Opinion of August 3, 1899 (22 Op. 176), reaffirmed. 102. Retirement — Executive action after statute repealed. — The President has no power to retire Lieutenant-Colonel Freudenberg with the rank and pay of colonel of infantry from the date of his first retirement, Decem- ber 15, 1870. Mistakes, if any, made in the execution of an act which is subsequently repealed can not be rectified by Executive action after such repeal. 17 Op. 60. 103. Retired officer accepting civil posi- tion. — -A former army officer appointed from civil life to the position of major of engineers in the Army under the act of February 14, 1889 (25 Stat. 670), and thereupon placed on the retired list of the Army as of that grade, must take the oath required by section 1756, Revised Statutes, which act would be in law a legal acceptance of the office and, as such, a sufficient formal acceptance. 19 Op. 283. 104. Same. — The provisions of sections 1259, 1763, 1764, and 1765, Revised Statutes, 20 AEMY, II, c. do not require the annulment of the appoint- ment held by such officer as agent in charge of river and harbor work at Wilmington, Del., and that he be relieved from that work. lb. 105. Same. — A retired officer of the Army is not ineligible to hold an appointment to a civil office. lb. 106. Retirement after acceptance of civil office — Captain Badeau. — An army officer who was appointed assistant secretary of legation at London, and after acceptance was placed on the retired list as a captain, and later became consul-general, his name being borne on the retired list continuously from May 25, 1869, the date of his retirement, to May 7, 1878, when he was dropped from the Army under section 1223, Revised Statutes, but sub- sequently was restored to the retired list by the Secretary of War, ceased to be an officer of the Army, by force and effect of section 2 of the act of March 30, 1868 (15 Stat. 58), when he accepted the appointment and assumed the duties of secretary of legation. 19 Op. 609. 107. Same — Attempted restoration. — Nei- ther the act of March 3, 1875 (18 Stat. 512), section 2, nor the action of the Secretary of War above referred to, operated to reinstate him as such officer, and his name is not law- fully borne on the retired list of the Army. lb. 108. Same.— The act of March 30, 1868, applied to officers on the retired as well as on the active list, and it made the acceptance of the diplomatic officer vacate the military office eo instanti; the vacancy thus created necessarily continuing until filled in the usual way. lb. 109. Same.— The act of March 3, 1875, should be construed to have a prospective effect only. lb. 110. Retirement. — The claim of Gen. Schuyler Hamilton to be placed on the retired list of the Army, based on his appointment to the staff of Brevet Lieu- tenant-General Scott, as a military secretary, is inadmissible under the laws in force; he not now being an officer on the active list by virtue of that appointment. 14 Op. 506. 111. Same. Opinion of November 28, 1874 (14 Op. 506), upon the claim of Gen. Schuyler Hamilton to be borne on the re- tired list of the Army, reaffirmed. 17 Op. 9. 112. Retired army officer — Acceptance of a diplomatic or consular appointment. — The solu- tion of the question whether an officer on the retired list of the Army can accept a diplo- matic or consular appointment and still hold his position on the retired list with rank and pay is a matter of his private concern only, and not a subject with which the United States can be concerned until some action has been taken by such officer. 21 Op. 510. 113. Retired army officers — Advancement — Rank and pay. — An officer of the Army retired under the provisions of the act of October 1, 1890 (26 Stat. 562), for physical disabilities contracted in the line of duty and placed on the retired list of the Army with the rank and retired pay of one grade above that actu- ally held by him at the time of retirement, is not entitled to an additional advancement under the provisions of the army appropri- ation act of April 23, 1904 (33 Stat. 264). 25 Op. 158. 1 14. Advancement — Retirement — Rank. — The act of October 1, 1890 (26 Stat. 562), does not authorize the advancement of an officer, found physically disqualified, to the next higher grade, when his right to such advance- ment has accrued, and, having been so ad- vanced, to be retired with the rank of such higher grade. 25 Op. 514. Opinion of March 26, 1904 (25 Op. 158), adhered to. lb. 115. Retired army officer — Advancement — Public office.— Officers of the Army on the re- tired list hold public office; but an advance- ment of such an officer, as authorized by the act of April 23, 1904 (33 Stat. 264), does not create an office and is not accomplished by an exercise of the appointing power. 25 Op. 185. 116. Same — Rank and pay. — The Attor- ney-General declines to express an opinion upon the question whether a retired officer advanced in rank aud pay by the Executive under the act of April 23, 1904, may be paid at the advanced rate before the Senate has consented to the advancement, as that ques- tion has been decided by the Comptroller of the Treasury, whose decision, under section 8 of the act of July 31, 1894 (28 Stat. 208), is conclusive in law. lb. 117. Number to be retired each year — How computed. — In determining whether the limit of 400, prescribed by section 7 of the act of June 18, 1878 (20 Stat. 150), as the number of army officers to be retired each year, has been reached or not, the number retired ARMY, II, c. 21 under the act of June 30, 1882 (22 Stat. 117, 118 ) , must always enter into the computation. 17 Op. 421. 118. Same. — No retirement can lawfully be made under the laws existing prior to the act of June 30, 1882, when the number already on the retired list amounts to 400; although, by retirements under that act, the list is sub- ject to temporary augmentation beyond the limit of 400. 76. Retired List. For details from, for col- leges, see Akmy II, b, 86-90. Pay, etc. See Army II, d, 2. 119. Honorable muster out — Right tolatle. — Persons who served during the rebellion in the Army of the United States as officers in the volunteer service and have been honor- ably mustered out of such service, are entitled to bear the official title, and, upon occasions of ceremony, to wear the uniform of the highest grade they have held in the volunteer service. 21 Op. 579. 120. Commission in Volunteer Army not vacated because officer holds civil office. — The commission of the attorney-general of the State of South Dakota as an officer in the Volunteer Army is not vacated by reason of section 1222, Revised Statutes. 22 Op. 88. 121. Same. — The provision of section 1222 that no officer of the Army on the active list shall hold any civil office, etc., applies only to officers of the Regular Army. lb. 122. Dismissal. — Power of the President under section 17 of the act'of July 15, 1870 (16 Stat. 319), to drop an officer from the rolls of the Army, considered. 17 Op. 13. 123. Same.— Neither the act of March 3, 1865 (13 Stat. 487), nor that of July 13, 1866 (14 Stat. 90), applies to cases expressly and specifically provided for by section 17 of the act of July 15, 1870 (16 Stat. 319). lb. 124. Summary dismissal — Revocation of order — Subsequent service — Retirement — Ineli- gible. — Where, after summary dismissal of an officer from the service, the order of dismissal was revoked, and (the vacancy not having been filled in the meantime) the officer returned to the position from which he was dismissed and continued to serve therein for over one year, when he was retired under the provisions of the act of August 3, 1861: Advised that the dismissal created a vacancy which could not otherwise be filled than by an appointment with the advice and consent of the Senate; thatthe subsequent revocation of that order was ineffectual to restore the officer to his former position in the Army; that when, afterwards, he was put on the retired list he was not a commissioned officer of the Army, and was therefore ineligible to a place thereon ; and that, accordingly, he is not entitled to be borne on such list. 19 Op. 203. 125. Indirect dismissal. — Where A, an offi- cer 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 Sen- ate, the appointment of B operated to super- sede A, who ceased to be an officer after the date on which that appointment took effect. 24 Op. 89. 126. Discharge. — A discharge of an officer from the military service, under section 3 of the act of July 15, 1870 (16 Stat. 317) , in order to be valid, must, like a resignation, be founded on an offer on the one part and an acceptance on the other. 18 Op. 311. 127. Same — Offer rejected and later acted upon is invalid. — Accordingly, where an assist- ant surgeon, in September, 1870, offered to take the benefit of that act, and in November following his offer was virtually rejected, an order subsequently (in December, 1870) issued discharging him from service is held to be invalid and his status in the service unaf- fected thereby. lb. 128. Dropped — Revocation of the order, after another has been appointed to the va- cancy, ineffectual. — Where a captain in the Fourth Infantry was with the advice and consent of the Senate appointed major in the Seventh Infantry, vice L dropped, and after- wards the President revoked the order drop- ping L and directed that he be restored to his former commission to fill a vacancy of major in the Eighteenth Infantry, to date from July 28, 1866, and at the same time, by direction of the President, L was placed on the retired list as major: Advised that the revocation by the President of his order dropping L was ineffectual to restore him to the Army and place him on the retired list, and that he is not entitled to be borne thereon. 19 Op. 202. 22 ARMY, II, d, 1. d. Rank and Pay, etc. 1. Rank. 129. Section 11 of the act of March 2, 1899 (30 Stat. 979), takes from the four principal assistants of the Quartermaster-General the rank of colonel, and the increased rank of the quartermaster on the staff of the Command- ing General of the Army, given them by the act of July 7, 1898 (30 Stat. 715). 22 Op. 381. 130. The rank of an officer constructively mustered into the service of the United States under the provisions^of the act of February 24, 1897 (29 Stat. 593) 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. 23 Op. 331. 131. Bank. — Previous to the Act of March 2, 1867 (14 Stat. 434) rank in any grade in the Army was determined by date of commis- sion or appointment; and where commissions were of the same date, then, as between offi- cers of the same regiment or corps, by the order of appointment. 17 Op. 362. 132. Same.— That act (sec. 1219 Rev. Stat. ) introduced a new rule, cumulative in its char- acter, for determining relative rank as be- tween officers "having the same grade and date of appointment and commission," which, as regards officers of the same regi- ment or corps, operates only where such offi- cers, being of the same grade and date of ap- pointment and commission, have (one or more) "actually served, whether continu- ously or at different periods, as a commis- sioned officer of the United States," etc. Where none of them, when appointed, had thus actually served, the former rule (i. e., order of appointment) would still be appli- cable in fixing their relative rank in the corps, lb. 133. Relative rank where the same rank was attained on the same day.— rOpinion of May 18, 1882 (17 Op. 362), viz, that where certain assistant surgeons had attained the rank of captain on the same day, but whose appoint- ments and commissions were not of the same date, their relative rank as between them- selves was not determined by the provisions of section 1 of the act of March 2, 1867, 14 Stat. 434 (sec. 1219, Rev. Stat.), but by the date and order of their appointment; reaf- firmed. 17 Op. 402. 134. Same. — Combined volunteer and regu- lar service. — Under section 17 of the act of July 28, 1866 (14 Stat. 334), an assistant sur- geon who served as such less than three years in the Regular Army, or less than three years in the volunteer forces, did not become immediately entitled to the rank of captain, although his volunteer and regular service, when cornbined, may have amounted to three years, lb. 135. Same. — But by the second section of the act of March 2, 1867 (14 Stat. 435), the officer would have a right to have his volunteer service computed, and if at the date of that act this service, united with his service in the Regular Army, made three years, he would then be entitled to the rank of captain. Thiaprovision, however, did not operate retro- spectively, so as to affect or alter the previous relations of the officer in the service, lb. 136. In fixing the relative rank of officers of the same grade and date of commission, under the act of March 2, 1867 (14 Stat. 434; sec. 1219, Rev. Stat. ) , constructive service as a commissioned officer is not to be considered. 17 Op. 52. 137. Same.— The terms of the statute, "actually served," are used ex industria, and are intended to prevent any service purely constructive in its character from affecting the relation between officers of the same date. 26. 138. Belative rank in the Paymaster's De- partment of the Army, as between officers having the same grade and date of appoint- ment and commission, was regulated by the act of March 2, 1867 (14 Stat. 434; sees. 1219 and 1292, Rev. Stat), and was determined by length of service as a commissioned officer, computed according to the provisions of that act. 17 Op. 10, 12. 139. Same.— Except as between such offi- cers as have the same date of appointment and commission, the matter of relative rank was left by that act to be governed by the dates of the commissions under which the officers are at the time serving. lb. 140. Relative rank.— Y, B, and S were second lieutenants in different infantry regi- ments, ranking in the order named, accord- ing to dates of their respective appointments and commissions. They were all promoted ARMY, II, d, 1, 2. 23 to be first lieutenants in their respective regi- ments as of the same date, June '2g, 1878. S, who was the junior second lieutenant, claimed to be the senior first lieutenant under section 1219, Revised Statutes, because of the greater length of service as a commissioned officer prior to date of promotion : Held that the rule prescribed by that section for deter- mining relative rank as between officers of the same grade and date of appointment and commission applies to appointments on promo- tion as well as to original appointments ; and, consequently, that S ranked the other first lieutenants referred to. 17 Op. 34. 141. Same. — Promotion is a mode of appoint- ment, and it is not less an appointment be- cause the person promoted has previously held another appointment in the service, lb. (But see 17 Op. 196.) 142. The relative rank of officers in the military service of the United States, under section 1219, Revised Statutes, must be de- termined by reference to the time of muster in, and not from the time of enrollment. 23 Op. 406. ( Modifying 23 Op. 232. ) 143. Same. — Legislation supplementary to section 1219, Revised Statutes, being 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. lb. 144. Same — Beimbnrsement. — This sup- plemental legislation was in the nature of a recognition of an equitable claim to reim- bursement for services which were rendered after enlistment and before muster in or accept- ance of their commissions, and has reference only to volunteers under the act of April 22, 1898 (30 Stat. 361). lb. 145. In fixing relative rank between offi- cers 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." 23 Op. 232. 146. Service without formal commission. — 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 com- missioned officer. lb. ' 147. Same. — 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 Stat. 361), began on the day of their enrollmentand joining for service, lb. 148. Same. — The service of officers of the ten volunteer regiments organized under sec- tion 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. lb. 149. Relative rank — Promotions. — The mere promotion of two officers in different departments of the Army does not, under sec- tions 1603 and 1219, Revised Statutes, disturb their preexisting relative rank. 24 Op. 74. 150. Same. — Section 1219, Revised Statutes, does not purport to regulate merely the rela- tive rank of officers in the same department of the Army, but is intended to fix the relative rank of the various officers of different depart- ments of the Army. lb. 151. Same. — There is no warrant, there- fore^ for holding that promotions are appoint- ments where the officers promoted are in dif- ferent departments of the Marine Corps, but are not appointments where they are in the same department. lb. 152. Brevet rank— Precedence and com- mand. — Where an army officer is placed on duty according to his brevet rank by special assignment of the President, he is, while thus assigned, entitled to precedence and com- mand according to his brevet commission, even over an officer holding a full commission of the same rank as the brevet, but of junior date. Thus a colonel who holds a brevet commission as major-general of the date of March 2, 1867, and who is by the President specially assigned to duty according to his brevet rank, takes precedence over an officer who holds a full commission of major-gen- eral dated November 25, 1872. 17 Op. 39. Brevets. See also Aemy, II, a — Judge- Advocate. 2. Pay — Pay Accounts. 153. Longevity pay. — In computing the longevity pay of officers of the Army, under the provision in the act of February 24, 1881 (21 Stat. 346), declaring that "the actual time of service in the Army or Navy, or both, shall be allowed all officers, etc:" Held that the actual time of an officer's service as a 24 ARMY, II, d, 2. cadet at the Military Academy should not be allowed ; that where the officer served as an assistant civil engineer in the employ of the War Department on the Florida coast and elsewhere, the actual time of his service in that capacity should not be allowed. 17 Op. 93. (But see U. S. v. Morton, 112 U. S. 1.) 154. Longevity pay — Eeopening of settle- ment. — Where a former cadet at the Military Academy who served as such from July 1, 1865, to June 15, 1869, was appointed a sec- ond lieutenant, and has ever since served as a commissioned officer in the Army, presented a claim in February, 1884, for increased lon- gevity pay under any law allowing credit for cadet service, and bj' settlements made in April, 1885, was allowed an increase com- mencing from February 24, 1881, on a con- struction of law since declared by the Supreme Court, in the case of United States v. Watson (130 IT. S. 80) , to be erroneous, after which decision he filed a claim for longevity pay due under said decision : Held that the settle- ments made in April, 1885, can not be reopened upon the ground that they proceeded on a mis- taken view of the legislation governing the subject involved. 19 Op. 439. 155. Pay of contract surgeon. — As a general rule, a contract surgeon is entitled to pay only from the time he enters upon duty under his contract. 17 Op. 461. 156. Same. — The maximum fixed by para- graph 1305 of the Regulations of 1863, for the compensation of contract surgeons continued up to February 17, 1881, but thereafter com- pensation at a rate exceeding such maximum was allowable. lb. 157. Pay of chaplain — Amount drawn prior to date of acceptance. — The amount drawn by Charles M. Blake for pay as chaplain in the Army from May 14, 1878, to the date of his acceptance of appointment as post chaplain, with advice and consent of the Senate (May 23, 1881), may be charged against him and withheld from his pay thereafter accruing. 17 Op. 152. 158. Same. — Semble, however, that he may be allowed the benefit of his actual service from June 21, 1878, to March 4, 1879, for longevity. lb. 159. Additional pay. — An officer in the Ord- nance Department who, in addition to his regu- lar duties as ordnance storekeeper, acted as assistant commissary at the Watervliet Arsenal by virtue of post orders, is entitled under sec- tion 1261, Revised Statutes, to receive $100 per year in addition to the pay of his rank during the time he performed services as as- sistant commissary. 17 Op. 43. 160. Retired army officers' promotion — Pay. — Officers of the Army, retired under the act of April 23, 1904 (33 Stat. 264), who were duly nominated for promotion by the President for this purpose, and confirmed by the Senate on December 16, 1904, "to date from April 23, 1904," are entitled, respectively, to the pay of the higher grade to which they have been promoted, from the date of the act, viz, April 23, 1904. 25 Op. 299. 161. Same. — The general rule is that laws speak from the date of their enactment, and where something remains to be done, not in- consistent with a relation back when it is done, the general rule maybe applied, lb. 162. Retired army officer, Advanced in rank and pay under act of April 23, 1904 — Pay- ment before confirmation by Senate. — The Attor- ney-General declines to express an opinion upon the question whether a retired officer advanced in rank and pay by the Executive under the act of April 23, 1904, may be paid at the advanced rate before the Senate has consented to the advancement, as that ques- tion has been decided by the Comptroller of the Treasury, whose decision, under section 8 of the act of July 31, 1894 (28 Stat. 208), is conclusive in law. 25 Op. 185. 163. Retired army officer — Congressman. — The question whether a Congressman can receive pay as a retired army officer is one of grave doubt, which only the determination of the Supreme Court can satisfactorily settle. 20 Op. 686. 164. Pay and allowances of officers serving with troops. — The phrase "troops operating against an enemy," as used in section 7 of the actof April 26,1898(30 Stat. 365), was intended to apply to all instances where the troops of the United States are assembled into' separate bodies, such as regiments, brigades, divisions, or corps, for the purpose of carrying on and bringing to a conclusion the war with Spain. 22 Op. 95. 165. Same. — If the operations of the troops are with the direct object of assisting in the military measures of the Government for sub- duing the forces of Spain, they can, within the reasonable intendment of this act, be consid- ARMY, II, d, 2. 25 ered as operating against an enemy, although such operations may not be direct and are in the nature of necessary component steps, though remote, in one great military objective, lb. 166. Same. — Any troops assembled at camps in the United States for the present war par- poses can properly be considered as operating against an enemy, although their present service is confined to the ordinary routine of camp. life. lb. 167. Officers exercising, under assignment in orders, » command above that pertaining to their grade, in connection with the Army of the United States, if performing no other service of a domestic nature, but held in readiness to resume hostilities, are entitled to the increased pay and allowance provided for by the act of April 26, 1898 (30 Stat. 365). 22 Op. 258. 168. Overpayment — Against whom charge- able. — Where an officer's account for the same month was paid twice by different pay- masters — one payment being made in Novem- ber and the other in December: Held that the paymaster who made the last payment is chargeable with the overpayment. 17 Op. 425. 169. Same.— In such case the Government may hold liable for the overpayment both the officer who made and the officer who received the payment. lb. 170. Same. — As between two conflicting claims to a credit for a disbursement made on the same day, which might then have been lawfully made by either one of the claim- nants, but not by both, regard may be had to the actual time of day when the payment by each was made in order to determine which had priority. lb. 171. Same — Where Government recovers part of overpayment. — When the amount of overpayments to an officer are charged to" the paymasters making them and the Govern- ment afterwards recovers a part of the loss sustained by such overpayments, the balance of the loss should be apportioned to all of these paymasters pro rata. lb. 1T2. Overpayment. — Opinion of July 27, 1882 (17 Op. 425), on certain questions con- cerning jiaymasters' accounts, reconsidered. 17 Op. 603. 173. Same — No knowledge of former pay- ment. — A pay account of Lieutenant M, for the month of August, 1877 (he being on duty within the limits of the New York pay dis- trict), was paid by the chief paymaster at New York, and soon afterwards a second pay account of Lieutenant M for the same month was paid by another paymaster there, who had no knowledge of the previous payment, nor was it practicable for him to obtain such knowledge: Held that the last-mentioned . paymaster is not chargeable with the amount so paid by him, but that, by virtue of the Army Regulations (paragraph 1006, Regula- tions of 1863; paragraph 1652, Regulations of 1881) he is entitled to have the same passed to his credit. lb. . 174. Same — When officer was not serving in the pay district, — A third account of Lieu- tenant M for the same month was paid to an assignee by a paymaster at Charleston, S. C. , the latter knowing that Lieutenant M was not then serving within the Charleston pay dis- trict. Viewing this case in connection with paragraph 1348, Regulations of 1863, and cer- tain circulars from the Paymaster-General's Office mentioned: Held that the payment of this account was wholly unauthorized, and that the paymaster is properly chargeable there- with, lb. 175. Overpayment — As Major-General of volunteers after appointment as colonel in United States Infantry. — Where, in 1866, a major-general of volunteers was appointed colonel of United States Infantry and he ac- cepted and served as such until August, 1867, when he was mustered out of service as a \ major-general of volunteers, during which time he continued to draw the pay of a major- general: Held that the Government can not now set against his allowance for percentage increase so much of said pay received by him as major-general as represents the excess of what he should have received as colonel. The settlements of the accounting officers in this matter are conclusive upon the executive department of the Government. 17 Op. 448. 176. Overpayment. — Where an officer who was on leave of absence was by a new order placed "on a status of waiting orders " and drew full pay therefor for a period when he was only entitled to half-pay: Held that the difference .between full pay and half pay thus erroneously paid him can not be withheld in the adjustment of another and subsequent pay account. 18 Op. 158. 177. Same. — The case of Lieut. S. C. Rob- inson (18 Op. 158), reconsidered in the light 26 ARMY, II, d, 2, 3; e. of new and material facts; and it appearing that there has been no such settlement of his account as was heretofore supposed: Held that he is bound to refund the sum which has been paid him without authority of law. 18 Op. 229. 178. Pay accounts of officers— Assignment. — Where an army officer assigned his pay ac- counts in payment of certain indebtedness, which accounts the Paymaster-General de- clined to pay for the reason that on the ma- turity thereof the officer was in arrears to the United States: Held that the refusal of the Paymaster-General was in accordance with section 1766, Eevised Statutes. 17 Op. 30. 179. Same. — The statute does not require that, before payment is withheld, the officer shall be adjudged in arrears in a suit brought against him. lb. 3. Commutation for quarters — Mileage, etc. 180. Commutation for quarters during leave. — An officer in the enjoyment of quar- ters in kind at the commencement of leave (cumulative) taken under the act of July 29, 1876 (19 Stat. 102), does not become entitled to commutation upon the commencement of the leave. 17 Op. 41. 181. Same. — Nor does he become entitled to commutation if, during such leave, he vol- untarily abandons the use of the quarters in kind; nor if he vacates his quarters in kind at the command of his superior; nor if there are unoccupied quarters at the post or station that might properly have been assigned to him had no leave been granted. 76. 182. An officer of the Army .placed on waiting orders is not entitled to commutation for quarters under the proviso in section 9 of the act of June 18, 1878 (20 Stat. 151). 17 Op. 169. 183. ' Same. — The word "places," as used in that proviso, comprehends only military posts and stations, lb. 184. Contract surgeon — Bank of first lieu- tenant. — B was in the military service as a surgeon, under contract dated January 1, 1881, and on duty at the Washington Ar- senal, District of Columbia, from January 1 to April 30, 1881: Held that he was entitled, for that period, to the commutation for quarters allowed by law to an assistant surgeon of the rank of first lieutenant, if no public quarters were available for his ac- commodation. 17 Op. 461. 185. Traveling allowances, as authorized by paragraph 2280, Regulations of 1881, can be lawfully paid a contract surgeon where they constitute part of the contract. 17 Op. 461. 186. Mileage and commutation of quarters. — Under the income-tax law of August 27, 1894 (28 Stat. 553), mileage and commutation of quarters paid to officers of the United States Army are to be considered as parts of the incomes of such officers, and are to be added to other income in order to ascertain the total income. 21 Op. 112. 187. Allowance for forage — Eetired army officer. — Under the joint resolution of April 12, 1870 (16 Stat. 663), granting to Gen. Gabriel E. Paul (retired) "the full pay and allowance of a brigadier-general in the Army of the United States," that officer is not entitled to an allowance of forage. 17 Op. 390. 188. Same. — The clear intent of all the acts upon the subject of forage is to provide food for horses belonging- to officers engaged in active duty in the field or at military posts. lb. Artificial Limbs. See Artificial Limbs. e. Civil Office or Employment. 189. Position on a board created by a city ordinance. — Where an officer of the Army was tendered a place on a "board of ex- perts," created by a city ordinance to determine the most durable and best pave- ment for the streets of the city: Advised that, in view of the provisions of section 1222, Revised Statutes, which forbids officers of the Army accepting civil office, the place be not accepted by the officer. 18 Op. 11. 190. The detail of an officer of the Army to report to the President of the World's Colum- bian Commission, with a view to his assign- ment by the latter to the duties of an engineer in the preparation and construction of build- ings, grounds, etc., for the Columbian Ex- position, is within the prohibition of section 1224, Eevised Statutes, provided the perform- ance of such duties requires the officer to be separated from his company, regiment, or corps, or interferes with the discharge of his military duties. 19 Op. 600. ARMY, II, f; III. 27 191. Same. — Where a leave of absence is asked by an army officer, for the very pur- pose of enabling him to undertake the em- ployments prohibited by said section, the granting of such leave would be an evasion of the statute and be unwarranted. lb. See also Army, 103-106, 112, 120, 121, 163. f . Civil Service. \ 192. An army officer detailed for duty in a clerical position can not be considered as a member of the " classified service," and after separation therefrom can not be reinstated therein under Rule IX by reason of his serv- ice during the war. 22 Op. 672. See also II, c, 106. III. Volnnteer Army — Militia. 193. The service of officers of the United States Army who were formerly officers of State volnnteer organizations called into the service of the United States under the act of April 22, 1898 (30 Stat. 361), began on the day of their enrollment and joining for service. 23 Op. 232. 194. Service — The ten volunteer regi- ments. — The service of officers of the ten vol- unteer 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 per- sonally appeared for duty. lb. 195. Same. — The relative rank of officers in the military service of the United States, under section 1219, Revised Statutes, must be deter- mined by reference to the time of muster-in, and not from the time of enrollment. 23 Op. 406. 196. Same.— The acts of May 26, 1898 (30 Stat. 420), July 7, 1898 (30 Stat. 721), and March 3, 1899 (30 Stat. 1065), did not impli- edly amend that section nor change the mili- tary system of the United States. lb. 197. Same. — This supplemental legislation was in the nature of a recognition of an equi- table 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) . lb. 198. Same. — Opinion of September 22, 1900 (23 Op. 232), modified, holding that the officers of the volunteer or immune regiments referred to in the above-named acts were, in the interval between the enrollment and mus- ter-in or acceptance of their commissions, in the United States service within the meaning of section 1219, Revised Statutes. 26. (412). 199. Induction of State militia into the mili- tary, service of the United States. — Certain members of the Sixth Massachusetts Militia which was called into the service of the United States by proclamation of the Presi- dent of April 15, 1861, who failed to reach Washington, the place of rendezvous, were never inducted into the actual military serv- ice of the United States under that call, a formal muster-in being necessary. 24 Op. 651. 200. Same — Constructive service. — The question as to whether a constructive muster- in of militia might not have in some instances the same effect as a formal muster-in of mili- tia under a call by the President, not consid- ered, lb. 201. Discharge. — The Fifty-eighth Pennsyl- vania Begiment of Militia was not in the mili- tary service of the United States in such sense as to entitle an officer of that regiment to a certificate of discharge from the United States. 21 Op. 130. 202. Retirement — Age limit. — An officer of the Regular Army, holding at the same time a commission as. a general in the Volunteer Army under section 11 of the act of April 22, 1898 (30 Stat. 363), may continue to hold and exercise his commission in the Volunteer Army after having been placed upon the retired list by reason of the age limit. 22 Op. 176. 203. Same. — The law fixes no age limit for officers in the Volunteer Army. lb. 204. Same.— The act of June 20, 1882 (22 Stat. 117), relative to retirement, applies to an officer of the Regular Army who is 64 years of age, temporarily serving under a volunteer commission, without affecting his status in the volunteer service, but does not apply to a volunteer officer, not being in the Regular Army, who is 64 years of age. 22 Op. 199. 205. Same. — The volunteer service con- templated by the above and similar acts was clearly the volunteer service of the civil war, and can not be held to be prospective and to have anticipated anew volunteer service. lb. Opinion of August 3, 1899 (22 Op. 176), reaffirmed, lb. 206. The actof April 22, 1898 (30 Stat. 361 ), providing for temporarily increasing the mili- 28 ARMY, III. tary establishment of the United States in time of war, makes no provision for the ap- pointment of regimental officers where (regi- ments are made up by companies, troops, or battalions furnished by two or more different States. 22 Op. 135. 207. Same. — Regimental officers of such regiments as may be formed by contributions of companies from two or more States are to be appointed by the President of the United States, under the constitutional provisions which make him the Commander in Chief of the Army and Navy and which authorize him to appoint all officers of the United States whose appointment is not otherwise provided for by law. lb. 208. Appointment of officers. — Where less than a majority of the members of a State militia organization enlist in the Volunteer Army of the United States under the act of April 22, 1898 (30 Stat. 361), they can not be said to have enlisted "in a body," and the provision of the act as to the appointment of officers by governors does not apply. 22 Op. 146. 209. Same. — The term "officers" in the provisions of the above-named statute, au- thorizing the appointment in certain cases of militia officers to corresponding grades in volunteer organizations, applies to commis- sioned officers only. lb. 210. Same. — Officers of militia organiza- tions are entitled to appointments of corre- sponding grade in the Volunteer Army even though the former was raised and organized in consequence of and subsequent to the call of the President for volunteers. — lb. 211. Same. — Where a volunteer regiment is made up of separate companies or battalions contributed by two or more States, the governor of each State is entitled to appoint the officers of the companies' or battalions by them re- spectively contributed, but the regimental officers would be appointed by the President. The same would apply to battalions similarly constituted. lb. 212. Same — Number and rank of officers. — In all cases where appointments to such or- ganizations are to be made by the President, the same law as to number and rank of offi- cers applies that applies to regiments of the Army. lb. 213. Vacancies — Appointment. — Vacancies of regimental and company officers occurring in organizations from the several States and Territories after their muster into the Volun- teer Army of the United States, under the act of April 22, 1898 (30 Stat. 361), should be filled by commissions issued by the governors of the States or Territories to which the Or- ganizations belong. 22 Op. 109. 214. Removal. — When an organization of State militia, with regimental and company officers bearing commissions from the gov- ernor of the State in which organized, is re- ceived as a body into the service of the United States under the provisions of section 6 of the act of April 22, 1898 (30 Stat. 362) , the officers so commissioned and recognized by the mili- tary authorities of the United States remain in their several grades until vacancies con- templated by the law occur, and can not be removed at will by such governor. 22 Op. 225. 215. Officers — Grade. — Organizations of State militia, received as a body into the serv- ice of the United States as a part of the Vol- unteer Army under the act of April ^2, 1898 (30 Stat. 361), are to be maintained as re- ceived, and the officers of the same are enti- tled to enter the service with the grades which their commissions severally indicate. 22 Op. 536. 216. Displacement of officer by governor. — 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 en- tered the service of the United States, but he may fill any vacancy occurring in it. lb. 217. 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. lb. 218. Vacancy — Master in. — An officer com- missioned by the governor of a State to fill a vacancy as major occurring in such regiment in the field need not be mustered again into the service of the United States, he having been originally mustered into the service with the regiment as a captain. lb. 219. The commission of the attorney-gen- eral of the State of South Dakota as an officer in the Volunteer Army is not vacated by reason of a violation of section 1222, Revised Statutes, relating to the holding of civil office. This section applies to officers of the Regular Army only. 22 Op. 88. ARMY, III, IV, V, VI. 29 220. Distribution of arms. — Provisions of section 1661, Revised Statutes, and of the act of February 12, 1887 (24 Stat. 401), touching the distribution of arms to the militia of the several States and Territories, considered. 19 Op. 61. 221. Same. — Where a State or Territory had an unexpended balance to its credit, under the old law, on June 30, 1887, which still remains available, such balance can be drawn upon to supply ordnance stores to it. lb. 222. Same. —But where the quota belong- ing to any State or Territory, under the old law, has been overdrawn, the amount over- drawn is not to be charged to such State or Territory under the new law. lb. 223. The ordnance and other stores belong- ing to the several States, taken or accepted by the Government for use in the war with Spain, should not be returned in kind, but should be paid for at the price agreed upon, or, in the absence of an agreement, what they were worth. 22 Op. 372. 224. Honorably discharged — Title — TJni» form. — Persons who served during the rebel* lion in the Army of the United' States as officers in the volunteer service and have been honorably mustered out of such service, are entitled to bear the official title, and upon occasions of ceremony to wear the uniform of the highest grade they have held in the volunteer service. 21 Op. 579. 225. The last proviso of section 6 of the act of April 22, 1898 (30 Stat. 362), authorizing the organization of certain forces with special qualifications from the nation at large, con- templates such an organization of 3,000 men for the entire Army, and not the organization of such force under each call for volunteers. 22 Op. 161. See also United States, 58. IV. Signal Corps. 226. Fart of Army only in limited sense. — Officers and enlisted men of the Signal Corps (other than the Chief Signal Officer and officers detailed from the Army) are a part of the Army only in this sense, namely, that in general they are liable to such duties and entitled to such privileges, appertaining to the Army, as can be performed and enjoyed without severance from the Signal Service. 17 Op. 146. 227. Same. — They belong to a special service in the Army, and ar-e subject to military government ; but they are not by law transferable to ordinary military duty, and are organically separate and distinct from the Army proper. lb. 228. Extra-duty pay — No appropriation. — In the matter of the claims of Sergeant Robin- son and Corporal Speddin, of the Signal Corps, for extra-duty pay for services per- formed by-them from July 1, 1883, to Decem- ber 20, 1884, it appearing that Congress has made no provision for extra-duty pay to signal service men in either of the appropria- tion acts of March 3, 1883 (22 Stat. 603), and July 7, 1884 (23 Stat. 194), for the fiscal years ending June 30, 1884, and June 30, 1885, .respectively, or in any other appropriation act for the same fiscal years: Held that the claimants have no right to such pay for the period covered by their claims, unless the right is elsewhere conferred by statute, which does not appear 18 Op. 201. 229. Same. — The claimants being non- commissioned officers, and not employed on extra duty as overseers, their claims are not within section 1287, Revised Statutes, lb. V. Engineer Corps. 230. Promotion — Officer who failed in ex- amination not qualified because of continuous service. — An officer of the Engineer Corps who has unsuccessfully undergone examina- tion for promotion under section 1206, Revised Statutes, and in consequence has been sus- pended from promotion for one year as pro- vided by that section, is not, during the period of such suspension, qualified for pro- motion on account of continuous service under section 1207, Revised Statutes. 17 Op. 571. 231. The Chief of Engineers of the Army is not and never has been vested with author- ity to grant licenses for the erection of wharves along the river front of the city Of Washing- ton, D. C. 18 Op. 441. VI. Summary Courts. 232. Power of reviewing officer.— The act of October 1, 1890 (26 Stat. 648), to promote the administration of justice in the Army, 30 ARMY, VII, VIII, IX, X. does not give the reviewing officer power to mitigate or approve a part and disapprove a part of a sentence of a summary court, where the sentence was within the power of the court-martial to impose. 20 Op. 346. See also Coukts-Martial. VII. Military Commission. 233. Jurisdiction. — A military commission has no authority, since peace has been declared in the Philippines, to try a former officer for an offense committed against a native of those islands during the insurrection. 24 Op. 570. VIII. Army Eegulations. 234. New code of Army Regulations— Modi- fication of. — Section 37 of the act of July 28, 1866 (14 Stat. 337), directing a new code of regulations for the Army to be prepared, if not already repealed by force of section 5596, Revised Statutes, was superseded by the act of March 1, 1875 (18 Stat. 337), which in effect conferred authority to modify existing Army Regulations as well as to create new ones. 17 Op. 461. 235. Same. — The codification of ' ' The Regu- lations of the Army and General Orders," under section 2 of the act of June 23, 1879 (21 Stat. 34) , which was approved and pub- lished February 17, 1881, superseded the body of Army Eegulations promulgated in 1863. Hence paragraphs 1304, 1305, and 1306 of the latter regulations are not now in force. lb. 236. Far. 20, Army Eegulations of 1863 — Promotions made regimentally. — The rule pre- scribed in paragraph 20, Army Regulations of 1863, by which ' ' promotions to the rank of captain shall be made regimentally," is not in conflict with the provisions of section 1204, Revised Statutes, and remains in full force. 17 Op. 65. 237. The regulations and legislation con- cerning the promotion of subaltern company officers, from the year 1801 to the present time, reviewed, and the practice thereunder stated. lb. 238. General Orders, No. 79, November 26, 1892- -Reexamination of successful candi- dates. — A regulation can not be promulgated requiring a successful candidate who holds such certificate of eligibility to undergo a sec- ond examination after a specified time, the proviso in section 3 of the act of July 30, 1892 (27 Stat. 336), relative to two examinations, being intended to give a nonsuccessful com- petitor an opportunity to retrieve himself by a reexamination. 22 Op. 54. IX. Articles of War. 239. Article 58 — Homicide in Cuba by pri- vate in United States Army. — Article 58 of the Articles of War, which provides that "in time of war, insurrection, or rebellion * * * murder [inter alia] * * * shall be pun- ished by the sentence of a general court-mar- tial, when committed by persons in the mili- tary service of the United States," does not apply to the present situation of affairs with regard to Cuba. Therefore a private of the Second U. S. Artillery who committed homi- cide 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. 23 Op. 120. 240. Same. — Article 59 — Trial by Cuban courts. — 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. lb. 241. Article 59 — Soldier violating city ordi- nance. — A city ordinance is within the expres- sion "laws of the land," as used in the fifty- ninth article of war, and a soldier violating such an ordinance and escaping to a military reservation should be delivered on demand to the civil authorities for trial. 21 Op. 88. X. Examining Board. 242. Findings not approved by President — Retirement. — An examination of a lieutenant of the Army by an examining board to deter- mine his fitness for promotion, by which it was found that he was incapacitated for active service on account of certain physical disabil- ities, which findings were approved by the proper military authorities, but not by the President, was not such an examination as is required by law for the retirement of an officer from active service. 21 Op. 385. ARMY, XI, XII— ARTICLES OF WAR. 31 243. Same.— No officer can be retired from the Army before the report of any board, even if approved by the Secretary of War, except is it also approved by the President. lb. 244. Same. — A board constituted as a board of examination for promotion can not be invested with power of a retiring board, which the law requires to be differently constituted, lb. XI. Army Board. 24S. lo make examination of heavy ord- nance. — The appropriation made by the act of March 3, 1881 (21 Stat. 468), in the provision authorizing the creation of a board of army officers to make examinations of improve- ments of heavy ordnance and projectiles, is applicable to expenses necessarily incurred by the board in performing the duties devolved . thereon, among which the actual and neces- sary expenses of its members for board and lodging and for traveling while so engaged may be fairly included. 17 Op. 252. XII. Civil Anthorities. 246. Relative jurisdiction of civil and mili- tary courts in Philippine Islands. — An officer in the Army of the United States who while operating in the Philippines during the insur- rection in those islands, and while the gov- ernment of military occupation was in force therein, committed an offense against a native of those islands, was amenable only to the laws of war and can not be tried by the civil courts of those islands or of the United States; and, having left the military service, he can n' t now be tried for the offense by a military court. 24 Op. 570, Aemy Canteen. See Army, I, e, 33, 34. Army Posts. See Aemy, I, e. Army Transportation. See Army, II, a, 53. Army Transportation Orders. See United States, IV, 52. Army Paymaster. See Army, II, a, 50-52; II, d, 171-173. Artificial Limbs. > See Artificial Limbs. Cadets. See Military Academy. Courts-Martial. See Courts-Martial. General Service Messengers See. Army, 26. Pardon. See Pardon. Pensions. See Pensions. Precedence and Command. See Army, 152. Use of. See Army, I. a. Overpayment. See II, d, 167-177. ARREARS. Of Pensions, see Pensions I, b, 13. ARREST. 1. Chinese. — The denial to Chinese who are unlawfully in the United States of the privi- lege of entering this country, and their refusal to leave pending their subsequent arrest by the United States marshal and a hearing thereafter under the Chinese exclusion act, is neither de- tention nor arrest. 22 Op. 51. 2. Same. — Detention by an officer is in effect an arrest, and a person under detention or arrest must be furnished subsistence at the expense of the Government making the arrest. lb. 3. ' The right of forest supervisors and rangers to arrest persons violating the laws or the rules and regulations for the protection of forest reservations being doubtful, it is sug- gested that relief must be had through Con- gressional action. 22 Op. 512. 4. The Board of Commissioners of the Sol- diers' Home can not empower the governor of the Home to arrest, detain, and deliver over to the civil authorities non-military persons committing crimes less than capital within the limits of the Home, except in the cases where any person may make an arrest without war- rant or precept. 20 Op. 514. 5. As adequate power resides in the Secre- tary of the Navy to cause the arrest of an officer for malappropriation of public funds, notwithstanding the fact that he has been arrested by the civil authorities for the same offense and discharged on bail, it is improper to cause his arrest by the civil officers in order to his trial for a naval court-martial. 21 Op. 504. See also Navy, V, 170, 171. ARTICLES OF WAR. See Army, IX. 32 ARTIFICIAL LIMBS ATTORNEY-GENERAL. ARTIFICIAL LIMBS. 1. The appropriation of $175,000 for artifi- cial limbs, etc., made by the act of March 3, 1881 (21 Stat. 435, 4471, should be expended under the direction of the War Department. 17 Op. 233. 2. Commutation for an artificial limb or apparatus is demandable under section 4787, Eevised Statutes, as amended by the act of March 3, 1891 (26 Stat. 1103), every three years instead of five, and the money commuta-; tion for such limb or apparatus, under sections 4788 and 4790 Eevised Statutes, is also de- mandable every three years, which periods run from the dates when each artificial limb was furnished, and not from June 17, 1870. 20 Op. 83. ASSUMPSIT. ASSAY. See Customs Laws, III, a, 88, 89. ASSIGNMENT. Of Claims and Money Due on Government Contracts. See Claims, I, f. Of Contracts. See Contracts, III, a. ASSISTANT MICR0SC0PIST. See Department of Agriculture, II, 6, 7. ASSISTANT POSTMASTERS. See Postal Service, II, b. v ASSISTANT SURGEONS. 'ee Navy, II, d, 86, 87; Marine-Hospital Service, 1. ASSISTANT TREASURERS OF THE UNITED STATES. See Treasury Department, II, c. See Customs Laws, XI, 469, 470. ATHOS, STEAMSHIP. See Shipping, 27. ATTACHMENT. See Customs Laws, XI, 472. ATTESTATION OF SENTENCE. See Courts-Martial, IV, 30. ATTORNEY-GENERAL. I. Authority and Duties, 1-13. II. Opinions. a. To Whom Given, 14-22. b. Question Actually Arising and Pend- ing in the Administration of an Executive Department, 23-81. c. Opinion in Advance — For Future Action, 82-84. d. Moot Questions, 85-87. e. Hypothetical Questions, 88-91. f. Contemplated Changes in Laws, 92, 9$. g. Effect of— Guidance, 94-99. h. Departmental Practice and Regula- tions, 100-104. i. Administrative Discretion, Propriety, and Expediency, 105-118. j. Matters Belonging to the Department of Justice — Suits — Prosecutions, 114-122. k. Definitions, 123-125. 1. Evidence and Papers, Examination of to Form Conclusions of Facts, 126-149. m. Questions of Fact, 150-175. n. Statement of the Facts and of the Questions of Law Arising Thereon, 175-208. o. Questions of Law, 209-218. p. Question of Mixed Law and Fact, 219-220. ATTORNEY-GENERAL, I. 33 q. General Questions of Importance, 221. r. Judicial Questions, 222-244. s. Payment or Disbursement — Comp- troller of the Treasury, 245-266. t.. The President, 267. u. Guidance of Private Individuals, 268-270. v. Reasonableness or Unreasonableness, 271-272. w. Reconsideration of Opinions, 278- 275. x. Solicitor of the Treasury, 276. y. Civil Service Commission, 277. I. Authority and Duties. 1. The Attorney-General will not exercise appellate jurisdiction over a decision of one of the Executive Departments upon mixed ques- tions of law and fact. 22 Op. 342. 2. Civil Service Commission — Decision of. — It is not within the authority of the Attorney- General to reverse a decision of the Civil Service Commission, or to require it to issue a certificate of reinstatement to a former clerk claiming to have served with the civilian employees of the Quartermaster's Department during the civil war. 20 Op. 270. 3. United States attorneys — Employment and pay. — The authority of the Attorney- General or Department of Justice to employ and pay United States attorneys for services not covered by their salaries and fees is expressly recognized by Congress in section 3 of theact of June 30, 1874 (18 Stat. 109), and section 299 Revised Statutes, and in the annual appropriations made by Congress for that purpose. 20 Op. 49. 4. Direction of district attorneys in prose- cution and punishment of fraud upon the revenues. — The Attorney-General has no proper authority and should refrain from interfering by directions to district attorneys in.the matter of the prosecution and punish- ment of frauds upon the revenue. 20 Op. 715. Note. 5. Disposition of pending litigation. — Under the primary, broad, and general control by the Attorney-General of suits in which the United States is interested, he is authorized to make such disposition of pending litiga- 18456— C8 3 tion, including the compromise of cases of forfeiture incurred under the revenue laws, as seems to him meet and proper, 22 Op. 491 . 6. Same. — 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 com- promise or settlement. lb. 7. Same. — The doubt as to the authority of the Attorney-General, expressed in opinion of February 10, 1894 (20 Op. 714), not con- curred in. lb. 8. Surety companies — Capital stock — Liabil- ity. — The Attorney-General is not authorized to fix a limit of the percentage of capital stock to liability beyond which a surety company may not go upon a single official bond, or prescribe rates which such company shall charge for such insurance, i '22 Op. 421. 9. Land patents — Suit to vacate or reform. — The Attorney-General should not institute for the benefit of private parties a suit to vacate or reform a United States land patent unless there is reasonable ground to believe that it will be sustained by the court; or, except for a wrong " which private litigation could not remedy." 21 Op. 13. 10. Emigrant. — It is safer and better prac- tice for the Attorney-General not to attempt to define the word "emigrant," but to con- sider each case on its particular merits. 20 Op. 371. 11. Ownership of land at Great Falls, Md. — Declines to investigate and report to Congress in regard to. — In response to a resolution of the Senate directing the Attorney-General to investigate and report to that body who are the owners of the land and water power at the Great Falls of the Potomac River: Ad- vised that any information on the subject found in the records of the Department would be gladly furnished the Senate, but that be- yond this, it was submitted, such investiga- tion is not within the duties of the Attorney- General as prescribed by law. 17 Op. 324. 12. Employment of special counsel to assist in a trial by court-martial. — The Attorney- General may, at the request of the Secretary ■ of the Navy, employ special counsel to assist the judge-advocate in a trial by court-martial, the compensation of such counsel (in the ab- sence Of other provision) to be paid from the appropriation for the contingent expenses of the Navy. 18 Op. 135. 34 ATTORNEY-GENERAL, II, a, b. 13. Same. — Such counsel should be com- missioned by the Attorney-General under sec- tion 366, Revised Statutes. lb. II. Opinions. a. To Whom Given. 14. The Attorney-General is not author- ized to give an official opinion except to the President or to the head of an Executive Depart- ment and with reference to matters in the di- rect or supervisory control of the head. 20 Op. 608. 15. Same — Declines to give opinion to Com- missioner of Patents. — Accordingly he ought not, at the present time, to answer the ques- tion as to whether in an inquiry instituted by the Commissioner of Patents under sec- tion 467, Revised Statutes, the Commissioner has the power to appoint a referee to take testimony and to report the testimony taken, with conclusions thereon, subject to revision by the Commissioner of Patents and after- wards by the Secretary of the Interior. 20 Op. 608. 16. 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." 23 Op. 360. 1 7. Secretary of the Treasury. — An opinion of the Attorney-General upon any question arising in the administration of the Treasury Department can only be had at the instance pf the Secretary. 18 Op. 59. 18. Solicitor of the Treasury. — Where a question has been submitted by the Secretary to the Solicitor of the Treasury for advice thereon, the latter is not entitled, by virtue of section 361, Revised Statutes, to call upon the Attorney-General for his views on such question. 26. 19. Same. — The Solicitor should, in such case, return his advice directly to the Secre- tary, who may, if he choose, require an opinion from the Attorney-General upon the same question, lb. 20. House of Eepresentatives. — The Attor- ney-General is not authorized by law to give an official opinion to the House of Represen- tatives in response to a resolution thereof. 18 Op. 87. 21. Same — To an Executive Department for information of the House of Representatives. — The Attorney-General is without authority to render an opinion to the head of an Execu- tive Department, in compliance with a reso- lution of the House of Representatives, for the information of the latter, and without reference to any question of law arising to the administration of that Department. 18 Op. 107. 22. For use of Senate committee. — The Attorney-General is not authorized to give an official opinion upon a Senate bill submitted to him by the head of a Department at the request of a Senator, where the matter in- volved no question of departmental adminis- tration, but was submitted in order that the opinion might be laid before the committee of the Senate in charge of the bill. 17 Op. 357. b. Question not Arising in the Administration of an Executive Department. 28. It is not the duty of the Attorney- General to give an opinion to the Secretary of the Treasury upon questions relating to the past action of the Board of Supervising Inspectors, which was had on a matter prop- erly submitted to such board under the pro- visions of section 4491, Revised Statutes, and which is not reviewable by the Secretary. 18 Op. 77. 24. Matter in which the Department has no administrative concern. — It is not deemed proper for the Attorney-General to give an official opinion where the question submitted by the head of a Department relates to duties of Territorial officers in a matter touching which such Department has no administra- tive concern. 19 Op. 7. 25. The Attorney-General deems it im- proper to give an official opinion upon a ques- tion which does not arise out of any case actu- ally existing in the administration of the De- partment seeking advice, notwithstanding such question may involve the construction of the immigration and contract labor laws (9 Op. 82, 355, 421; 10 Op. 50; 13 Op. 531, 568). 19 Op. 331. 26. The Attorney-General declines to gi?e an opinion in advance, where no case actually existing is presented, as to what would in ATTORNEY-GENERAL, II, b. 85 future be held upon indefinite and varying facts. 19 Op. 414. 27. The Attorney-General declines to give an opinion upon the question whether a bond taken by the collector of a port from one of his subordinates, for his own protection, is valid in the absence of a statute authorizing it, it not appearing to be a question in which the United States are concerned or one aris- ing in the administration of a Department. 19 Op. 556. 28. The Attorney-General declines to give an opinion upon a question as to the mean- ing of a Territorial statute, where the ques- tion does not appear to have arisen in the ad- ministration of the Department proposing it. 19 Op. 695. 29. The Attorney-General is not author- ized by law to respond by an official opinion as to a question of law not arising in the De- partment from which the inquiry is sent, or as to one not shown to be pending and of pres- ent executive consequence. 20 Op. 50. 30. The Attorney-General is not author- ized to review, at the request of the Secretary of the Interior, the decisions of the Civil Service Commission on the construction of Departmental Rule X in regard to reinstate- ment, for the reason that under that rule the matter of certification rests with the Com- mission, and, the Commission having decided -adversely to the applicant, there is now no question in the matter pending before the In- terior Department. 20 Op. 158. 31. The Attorney-General is not author- ized to give his opinion to the Secretary of the Treasury as to the proper construction of a pension appropriation act, inasmuch as it appears that the Treasury Department is bound by the rulings of the Department of „ the Interior in construing that law, and therefore no question is pending in the Treas- ury Department arising in the administration of that Department (17 Op. 339, followed). 20 Op. 178. 32. The Attorney-General is not required to give an opinion except on such qnestions as are necessary to guide the heads of Depart- ments in their actions. This does not include questions which it is the duty of a subordinate in a Department to determine, and which may never come before the head of the De- partment for action ( 1 1 Op. 4, followed ) . 20 Op. 251. 33. Unless the head of a Department has to pass upon a matter, it is not one calling for an opinion of the Attorney-General. 20 Op. 279. 34. The question as to whether the Civil Service Commission shall issue a certificate for reinstatement of an officer of the Treas- ury Department is not one arising in the ad- ministration of the Treasury Department, and is therefore not a question upon which it would be proper for the Attorney-General to express an opinion at the request -of the Secretary of the Treasury. 20 Op. 312. 35. That question is one which, perhaps, affects the administration of the Treasury De- partment, but it is not one which the Secretary, as the head of the Department, is called upon to decide in its administration. lb. 36. The Attorney-General can not prop- erly give an opinion where it does not appear that some question exists calling for the action of the Department requesting it. 20 Op. 383. 37. The Attorney-General will express no opinion where the matter is not one requiring the action of the head of a Department as fall- ing within his official duties. 20 Op. 420. 38. The Attorney-General is not at liberty to submit an opinion upon questions that have been decided by an Executive Department, nor upon those that may arise. 20 Op. 440. 39. To warrant an opinion, the question must not only be one arising in the adminis- tration of a Department, but it must be still pending, lb. 40. The Attorney-General is not author- ized to give his opinion upon the application of the eight-hour law to a proposed contract, where the contractors whose bids have been accepted desire to be advised before signing the contract what portion of the work that law will affect, as it is not a question which the Secretary of the Treasury is called upon to decide. 20 Op. 463. 41. The Attorney-General can not give an opinion upon a judicial question, or one not arising in the administration of a Department within the meaning of section 356, Revised Statutes. 21 Op. 369. 42. Under section 356 of the Revised Statutes the head of an Executive Department is authorized to require the opinion of the Attorney-General only on questions arising in the administration of his Department. 21 Op. 478. 36 ATTORNEY-GENERAL, II, b. 43. It is not permissible for the Attorney- General to give an opinion upon the applica- tion of the eight-hour law to contracts for the construction of leveea on the Mississippi River, as that is not a question arising in the administration of one of the Departments. 20 Op. 465. 44. The Attorney-General declines to give an opinion as to whether the so-called eight- hour law is applicable to a certain contract for public work, for the reason that the contractor and not the Secretary of the Treas- ury is responsihle for a violation of the law. 20 Op. 500. 45. The Attorney-General is neither re- quired nor authorized to give an opinion to the head of a Department except in cases actually pending for decision hy him in such Department. 20 Op. 536. 46. The Attorney-General is prohibited from giving an opinion unless an occasion has actually arisen requiring the action of a head of a Department. 20 Op. 583. 47. The power of the Attorney-General to give an opinion on request of the head of a Department is confined to questions of law, arising in the administration of the Department calling for the opinion. 20 Op. 588. 48. The Attorney-General can give official opinions only u$on questions of law actually arising in the administration of the Department, which are at the time pending, and which must be determined in order that the work of the Department may be properly adminis- tered; he is reluctant to pass upon any ques- tion whose answer may bring the Department of Justice into conflict with a judicial tribunal. 20 Op. 618. 49. The question as to the right of a State judge to compel an employee of the Federal Government to perform jury duty, not decided, as no such serious occasion is shown to have arisen as would justify the Attorney-General reviewing the ruling of a State judge. 26. 50. The Attorney-General can not prop- erly give an opinion as to whether if a certain Chinaman should visit his native country he could thereafter lawfully return to the United States, as it is not a question arising in the administration of an Executive Department. 20 Op. 667. 51. Eegistration of vessels. — The Attorney- General can not properly be asked, for the information of the owners of a vessel, whether if they rebuilt their vessel in Canada it could be thereafter reregistered as a vessel built in the United States, for the reason that it is not a question arising in the administration of the Treasury Department. 20 Op. 723. 52. The Attorney-General's opinion can not be asked by the Secretary of the Interior upon, questions relating only to the duties of the Commission to the Five Civilized Tribes appointed under section 16 of the act of March 3, 1893 (27 Stat. 645), as he, the Secretary, has no control over the proceedings of the Commission. 20 Op. 724. 53. The Attorney-General can not give" an official opinion upon a case which has not yet actually arisen. 20 Op. 729. 54. Certain steamship companies disputed the validity of the Treasury Department's regulations, holding them liable under the immigration act of March 3, 1891 (26 Stat. 1084) , for the maintenance and transportation to the seaboard of certain alien immigrants who had reached the interior of the country: Held that as there was no way of enforcing the statute against the steamship companies except through the courts, the question is not one arising in the administration of that Department and the Attorney-General can not properly express his opinion thereon. 21 Op. 6. 55. The question as to how far a certain judgment was void for want of jurisdiction should not be determined until actually pre- sented for decision in a case in which a party to such judgmentshall beaparty. 21 Op. 37. 56. The Attorney-General will not express an official opinion upon a question not pres- ently arising in the administration of an Ex- ecutive Department. 21 Op. 106. 57. The Attorney-General can not givean official opinion as to the scope of a statutory provision further than to answer questions presently arising in the administration of the Department making the inquiry. 21 Op. 106. 58. The Attorney-General can only advise on cases actually and presently arising, 21 Op. 109. 59 The Attorney-General declines to ex- press an opinion upon a question propounded, because not based upon a case which has actually arisen in the administration of the Department of Agriculture. 21 Op. 167. 19 Op. 332, 412, and 20 Op. 703, 729 fol- lowed, lb. ATTORNEY-GENERAL, II, b. 37 60. An opinion can not be given by the Attorney-General upon a case not actually arising in the Department the head of which requests the opinion. 21 Op. 178. 61. The Attorney-General will not answer questions not presently arising in the adminis- tration of a Department whence the inquiry arises. 21 Op. 186. 62. The Attorney-General can not he called upon for an opinion unless specific questions of law are formulated which relate to an ex- isting question calling for the action of the De- partment requesting it. 21 Op. 20) . 63. Exception made. — A question of the le- gality of a provision of long standing in contracts of the War and Navy Departments determined, as presented, in general terms, although a. strict regard to the rule of the Department of Justice which forbids the expression of an official opinion upon any question of law which has not arisen in an existing case and presented upon a definite statement of facts, might warrant a refusal of an opinion thereon. 21 Op. 207. 64. The Attorney-General can give no opinion upon a case not actually arising in the Department the head of which requests the opinion. 21 Op. 219. 65. The Attorney-General will not give an opinion upon a matter not pending in the ad- ministration of a Department. 21 Op. 240. 66. The Attorney-General will not give an opinion upon a question proposed by the Secretary of War, where no occasion has arisen for his official action. 21 Op. 457. 67. Under section 356 of the Revised Stat- utes the head of an Executive Department is authorized to require the opinion of the Attorney-General only on questions arising in the administration of his Department. 21 Op. 478 68. The Attorney-General is not permit- ted by statute or precedent to respond to a request for an opinion which appears to pre- sent but a moot case and does not show what the facts are or that the case has presently arisen in the administration of the Department. 21 Op. 506. 69. The Attorney-General is not permit- ted to give an opinion as to the construction or interpretation of a statute except in an 'actual case which has arisen before one of the Executive Departments calling for its action in the regular course of its affairs. 21 Op. 510. 70. Same. — The question as to whether a retired officer is eligible to hold certain diplo- matic or consular appointments without affect- ing his position on the retired list, with rank and pay, is one of private concern only, and not a subject with which the United States can be interested until some action has been taken by such officer* lb. 71. The cases in which the Attorney- General is authorized to give opinions to the heads of Executive Departments are such as are actually pending in such Departments and involving the legal questions submitted. 21 Op. 568. 72. The rule of the Attorney-General in declining to give an opinion in a case where it is doubtful whether a question of law is raised in the administration of the Depart- ment requesting it was dis r egarded in an instance where it appeared that proper cases raising such a question were pending in several of the other Executive Departments. 21 Op. 579. 73. The Attorney- General is precluded from giving an opinion upon a matter not actually -or presently arising in the administra- tion of a Department. 22 Op. 77. 74. The Attorney-General is not author- ized to answer an inquiry made of the Treas- ury Department with reference to an increase in the amount of subsidiary silver coinage, whether regarded as an abstract question of law or an inquiry into the legality of the course of a predecessor in office in matters not now demanding official action. 22 Op. 85. 75. To authorize the expression of an opinion upon a question of law it is necessary that a statement of facts be submitted show- ing that the question has actually arisen in the administration of a Department in an existing case calling for action. lb. 76. The question of the validity of a pro- posed 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 sick- ness 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 coun- try, not being a question actually or presently arising in the administration of the Treasury Department, the Attorney-General declines to express his opinion thereon. 23 Op. 582. 38 ATTORNEY-GENERAL, II, b, c, d, e. 77. Same. — Should this proposed regula- tion 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. lb. 78. Case actually arising. — 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. 24 Op. 59. 79. Same. — The Attorney-General declines to express an opinion upon the question whether the joint resolution of July 1, 1902 (32 Stat. 750), construing the pension act of June 27, 1890 (26 Stat. 182), has any retro- active force, for the reason that the question is not predicated upon an actual case arising in the Interior Department, and for the further reason that that Department has an officer clothed with authority to determine questions of that nature in the first instance coming up on appeal from the Pension Bureau. 24 Op. 556. 80. The Attorney-General declines to an- swer the question whether Citizens of the Philippine Islands are entitled to the benefits of the patent laws of the United States, there being no case involving that question pending before the Department making the inquiry. 25 Op. 179. 81. The Attorney-General declines to ex- press an opinion upon the question pro- pounded by the Secretary of the Interior as to whether the preliminary draft of Title LXVIII, "Railway and Telegraph Com- panies," submitted to him by the Commission to Revise and Codify the Laws of the United States, correctly embodies the provisions of existing law upon the subject, for the reason that the inquiry does not present a question of law arising in the administration of his Depart- ment. 25 Op. 584. c. Opinion in Advance- Action. -For Future 82. The Attorney-General declines to give an opinion in advance, where no case actually existing is presented, as to what would in fu- ture be held upon indefinite and varying facts. 19 Op. 414. 83. The Attorney-General can not be asked to examine and approve codes of rules or forms of applications, etc. , adopted by a Department, to apply to cases arising in the future. 20 Op. 738. 84. The Attorney-General can not state as a basis for- future Departmental action, the classes of Chinese persons whose occupations would place them within the category of laborer. He can only answer as to each case when it arises. 20 Op. 602. d. Moot Questions. 85. An opinion is given upon a mere moot question, although in accordance with custom it might with propriety be declined. 21 Op. 320. 86. The Attorney-General will not give an opinion upon an inquiry which appears to present but a moot case. 21 Op. 506. 87. A request for an opinion of the At- torney-General must not relate to a mere moot question, but to one which requires immediate action, the answer to which is necessary for the protection of the officer making the in- quiry or to insure the lawfulness of the action which he is about to take. 21 Op. 509. e. Hypothetical Questions. 88. The Attorney-General will not answer a purely hypothetical question. 20 Op. 288. 89. The question as to whether the parts of a vessel which a British subject proposes to take to Alaska by ocean steamer for use on the Yukon River will be subject to duty, being a hypothetical one, is not answered. 22 Op. 77. 90. The Attorney-General declines to ex- press 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 admin- istrative discretion and judgment, and of practicability and advisability, which must be determined solely by the Postmaster- General. 24 Op. 118. 91. The Attorney-General declines to ex- press an opinion as to whether a proposed instruction to customs officials to inquire into the bona fides of a journey and the ownership of goods imported can be enforced on proof ATTORNEY-GENERAL, II, f, g, h, i. 39 that the object of the journey was to purchase goods, as the latter is a hypothetical as well as a judicial question. 25 Op. 94. f Contemplated Changes in Laws. 92. It is not within the province of the Attorney-General to consider questions look- ing to changes in maritime law to be accom- plished by treaty with foreign Governments. 19 Op. 598. 93. Section 356 Revised Statutes limits the functions of the Attorney-General in the matter of opinions requested by the heads of Departments, to questions arising out of the law as it is, and does not require him to give his views and opinions upon the advisability of making changes, by treaty, in any depart- ment of jurisprudence. 76. g. Effect of — Guidance. 94. It has been held frequently that the statutes prescribing the duties of the Attor- ney-General (Sees. 354 and 356, Rev. Stat.) do not authorize or require him to give an official opinion except to the President or to the head of an Executive Department; and it would seem to follow that the opinion should be needed for the guidance of the head of a Department, and should relate to some matter calling for action or decision on his part. 20 Op. 609. 95. An opinion asked of the Attorney- General must be one needed for the guidance of the officer asking. 20 Op. 724. 96. Can not require Attorney-General's opinion unless it is the intention to be guided by it. — The head of a Department can not require the Attorney-General's opinion as to his power to do an act unless it is his intention to do it if he has the power. 20 Op. 648. 97. It is not the duty of the Attorney- General to give an opinion on questions sub- mitted to him except when needed for the guidance of the head of a Department, and relating to some matter calling for action or decision on his part. 21 Op. 1 74. 98. Effect. — Official opinions of the Attor- ney-General should be followed by other De- partments. 20 Op. 648. Adhered to. 20 Op. 719. 99. An expression in an opinion of the Attorney-General which is merely obiter does not have the force and effect of an official opinion. 21 Op. 25. h. Departmental Regulations and Practice. 100. The Attorney-General will not inter- pret a regulation of practice made by the Com- missioner of Patents for his own guidance and that of his subordinates, for the convenient, intelligent, and orderly disposal of the busi- ness of his office. Such regulations, which the heads of bureaus and Departments can make, modify, or annul at will, or enforce or waive, as seems expedient, may well be left for their interpretation to the head of the Department or bureau to which they pertain. 18 Op. 521. 101. The construction of regulations of the Civil Service Commission is a matter entirely within the province of the Commission, and should not be attempted by the Attorney- General. 20 Op. 649. 102. The Attorney-General declined to pass upon the original merits of a doubtful question, where the departmental practice had been in accordance with a decision of the Board of General Appraisers. Such practice should not be changed without a decision of the court. 20 Op. 730. 103. The Attorney-General can not give •an official opinion upon the construction of customs regulations which may be modified at any time by the Secretary of the Treasury. 21 Op. 255. 104. The question as to whether or not a citizen of "Porto Rico, legally a resident of New York, is eligible for appointment in the Marine-Hospital Service under a departmental regulation which requires the applicant to" be a citizen of the United States, or, if of foreign birth, to furnish proof of American citizen- ship, does not involve any question of law within the meaning of section 356, Revised Statutes, and is not, therefore, one properly calling for an opinion of the Attorney-Gen- eral. The requirement not being demanded by law, its interpretation may properly be left to the Department or Bureau responsible for its existence and execution. (18 Op. 521; 20 Op. 649; 21 Op. 255, followed.) 25 Op. 183. i. Administration, Discretion, Propriety, Expediency. 105. Questions of administrative action. — The opinions of the Attorney-General are ad- visory only. He has no control over the 40 ATTORNEY-GENERAL, II, i, j. action of the head of Department at whose request and to whom an opinion is given, nor could he with propriety express any judg- ment concerning the disposition of the mat- ter to which the opinion relates, that being something wholly within the administrative sphere of sneh head of Department. 17 Op. 332. 106. The Attorney-General declines to ex- press 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 adminis- trative discretion and judgment, and of practi- cability and advisability, which must be de- termined solely by the Postmaster-General. 24 Op. 118. 107. The Attorney-General declines to ex- press an opinion upon the question of the propriety of the Secretary of the Interior permitting one Boysen to go upon the Sho- shone Indian Reservation and make examina- tions prior to the completion and approval of the surveys of the ceded portion (33 Stat. 1020), it not being within his province to pass upon the propriety of the exercise by the Secretary of the Interior of his official discre- tion. 25 Op. 524. 108. The Attorney-General declines to express an opinion as to the propriety of a proposed instruction to customs officials to in- quire into the bona fides of the journey and the ownership of goods imported in such cases, as he is not authorized to express his views upon matters of propriety involving executive judgment and discretion; neither may he express an opinion as to whether the above provision can be enforced on proof that the object of the journey was to pur- chase goods, as the latter is a hypothetical as well as a judicial question. The legality of such an instruction, however, can not be seriously questioned. 25 Op. 94. 109. The Attorney-General is not author- ized to give an official opinion as to "the course which should be taken" by another De- partment, as that involves questions of fact and considerations of expediency. 21 Op. 73. 110. A question as to what course should be pursued by an Ex- cutive Department involves matters of fact upon which the At- torney-General may not have knowledge and considerations of expediency upon which it is not for him to pass judgment. 22 Op. 98. See also 21 Op. 74. 111. Where terms are used in a statute in their ordinary acceptation and the duty of applying it in a particular matter is one of administration merely, that duty can not be devolved upon the Attorney-General. 20 Op. 487. 112. The Attorney-General has no author- ity to give an opinion upon the reasonableness of fees demanded by persons proposing to act as attorneys for Indian litigants. 20 Op. 620. 118. The nature of the evidence required from applicants for leave and sufficiency of reasons for extending or limiting hours of labor are matters within the discretion of the Secre- tary as to which the Attorney-General can not advise. 20 Op. 728. j. Matters belonging to the Department of Justice — Suits — Prosecutions. 114. The question whether an action for the recovery of duties on goods previously smuggled is maintainable, is one arising in the Department of Justice, and therefore the Attorney-Gen- eral's opinion can not be asked upon it by the Treasury Department. 20 Op. 714. 115. It is inexpedient for the Attorney- General to render an official opinion as to whether a civil suit or criminal prosecution if brought by the Government ought tobe decided by the courts in its favor, such questions being essentially judicial in character. 20 Op. 702. 116. The advisability of bringing suit is not a question of law upon which the Attorney- General's opinion may be asked. lb. 117. The Attorney-General can not prop- erly be asked for advice as to whether or not a prosecution should be instituted. 20 Op. 673. 118. The question whether or not to com- mence a civil action or criminal prosecution must ordinarily be decided by some officer of the Department of Justice, and the Attorney- General is not authorized to give the head of another Department a legal opinion upon such a question. 21 Op. 509. 1 19. The Attorney-General can not give an official opinion regarding the act of May 16, 18S4 (23 Stat. 22), because that act relates only to criminal proceedings, and the question whether or not a crime has been committed is one that in but rare instances can arise except in the Department of Justice. 21 Op. 133. ATTORNEY-GENERAL, II, j, k, 1. 41 , 120. The Attorney-General should not give an opinion upon a question as to whether or not there is sufficient probability of securing a verdict to warrant a prosecution, as that is not purely a matter of law. lb. 121. Compromise of pending litigation. — Except as modified by sections 3229 and 2469, Revised Statutes, the power to determine whether a compromise should Hue made of pending litigation would seem to rest with the Attorney-General, such suits being neces- sarily under hfs control and subject to his direction. 23 Op. 507. 122. The Attorney-General declines to express an opinion upon the question whether proceedings by court-martial would bar pro- ceedings in the civil courts for an assault or other crime involved in the offense of hazing, for the reason that it would be of no assist- ance to those officers in the proper discharge of their duties, and should such action be taken, the matter wonld be one peculiarly for the consideration of his Department. 25 Op. 543. k. Definitions. 123. The Attorney-General can not prop- erly attempt to frame a definition of statntory language to cover, all future cases. 20 Op. 649. 124. The Attorney-General can not give an official opinion as to the scope of a statutory provision further than to answer questions pres- ently arising in the administration of the Department making the inquiry. 2 1 Op. 106. 125. The Attorney-General can not under- take to give a general definition of a word or phrase applicable to all cases possibly arising therefrom. 21 Op. 109. 1. Evidence and Papers, Examination of, to 'Form Conclusions of Facts. 126. The Attorney -General's advisory powers do not extend to an examination of evi- dence to ascertain what is established by a preponderance of testimony. 17 Op. 172. 127. A request for an opinion of the Attorney-General on questions of law arising in any case should be accompanied by a state- ment of the facts of the case as well as of the questions on which advice is desired. The Attorney-General declines to settle the facts ex parte from papers submitted and then pro- ceed to give an opinion thereon. 18 Op. 487. 128. The Attorney-General has no power to find facts in any case in which his opinion is requested, but must confine himself to the facts appearing in connection with the re- quest. 19 Op. 115. 129. Will not examine papers submitted to ascertain facts involved. — The Attorney-Gen- eral declines to express an opinion in a mat- ter where no statement of facts and no ques- tion of law is submitted, but where numerous papers are referred with a request for an opin- ion in view of all the facts presented. 19 Op. 396. 130. The Department of Justice has uni- formly declined to find the facts involved in a request for an opinion. At least this has been the rule ever since the year 1820. The facts must be stated by the Department asking for the opinion. (See 1 Op. 346; 3 Op. 309; 5 Op. 626; 10 Op. 267; 12 Op. 206. ) 19 Op. 466. 131. The Attorney-General is not at liberty under the law, which requires him to give his opinion "upon questions of law" (sees. 354-357 Rev. Stat. ), to make a finding of facts upon evidence submitted. 19 Op. 547. 132. The Attorney-General declines to ex- press an opinion upon a question which re- quires him to look into the evidence and form a conclusion as to the facts involved. (See 7 Op. 494; 14 Op. 367, 368, 541; 10 Op. 267; 11 Op. 189; 18 Op. 487, 489.) 19 Op. 672. 133. The Attorney-General can not pass upon the question as to whether a bridge is an "unreasonable" obstruction, and its main- tenance a violation of law, as its determination involves an examination of all the facts, cir- cumstances, and equities surrounding the case. 19 Op. 676. 134. The Attorney-General must confine himself to the case stated for an opinion and is not authorized to look into the evidence. 19 Op. 684. 135. It is not within the province of the Attorney-General to make a finding of facts in a case submitted for his opinion upon ques- tions of law arising thereon. The facts of the case should be ascertained and presented by the officer requesting the opinion. 19 Op. 696. 136. The Attorney-General can not con- sider questions of fact on evidence submitted. 20 Op. 253. 137. The Attorney-General can not investi- gate the papers and records for the purpose of 42 ATTORNEY-GENERAL, II, 1, m. ascertaining the facts upon which the ques- tion arises. 20 Op. 270. 138. The Attorney-General declines to au- thorize an investigation to be made in order that an official opinion may thereafter be ren- dered by him based on the result of such investigation. 20 Op. 640. 139. The Attorney-General is not author- ized to examine evidence and make findings of fact upon which his opinion is to be based, lb. 140. The Attorney-General can not be called upon for an opinion which involves the examination of evidence and the settling of questions of fact. 20 Op. 740. 141. The Attorney-General can not con- sider matter merely evidential in character and make findings of fact thereupon. He can use only the facts found by the person request- ing the opinion, as in the case of an agreed statement of facts submitted to a court. 20 Op.' 742. 142. The Attorney-General has no gen- eral appellate authority, and can not weigh evidence and make findings thereon. Questions of this kind referred to him are analogous to questions referred to the Supreme Court upon certificate of division of opinion in the lower courts. His decision can not operate as a dis- position of the whole case if there is any doubt or incompleteness in the facts: 20 Op. 742. 143. The Attorney-General is not at lib- erty to comply with a request for a recon- sideration of his opinion of June 8, 1894 (21 Op. 33 ), as it would involve consideration and decision upon conflicting evidence. 21 Op. 58. 144. Weight of evidence and credibility of witnesses are not questions to be considered in rendering an opinion. 21 Op. 58. 145. When an opinion is desired by the head of a Department a statement of facts upon which the question arises must be submitted. The Attorney-General can not investigate the papers for the purpose of ascertaining these facts. 21 Op. 220. 146. The Attorney-General is precluded from answering questions of fact or from con- sidering questions of fact on evidence sub- mitted. 21 Op. 594. 147. The Attorney-General cannot under- take to settle conflicting questions of fact raised by various papers presented, but will look to the submitted statement of facts alone. 22 Op. 156. 148. The Attorney-General can not be re- quired to extract a finding of facts from corre- spondence or reports. 22 Op. 342. 149. The Attorney-General can not take the responsibility of examining the papers in a case and gather therefrom a conclusion as to what particular matter he shall pass upon. 22 Op. 498. m. Questions of Fact. 150. It is not the province of the Attorney- General to determine questions of fact. 17 Op. 436, 440. 151. The decision of a question of fact is not within the province of the Attorney- General. 19. Op. 105. 152. The Attorney-General can not consider questions of fact on evidence submitted. 20 Op. 253. 153. The Attorney-General is not at liberty and has no power under the law to express an opinion to the Postmaster-General on the question whether a certain publication is within the description of matter which the statute denominates second class, as that is a pure question of fact, which it is' the province of the Postmaster-General to decide. 20 Op. 384. 154. Whether or not certain persons are within the so-called eight-hour labor law is a question of fact not for the Attorney-General to determine. 20 Op. 459. 155. The Attorney-General declines to ex- press an opinion as to whether certain em- ployees of the Mississippi Commission are "laborers" or "mechanics" within the meaning of the act of August 1, 1892 (27 Stat. 340), for the reason that those words are used in the statute in their ordinary sense, and the determination of that question is, therefore, a matter of administration only, in- volving the ascertainment of a question of fact, upon which the Attorney-General is not au- thorized to express an opinion. 20 Op. 487. 156. The Attorney-General should not ex- press an opinion upon the question as to whose fault or neglect, if anyone's, it is that a wrongful payment has been made, as that is a question of fact, or mixed law and fact, which a court only can determine. 20 Op. 524. 157. Whether various schemes are "de- pendent on lot or chance" within the mean- ing of the lottery law, is a mere question of fact upon which the Attorney-General is not authorized to give an opinion. 20 Op. 530. ATTORNEY-GENERAL, II, m, n. 43 188. Whether certain compilers are scien- tific or professional experts, within the mean- ing of paragraph 7, of special departmental rule No. 1 , of the Civil Service Commission, is entirely a matter of fact as to which the At- torney-General can express no opinion. 20 Op. 590. 159. The question of "similitude" under section 5430, Revised Statutes, is a question of fact as to which the Attorney-General is not permitted to render an official opinion. 20 Op. 697. 160. The question as to whether a person had a right by the laws and usages of the Sioux tribe to claim citizenship therein in 1889, is a question of fact which the Attorney- General is not qualified to decide. 20 Op. 742. 161. The Attorney-General is not author- ized to give an official opinion upon the course to be pursued by an Executive Department, as that involves a question of fact and consid- erations of expediency. 21 Op. 73. 162. The laws of a foreign country are not known to the Attorney-General, but are facts to be proved by competentevidence. 21 Op. 80. 163. The Attorney-General can not give opinions upon questions of foreign law. 21 Op. 377. 164. The question as to whether one patent infringes upon others is a matter of fact upon which the Attorney-General will not express an official opinion. 21 Op. 96. 166. Questions of fraud, or intent or col- orableness in a transaction, are questions of fact not within the authority of the Attorney- General to determine. 21 Op. 129. 166. Whether certain material or appa- ratus used in making pictures of foreign post- age stamps come within the scope of section 4 of the act of February 10, 1891 (26 Stat. 742 ) , is a question of fact, and an opinion thereon is declined. 21 Op. 133. 167. The Attorney-General is notpermitted to render an official opinion upon questions of fact (20 Op. 697, 711, and 740, followed.) 21 Op. 174. 168. The Attorney-General will not deter- mine questions of fact. 21 Op. 240. 169. The existence of a usage affecting the legal definition of a statutory term is a ques- tion of fact upon which the Attorney-General will not give an opinion. 21 Op. 255. 170. The question of whether one trade- mark simulates another is one of fact upon which the Attorney-General can not express an official opinion. 21 Op. 260. 171. The existence of a foreign law is a question of fact upon which the opinion of the Attorney-General can not be requested. 21 Op. 377. 172. The Attorney-General will not give an opinion upon a question of fact. 21 Op. 454. 173. It is not the province of the Attorney- General to inquire into matters of fact. 21 Op. 481 (483). 174. The Attorney-General is precluded from answering questions of fact or from con- sidering questions of fact on evidence sub- mitted. 21 Op. 594. 175. Questions of fact. — The Attorney- General can not determine questions of fact. He can only aid in an application of the law to facts already ascertained. 23 Op. 231. n. /Statement of the Facts and' the Questions of Law Arising Thereon. 176. A request for an opinion of the Attorney-General on questions of law arising in any case should be accompanied by a state- ment of the facts of the case as well as of the questions on which advice is desired. 18 Op. 487. 177. It is not within the province of the Attorney-General to make a finding of facts in a case submitted for his opinion upon questions of law arising thereon. The facts of the case should be ascertained and presented by the officer requesting the opinion. 19 Op. 696. 178. The Attorney-General is unable to express an opinion upon the question as to whether the Indian agent at the La Pointe Agency, Wis., acting under instructions from the Indian Office or Department of the In- terior, can dispose of and give valid title to pine timber cut on the Fond du Lac Reserva- tion, Minn., the request therefor being un- accompanied- by a, statement of the facts in- volved. 19 Op. 465. . 179. The Department of Justice has uni- formly declined to find the facts involved in a request for an opinion. At least this has been the rule ever since the year 1820. The facts must be stated by the Department ask- ing for the opinion. (See 1 Op. 346; 3 Op. 309; 5 Op. 626; 10 Op. 267; 12 Op. 206.) lb. ) 44 ATTORNEY-GENERAL, II, n. 180. The Attorney-General declines to give an opinion where the request therefor contains no statement of facts and presents no question of law. 20 Op. 220. 181. When an opinion is desired by the head of a Department, a statement of the facts' upon which the question arises mnst be submitted. 20 Op. 270. 182. It is an unvarying practice of the Attorney-General before rendering an opin- ion to require a succinct statement of the facts and of the question of law arising thereon upon which an opinion is desired. 20 Op. 493. 183. The Attorney-General is not per- mitted to render an opinion unless the facts upon which the question arises are succinctly stated. 20 Op. 526. 184. The Attorney-General can not give an official opinion except upon a question of law which has already actually arisen and is submitted upon a definite statement of facts, not leaving it to him to draw inferences of fact from correspondence or documents. 20 Op. 614. 185. The Attorney-General can not prop- erly give an official opinion except upon questions of law arising upon facts stated by the official requesting the opinion. 20 Op. 640. 186. It is well settled that the question to which an answer is required, as well as the statement of facts upon which the question is based, should be clearly contained in the re- quest for an opinion. The Attorney-Gen- eral should not be expected to seek out the facts and infer the question submitted from the correspondence inclosed. 20 Op. 699. 187. Requests for opinions of the Attor- ney-General should be accompanied by a definite statement of the material facts and* a formulation of the questions to which an answer is desired. 20 Op. 711. 188. Where an official opinion from the head of this Department is desired on ques- tions of law arising on any case, the request should be accompanied by a statement of the material facts of the case, and also the precise questions on which advice is wanted. 20 Op. 713. 189. Requests for the opinions of the At- torney-General must be accompanied with a statement of facts and separate formulation of the questions to which an answer is desired. 20 Op. 723. 190. The Attorney-General can not give official opinions except upon questions of law, nor without a definite statement of the facts upon which the question is submitted. 21 Op. 36. 191. Questions submitted to the Attorney- General for his opinion must be definitely for- mulated. 21 Op. 179. 192. Exception. — A question of the legal- ity of a provision of long standing in contracts of the War and Navy Departments determined, as presented, in general terms, though a strict regard to the rule of the Department of Jus- tice which forbids the expression of an offi- cial opinion upon any question of law which has not arisen in an existing case and pre- sented upon a definite statement of facts, might warrant a refusal of an opinion there- on. 21 Op. 207. 193. When an opinion is desired by the head of a Department a statement of facts upon which the question arises must be submitted. The Attorney-General can not investigate the papers for the purpose of ascertaining these facts. 21 Op. 220. 194. The Attorney-General waives the set- tled practice of the Department requiring a statement of the points upon which an opin- ion is asked for the reason that it is desired for guidance of the head of an Executive Depart- ment in the discharge of official duties, where both public and private interests are involved requiring prompt action. 21 Op. 486. 195. The Attorney-General is not permit- ted by statute or precedent to respond to a re- quest for an opinion which appears to present but a moot case and does not show what the facts are or that the case has presently arisen in the administration of the Department. 21 Op. 506. 196. In the absence of facts presenting a case actually or presently arising and pending in the administration of a Department, calling for action, which can not be determined by the Attorney-General without usurping ju- dicial functions, his official opinion can not be required. 21 Op. 583. 197. To authorize the expression of an opinion upon a question of law it is necessary that a statement of facts be submitted showing that the question has actually arisen in the administration of a Department in an existing case calling for action. 22 Op. 85. 198. In a request for an opinion the facts must be definitely formulated and clearly stated by the person asking the opinion. The Attorney-General can not be required to ex- ATTORNEY-GENERAL, II, n, o. 45 tract a finding of facts from correspondence or reports. 22 Op. 342. 199. When an opinion is desired of the Attorney-General, the particular question of law on which his advice is desired should be specifically formulated, and the facts which exist or are assumed as the basis of such question should also be definitely stated. 22 Op. 351. 200. Waiver of customary practice requiring statement of facts. — In a certain case involv- ing governmental transactions where there were no disputed facts, the Attorney-General deemed itproper to gather the various circum- stances from, the papers presented and to waive the customary rule of the Department requiring a definite statementof the facts upon which an opinion is requested. 22 Op. 477. 201. When the opinion of the Attorney- General is required it is necessary that the facts be plainly stated, and the questions upon which the opinion is desired should be spe- cifically propounded. 22 Op. 498. 202. The Attorney-General can not take the responsibility of examining the papers in a case and gather therefrom a conclusion as to what particular matters he shall pass upon. lb. 203. 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. 23 Op. 92. 204. Under the rules regulating the opin- ions of the Attorney-General, it is necessary that the question of law presented should rest upon some case actually arising in the admin- istration of a Department and that it should be accompanied by a statement or finding of the facts involved. 23 Op. 330. 205. 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. 23 Op. 507. 206.. , 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. 23 Op. 521. 207. . The settled policy of the Department is that no opinion should be rendered upon any question of law unless it is specifically for- mulated in a case actually arising in the administration of a Department and accom- panied by a statement or finding of the facts involved. 24 Op. 59. 208. It is the invariable rule of the Depart- ment of Justice to decline to give an opinion except when the request is accompanied by a statement or finding of the facts involved. 24 Op. 102. o. Questions of Law. 209. The Attorney-General declines to give an opinion where the request therefor contains no statement of fact and presents no questions of law. 20 Op. 220. 210. The Attorney-General will not give an opinion where the subject-matter submitted shows no question of law arising in the admin- istration of the Department submitting the inquiry. 20 Op. 249. 211. ' The Attorney-General is required to answer only questions of law and can not con- sider questions of fact on evidence submitted. 20 Op. 253. 212. It is against the practice of the De- partment of Justice to give an opinion upon a question so general as not to present a definite question of law for opinion. 20-Op. 258. 213. The Attorney-General is precluded from answering the question as to whether the appointment of an Indian agent as a deputy marshal is likely to cause any conten- tion or conflict of authority, as that is not a legal question. 20 Op. 494. 214. The Attorney-General can not prop- erly give an official opinion except upon ques- tions of law arising upon facts stated by the official requesting the opinion. 20 Op. 640. 215. The Attorney-General should not give an opinion upon a question as to whether or not there is sufficient probability of securing a verdict to warrant a prosecution, as that is not purely a matter of law. 21 Op. 133. 216. The Attorney-General can not be called upon for an opinion unless specific ques- tions of law are formulated which relate to an existing question calling for the action of the Department requesting it. 21 Op. 201. 46 ATTORNEY-GENERAL, II, 6, p, q, r. 217. Exception. — The rule of the Attorney- General in declining to give an opinion in a case where it is doubtful whether a question of law is raised in the administration of the Department requesting it was disregarded in an instance where it appeared that proper cases raising such a question were pending in several of the other Executive Departments. 21 Op. 579. 218. The Attorney-General will not ex- press an opinion upon a question unless the request is accompanied by a definite state- ment of facts, and the question of law upon which an opinion is desired is specifically formulated. 23 Op. 472. p. Questions of Mixed Fact and Law. 219. The Attorney-General should not ex- press an opinion upon the question as to whose fault or negligence, if anyone's, it is that a wrongful payment has been made, as that is a question of fact or of mixed law and fact which only a court can -determine. 20 Op. 524. 220. The Attorney-General can not be asked to exercise appellate jurisdiction upon mixed questions of fact and law. 20 Op. 711. q. Important Questions. 221. A question regarding the construc- tion of section 96 of the act of January 12, 1895 (28 Stat. 624), which provides that "The Postmaster-General shall contract for all envelopes, stamped or otherwise, designed for sale to the public or for use by his own or "other Departments," is a general question, applicable to all the Departments, and is of sufficient importance to warrant its submission to the Attorney -General for his opinion thereon. 21 Op. 181. See also Nos. 257-265. r. Judicial Questions. 222. It is not proper for the Attorney- General to express an opinion upon the meaning of the word "destitute" as used in section 4577, Revised Statutes, in view of the conflict in that regard between the Depart- ment of State and a, United States district court. The question is a judicial one and should be settled by the courts. 19 Op. 25. 223. It is inexpedient for the Attorney- General to express an opinion upon certain questions proposed, relating to a right of fish- ery in the Klamath River, California, claimed in behalf of the Klamath Indians; such ques- tions being justiciable in the appropriate" courts at the suit of the Indians themselves who are interested in them. 19 Op. 56. 224. The Attorney-General deems it in- expedient to give an opinion upon a question which is essentially judicial in its character and must ultimately be decided by the judicial department of the Government, to wit, whether an express company, in receiving from a lottery company letters and packages declared unmailable by section 3894, Revised Statutes, as amended by the act of September 19, 1890 j[26 Stat. 465), and forwarding them along the ordinary mail routes, violates sec- tion 3982, Revised Statutes. 19 Op. 670. 225. The Attorney-General declines to ex- press an opinion on the question whether or not certain pictures of coins constitute a violation of section 3 of the act of February 10, 1891 (26 Stat. 742), on the ground that it is one for the determination of the courts, not for the Executive Departments. 20 Op. 210. 226. The question as to the right of a State to tax lands in an Indian reservation being judicial and not administrative, the Attorney-General ought not to express an opin- ion thereon. (19 Op. 56, followed. ) 20 Op. 277. 227. The question as to the right of an irrigation company to construct a dam across the Yakima River, which is one of the bound- aries of the Yakima Indian Reservation, is not one arising in a matter before the Interior Department, as the Secretary has no author- ity to settle that question. It is essentially judicial in character, and therefore the Attor- ney-General has no power to give an opinion thereon. 20 Op. 314. 228. The jurisdiction of consuls as courts is a judicial question, subject to review by regular appeal provided by statute, and therefore it is beyond the power of the Attorney- General to express an opinion thereon. 20 Op. 391. 229. The Attorney-General will not an- swer a question purely judicial in its nature. 20 Op. 539. 230. The Attorney-General is reluctant to pass upon any question whose answer may ATTORNEY-GENERAL, II, r. 47 bring the Department of Justice into conflict with a judicial tribunal. 20 Op. 618. 231. The Attorney- General should not answer the question as to whether "building, loan, and savings associations" are "cor- porations doing the business of bankers, brokers, or savings institutions" within the meaning of section 5243, Revised Statutes, and as such prohibited from using the word "national" as a portion of their name or title, for the reason that the designation given does not afford sufficient information, and the question seems to be one for judicial rather than executive determination. 20 Op. 673. 232. It is inexpedient for the Attorney- General to render an official opinion as to whether a civil suit or criminal prosecution if brought by the Government ought to be decided by the courts in its favor, such ques- tions being essentially judicial in character. 20 Op. 702. 233. The Attorney -General should not express an official opinion upon a judicial question as to which the circuit courts are in conflict. 20 Op. 729. 234. The Attorney-General can not give an opinion upon a judicial question, or one not arising in the administration of a, Depart- ment within the meaning of section 356, Revised Statutes. 21 Op. 369. 235. Whether the statute of limitations does or does not bar a claim on behalf of the Government is a judicial question to be deter- mined by the courts and not by the Attorney- General. 21 Op. 557. 236. The question whether a proceeding under section 3456, Revised Statutes, or any other law would or would not be successful, is judicial in its nature and one on which it is not necessary or proper for the Attorney-Gen- eral to give an official opinion. 22 Op. 181. 237. It is not the practice of the Department of Justice to give an opinion in a matter where the question involved is disputable and is the subject of a pending suit, as such action would be equivalent to expressing an opinion as to whether the question ought to be de- cided in favor of the Government, and might bring the Department into conflict with a judicial tribunal. 23 Op. 221. 238. Question pending before the court. — 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. 23 Op. 585. 239. Question committed to judicial re- view. — The Department wifl not consider any question committed to judicial review. To do so might bring it into conflict with a judicial tribunal. 24 Op. 59, 240. Conclusions of » Federal court, until reversed by a higher court, are binding upon the Attorney-General. lb. 241. The Attorney-General can not prop- erly pass upon the question whether the courts in this country have authority to exe- cute letters rogatory issued out of the German patent office, as that is a matter for judicial and not for executive determination. 24 Op. 69. 242. The Attorney-General declines to ex- press an opinion as to whether a proposed in- struction to customs officials to inquire into the bona fides of a journey and the ownership of goods imported can be enforced on proof that the object of the journey was to pur- chase goods, as the latter is a hypothetical as well as a judicial question. 25 Op. 94. 243. The Attorney-General declines to ex- press an opinion as to the liability of the postmaster at Baltimore, Md., for a sum of money pai. 14. Forfeiture of counterfeit coin — Due proc- ess of law. — The seizure and forfeiture of coun- terfeit coin 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. 23 Op. 458. 15 Same. — The due process of lawrequired 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. lb. 16. Gifts from prince or foreign state. — The provision of Article I, 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 106 CONSTITUTIONAL LAW— CONSULAR JURISDICTION. of courtesy, even if merely a photograph, falls under the inclusion of " any present of any kind whatever." 24 Op. 116. 17. Same — Gift to a Department of the Gov- ernment. — This prohibition expressly relates to official persons, and does not extend, under the circumstances outlined, to a Department of the Government or to governmental in- stitutions, lb. (117.) 17. The Constitution and laws applicable to organized Territories are not in force in the Philippines. 25 Op. 25. 18. Guam.— The Constitution of the United States has not been extended to Guam. 25 Op. 61. 19. Appropriations. — The inhibition of Article I, section 8, clause 12, of the Con- stitution is confined to appropriations to raise and support armies in the strict sense of the word "support," and does not extend to appropriations for the various means which an army may use in military operations, or which are deemed necessary for common defense. 25 Op. 105. 20. Involuntary servitude — Panama Canal laborers. — A person held to labor or service against his will, although he may have voluntarily contracted to submit himself to such control, is in a condition of involuntary servitude within the meaning of the Thir- teenth Amendment to the Constitution. 25 Op. 474. 21. Same. — A laborer may agree to reside in a specified place, to perform only specific work, and to remain in a territory a specified time; but if compelled by force or law to comply with his obligations in these respects he, while thus under compulsion, is in a con- dition of involuntary servitude. lb. Constitution. See Treaties, 68-70. Constitutional Inhibitions. See Constitu- tional Law, 19. CONSTRUCTION. Of Departmental Regulation. See Attor- ney-General, II, h. Of Statutes. See Statutory Construction. CONSTRUCTIVE MUSTER. See Army, II, b, 78-82; III, 199. CONSULAR COURTS. 1. The criminal jurisdiction conferred upon United States consular officers by section 4084, Revised Statutes, is limited to "citizens " of the United States charged with offenses com- mitted in the countries therein referred to. It does not extend to subjects of foreign powers. 18 Op. 498. See also Diplomatic and Consular Offi- cers, 12. 2. Transfer of convict to the United States. — There is no statute which authorizes a con- vict, sentenced to prison by a consular court of the United States, to be brought to the United States for imprisonment and there held to serve out his sentence; and in the absence of such a statute, the removal of the convict to this country for that purpose would be unlawful. Opinion of Attorney- General "Williams, of February 4, 1875 (14 Op. 522), cited with approYal. 19 Op. 377. 3. Marshal— Oath of office.— 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, ex- cept as to allegiance. 23 Op. 608. CONSULAR FEES. See Diplomatic and Consular Service, II, 19-26. CONSULAR INVOICE. See Customs Law, IX, b, 390, 391. CONSULAR JURISDICTION. See Diplomatic and Consular Officers, II, 10-18. CONSULAR OFFICERS OF CHINA— CONTRACTS, I, a. 107 CONSULAR OFFICERS OF CHINA. See Chinese. II, b, 60. CONSULS. See Diplomatic and Consular Officers II. CONTAGIOUS DISEASES. •See Health and Quarantine; Immigration, 47, 48, 87. CONTEMPT. See Courts-Martial, III, 19-20. CONTESTED ELECTIONS. See Congress IV. CONTINGENT FUND. »S"ee Executive Departments, V. CONTINUED FIVES OF 1881. See Treasury Department, 179. CONTRABAND. See Neutrality, 10. CONTRACT LABOR. See Immigration, III, a; Panama, 13, 14; Treasury Department, 54, 55. CONTRACT SURGEON. See Army, II, d, 155, 156, 184, 185; Civil Service, V, 126; Pensions, 53. CONTRACTS. I, Generally (Formation). a. Advertisement, 1-25. b. Bids and Bidders, 26-45. c. Bonds and Sureties, 46-56. d. Acceptance, Award, 57-60. e. Supplemental, 61-62. f. Miscellaneous, 63-70. II. Construction, Operation, and Validity, 71-89. III. Assignment, Modification. a. Assignment, 90-102. b. Modification, 103-108. IV. Release, Rescission, Abandonment, Annul- ment, 109-118. V. Breach, Damage, Penalty, 119-129. VI. Performance and Payment. a. Performance, 130-131. b. Payment, 132-147. VII. Continued Employment, 148-151. VIII. Contracts not authorized, 152-161. IX. Miscellaneous, 162-175. I. Generally (Formation), a. Advertisement. 1. The words "proper advertisements," as used in the act of April 15, 1886 (24 Stat. 12), authorizing the construction of the Congres- sional Library building, mean advertisements for proposals in such cases as the general provisions of law concerning public contracts require. 19 Op. 96. 2. The Commission created by that act may contract for personal services without previous advertisement; and within that description of services come those rendered by mechanics and laborers who may be employed to place the stone properly in the wall directly under the control and supervision of the Commis- sion, its architect, or superintendent of con- struction, lb. 3. Payment for advertisements by Execu- tive Departments.— Section 853, Revised Stat- utes, is superseded by the act of June 20, 1878 (20 Stat. 216), as regards the payment for advertisements by the several Depart- ments of the Government. 19 Op. 159. 4. All purchases and contracts for supplies in any of the Departments of the Government 108 CONTRACTS, I, a. must be made by advertisement unless immedi- ate delivery ia necessary. 21 Op. 59. 5. Same. — The first two sentences of section 3709, Revised Statutes, as amended by the acts of January 27 (28 Stat. 33), and April 21, 1894 (28 Stat. 62), being the original portion of the section which requires that "all pur- chases and contracts for supplies * * * in any of the Departments of the Govern- ment, " shall be made by advertisement, apply to purchases anywhere in the United States. lb. 6. Same. — The remaining three sentences of section 3709, Rev. Stats., providing that ad- vertisements for suppl ies should be made by all the Departments on the same day, etc., apply only to purchases in the city of Washington. lb. 7. Same. — The word "miscellaneous," in section 2 of theactof April 21, 1894 (28 Stat. 62), must be restricted to that class of com- modities which must be purchased on a consid- erable scale and used alike by many or all of the various Departments and Government es- tablishments in the city of Washington, lb. 8. The Secretary of Agriculture is author- ized to make the purchase of seeds, under the act of March 2, 1895 (28 Stat. 733), conform- ably to section 3709, Revised Statutes, reserv- ing the right to reject any and all bids. 21 Op. 162. 9. Contracts for the purchase by the Govern- ment of seals used to secure packages entered for transportation in bond must, under section 3709, Revised Statutes, be awarded upon advertisement. 21 Op. 304. io. Section 3709 does not apply to fasten- ings used for the purpose named which are paid for and owned by common carriers. lb. 11. Contracts for supplies or services in any of the Departments of the Government, except for personal services, or when the public exi- gency requires the same immediately, must be made after advertisement for proposals in accordance with section 3709, Revised Stat- utes. 22 Op. 1. 12. Same. — The Columbia Institution for the Deaf and Dumb is in the Department of the Interior, in the sense that its expenditures of public money are under the supervision of the head of that Department and subject to the provisions of section 3709, Revised Stat- utes, in the matter of making purchases and contracts for supplies or services. lb. 13. The Postmaster-General should adver- tise for proposals for the work of engraving and printing United States postage stamps, for which work the Bureau of Engraving and Printing may be permitted to compete. 22 Op. 40. 14. Same. — Postage stamps are supplies within the meaning of section 3709, Revised Statutes, lb. 15. In advertising for supplies for the va- rious Departments of the Government as provided in section 3709, Revised Statutes, as amended by the act of January 27, 1894 (28 Stat. 33 ) , the advertisement may be issued in the name of all the Departments, for supplies common to all, provided the advertisement contains the quantity of supplies required by each Department; but contracts for supplies can only be entered into by the appropriate officer of each Department. 25 Op. 607. 16. A contract for furnishing the Post- Office Department with copies of the Postal Guide, under the act of March 3, 1881 (21 Stat. 385, 412), making an appropriation for "publication of copies" thereof, does not come within the provisions of section 3709, Revised Statutes, and the Postmaster-General is not required to advertise for proposals pre- viously to making such acontract. 17 Op. 84. 17. The object of section 3709, Revised Statutes, in requiring advertisement for pro- posals before making purchases and contracts for supplies, is to invite competition among bidders, and it contemplates only those pur- chases and contracts where competition as to the article needed is possible, which is not the case with the Postal Guide. lb. 18. Supplies for the Government Printing Office. — Section 3709, Revised Statutes, pro- hibiting purchases and contracts for supplies by the Departments of the Government ex- cept after due advertisement for proposals, does not apply to paper and materials for the Government Printing Office, and the acts amendatory of the section (Jan. 27, 1894, 28 Stat. 33, and Apr. 21, 1894, 28 Stat. 58, 62), enlarged it in respect to that office only so as to apply to fuel, ice, stationery, and miscellaneous supplies. 21 Op. 137. 19. The purchases by the Public Printer contemplated by the act of January 12, 1895 (28 Stat. 610), are paper and materials for printing and binding public documents and such as do not come within Revised Statutes, section 3709. lb. CONTRACTS, I, a, b. 109 20. Contract for envelopes by Postmaster- General — Advertisement. — Section 96 of the act of January 12, 1895 (28 Stat. 624), which provides that "The Postmaster-General shall contract for all envelopes, stamped or other- wise, designed for sale to the public or for use by his own or other Departments," does not apply where an exigency requires an immediate delivery of envelopes to a particular Department and the public service might be seriously impaired by the necessity of a requisition upon the Postmaster-General, but it does apply to those cases in which con- tracts were to be made by advertisement. 21 Op. 181. 21. Same. — Where the public exigency re- quires the immediate delivery of the en- velopes, they may be purchased, under sec- tion 3709, Revised Statutes, by the head of the department in which the exigency arises. lb. 22. Same.— Under sections 3709 and 3718, supplies of every name and nature for the Navy are to be purchased by contract upon advertise- ments, except in cases when the public exi- gency will not permit of delay, and then by open purchase as between individuals. 21 Op. 181, 184. 28. Contract for naval supplies. — A con- tract with the Maxim-Nordenfelt Co. for the manufacture and delivery to the Navy Depart- ment of one hundred guns, the manufacture of materials to be subject to the inspection and approval of the Department, supple- mented by an agreement providing for the manufacture of the guns at the Naval Gun Factory in Washington, D. C, and for keep- ing an account of the cost of latfor involved, in order to arrive at the remuneration ulti- mately to be paid the company, is a contract for supplies and not for services, and a contract with another company for the manufacture of any of said guns may be made by the Navy Department as a contract for ordnance with- out submitting the matter to competition by public advertisement as required by section 3709, Revised Statutes. 21 Op. 577. 24. Advertisements, such as those for pro- posals for the interior finish of the post-office building in the city of Washington, need not be made in six newspapers published in District of Columbia, as provided by the act of Jan- uary 21, 1881 (21 Stat. 317). 21 Op. 595. 25. Same. — The selection of newspapers in which to publish advertisements of this char- acter in the District of Columbia is in the dis- cretion of the heads of the departments. lb. Contracts for Naval Supplies. See Navy, I, f. Contracts for Executive Departments. See Executive Departments, IV. b. Bids and Bidders. 26. Can not withdraw bid after acceptance. — The head of an Executive Department is not at liberty to allow a contractor to withdraw his bid after acceptance, upon the ground of an error in stating the amount he intended to bid. 17 Op. 70. 27. Same. — A bid or proposal, and its ac- ceptance by an Executive Department, con- stitute an obligation of the same force and effect as if a formal contract had been wrttten out and signed by the parties. lb. 28. Bids by persons other than bona fide bidders. — One of the purposes of the law (sec. 3737, R. S. ) was to secure integrity in bidding for contracts, by preventing a bidder or contractor from making several bids, one by himself and others by his friends and employees, to be afterwards consummated by assignments of the contract by them to the real bidder, for whom they all acted. 19 Op. 187. 29. Bids for speculation. — Another was to prevent those who bid for and obtain con- tracts for mere speculation, and who have neither the intention nor the ability to per- form them, from selling the contracts at a profit to bona fide bidders or contractors. lb. 30. A bid which, through mistake, errone- ously states the amount intended to be bid, is no bid at all, being made under a mistake of fact, and ought not to be considered. It is not binding even after acceptance. 20 Op. 1. 31. Same. — After a bid for the construction of public works has been accepted, the bidders have not the right to withdraw their proposal because of errors in calculation on their part, which mistake was not mutual and was due to their negligence. 21 Op. 186. 20 On. 1, distinguished. lb. 32. The lowest bidder who complies with the requirements as to security, etc. , is entitled to an award of the contract for certain sup- plies for the Navy, but the Secretary of the Navy is charged with the duty of ascertain- ing the facts in this regard, and his decision is not reversible by any court. 21 Op. 56. 110 CONTRACTS, I, b, u. 33. Withdrawal of bid prior to acceptance. — In the absence of any special statutory pro- vision to the contrary, a bidder for a Gov- ernment contract may withdraw his bid at any time until notice of acceptance. lb. 34. Same. — In view of section 3719, Revised Statutes, a successful bidder on a contract for naval supplies should not be allowed after the bids are opened, but before he receives notice of acceptance, to withdraw his bid. lb. 35. Modification of bid previous to opening of bids. — A bidder under an advertisement for sealed proposals may, previous to the opening of the bids, modify his bid by tele- gram, and the modified bid, if authentic, would, upon acceptance before withdrawal, bind the bidder. 22 Op. 45. 36. The signature to such a telegram would cure any irregularity in the signature of the original mailed bid. lb. 37. It is customary, but not essential, that a telegraphed proposition should be confirmed by letter. lb. 38. A bid which was formally accepted four days prior to the act of August 1, 1892 (27 Stat. 340), limiting to eight hours daily labor upon public works of the United States, but which left the determination of minor details and the formal' execution of the contract to a later date, was not a contract within the meaning of section 3 of that act. 20 Op. 445. 39. Section 3744, Revised Statutes, requires that all contracts of the character therein contemplated shall be reduced to writing and signed by the contracting parties. 20 Op. 447. 40. No binding contract is entered into where a bid materially alters the specifications of the advertisement by providing for additional time for the completion of the work and for the cessation of work in certain contingen- cies, even though notice of acceptance has been given, but where no formal contract is actually signed as provided by section 3744, Revised Statutes. 20 Op. 496. 41. Same. — Such a bid is in contravention with the spirit and intent of section 3709, Revised Statutes, and the river and harbor act of 1888 (25 Stat. 423). lb. 42. In specific cases the Secretary of War is authorized to waive formal defects in bids and bonds in order to secure the public advantage resulting from competitive bid- ding. 21 Op. 469. 43. Consideration of a bid received after 2 p. m. — There is nothing in the acts of Jan- uary 27, 1894 (28 Stat. 33), and April 21, 1894 (28 Stat. 58), amending section 3709 of the Revised Statutes, inconsistent with the legal right of the board of award of the Depart- ment of Agriculture to consider any bid received by them through the mail after the hour of 2 o'clock p. m. 21 Op. 546. 44. Same. — The designation of 2 o'clock p. m. " for the opening of all such proposals in each Department" means only that such proposals shall not be opened before 2 o'clock p. m. lb. 45. Same. — A proposal received after that hour, under circumstances which warranted the belief that it had been prepared and sub^ mitted in the light of the proposals submitted by other bidders, which had been already opened and made known, should not be re- ceived or entertained; but a proposal received under conditions which precluded the possi- bility of such unfairness should not be rejected because it happens tobe received by the board of award a few minutes after 2 p. m. lb. See also 48. c. Bonds and Surety. 46. Certificate of sufficiency of bondsmen — Fee for. — There is no law requiring a United States judge or a United States attorney to certify as to the sufficiency of guarantors or bondsmen offered in connection with pro- posals and contracts with the Navy Depart- ment, and no fees are chargeable against the Government for such service. 19 Op. 181. 47. Same; — The expense of obtaining a cer- tificate from the office must be borne by the bidder or contractor as other expenses are incurred by him in the proper execution of the papers. lb. 48. Worthless bond. — The provision in section 3949, Revised Statutes, that contracts ' ' shall be awarded to the lowest bidder, ' ' etc. , contemplates that a bid in order to entitle it to consideration should have with it an acceptable bond. A worthless bond, though regular in form, can not be regarded as such, and the party offering it does not thereby become entitled to be treated as a bidder. 17 Op. 293. 49. Bond of indemnity. — Where loss and injury may resnlt to the Government from the appropriation by its contractors of a patented CONTRACTS, I, c, d, e. Ill invention or other property of third persons, a bond of indemnity should be required as a part of the contract. 21 Op. 97. -See also VI, b, 132. 50. Incomplete Bonds — Sate of the bid and bond not inserted in the blanks left for that pur- pose. — A bond accompanying a bid to build certain public works, duly signed, sealed, and delivered, the separate proposals consti- tuting the bid and the bond being on printed blanks bound together and consecutively paged in print, is not sufficiently defective to be regarded as invalid because the date of the bid and bond are not inserted in the blanks left for that purpose in printing the instru- ment. 21 Op. 469. 51. Same. — The date is no part of the sub- stance of a sealed instrument, and need not necessarily be inserted. The real date is the time of its delivery, which may always be proved. lb. 52. Same. — In specific cases the Secretary of War is authorized to waive formal defects in bids and bonds in order to secure the public advan- tage resulting from competitive bidding. lb. 53. Member of Congress as surety. — The provisions of sections 3739, 3740, and 3741, Revised Statutes, considered, and held that, upon a fair construction thereof, a member of Congress may be lawfully accepted as a surety on the bond of a contractor with the United States. 18 Op. 286. 54. Same. — Signing a contractor's bond would not give the surety any immediate per- sonal interest in its benefits. He is not a contractor with the Government nor does he, under any circumstances, become so under the statute, lb. 55. Surety. — Two supplemental contracts made with a contractor when the contract itself had contemplated and provided for such changes, which have been made in the man- ner fixed by the original contract, do not im- pair the obligations of the sureties on the con- tractor's bond. 20 Op. 748. 56. A surety upon the bond of a Government contractor is not discharged from liability thereon by the contractor's thereafter agreeing to pay the moneys received by him to some third person, or entering into any partnership or being served with an injunction order restraining him from paying out any of such moneys except to the plaintiff in the injunc- tion suits, the Government not recognizing any of such proceedings in any way. 20 Op. 643. d. Acceptance, Award. 57. Where the Government advertises for bids on designated routes for carrying the mails, a formal acceptance of the bid binds the Government. 20 Op. 293. See also I, b — Bids and Bidders. 58. The lowest bidder who complies with the requirements as to security, etc., is entitled to an award of the contract for certain sup- plies for the Navy, but the Secretary of the Navy is charged with the duty of ascertaining the facts in this regard and his decision is not reversible by any court. 21 Op. 56. 59. While it has been held in some instances that proposals duly accepted without formal agreement may constitute a contract, this is not the case with contracts for public works and other contracts under section 3744, Revised Statutes. 21 Op. 98. 60. Award of coal contract for Post-Office Department, where an officer of that Department was a member of the firm. — Section 1783, Revised Statutes, does not prevent the awarding of a contract for furnishing coal for the Post- Office Department to a firm one of the mem- bers of which is an officer in that Department, provided it is the lowest bidder, and the offi- cer does not "act as an-officer or agent of the United States" with reference to the purchase of the coal. That section, being quasi-penal in character, must be strictly construed ; and, under such construction, a partner can not be held to be an "agent," for he is a principal, and the act is essentially the act of principals. 24 Op. 557. e. Supplemental. 61. Two supplemental contracts made with a contractor when the contract itself had contemplated and provided for such changes, which have been made in the man- ner fixed by the original contract, do not im- pair the obligations of the sureties on the con- tractor's bond. 20 Op. 748. 62. It is not competent for the Secretary of the Navy under the contract for the con- struction of the battle ship Indiana to pay to the contractors certain reserved payments prior to her preliminary or conditional ac- ceptance, but a supplemental contract may be 112 CONTRACTS, I f; II. entered into modifying the terms and provi- sions of the existing contracts. 21 Op. 12. f. Miscellaneous. 63. In awarding contracts for supplies for the Government under section 3709, Revised Statutes, no account can be taken of the fact that the contractor's employees work over eight hours a day. 19 Op. 685. 64. The eight-hour law merely prescribes a unit of measure for a day's labor in the ab- sence of any specific contract. lb. 65. . The Secretary of the Navy can not legally contract with the patentee for the pur- chase of his patent, or for a license to use it, under an appropriation limited to the pur- chase of material and the employment of labor in the manufacture of such article out of it. 19 Op. 407. 66. If the patentee of an article is the lowest bidder for furnishing that article, the Secretary of the Navy may accept his proposal and make a contract with him. lb. 67. If the article needed be one for which the Secretary of the Navy may negotiate without advertising for proposals, he may con- tract with a patentee of the article to furnish the needed supply. lb. 68. Purchase of patent from naval officer. — The Secretary of the Navy may lawfully con- tract with an ensign of the Navy for the pur- chase of patent rights in improvements of B. L. R. ordnance for the use of the Navy where the ensign was not employed to make experiments, but pays the expense of obtain- ing letters patent, and where no expense was authorized or facility furnished by the Board of Ordnance to aid him in making or perfect- ing his invention. 20 Op. 329. 69. Section 3721, Revised Statutes, and not section 3718, applies to this case. lb. 70. Authority to Contract — When. — The first clause of section 3732, Revised Statutes, ap- plies to direct authority to contract granted by statute; the second clause covers an implied authority arising out of the appro- priation of means to fulfill. The two sec- tions cited are held to be construed together. If public moneys are involved an appropria- tion may give power to contract. If public moneys are not involved the Department is prohibited from making the contract "unless the same is authorized by law." 19 Op. 654. Contracts for Supplies. See Executive Departments, IV. Purchases from Contingent Fund. See Executive Departments, V. Opinions Attorneys-General Relative to Contracts. See 72-73. II. Construction, Operation, and Validity, 71. By section 3740 contracts for carrying the mail are excepted from the operation of the law (sec. 3739) forbidding members of Congress to be admitted to any share in or benefit arising upon contracts with the Gov- ernment. 18 Op. 113. 72. Eight-hour law — Application to a pro- posed contract. — The Attorney-General is not authorized to give his opinion upon the ap- plication of the eight-hour law to a proposed contract, where the contractors whose bids have been accepted desire to be advised before signing the contract what portion of the work that law will affect, as it is not a question which the Secretary of the Treasury is called upon to decide. 20 Op. 463. 73. It is not the duty of the Attorney- General, nor has he the right, to give an official opinion for the guidance of persons proposing to enter into, contract relations with the United States. 20 Op. 465. 74. A contract for the carriage of "sample packages," silent as to the kind of sample pack- ages, can not be held to refer only to articles of no commercial value imported as samples and not subject to duty. 20 Op. 710. 75. In a contract for public works, al- though the representations of an officer of the Government have been relied upon, they must be regarded as wholly personal and of no ef- fect as against the United States. 21 Op. 78. 76. What one party to a contract may have personally understood a provision to mean at the time the contract was made can not avail. What both parties understood con- trols, and that is to be ascertained from the language of the contract itself. 21 Op. 585. 77. Where the advertisements and specifica- tions are made a part of the contract. — Where a contract is duly executed and approved, and the advertisements and specifications are in terms made a part thereof, as in this case, these papers constitute the contract and resort can not be had aliunde. If the proposal as CONTRACTS, II. 113 accepted is not attached and made a part thereof in fact, it ought at least, in order to be regarded, be identified and included by ap- propriate reference. 22 Op. 98. 78. When a writing upon its face is couched in terms importing a complete legal engage- ment, without any uncertainty as to its object or extent, it will be conclusively presumed that the whole engagement was reduced to writing. Jb. 79. In the case of a contract entered into by correspondence, the whole of it must be con- sidered, and both parties must assent to a pro- vision or condition before either is bound. lb. 80. Proposals accepted without formal agree- ment. — While it has been held generally un- der the statutes applicable to contracts of the Post-Office Department that proposals duly accepted without formal agreement may con- stitute a contract complete and binding on the Government, this is not the case with contracts for public works and other con- tracts under section 3744, Revised Statutes. lb. 81. A parol agreement, while a contract is executory, is not obligatory on the Govern- ment, lb. 82. The contract for the construction of gun emplacements on Tybee Island, Georgia, is a formal written contract, and as such merges all previous negotiations, and is presumed to express without any uncertainty the final understanding of the parties, and antecedent conversations of previous or contemporary oral agreements regarding it are strictly in- admissible, lb. 83. Implied warranty, in specifications. — In the specifications upon which certain con- tracts were made for the construction of a sea wall, etc., at Annapolis, Md., informa- tion was given as the result of test borings by the Government engineer officers, and a no- tation was placed upon the profile of the borings that the drawing was made to give to the bidder "a graphic illustration of the conditions which it is believed will be found in doing the work;" * * '* that "the conditions existing between and around the borings can not, therefore, be definitely known, and the architect or owner is not to be held responsible for the accuracy of the profile lines and levels of the various materials thereon shown; * * * and that "if the bidder wishes, he may make such further 18456—08 8 borings as he may desire." Held: That no warranty or guaranty was given by the Gov- ernment that the conditions represented therein existed, and that the drawings and phraseology of the notation are not expressive of any such contract. 25 Op. 33. 84. Dry dock — Shoring. — A contract for the building of a dry dock contained the pro- vision 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 re- quire that the land adjacent to the excava- tion, lying between the dry dock and a quay wall, be protected from caving and injury. 24 Op. 82. 85. Eepatriation of Spanish prisoners. — 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 captured aud 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 vol- untary as to them or otherwise. 23 Op. 9. 86. Same — Contract. — To carry out the provisions of that treaty the War Depart- ment entered into a contract with Ceballos & Co., by which that company agreed to transport to Spain "such number of prison- ers of war and persons as may be designated by the Secretary of War." Under that con- tract 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. lb. 87. Same.— 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 there- for 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. lb. 88. Same — Contract not ultra vires. — The contract being for the transportation of pris- oners only was not ultra vires the Secretary 114 CONTRACTS, II, III, a. of War. The most that can be said is that the United States made a mistake in tender- ing for transportation some persons not within the purview of the contract. lb. 89. Same — " Officers " — " Other persons." — The word "officers" used in the contract includes as well civil as military officers; and the term "others persons" includes all persons other than officers. lb. Sites for Public Buildings. See Public Buildings. III. Assignment, Modification a. Assignment. 90. To secure material furnished. — Where a contract was made for roofing a court-house at a, fixed price, and a power of attorney given to receive a part of such price as secur- ity for material purchased by the' contractor: Advised that the power was not affected by section 3477, Revised Statutes, as no doubt existed concerning the right of the contractor to receive the amount so secured. 17 Op. 545. 91. Same. — The provisions of section 3477, Revised Statutes, touch ing transfers and assign- ments of claims against the United States, and powers of attorney, etc., for receiving payment thereof, do not apply to undisputed claims, or any claim about which no question is made as to its validity or extent. lb. 92. Payments. — There being a question as to the assignment of a contract with reference to the improvement of the harbor at Bruns- wick, Ga. , under the river and harbor acts of 1894 (28 Stat. 342), and 1896 (27 Stat. 208), all parties may execute an agreement in the na- ture of a trust to embody a release to the United States as to a present payment and an agreement to release as to future payments, and providing for payment to a trustee for disbursement. 22 Op. 156. 93. Same. — As regards the Government and the payment referred to, there is but one valid claim — that of the contractor named in the acts. lb. 94. Same. — The word "assigns" in the said acts of 1894 and 1896 is intended to point out the party or parties who took over by formal assignment all rights to or interest in a con- tract, or such measure of rights and interest as carve out a complete share in the under- taking itself, with all its risks and incidents. The assignee recognized must take in accord- ance with the method and formalities pro- ided by section 3477, Revised Statutes. lb. 95. Same. — The Government should not con- strue a contract between third parties or be- tween their contractor and others or judicially determine the respective rights under such a contract merely for the reason that its terms relate to a Government undertaking. lb. 96. Same. — The phrase "legal representa- tives" in the act of 1896 refers to those who may be charged with the administration of the contractor's estate, or as equivalent to the ' ' assigns " of the contract as an integral thing. lb. 97. Transfer. — A contract entered into by the Chief of Ordnance with the South Boston Iron- Company in October, 1880, and subse- quently transferred by that company to the South Boston Iron Works f may still be treated by the Government as obligatory upon the for- mer company, notwithstanding such transfer. 18 Op. 88. 98. Same. — As between the South Boston Iron Works and the United States no privity exists by reason of the transfer, and in the ab- sence of any agreement between that com- pany and the United States, importing an undertaking by the former to perform the contract referred to, such contract can not be enforced against it by the latter. lb. 99. Same. — Under the provisions of section 3737, Revised Statutes, such transfer operated to annul the contract so far as the United States are concerned; but these provisions were not made to enable a contractor to avoid his agreement with the Government and relieve himself from his obligations by a mere transfer. lb. 100. Transfer of contract. — A manufactur- ing company, after having entered into a con- tract with the Navy Department to deliver a large quantity of steel castings to be used in the construction of an armored cruiser, proposed to transfer the contract to another manufac- turing company, which contemplated- fulfill- ing the covenants of the former company with the Government, and asked the approval of such transfer by the Secretary of the Navy: Advised that, in view of the prohibition in sec- tion 3737, Revised Statutes, the proposed transfer can not lawfully be approved and rec- ognized by the Navy Department. 19 Op. 186. CONTRACTS, III, a, b; IV. 115 101. Approval in advance of assignment. — There is no authority given by the statute, nor to be inferred from it, that any officer of the United States can, in advance, either ap- prove or recognize any proposed assignment thus forbidden. lb. 102. The parties to an assignment may suffer damage, but can derive no benefit from an as- signment of a Government contract. lb. Assignment of Moneys Due. See Con- tracts, VI., 144. b. Modification. lOS. The Secretary of the Treasury is au- thorized by section 3 of the act of June 10, 1880 (21 Stat. 173) , to modify the form of the contract made with common carriers so as to permit them to remove goods from a vessel and place them in a warehouse or other secure place, provided care be taken to stipulate that their liability as common carriers shall continue until custody and possession of the merchandise has been delivered to and ac- cepted by the collector. 20 Op. 674. 104. The Secretary of the Treasury has no authority to change binding contracts entered into with the United States by responsible parties, secured by responsible sureties, in the interest of private parties thereto, without consideration inuring to the Government. 21 Op. 115. 105. The express stipulation in certain con- tracts with reference to the rentals at Ellis Island, that the Secretary of the Treasury may annul for cause, implies some fact or state of facts inducing or justifying an abrogation of the contract for the benefit of the United States. lb. 106. A clause contained in contracts of the War Department providing for future modifi- cations of the contract, set out, and held to be reasonable and proper, and that a modifica- tion of such a contract, which does not prejudice the interests of the Government or violate any statutory provision, is not such a new contract as must be preceded by an adver- tisement for proposals from bidders. 21 Op. 207. 107. It is not competent for the Secretary of the Navy under the contract for the con- struction of the battle ship Indiana to pay to the contractors certain reserved payments prior to her preliminary or conditional accept- ance, but a supplemental contract may be en- tered into, modifying the terms and provisions of the existing contracts. 21 Op. 12. 108. The contract with Edwards, Howlett & Thompson for the improvement of the Hudson River may be legally modified, so as to provide for the acquirement by the United States, through condemnation, of the lands necessary for dumping grounds, to be maintained at the cost of the contractors. 21 Op. 78. Modification of Contract. See Ocean Mail Service. IV. Release, Rescission, Abandonment, Annulment. 109. Release because of unforeseen difficul- ties. — The Secretary of War has no authority to discharge a dredging company from the performance of its contract with the United States to remove and deposit dredged matter in such places as the United States engineer officer shall direct, because of unforeseen difficulties in selling or even in disposing of the material excavated, which an officer of the Engineer Corps had represented could be disposed of at a stated price per cubic yard. 17 Op. 368. 110. Rescission. — A contract entered into between Charles Rohr and the Bureau of Animal Industry of the Department of Agri- culture, which contained no definite period during which either party was to be bound thereby, and the Bureau having informed Mr. Rohr that it would consider the contract at an end June 30, 1888, may be regarded re- scinded and no longer binding. 19 Op. 224. 111. Abandonment — Claims. — Pursuant to a contract entered into by the Secretary of War with certain contractors for the trans- portation from Lynn Canal to Dawson City of supplies for the relief of destitute people in the Yukon River region, said contractors made preparations for such transportation and in- curred therein a large expense. The expedi- tion was subsequently abandoned, because it was found unnecessary, and the contractors were so notified. Held, The Secretary of War has power to settle and pay the claims of the contractors out of the appropriation made for such relief. 22 Op. 437. 112. Same. — The Secretary of War had the right to abandon tins contract and decline to 116 CONTRACTS, IV, V. perform it if he deemed that the public inter- ests so required. lb. 113. Same. — If the Government had ascer- tained that the contractors were not and could not be ready to transport the supplies within the time, agreed upon, it could have treated that as a default and rescinded the contract; but in such case those facts must be shown to have existed, lb. 114. Same. — In the absence of complaint or suggestion of the want of diligence or readiness on the part of the contractors, they must not be treated as being in fault. lb. 115. Same. — A party may abandon, fail, or refuse to perform his contract, but its obliga- tions still continue, although at law there may be no means for their enforcement. lb. 116. Same. — Unless authorized by Con- gress the head of a Department has no power to adjust and pay claims for unliquidated dam- ages, even when arising from the breach of a contract, except where such claims are for work and labor done or materials furnished under a contract silent as to the price and the amount thereof unliquidated. lb. 117. Annulment — Return of reserved per- centage fund. — The reserved percentage fund held by the Government as security for the performance of a contract may properly be returned to the contractors where the con- tract is annulled by the Government on the ground that the work was not being prose- cuted with due diligence, which resulted from an unusual series of accidents and misfor- tunes, and where it is clear the Government can suffer no loss because of such annulment. 20 Op. 511. 1 18. The express stipulation in certain con- tracts with reference to the rentals at Ellis Island, that the Secretary of the Treasury may annul for cause, implies some fact or state of facts inducing or justifying an abrogation of the contract for the benefit of the United States. 21 Op. 115. V. Breach, Damage, Penalty. 119. Breach of contract. — Unless author- ized by Congress the head of a Department has no power to adjust and pay claims for unliqui- dated damages, even when arising from the breach of a contract, except where such claims are for work and labor done or ma- terials furnished under a contract silent as to the price and the amount thereof unliqui- dated. 22 Op. 437. 120. A city may suspend or entirely abandon a project, although covered by a valid contract, subject only to the right of the contractor, if damaged, to recover just compensation. 22 Op. 529. - 121. Delay in completing — Penalties. — The Secretary of the Navy had the power under the contract of February 11, 1887, with the Pneu- matic Dynamite Gun Company for the con- struction of the V. S. S. Vesuvius, to impose the penalties provided for in the sixth clause of that contract for failing to complete thewes- sel within the time specified. 20 Op. 631. 122. The present Secretary of the Navy has no authority to remit those penalties and pay the amount thereof to the claimants, lb. 123. Same. — The provision in a contract providing for a forfeiture of $20 for each day's delay in completing certain work on the gas plant at the military academy at West Point, is to be regarded as a penalty, and the Secre- tary of War is therefore, authorized to assess against the contractor only the actual damages sustained. 21 Op. 139. 124. Same — Contract stipulations — Pen- alty — Liquidated damages. — Two parties en- tered into contracts with the proper authori- ties 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 liqui- dated damages must frequently depend upon facts and circumstances outside of the con-, tract. 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. 23 Op. 105. 125. Same — General principles — Compensa- tion — Penalties. — In determining this ques- tion, courts proceed upon the single idea of compensation, and, where this can be done CONTRACTS, V, VI, a, b. 117 without injury to the party not in default, will treat such provisions as penalties. lb. 126. Same — Liquidated damages. — 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 compensa- tion must not be violated by fixing a sum greatly in excess of any actual or fairly pre- sumable damage. lb. 127. Same. — 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, lb. 128. Same — Secretary of War — Board of Commissioners of the Soldiers' Home. — 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 Com- missioners of the Soldiers' Home have ample authority to pay said contractors the full con- tract prices, less damages actually sustained by the delay. 2ft. 129. Same. — Where penalties are imposed under the terms of » contract between the War Department and a contractor for delay in completing the work, but the contract was performed in all other respects and no actual damage has resulted from the delay, the Sec- retary of War may remit the forfeiture. 21 Op. 27. VI. Performance and Payment, a. Performance. 130. Questions as to whether the claims of a certain company relating to the perform- ance of a contract entered into with the city of Havana, Cuba, relative to sewering and paving that city, are sufficiently complete to consti- tute a contractual relation and whether they ought to be ultimately recognized and con- firmed are such as should be left to the decision of the authorities of Havana when that city shall have resumed its normal functions. 22 Op. 310. 131. Specific performance. — No one has a right to insist upon the specific performance of a contract for the improvement of streets in a municipality. A city may suspend or en- tirely abandon a project, although covered by a valid contract, subject only to the right of the contractor, if damaged, to recover just compensation. 22 Op. 529. b. Payment. 132. To whom — Bondsmen who completed the work — Power of attorney. — Where' a con- , tractor with the Quartermaster's Department failed to perform certain work, and an ar- rangement was effected whereby his bonds- men should take charge of and complete the work, the contractor executing and delivering to them a power of attorney, by which they were authorized to receive and receipt for the money due on the contract: Advised that the Department may recognize this power of at- torney, and that payment to said bondsmen upon their receipted vouchers thereunder will discharge the Government. 19 Op. 239. 133. Attorney in fact. — Moneys due by the United States to a contractor may be paid to him through his attorney in fact, constituted for that purpose, notwithstanding it is claimed that one of the sureties entered into a sub- contract with the contractor by which he was to receive all moneys to be paid on the contract, such subcontractor not having filed any notice of such agreement or made any claim to payment. lb. 134. Advances. — A proposed bond of indem- nity for advances made and to be made to a contractor for building a vessel deemed inef- fectual. Suggested that the contractor be re- quired to execute a refunding bond, with adequate personal or real security, or both, to cover as well advances heretofore made as any which may be made hereafter. 20 Op. 692. 135. Money advanced on contract — Mem- bers of Congress. — The word "advanced" in section 3739, Revised Statutes, which re- quires the return of money advanced by the United States on any contract wherein a member of Congress is benefited, is used in its ordinary legal meaning, and does not ap- ply to contracts that have been fully exe- cuted and payment thereon fully made. 25 Op. 71. 136. Part payment. — Section 3648, Eevised Statutes, prevents part payments upon Gov- ernment contracts unless the United States thereupon becomes the owner of the work paid for. 20 Op. 746. 118 CONTRACTS, VI, b; VII. 137. Payment of the tenth installment, but not the final payment, on a vessel under con- struction for the Government, may properly be made to the contractor in advance of the time stipulated in the contract, where the money has been earned, but the full trial trip and formal acceptance have been delayed. 18 Op. 105. 138. Same. — Section 3648, Revised Statutes, does not preclude a payment in any case where the money has been actually earned and the Government has received an equivalent therefor. lb. 139. Final payment. — Contract for con- struction of battle ship Indiana, construed, and held, that it was not competent for the Secretary of the Navy, under the existing contract, to pay to the contractors, any part of the last three installments of the price of the vessel or of reservations from previous payments, prior to the preliminary or con- ditional acceptance of the vessel; but that a supplemental contract might be entered into, modifying the terms and provisions of the existing contract. 21 Op. 12. 140. Same — Failure to stand a test not re- quired by the contract. — Under a contract for the construction of a certain type of gun, 85 per cent of the sum appropriated was to be paid as the work progressed and the re- mainder upon its completion and test. The gun was completed and stood the regular proof test, bat upon being subjected to a further test it was destroyed. Held, that the contractor was entitled to the final pay- ment, as neither the statute (29 Stat. 256, 261) nor the contract required that the gun should be capable of the particular test to which it was last subjected. 22 Op. 465. 141. Pass a Loutre — South Pass. — 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. 23 Op. 143. 142. Same. — The contractor was under no obligation to close the crevasse, unless it was necessary in order to maintain the channel and protect the works. lb. 143. Same. — The question whether a ne- cessity exists to close the crevasse is one of fact, not of law; and the facts and inferences are opposed to its existence, lb. 144. Assignment of moneys to become due. — The moneys due by the United States to a con- tractor may be paid to him through his attor- ney in fact, constituted for that purpose, not- withstanding it is claimed that one of the surities entered into a subcontract with the contractor by which he was to receive all moneys to be paid on the contract, such sub- contractor not having filed any notice of such agreement or made any claim to payment. 20 Op. 643. 145. Injunctions. — The Navy Department is not affected by an injunction issued by a State court directing a contractor to pay to a receiver all moneys received by him in his contract with the United States Government, for the reason that the order is merely interlocutory, to which the United States was not a party, and in which the court does not attempt to interfere with the operation of that Department. lb. 146. Same. — The moneys due such con- tractor may be paid him through his attorney in fact, constituted for that purpose, lb. . 147. Interest on money due and payable. — Where money is due and payable on a con- tract at a specific time and is withheld, the creditor is entitled to demand and receive interest at the rate prevailing in the forum where suit is brought, except as against the Government of the United States and sover- eign States. 22 Op. 172. VII. Continued Employment. 148. Continued employment. — The Secre- tary of War is without authority to continue the employment of certain contractors, or to supervise their work, after the appropriation under which they are employed is exhausted, and their contract with the Government,- so far as authorized by Congress, has been ex- hausted. 21 Op. 244. 149. Same. — A contract not for the com- pletion of any specific work, as the erection of a building, the construction of a road, or rendering a channel adequate for the passage of. vessels of a certain draft, is at an end after an appropriation is exhausted. Work done after CONTRACTS, VII, VIII. 119 the appropriation is exhausted would not come within such a contract. 21 Op. 244. 150. Same. — Executive officers are prohibited by sections 3679, 3732, 3733, and 5503, Revised Statutes, from continuing the employment of the contractors and involving the Government in expenditures or liabilities beyond those con- templated by Congress, or authorized by law. lb. 151. Same. — If further appropriations are made, there must be a new contract for their expenditure. lb. VIII. Contracts not Authorized. 152. The instrument (set out in the opinion), signed by Ambrose W. Thompson, for himself and the Chiriqui Improvement Com- pany, and Isaac Toucey, Secretary of the Navy, dated May 21, 1859, providing for the granting to the United States of certain lands, rights of way, and harbor and coal privileges at the. Lagoon of Chiriqui and the harbor of Golfito, upon the approval of the same by Congress and the appropriation of $200,000 as compen- sation therefor, is in no sense a contract obli- gatory upon the United States. 19 Op. 50. 153. Same. — The appropriation of §200,000, made bythe act of March 3, 1881 (21 Stat. 448) , "To enable the Secretary of the Navy to. establish at the Isthmus of Panama naval stations and depots of coal for the supply of steamships of war," has no application thereto. lb. 154. Expenditures beyond those authorized by statutes. — The object of sections 3732, 5503, and 3679, Revised Statutes, was to prevent executive officers from involving the Govern- ment in expenditures or liabilities beyond those contemplated and authorized by the lawmaking power. 21 Op. 248. 155. Original appropriation expended — Sup- plemental contract — Premiums. — The Secre- tary of War is not authorized by the act of August 1, 1894 (28 Stat. 214), providing for the purchase of a ten-inch pneumatic dis- appearing gun carriage upon the same con- ditions relative to payments, etc., as are embodied in the contract for the Gordon carriage — to enter into a supplemental con- tract for the payment of a bonus or premium for each shot per hour the carriage is capa- ble of sustaining above the number required by the original contract, for the reason that the whole amount appropriated for the pneu- matic carriage was expended in the original contract, and there is no authority to con- tract for further expenditures. 21 Op. 495. 156. The commissioner -general of the ' United States to the Paris Exposition of 1900 has no authority to let a contract for printing and publishing a catalogue of the United States exhibit, etc., in which the contractor is to re- ceive no money from the United States, but is to derive his compensation from the pro- ceeds of the sale of the catalogue and the in- sertion of advertisements therein. 22 Op. 388. 157. The Secretary of the Treasury has no authority under section 3755, Revised Statutes, to enter into a, contract with a pri- vate individual for the collection of money fraudulently obtained of the Government. 22 Op. 411. 158. Agreement to sell property which the contractor does not own. — The proposal made by Messrs. Mooney & Ferguson, to sell to the United States -a site for a public building, at Buffalo, N. Y., which property they did not own or control, upon condition that the United States institute condemnation proceedings against any part thereof that can not be se- cured by grant, and deduct the cost of such proceedings from the contract price, and the acceptance thereof by the Secretary of the Treasury, do not constitute a contract oblig- atory upon the United States. 19 Op. 269. 159. Same. — The Secretary can not by con- tract bind the Government to exercise its power of eminent domain, to enable persons to sell to the Government land which they do not own. lb. 160. The Post-Office Department has no power, under existing laws, to make contracts for the transmission of intelligence by telegraph for the general public, as a part or branch of the postal service. 19 Op. 650. 161. Same. — Mail matter, as defined by statute, does not include telegraphic corre- spondence as such; nor does the power given the Postmaster-General to contract for carry- ing the mail include authority to contract for sending messages by telegraph for the bene- fit of the people at large, lb. 120 CONTRACTS, IX. IX. Miscellaneous. 162. Acceptance of inferior articles. — Where a contract for the delivery of certain supplies at an Indian agency provided, where the emergency demanded it, for the acceptance of goods inferior in quality to the sample, held (1) that the question whether the neces- sities of the service compelled acceptance of the articles offered was a question de- terminable only by the Commissioner of Indian Affairs or his agents, under the direc- tion of the Secretary of the Interior; (2) that while the inspectors were not ap- pointed or designated in the manner indi- cated by the statutes, the approval by the proper officials of their recommendations was an ample ratification of their appoint- ment, and (3) that the time and place of delivery before the goods were distributed were eminently the time and place to deter- mine their relative value. 17 Op. 384. 163. Public cartage of merchandise. — Sec- tion 25 of the act of June 22, 1874 (18 Stat. 186), regarding the letting out of public cart- age of merchandise in the custody of the Government to the lowest bidder, applies only to such cartage as is paid for by the Government and not to cartage the expense of which is paid by the individual importer. 20 Op. 35. 164. Transportation and subsistence at Ellis Island. — The Secretary of the Treasury is au- thorized by the act of August 3, 1882 (22 Stat. 214), and sections 7 and 8 of the act of March 3, 1891 (26 Stat. 1085), to contract both as to ferriage to and from Ellis Island, and subsistence of immigrants and employees for a reasonable term, subject to the rights of the officers and agents of the Government, to any legislation that Congress may enact, and to such rules and regulations as the Secretary may adopt. The contract may confer the exclusive privilege of transportation and the collection of a reasonable compensation therefore. 20 Op. 217. 165. Same. — The inhibition contained in section 3735 Revised Statutes, is not applica- ble to the contracts under consideration. lb. 166. Contracts for the purchase of seals by the United States used to secure packages while being transported in bond must, under section 3709, Revised Statutes, be awarded upon advertisement. 21 Op. 304. 167. Same.— Section 3709, Revised Stat- utes, does not apply to fastenings used for the purpose named which are paid for and owned by common carriers. lb. 168. Agreement for the purchase of the Zucker tract — Condemnation — Equitable inter- est in realty. — 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 bal- ance 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 con- demnation 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 con- demnation was a bare legal title, and that it is held in trust for C. 23 Op. 392. 169. Same — Purchase of equitable interest — Appropriation for "Barracks and quarters." — 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 pur- chase instead of suitable buildings already constructed. lb. 170. Boyalty on guns, carriages, etc. — The United States is authorized to enter into a contract for the payment of royalty on ac- count of the construction of certain guns, car- riages, etc., payable out of appropriations " for the armament of fortifications, and for other purposes," approved May 25, 1900 (31 Stat. 185), March 1, 1901 (31 Stat. 874),' and June 6, 1902 (32 Stat. 388), notwithstanding the fact that the fulfillment of such contract might extend over a period of more than two years. 25 Op. 105. 171. Same. — The inhibition of Article I, section 8, clause 12, of the Constitution is con- fined to appropriations to raise and support armies in the strict sense of the word "sup- port," and does not extend to appropriations for the various means which an army may CONTRACTS, IX— CONVEYANCE. 121 use in military operations, or which are deemed necessary for common defense. lb. 172. Taxation. — So long as «. contractor is taxed uniformly with all others in the same line of business, upon the same transactions, and the tax is levied for proper objects of taxation, he can not complain merely because his compensation or profits under his con- tract with the Government are thereby indi- rectly reduced. 22 Op. 192. 173. Contracts with informers.— The Secre- tary of the Navy is authorized by implication, from statutes authorizing him to enter into contracts for certain equipment, to contract for the compensation of persons furnishing information of frauds practiced upon the Gov- ernment in supplying such equipment, the compensation to be regarded as money paid for inspectors' wages, or for detective work. (Sec. 3732, Rev. Stat, considered in connec- tion with 15 Op. 235, 240. ) 21 Op. 1. 174. Material and labor for public works. — The act of August 13, 1894 (28 Stat. -278), en- titled, "An act for the protection of persons furnishing materials and labor for the con- struction of public works," relates to con- tracts for the constrnction of public buildings, fortifications, river and harbor improve- ments, etc., which can only be erected upon land, and are commonly understood under the designation "public works," and to re- pairs upon public buildings or public works, The act does not refer to contracts for the construction of naval vessels. 23 Op. 174. 175. The act does not apply 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 con- tractor until its completion and acceptance by the Government. lb. Relating to any particular Department, See that Department. Executive Departments generally. See Executive Departments. Government contracts generally. Included under the general heading "Contracts." Army Supplies. $ee Army, I, g. Attorneys' Fees. See Treasury Depart- ment, I, b, 11-14. Battle ships. See Navy, VII. Carriage of the Mails. See Postal Serv- ice, III; and Ocean Mail Service. Discontinuance op Mail Transportation. See Postal Service, 81. Construction of Panama Canal.- See Pan- ama, 3-5. Guns, Carriages, etc. See Armament -and Fortifications. Implied Warranty in Specifications. See Contracts, II, 83. Indian Contracts. See Indians, IX, and III, f. Money Exchange Privilege at Ellis Island. See Immigration, VII. Naval Supplies. See Navy, I, f. Naval Vessels. See Navy, VII. Ocean Mail Service. See Ocean Mail Service. Postal Service. See Postal Service, III. River and Harbor Improvement. See Navi- gable Waters, II. Sea Wall at Annapolis, Md. See Con- tracts, II, 83. Supplies for Departments. See Executive Departments, IV. Unwarranted Contracts Made by Govern- ment Officials. See Contracts, VIII. Washington Aqueduct Tunnel. See Dis- trict of Columbia, VI. See also Quasi-Judicial Acts. C0NTBIB1TTI0NS FOE POLITICAL PTJBPOSES. See Civil Service, I, 11, 12; Congress, I, 6, 7. CONTBIBUTOEY NEGLIGENCE. See Navigable Waters, III, d, 181. CONVENTIONS. See Treaties, IV. CONVEYANCE. See District of Columbia, III, 15. 122 CONVICTS— COPYRIGHT. CONVICTS. Sentenced by Consular Courts, sulah Courts, 2. See Con- COPY OT CHARGES. See Navy, V. COPYRIGHT. 1. The international copyright act of March 3, 1891 (26 Stat. 1106), does not prohibit the importation of nncopyrighted lithographs, al- though they may be copies of -the copyrighted paintings. 20 Op. 753. 2. The importation of foreign-made chromos, which are copies of a foreign painting that has been copyrighted, but which are not them- selves copyrighted, but are protected only by the copyright of the original painting, is not prohibited by the act of March 3, 1891, amending section 4956, Revised Statutes. 21 Op. 416. ' ' 3. The importation of reprints of musical compositions copyrighted in the United States is prohibited. 22 Op. 29. 4. The importation of music books copy- righted in the United States is prohibited. lb. 5. Music books- made up in part of musical compositions copyrighted in the United States are prohibited importation. lb. 6. Prohibited article attached to an article not prohibited. — An article which is prohib- ited importation can not gain admission through being attached to an article which is not prohibited. lb. 7. Regulations for the forfeiture or destruc- tion of imported prohibited articles may be so framed as to provide due process of law. lb. 8. The term "book," as construed by the courts under the copyright laws, includes a musical or other composition, though printed on but one sheet. lb. 9. The reprint of a musical composition may be a "book," a "lithograph," or "photograph," according to the mechanical process used. lb. (31). 10. The Secretary of the Treasury and the Postmaster-General are authorized, in mak- ing the rules and regulations prescribed by section 4958, Revised Statutes, as amended by section 4 of the act of March 3, 1891 (26 Stat. 1107), to provide for the summary de- struction, without notice, of musical composi- tions and music books imported in violation of the copyright laws. 22 Op. 70. 11. If their nature and value demand a notice and hearing before destruction, the rules and regulations adopted may be framed to provide for the same. lb. 12. "Due process of law" does not neces- sarily mean a judicial proceeding. —When prop- erty is of trifling value, and its destruction is necessary to effect the object of a valid law, it is within the power of the legislature to order its summary destruction without obtain- ing a forfeiture by judicial proceedings. lb. 13. Importation of copyrighted music- — By sections 4964 and 4965, Revised Statutes, as amended by the act of March 3, 1891 (26 Stat. 1109), the importation- of any of the copy- righted articles enumerated therein, includ- ing music, is made a penal offense, and con- sequently is prohibited. 23 Op. 445. 14. Same. — Paragraph 503 of the free list of the tariff act of July 24, 1897 (30 Stat. 196), merely provides when and under what cir- cumstances the articles therein specified are exempt from duty on importation, and does not repeal or modify any part of the copy- right law. lb. 15. Importation of books copyrighted prior to the passage of the copyright act. — Section 3 of the copyright act of March 3, 1891 (26 Stat. 1106), prohibiting the importation into the United States of foreign editions of any book copyrighted in this country, is appli- cable to books copyrighted prior to the pas- sage of the act. 21 Op. 159. 16. Same. — The exceptions 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, is not limited in its application to the "authorized editions" of such book. lb. 17. Importation of books copyrighted in the United States, but printed abroad. — The im- portation 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). 23 Op. 371. 18. Same — Section 4956, Revised Statutes. — The requirements and prohibitions of section 4956, as amended by said act, took effect in COPYRIGHT— CORPORATIONS. 123 general prospectively, and do not embrace in their burdens (without regard to their bene- fits) a copyright obtained before March 3, 1891. lb. 19. Same. — Section 4959, Revised Statutes, as amended by the act of March 3, 1891, per- mits rather than requires a revised edition of a book by foreign authors theretofore pub- lished to be copyrighted, lb. Opinion of April 19, 1895 (21 Op. 159), dis- tinguished and criticised. lb. 20. Importation of foreign books copyrighted in the* United States. — The Secretary of the Treasury is authorized and it is his duty, under sections 4956 and 4958, Revised Stat- utes, as amended by the act of March 3, lj891 (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 copy- right for the United States was secured by the Paris publisher and afterwards by him assigned to an American house. 23 Op. 353. 21. Same. — A dramatic composition may be a bpok. lb. 22. Publications printed from type set within the Philippine Islands. —The provisions of the copyright act of March 3, 1891 (26 Stat. 1107), which requires that the two copies of books, photographs, chromos, or lithographs re- quired to be deposited with the Librarian of Congress shall be printed from type set within the limits of the United States, are not com- plied with by depositing with that officer copies of publications printed from type set within the Philippine Islands. 25 Op. 25. 23. Congress has not extended the copyright laws to the Philippines, but has enacted, in setting up a separate government for those islands, that section 1891 of the Revised Stat- utes, extending the Constitution and applica- ble laws to organized Territories, is not to be in force in the Philippines. lb. 24. The Philippine Islands are not "a for- eign state or nation" within the meaning of the copyright laws, and the inhabitants of those islands are entitled to avail themselves of the benefits of those laws within the United States. 25 Op. 179. Opinion of December 2, 1898 (22 Op. 268), overruled. 25. Same. — The proviso contained in sec- tion 4956, Revised Statutes, that the two copies of books, photographs, chromos, or lithographs required to be deposited with the Librarian of Congress shall be printed from type set within the limits of the United States, is not complied with by depositing with that officer copies of publications printed from type set within the Philippine Islands. lb. Opinion of July 28, 1903 (25 Op. 25'), adhered to. 26. Same. — The Librarian of Congress in determining what fees should be charged under section 4958, Revised Statutes, for the recording, etc., of copyrights, should treat a citizen or resident of the Philippine Islands, as "a person not a citizen or resident of the United States." lb. 27. The inhabitants of Hawaii, in the ab- sence of affirmative legislation by Congress to that effect, are not entitled to the benefits of the United States copyright laws. 22 Op. 268. 28. Same. — When Cuba, Puerto Rico, and the Philippine Islands have been duly ceded to the United States their respective inhabitants will not be entitled to the benefits of the copy- right laws unless the treaty by its terms con- fers such right or Congress shall extend such laws to the inhabitants of those countries. lb. 29. Same. — So long as a state of war exists between Spain and the United States Spanish subjects have no right to the privilege of copy- right conferred upon Spanish citizens by proclamation prior to the declaration of war. lb. CORPORATIONS. , 1. Transportation companies bringing into the United States aliens afflicted with disease pronounced to be "loathsome or dangerous contagious," are liable to the penalties pre- scribed by section 6 of the act of March 3, 1891 (26 Stat. 1085). 22 Op. 122. 2. Same. — Corporation officers or servants responsible for or actually engaged in such breach of the immigration laws are liable to fine and imprisonment under that act. lb. 3. Same. — A corporation is liable for the acts of its officers, agents, or servants done by its authority, and for every wrong it commits, or for quasi-criminal acts, and in such case the doctrine of ultra vires has no applica- tion, lb. 4. A corporation organized under the laws of any State in the Union is an American citizen 124 CORPORATIONS— COURTS, I. within the meaning of the act of March 3, 1891 (26 Stat. 830). 20 Op. 161. 5. The State of Rhode Island is not a per- son, corporation, or association, within the meaning of sections 4 and 5 of the river and harbor appropriation act of September 19, 1890 (26 Stat. 453). 20 Op. 606. See also Treaties II, 35, 36. COUNSEL. See Employment of, in Foreign Countries. Navy Department, II, a, 18. Special Employment of United States At torneys. See United States Attorneys Attorney-General, 3. COUNTERFEITING AND COUNTERFEIT COIN. 1. The Attorney-General will not give an official opinion upon the question whether certain plates and cots used for making sketches and pictures of foreign postage stamps come within the terms of the act of May 16, 1884, and the act of February 10, 1891 (except sec. 4), prohibiting counterfeiting, because they relate only to criminal proceedings. 21 Op. 133. 2. The counterfeiting of an uncanceled for- eign postage stamp comes within the meaning of the phrase "obligation or other securities * * * of any foreign government," in section 4 of the act of February 10, 1891 (26 Stat. 742). 21 Op. 136. 3. Counterfeit coin — Forfeiture — Return of bullion therein contained. — 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 was taken the counterfeit or the value of the bullion it contained. 23 Op. 458. 4. Same — Duty of Treasury Department. — 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 condemna- tion is necessary. lb. 5. Same — Due process of law. — Such seizure and forfeiture is not a taking of property with- out 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. lb. 6. Same. — 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. lb. COURT OF CLAIMS. See Courts, II, d. COURT OF COMMISSIONERS OF ALABAMA CLAIMS. See Alabama Claims Commission. COURT OF INQUIRY. r Navy, II, f. COURTS. I. Generally, 1-2. II. Federal Courts. a. Officers, 3. b. Jurisdiction, 4-6. c. Supreme Court, U. S. , 7-16. d. Court of Claims, 17-31. III. State Courts, 32. I. Generally. 1. Declarations of pension claimants must be made before a court of record, or before some officer thereof having custody of its seal. 17 Op. 510. 2. Court of record — How distinguished. — The power to fine and imprison is not in thja country a distinguishing mark of a court rec- COURTS, I, II, a, b, c, d. 125 ord, but the enrolling or recording of their acts and proceedings is; and such court must have a seal by which its acts and proceedings are authenticated and proved. lb. II. Federal Courts, a. Officers. 3. Federal judges — Salary — Set-off. — The salary of a Federal judge should not be with- held as falling within the act of March 3, 1875 (18 Stat. 481), to meet a judgment recovered against him as surety for a former Govern- ment employee. 20 Op. 626. b. Jurisdiction. 4. Crime of murder committed by one Indian against another. — The courts of the United States have no jurisdiction of a crime of mur- der committed by an Indian belonging to one tribe against an Indian belonging to another tribe within the reservation of a third, tribe which has no law covering the case. The " bad men" clause in a treaty with the tribe to which the murdered Indian belonged does not bring the case within section 2145, Revised Statutes, giving the United States courts juris- diction over such offense. 17 Op. 566. 5. Crimes of American citizens committed in foreign countries. — No Federal court has juris- diction to try persons, whether or not claim- ing to be American citizens, for crimes com- mitted in foreign countries. 20 Op. 590. 6. Violations of laws of the United States committed within the territory known as No Man's Land are properly cognizable in the circuit and district courts of the United States for the eastern district of Texas. 19 Op. 477. c. Supreme- Court of the United States. 7. Distribution of United States reports. — In making up complete sets of the Supreme Court Reports for the places to be supplied under the act of February 12, 1889 (25 -Stat. 661), the volumes heretofore distributed to the circuit and district judges are not to be taken into account. 19 Op. 312. 8. Same. — The distribution of the reports provided for by that act has no reference whatever to former distributions of reports to judges. 26. 9. Same. — Where the circuit and district courts hold their sessions in the same rooms, one set of reports only are to be provided for the places where such courts sit. But where these courts hold their sessions in different buildings or in different rooms of the same building, a set of reports are to be provided for the place where each court sits. I?,'. 10. Same. — Places where the Territorial courts sit are not within the provisions of the act. lb. 11. Same. — Section 1 of the act of July 1, 1902 (32 Stat. 630), entitled "An act for the further distribution of the reports of the Su- preme 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 otherwise difficult to procure. 24 Op. 106. 12. Same. — A reprint distinguished from a new edition. lb. 13. Same — Circuit and district judges. — 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 vol- umes of the reports have been previously furnished such court. lb. 14. Same. — The 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 indi- vidual use of the judges. lb. 15. Same — By whom furnished. — The copies to be distributed under section 3 are to be furnished by the publishers of the official reports. lb. 16. Same — The digest. — 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. lb. d. Court of Claims. 17. Beferee. — A clerk in the office of the Auditor of the District of Columbia, who was appointed a referee by the Court of Claims under the provisions of the act of June 16, 1880 (21 Stat. 284), and performed services as such, and in consideration of such services received certificates issued by the court fixing the amount of compensation allowed there- 126 COUKTS, II, d. for, is entitled to receive the amount thus allowed. 18 Op. 303. 18. A referee appointed by the Court of Claims under the act of June 16, 1880 (21 Stat. 284), does not hold an office under the Government within the meaning of section 1763, Revised Statutes, lb. (304). 19. Interest on judgment. — Where a judg- ment by the Court of Claims in favor of claimant was appealed by the United States to the Supreme Court, which court reversed the judgment and directed the Court of Claims to enter judgment for a larger amount in favor of claimant, interest is not allowable on the latter sum under the provisions of section 1090, Revised Statutes. 18 Op. 548. 20. Only such judgments of the Court of Claims as have been appealed from to the Supreme Court and affirmed by the latter are interest bearing under that section, and they become interest bearing from the date bf their presentation in good faith for payment, lb. 21. Semble that a presentation made by a claimant who afterwards takes an appeal irom the judgment is of no avail. lb. 22. Interest can not lawfully be paid on a judgment of the Court of Claims against the United States where no appropriation is made for the payment of interest thereon. 20 Op. 423. 23. Limitation. — The six years' limitation of time for presenting claims under section 1 of the act of March 3, 1887 (24 Stat. 509), applies only to suits in the Court of Claims. 20 Op. 753. 24. Retirement. — The expression "any judge of any court of the United States," in section 741, Revised Statutes, providing for the retirement of judges on full pay, applies to the chief justice of the Court of Claims as well as to the other judges of that court, and he may retire at the age of 70 provided he shall then have been ten years a duly qualified judge of that court, although he may have held his commission as chief justice thereof less than ten years. 21 Op. 449. 25. The expression "after having held his commission as such at least ten years," in the same statute, does not mean that the com- mission under which the judge is serving at the time of his retirement must have been in force ten years. It is being in commission and not holding a particular commission that Congress meant to make a condition, lb. 26. Bounty. — The Court of Claims has' au- thority to . hear and determine questions of bounty for the capture or destruction of a vessel, either as a claim founded upon a law of Congress, or as one which may be trans- mitted to it by the head of a Department, under section 1063, Revised Statutes, and the act of March 3, 1887 (24 Stat. 505, 507). 22 Op. 205. 27. In determining questions with refer- ence to bounty arising under section 4635, Revised Statutes, the Secretary of the Navy is authorized to submit the case to the Court of Claims, or he may determine for himself the question arising and award the bounty. lb. 28. A claim for profits and expenses incurred in the construction of a pier in the Aqueduct Bridge, Georgetown, D. O, under a contract with the United States which was annulled for lack of diligence in prosecuting the work, in- volving disputed facts, and possibly contro- verted questions of law, is properly referable to the Court of Claims under the first clause of section 1063, Revised Statutes. 22 Op. 424. 29. Questions involving claims of indi- viduals against the Hawaiian government, ac- cruing prior to annexation, may be submitted by the Department of State to the Court of Claims for determination. 22 Op. 584. 30. Where, upon an appeal to the Comp- troller of the Treasury from certain dis- allowances made by the Auditor for the War Department in the settlement of the accounts of a disbursing officer of the Army, the Comptroller is unable, because of disputed questions of fact, to determine the question presented, and certifies such fact to the Sec- retary of the Treasury, the latter officer has no authority, under section 1063, Revised Statutes, to direct that the matter be referred to the Court of Claims for trial and adjudica- tion, it not being a claim within the meaning of that section. 24 Op. 545. 31. In its present status, it is such a mat- ter as is contemplated by section 2 of the Bowman Act (22 Stat. 485). Under the latter section, provision is made for advisory action only without the entry of judgment, while by section 1063, Revised Statutes, the court must have jurisdiction of. the matter so as to be able to render judgment therein. lb. COURTS, III— COURTS-MARTIAL, I, II, III. 127 United States Courts for the Indian Terri- tory. See Indian Territory. Bill of Equity. See Equity. III. State Courts. 32. Writs issued by the courts of Minnesota run into and upon the military reservation of Fort Snelling, in that State. 17 Op. 1. COTJRTS-MAKTIAL. I. Organization, etc., 1-2. II. Jurisdiction, 3-9. III. Proceedings, Evidence, etc., 10-22. IV. Findings, Sentence, Judgment, 23—36. V. Miscellaneous, 37-39. I. Organization. 1 , Appointment of court by an officer who was himself the accuser or prosecutor. — A gen- eral officer, commanding a military depart- ment in July, 1865, had no power to appoint a court-martial for the trial of an officer un- der his command where he was himself the "accuser or prosecutor;" nor could such power be imparted to him otherwise than by a legislative act. 17 Op. 436. 2. The fact that one of the officers com- posing a court-martial is junior in rank and another inferior in grade to the accused, does not of itself render either of them incompe- tent to sit. 17 Op- 397. II. Jurisdiction, 3. The conviction by a general court- martial properly called can not be ratified or confirmed by the Secretary of the Navy where one member of the court has been relieved by a subordinate without authority of the Secre- tary and another judge substituted in his stead.. 22 Op. 137. 4. Same. — Trial by a court not legally con- stituted is not a trial which can be said to be "due process of law." lb. 5. Same: — The consent of the accused can not confer jurisdiction upon a court not pos- sessingitby virtueof statutory authority, lb. 6. Jurisdiction of military courts in trial of officer for murder of civilian, Philippine Islands. — An officer in the Army of the United States who, while operating in the Philippines during the insurrection in those islands, and while the government of military occupation was in force therein, committed an offense against a native of those islands, was amen- able only to the laws of war, and can not be tried by the civil courts of those islands or of the United States; and, having left the mili- tary service, he can not now be tried for, the offense by a military court. 24 Op. 570. 7. Same. — A court-martial has no jurisdic- tion over an officer after he has left the service, and a military commission has no jurisdiction to try such officer now that peace has been proclaimed in the Philippines. lb. 8. Amendment of record. — 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. 23 Op. 23. 9. Same. — 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. lb. See also Navv V. III. Proceedings and Evidence. 10. 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 anVi procedure.. 22 Op. 589. " 11. Admissibility of evidence — Construction of statutes. — It is not the official duty of the Secretary of War to give to the judge-advocate, and thus to the court-martial, an opinion as to the admissibility of certain evidence in the trial of a case before the court, nor as to the construction of a statute. Such questions should be left to the decision of the court- martial itself. 17 Op. 54. 12. In general, courts-martial are gov- erned by the same rules of evidence which govern the ordinary courts of criminal jurisdic- tion. These rules, where not provided by statute, are supplied by the common law. 17 Op. 310. 128 COURTS-MARTIAL, III, IV. 13. Same. — Evidence of handwriting, by comparison of hands, is inadmissible on a trial by court-martial, excepting where the writing, acknowledged to be genuine, is al- ready in evidence in the case, or the disputed writing is an ancient document. lb. 14. Same. — The admission of such evidence is error, for which, if it was material to the finding of the court, the sentence of the latter should be set aside. lb. 15. The fact that private papers are unlaw- fully seized from a defendant does not render them incompetent to be used as evidence against him in a court-martial proceeding, even though he objected to such use at the time the papers were offered in evidence. 22 Op. 589. 16. Testimony tending to show such a rela- tion or understanding between alleged conspir- ators as would be indicative of a purpose to de- fraud 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 con- spiracy charged. 22 Op. 589. 17. Witness declining to answer on the ground of self-crimination. — Where at a trial by a court-martial a witness objected to an- swering a question on the ground of self- crimination; but the court required him to answer, the judge-advocate reading in sup- port of this requirement section 860, Revised Statutes: Held that if the court committed an error in compelling the witness to answer, the error is not such as to require a dis- approval of the proceedings. 17 Op. 616. 18. Same — Commonrlaw privilege, quaere. — Whether the effect of section 860 is to take away from a witness the common-law privi- lege of declining to answer a question which tends to criminate him, when it is manifest that he could only be tried in the courts of the United States, qusere. lb. 19. Civilian witness — Contempt. —Where a civilian witness is brought before a court- martial but refuses to testify, the court is not invested with any inherent power to punish the witness in such case, either summarily or otherwise, as for a contempt. Such power can only be exercised by it when given by the positive terms of some statute. 18 Op. 278. 20. Section 1202, Revised Statutes, arms the court with authority to compel the witness to appear and testify, so far as this can be done by process; but in securing his testimony the court is restricted to the means which it is thus authorized to employ. It can not in- flict any punishment where the power to impose it is not clearly conferred by Con- gress, lb. 21. Witnesses— Fees.— The act of March 2, 1901 (31 Stat. 950), which provides that a person who, being duly subpoenaed to ap- pear as a witness before a general court- martial of the Army, wilfully 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 witness shall be first duly paid or tendered in order to lay the foundation for a prosecution under that act. 23 Op. 424. 22. Same — Tender of fees. — A mere state- ment 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. lb. IV. Findings, Sentence, Judgment. 23. Approval by President — Evidence of. — Where the approval of the proceedings, find- ings, and sentence of a court-martial by the President is attested by an entry on the record signed by the Secretary of War, this is suffi- cient evidence of such approval. 17 Op. 397. (But see Note 17 Op. 399. ) 24. Annulment of sentence.— The President has no power to review the proceedings of a court-martial and annul its sentence, where the court was legally constituted, the case within its jurisdiction, and the sentence approved by the proper reviewing authority and carried into execution. 20 Op. 297. 25. Sentence of summary court — Approval in part and disapproval in part. — The act of Octo- ber 1, 1890 (26 Stat. 648), "to promote the administration of justice in the Army," does not give the reviewing officer power to miti- gate or approve a part and disapprove a part COURTS-MARTIAL, IV, V. 129 of a sentence of a summary court, where the sentence was within the power of the court- martial to impose. 20 Op. 346. 26. Substitution in findings of words other than contained in charge. — A court-martial has the right to substitute in its findings the words ' ' conduct to the prejudice of good order and military discipline" for the words " conduct nnbecoming an officer and a gentleman," as contained in the charge. 18 Op. 113, 114. 27. 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 re- spect thereto should be approved. 22 Op. 589. 28. Same. — The evidence failing to show satisfactorily fraudulent knowledge and pur- pose on the part of Captain Carter with refer- ence 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, lb. 29. Same. — 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. lb. 30. Attestation of sentence. — 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 sen- tence, 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 at^ tested by the other members of the court. 23 Op. 550. 31. Reconsideration after approval and exe- cution. — Where the sentence of a legally con- stituted court-martial, in a case within its jurisdiction, has been approved by the re- viewing authority and carried into execution, it can not afterwards be revised and annulled. 17 Op. 297. 32. Execution — Order of one President, un- executed, annulled by subsequent order of suc- ceeding President. — Where an order of one President removing the disabilities and order- ing the honorable discharge of an army officer who had been sentenced by court- martial to dishonorable discharge was not 18456—08 9 executed but was subsequently rescinded by a succeeding President, the original order, being executory and revocable before execu- tion, was completely annulled thereby. 17 Op. 436. 33. Finality of sentence. — The sentence of a court-martial is not final until the officer ordering the court shall confirm it, which con- firmation is the judgment of the law, pro- nounced by the court on the verdict of a jury. The sentence bears a close analogy to such confirmation. 19 Op. 107. 34. Remission — Pa,rdon — Within the pardon- ing power of the department commander. — Where a lieutenant was sentenced by a court- martial to reduction of' rank in his grade, and the sentence was carried into effect, and later the department commander remitted the sen- tence under the power to pardon conferred by Article 112 of the Articles of War, Held that the punishment imposed by the sentence being a continuing one, the sentence could be remitted by the pardoning power, and that the authority exercised by the department commander was in conformity to law. 17 Op. 656. 35. Pardon. — An officer who is authorized to order a general court-martial has no power under the One hundred and twelfth Article of War to pardon or mitigate the punishment adjudged by it after confirmation by him of the sentence. 19 Op. 106. 36. Suspension of pay — Forfeiture — Swaim court-martial. — Suspension of pay for a given period under article 101 of section 1342, Re- vised Statutes, signifies its absolute forfeiture, and not simply the temporary withholding thereof. . 18 Op. 113, 120. V. Miscellaneous. 37. Untruthful statements made by a mili- tary officer to the official head of the War Department, with intent to deceive that offi- cer, have not been regarded in the past, and should not be regarded in the future as any less an offense than one "unbecoming an officer and a gentleman." 18 Op. 113, 119. 38. Delivery of prisoner to penitentiary. — A prisoner sentenced by a court-martial to con- finement in a penitentiary of the United States should not be turned over to a marshal, but should be conducted to the prison by the 130 COURTS-MARTIAL, V— CUBA. proper officer of the War Department. 21 Op, 204. 39. Homicide by a private soldier in Cuba. — Article 58 of the Articles of War, which pro- vides 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. There- fore 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. 23 Op. 120. Contempt. See III, 19, 20. Naval Courts-Martial. See Navy, V. COVERINGS. See Customs Law, 210-213, 222-226. COWBOYS. See Army, I, a. CRIMES AND CRIMINALS. 1. No Federal court has jurisdiction to try persons whether or not claiming to be Ameri- can citizens for crimes committed in foreign countries. 20 Op. 590. 2. The violation of the provisions of a statute that subjects a person to a penalty, whether a forfeiture or otherwise, must be, something more than an accidental or unwit- ting violation. 22 Op. 390. 3. A criminal prosecution will lie to pun- ish » person who grazes sheep in a forest reservation in violation of the regulations promulgated by the Secretary of the Interior pursuant to the provisions.in the sundry civil act of June 30, 1898 (30 Stat. 35), applicable thereto. 22 Op. 266. 4. Americans criminals in foreign countries — Expenses incident to transportation to United States. — The French Government may be properly reimbursed, from the $5,000 appro- priated by the act of July 16, 1892 (27 Stat. 226), for its expenses in conveying to the United States, onrequisition of aUnited States consul, five American seamen charged with murder. 20 Op. 600. See Courts, 4, 5; Courts-Martial, 6, 38, 39; Consular Courts; Immigration, 45; In- dians, XII; Army, 1-6. CROW INDIANS. See Indians, V, c, 150. CRUISER GALVESTON. See United States, I, 23-26. CUBA. 1. Cuban insurrection. — The rules of inter- national law with respect to belligerent and neutral rights and duties do not apply to the present Cuban insurrection. 21 Op. 267. 2. Same. — The sale and shipment or carriage of arms and munitions of war to Cuba does not become a violation of international law merely because they are destined to a port which is recognized by the Spanish Government as open to commerce, nor because they are to be or are landed by stealth. lb. 3. Same. — The mere sale or shipment of arms and munitions of war by persons in the United States to persons in Cuba is not a viola- tion of international law, however strong a supposition there may be that they are to be used in an insurrection against the Spanish Government. Individuals in the United States have the right to sell such articles and ship them to whomever may choose to buy. lb. ~~~t: — Same. — Neither our Government nor our citizens have means of knowledge and there- fore can not be bound to take notice as to who are and who are not loyal subjects of Spain, so long as their actions are confined to he* own territory, lb. CUE-A. 5. Same. — If persons supplying or carrying arms and munitions from a place in the United States are in any wise parties to a design that force shall be employed against the Spanish authorities, or that either in the United States or elsewhere, before final delivery of such arms and munitions, men with hostile pur- poses toward the Spanish Government shall also be taken on board and transported in furtherance of such purposes, the enterprise is not commercial but military, and is in vio- lation of international law and of our own statutes. lb. 6. In the distribution of supplies to the des- titute inhabitants of Cuba under the provisions of section 1 of the act of May 18, 1898 (30 Stat. 419), the commanding officers of the Army may use either army officers or such other volunteer agencies as may be available for the purpose, and the field of their opera- tions is not necessarily restricted to the terri- tory over which they exercise actual control. 22 Op. 190. 7. Payment of Cuban soldiers. — For the pur- pose of disbanding the insurgent forces in Cuba, the Presidentis authorized to pay some or all of the soldiers of such forces either out of the revenues of the island or out of the emergency fund of $3,000,000 provided by the act of January 5, 1899 (30 Stat. 772). 22 Op. 301. 8. Same. — The emergency fund provided by that act is intended to cover emergencies arising in the military administration of Cuba and other territory that has come into the possession of the United States through the operations of war. lb. 9. Same. — The President is authorized to do whatever he finds necessary or expedient for the proper administration of government in Cuba, having in view the pacification of the island and the establishment of order and industry. lb. 10. 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 other- wise affected, internationally speaking, by the circumstance that the Army has been used as the agency. 22 Op. 654. But see 16, 34. 11. In ascertaining the obligation of the United States with regard to any debts that the government of Cuba may inherit f rorrrthef orr) (Spanish) government of , Cuba, there shoii be taken into consideration the fact that Cuba is being occupied with the sole object of its pacification preparatory to turning over the control to the people of Cuba. lb. ' 12. Nature of United States control over Cuba — Trustee. — 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 en- tered upon the exercise of sovereignty, juris- diction, 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. 23 Op. 222. 13. Same. — Limitation iof its power. — 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 op- erate, the United States, acting through the President as commander in chief, is the sole judge. lb. 14. The obligations of the United States with reference to Cuba are merely those which arise from the fact that it is a temporary military occupant. 22 Op. 384. 15. The United States Government is not the successor of the Government of Spain in Cuba, but merely an intervening power ar- ranging the succession, and as such it can not be held to have assumed the obligations arising from or growing out of concessions granted or contracts entered into by the Spanish Government in Cuba previous to its sur- render of sovereignty therein, lb. 16. The landing of cables in Cuba is under the control of the War Department, by reason of the fact that its occupation by the United States is of a military nature. 22 Op. 408. But see 10. 17. Same. — Owing to the temporary nature of the occupation of the island of Cuba by the United States, it is inexpedient to grant, permission to the Commercial Cable Com- pany to land a cable upon the soil of Cuba. lb. 18. The grounding of a cable upon the island of Cuba to connect it with a foreign country can not be done and maintained in opposi- 132 CUBA. tion to the law of the Government which ex- ercises sovereign power in the island. 22 Op. 514. 19. Same. — The authorities of the United States have full power, in their discretion, to prevent by all necessary means the ground- ing of a cable in Cuba intended to connect that island with the United States or any other country, or to remove or disrupt any cable which may be laid in disregard of its instructions and against its will. lb. 20. Coastal waters of Cuba — Navigable waters of the United States. — The acts of June 14, 1880 (21 Stat. 197), and August 2, 1882 (22 Stat. 208), which authorize the Secre- tary 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. 23 Op. 76. 21. Copyright law. — When Cuba, Porto Rico, and the Philippine Islands have been duly ceded to the United States, their respec- tive inhabitants will not be entitled to the benefits of the copyright laws unless the treaty by its terms confers such right or Con- gress shall extend such laws to the inhabit- ants of those countries. 22 Op. 268. 22. Registration of trade-marks. — 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. 23 Op. 634. 23. Alien law — Estate of Son Ramon Marti y 'Buguet. — Article XI of the treaty of Paris, 1898 (30 Stat. 1759), 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 Martf y Buguet, a native of Tarragona, Spain, and a Spanish subject, who died intestate at Baez, Santa Clara, Cuba, July 2, 1899. 23 Op. ?3. 24. Same — Administration. — 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 hav- ing been denied the Spanish consul by the court of Santa Clara, that court was without jurisdiction to administer the estate of Don Ramon Martf y Buguet. To oust the consul altogether and proceed without him was to proceed without jurisdiction. lb. 25. Spanish subjects — Treaty of Paris, 1898.— 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 ratifica- tion of that treaty, was, in contemplation of the treaty, a Spanish subject at the time of his death. lb. 26. Homicide in Cuba by private in United States Army. — 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 ageneral 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 homi- cide 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. 23 Op. 120. 27. Same — Trial by Cuban courts permit- ted. — Article 59 of the Articles of War does require that such private be delivered to the Cuban courts, but it is, nevertheless, proper to permit such courts to try him. lb. 28. The Spanish mining laws were not con- tinued in force in Cuba after the American occupation of the island. 23 Op. 222. 29. Same — Disposition of mining or other property formerly belonging to the Spanish Crown — ThePresident'spower. — ThePresident, by virtue of his constitutional authority as commander in chief of the Army and Navy, CUBA— CULEBRA ISLANDS. 133 has adequate power to use and make disposi- tion of property in Cuba formerly belonging to the Crown of Spain, or subject to the im- perial prerogative, and this includes the right to dispose of mining or other property for- merly belonging to the Spanish Crown. lb. 30. Same — Grants of mining rights — The President — Military governor. — If hedesiresto do so, the President can authorize the mili- tary governor of Cuba to make,grants of min- ing rights, but whether such power should be exercised is a question involving important and delicate considerations. lb. 31. Guantanamo Naval Station — Proof of title. — The provisions of section 355, Revised Statutes, are not applicable to the expendi- tures authorized by the act of March 3, 1903 (32 Stat. 1188), for the erection of necessary improvements on lands at Guantanamo, Cuba, leased by the United States from the Repub- lic of Cuba for the purposes of a naval station. 25 Op. 160. 32. Same. — The>advanee payments of rental to the government of Cuba provided for in ar- ticle 1 of the agreement of July 2, 1903, may lawfully be made without further proof of title than the certified copies of the deeds con- veying the lands to that government. lb. 33. Questions as to whether the claims of a certain company relating to the performance of a contract entered into with the city of Havana, Cuba, for the sewering and paving of that city, are sufficiently complete to constitute a contractual relation, and whether they ought to be ultimately recognized and con- firmed, are such as should be left to the de- cision of the authorities of Havana, when that city shall have resumed its normal functions. 22 Op. 310. 34. Same. — The administration of the United States in Cuba being of a military nature and merely temporary, no action should be taken to bind the island or any of its municipalities to large expenditures, except upon grounds of immediate necessity. lb. But see 10. 35; A concession in due form to construct certain tramways in the city of Havana was granted to one de la Torre in 1893, notwith- standing the objection of a rival company, which claimed the right under a royal decree of February 5, 1859. Subsequently the same concession was advertised at public auction and sold to de la Torre, the rival company failing to bid. Held, the owners of the de la Torre concession have a prima facie right to proceed at their own risk, under the permis- sion of the municipal authorities. 22 Op. 520. 36. Same. — The military order of December 24, 1898, forbidding the makfrig of any grant or concession in the future, was not intended to apply to those previously made in due form. lb. 37. Same. — The military authorities have power to direct the municipal authorities to suspend public works and improvements for proper public reasons, even where such sus- pension interferes with rights that have pre- viously vested. lb. 38. Any vested rights of Dady & Co., under their alleged contract for the construction of certain public works in Havana, are preserved by the treaty of Paris. Recommended that the matter be referred to the civil authorities of that city with direction to investigate present status of their claim, and to deter- mine whether it is for the interest of the city hat the improvements contemplated be carried out immediately or abandoned. 22 Op. 526. 39. Same. — In the exercise by the United States of the powers of municipal govern- ment in Cuba, it may change or modify the form or constituents of the municipal establish- ment, and in this exercise of sovereignty may provide the method, terms, and conditions under which internal improvements may be carried on, or forbid them to be carried on, although inchoate or even completed con- tracts therefor have previously been entered into. lb. 40. Same. — Any inchoate rights or grants made by a municipal body in Cuba under. Spanish sovereignty, which for their com- pletion require the assent or approval of the Crown or its officers, in the absence of such assent or approval made prior to the treaty of cession, are ineffective and incomplete. lb. CUBANS. See Seamen, 13, 14. CULEBRA ISLANDS. See Porto Rico, 40-43. 134 CUSTOMS ADMINISTRATIVE ACT— CUSTOMS LAW. CUSTOMS ADMINISTRATIVE ACT. (Act of June 10, 1890, 26 Stat. 131.) CUSTOM-HOUSES. 1. The term "custom-house broker," as used in section 23 of the tariff act of 1894 (28 Stat 552), includes persons who deal in drawback matters exclusively, as well as those who combine all branches of custom-house work. 21 Op. 255. 2. When the license of such a broker has been revoked, he can not thereafter deal directly with the customs officials, except when acting for himself as principal, lb. 3. The authority to collect drawback may be delegated by a manufacturer to a genera selling agent or to some attorney at law, but such a person must conduct his business through a licensed broker unless he obtains himself a license. lb. (258). 4. The location of the custom-house outside of the corporate limits of the municipality known as Sabine Pass complies with the act of June 23, 1898 (30 Stat. 487), and it is riot necessary that it should be removed to a point within the corporate limits. 22 Op. 306. CUSTOMS LAW. I. In General. a. Construction, etc., 1-8. b. Collection Districts, 9. II. Officers of Customs. a. Secretary of the Treasury, 10-22. b. Collectors and Assistant Collectors, 23-40. c. Chief Officers of Customs, 41-42. d. Deputy Suroeyor of Customs, 43. e. Appraisers, 44-48. f . Inspectors of Customs, 49-53. g. Examiners, 54-55. h. Weighers, 56. i. Subordinate Officers, 57. j. In General, 58. III. Entry, Appraisal, Bonds, Warehouses, Exportation, Abandonment, etc. a. Entry — Manifest, Invoice, Declara- tion, Bonds, etc., 59-79. b. Appraisal — Reappraisal, 80-98. c. Protest, 99-104. d. Damages, 105-106. e. Warehouses and Warehousemen, 107-124. f. Withdrawal from Bond, 125-134. g. Removal and Destruction, 135. h. Transportation in Bond— Immedi- ate Transportation, 136^137. i. Importation in Sealed Cars, 138- 142. j. Transportation of Goods Through the United States, 143-146. k. Goods Shipped from One Port to Another in the United States Through Foreign Territory, 147. 1. Importation and Exportation — Re- importation, 148-152. m. Abandonment of Goods, 153-154. IV. Duties — Exemption, Classification, etc. a. Duty, Rate and Amount — Dutiable Value, 155-187. b. Goods, etc., Dutiable, 188-216. c. Goods, etc., Not Dutiable, Exemp- tions, 217-248. d. Classification of Goods, 249-283. e. Discriminating Duties, 284-293. f. Additional Duties, 294. g. Proclamation, 295. V, Payment, Collection, and Liquidation of Duties, a. Payment, 296. b. Collection, 297-302. c. Liquidation — Reliquidation, 303- 305. d. Deposit of Duties, 306. VI. Return or Abatement of Duties, Pees, etc. a. Refund — Abatement, 307-337. b. Drawback, 338-382. VII. Importations Prohibited or Admission Questioned. Foreign-made Chromos, 383-384. VIII. Violations of the Law, Smuggling, 385. IX. Pines, Penalties, and Forfeitures. a. Fines, 386. b. Penalties — Additional or Penal Duties, 387-398. c. Forfeitures, 399-408. d. Seizures, 409-412. CUSTOMS LAW, I, a, b; II, a. 135 •e. Appraisement, 413-418. f. Release, Condition of, 419-420. g. Remission — Compromise, 420-138. h. Informer! s Compensation, 439-447. i. Sale of Goods Seized, 448. j. Clearance Refused, 449-450. X. Board of General Appraisers, 451-456. XI. Suits, 467-473. XII. Importations for the Government, 474. XIII. Reciprocal Commercial Agreements, 475. I. In General, a. Constructions, etc. 1. Revised Statutes, sec. 2504 — Consign- ments from different persons. — The terms "quantity" and "whole quantity," as em- ployed in Schedule M (Eev. Stat. 2d ed., p. 476), are not to be understood as covering all the fruit imported in any one vessel ship- ped to one consignee, if coming from different consignors. Each consignment, not only from one party, but of each separate kind of fruit specified in the statute, is to be consid- ered "as the "quantity," and as the "whole quantity," therein specified. 17 Op. 203. 2. Act of Aug. 27, 1894, par^ 608 (28 Stat. 544) — Discriminating duty on salt. — The "most-favored-nation clause" in the treaty of May 1, 1838, between the United States and the Kingdom of Prussia is not violated by paragraph 608 of the tariff act of August 27, 1894 (28 Stat. 544), laying a discriminating duty on salt imported from a country which imposes a duty on salt exported from the United States. 21 Op. 80. 3. That treaty is to be taken as operative as respects so much of the German Empire as constitutes the Kingdom of Prussia. lb. 4. In case of conflict between a treaty and a subsequent statute, the latter governs. lb. 5. Act of June 10, 1890, section 23 (26 Stat. 140). — The operation of section 23 of the cus- toms administrative act of June 10, 1890, rela- tive to the abandonment of imported goods, wares, and merchandise, is not confined to damaged goods. 21 Op. 326. 6. It is not the intent of Congress that the United States should in any case exact as duties an amount greater than the value of the property imported. lb. 7. Act of July 24, 1897, section 29, par. 181 (30 Stat. 166). — 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 six months from the date of the receipt of the ore by the manu- facturer at his bonded smelting establish- ment, and not six months from the date of the receipt of the ore at its port of entry. 23 Op. 46. 8. Act of July 24, 1897, sec. 11 (30 Stat. 207) — Trade-mark. — The purpose of section 11 of the tariff act of 1897 is twofold — to protect the domestic manufacturer against encroachment upon his trade-mark, and the public from the imposition of imported articles assuming domestic names. It is the simulation or counterfeit, and not reality or genuineness, at which the section is aimed. 24 Op. 551. Construction, etc., of Statutes Relating to any Specific Feature of the Customs Law. See following, under appropriate heading. Dutv on Goods in Bond or in a Port of the United States on the Date a New Law Goes into Effect. See Customs Law, 121, 183. b. Collection Districts. 9. The act of March 3, 1887 (24 Stat. 492), amending sections 2533 and 2534, Revised Statutes, and making Hartford a port of entry in place of Middletown, creates a new collection district and also a new office ( that of collector), requiring a new commission and a new bond. 18 Op. 591. II. Officers of Customs, a. Secretary of the Treasury. . 10. Reversal of decision of predecessor. — The Secretary of the Treasury can not of himself, and without an opinion of the Attorney-General upon the subject, as re- quired by section 2 of the act of March 3, 1875 (18 Stat. 369), reverse a decision of his predecessor, holding certain meats imported into this country after prior exportations to be dutiable. 18 Op. 139, 140. 136 CUSTOMS LAW, II, a, b. 11. Duty of investigation. — If inefficiency, neglect of duty, or malfeasance in office is charged against a general appraiser, it is the duty of the Secretary of the Treasury to in- vestigate the matter. 21 Op. 85. 12. The Secretary of the Treasury has no power to permit collectors of customs to re- ceive special deposits of }>enal dnties, to be re- turned by them to the importers in case the duties should be remitted. All moneys paid to collectors of customs for unascertained duties must be placed to the credit of the Treasurer of the United States. 21 Op. 345. 13. The Secretary of the Treasury has power, under section 249, Revised Statutes, to prescribe rules and regulations for the col- lection of duties on imports. 21 Op. 571. 14. The Secretary of the Treasury can not, by his regulation, alter or amend a revenue law so as to insert into the body of the statute a limitation which Congress did not think it necessary to prescribe. 22 Op. 405. 15. No authority to revive office of appraiser of customs at Pittsburg, Pa. — The Secretary of the Treasury having abolished in 1880 the office of appraiser of customs in the collec- tion district of Pittsburg, Pa., under the au- thority conferred upon him by section 2653, Revised Statutes, has no authoritx to revive it. By abolishing the office the Secretary ex- hausted all his power in the premises, and Congress alone can recreate it. 24 Op. 613. 16. Classification decisions of the Board of General Appraisers — Binding effect of. — The Secretary of the Treasury and collectors of customs are bound by classification decisions of the Board of General Appraisers, when unappealed from, only so far as such decisions affect the goods immediately before the Board for classification. 25 Op. 81. 17. Same. — The Secretary of the Treasury haa authority, and it is his duty, to instruct collectors of customs to what extent, if at all, they are to be guided by the conclusions, gen- eral doctrines, and expressions contained in any opinion by the Board of General Ap- praisers, except as regards the 'merchandise concerning which the decision was made. lb. 18. Same. — Where there is conflict between a decision of the circuit court on appeal from the Board of General Appraisers, and a sub- sequent decision of the Board, the Secretary of the Treasury should give greater considera- tion to the decision of the court. lb. 19. Same. — Section 2 of the act of March 3, 1875 (18 Stat. 469), in regard to the reversal or modification adversely to the United States of a ruling or decision of the Secretary of the Treasury, by the same or a subsequent Secre- tary, is in force and its provisions must, of course, be obeyed. lb. 20. There is no statute givingthe Secretary of the Treasury any direct control over suits instituted for the collection of unpaid duties. 17 Op. 142. 21. An action for the recovery of duties on goods previously smuggled would be simply an action of assumpsit, not involving any issue of fraud, and therefore not coming under the direction of the Secretary of the Treasury by section 376, Revised Statutes. 20 Op. 714. 22. The Secretary of the Treasury, and not the Attorney-General, should, under the peculiar provisions of section 376, Revised Statutes, direct prosecutions for fraud or at- tempted fraud upon the revenue. 20 Op. 715. Authority and Duty of the Secretary in the Matter op Refund. See Customs Law, VI, a. Remission or Compromise of Fines, Pen- alties, and Forfeitures. See, Customs Law, IX, g. Informers' Compensation. See Customs Law, IX, h. Immediate Transportation. See Customs Law, III, h. Sealed Cars. See Customs Law, III, i. Transportation Through the United States. See Customs Law, III, j. Removal of Goods from Vessel to Ware- house. See Customs Law, I, 121. Withdrawal from Warehouse — Supplies for Vessels. See Customs Law, 131-134. Warehouse — Delivery. See Customs Law, 111,'e. Reliquidation. See Customs Law, V, c. Release of Goods Illegally Imported. See Customs Law, IX, f. Refusal of Entry. See Customs Law, 76. b. Collectors and Assistant Collectors. 23. The issuance by collectors of customs of certificates showing that merchandise of do- mestic production shipped at ports on the CUSTOMS LAW, II, b. 137 Great Lakes to other ports in the United States, by routes through Canadian territory, is merchandise of domestic production, is not authorized by law. 18 Op. 261. 24. Official bond. — The omission of the words "in the State of Vermont" from the of- ficial bond of the collector of customs for the district of Vermont does not impair its va- lidity. The bond is valid, either under the statute or at common law. 18 Op. 458. 25. Delivery of goods — Controversy, — Col- lectors of customs have no authority to inter- fere, or direct the United States storekeeper to interfere, in a controversy between im- porters and warehousemen as regards the delivery of goods. 21 Op. 232. 26. Special deposits of penal duties, return of. — The Secretary of the Treasury has no power to permit collectors of customs to re- ceive special deposits of penal duties, to be returned by them to the importers in case the duties should be remitted. 21 Op. 345. 27. All moneys paid to collectors of customs for unascertained duties, must be placed to the credit of the Treasurer of the United States. lb. 28. Interrogatories to an importer. — The collector is theauthority to determine whether an interrogatory propounded to an importer is proper and his refusal to answer justified. 22 Op. 456. 29. Authority to seize and destroy fur-seal skins unlawfully imported. — The authority of such officers to seize and destroy by summary action rather than under judicial proceedings is reached by implication, as the statute is not explicit upon that point. Where rights of person and property are involved, an im- plied authority which is summary and might be used arbitrarily should not be lightly as- sumed. In such casesthe inference should not only be persuasive but irresistible. 24 Op. 577. 30. Correspondence with Collectors. — The Secretary of Commerce and Labor is not re- quired, in the execution of the duties im- posed upon him by the act of February 14, 1903 (32 Stat. 825), to correspond with col- lectors of customs through the Secretary of the Treasury. 25 Op. 3. 31. Same. — Collectors of customs continue to be officers of the Treasury Department, but the Secretary of the Treasury should not in- terfere in matters expressly transferred to the Department of Commerce and Labor by the act creating that Department. lb. 32. Bond by agent making entry. — Collect- ors of customs are required under section 2787, Revised Statutes, to take from an agent or person other than the owner making an entry of imported merchandise, a bond in the penal sum of $1,000, with condition that the actual owner or consignee of the mer- chandise shall deliver a full and correct account thereof according to the terms and specifications of that section. 25 Op. 66. 33. May not appeal from decision of Board of General Appraisers against the wish of the Secretary of the Treasury. — A collector of cus- toms is merely a subordinate of the Secretary of the Treasury; and section 15 of the act of June 10, 1890 (26 Stat. 131), authorizing a, collector or the Secretary of the Treasury, if dissatisfied, to apply for a review of the con- clusions of law and fact involved in the de- cision of a Board of General Appraisers, does not mean that the collector may appeal against the decision or wish of the Secretary. 21 Op. 203. 34. Same — Decisions of the Secretary bind- ing upon collectors. — The provisions of section 2652, Revised Statutes, making conclusive upon all customs officers the decisions of the Secretary of the Treasury upon all questions as to the construction and meaning of any part of the revenue laws, remain unaffected by the act of 1890 referred to. lb. 35. Classification of sugars based upon ap- praiser's report. — It is the collector's duty to classify 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 char- acter and quality of the sugars. ' 23 Op. 238. 36. Same — Eight to call for settlement tests. — There can be no doubt of the collect- or's right, under section 16 of the customs administrative act, to call for settlement tests, and for practical purposes it is imma- terial whether the appraiser obtains this information directly from the importer or through his superior, the collector, lb. 37. Classification decisions of the Board of General Appraisers — Binding effect of. — The Secretary of the Treasury and collectors of customs are bound by classification decisions of the Board of General Appraisers, when unappealed from, only so far as such deci- sions affect the goods immediately before the Board for classification. 25 Op. 81. 138 CUSTOMS LAW, II, b, c, d, e, f. 38. Same. — The Secretary of the Treasury has authority, and it is his duty, to instruct collectors of customs to what extent, if at all, they are to be guided by the conclusions, gen- eral doctrines, and expressions contained in any opinion by the Board of General Ap- praisers, except as regards the merchandise concerning which the decision was made. lb. 39. Same. — Where there is conflict between a decision of the circuit court on appeal from the Board of General Appraisers, and a sub- sequent decision of the Board, the Secretary of the Treasury should give greater consider- ation to the decision, of the court. lb. 40. The appointment of the assistant col- lector at the port of New York (who was for- merly employed by the collector with the approval of the Secretary of the Treasury) should now, by virtue of the effect of section 5596, Revised Statutes, be made by the Presi- dent with the advice and consent of the Senate. 18 Op. 98. c. Chief Officers of Customs. 41. Neither inspectors nor general agents are "chief officers of the customs," within the meaning of section 4 of the anti-moiety act of June 22, 1874 (18 Stat. 186). 20 Op. 675. 42. The phrase "chief officers of the cus- toms" refers to the collector or acting collec- tor of each collection district, including the surveyor of any district in which there is no collector, and also to the officer legally in charge of any statutorily recognized port, not being the headquarters of a collection dis- trict, lb. See also Customs Law, IX, h, 442-445; Indian Territory, 3. d. Deputy Surveyor of Customs. 43. There is no statutory provision author- izing the' appointment of more than one deputy surveyor of customs, at the same time, at each of the ports named in section 2722, Re- vised Statutes. 19 Op. 629 e. Appraisers. 44. The term "appraisers" in the act of March 2, 1883 (22 Stat. 452), does not embrace "assistant appraisers." 17 Op. 585. 45. A report in regard to valuation of im- ported merchandise signed by an examiner or clerk appointed pursuant to section 2940, Revised Statutes, and approvedby the appraiser, is not in compliance with the requirements of section 2615, Revised Statutes, which requires that the assistant appraiser make such report. 20 Op. 731. 46. Sugars — Polariscopic test — By whom made and reported. — 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. 23 Op. 238. 47. Same — Authority to demand settlement tests. — The appraiser, as the final and chief examining officer, has authority to ascertain, by all reasonable ways and means in his power, not only the actual value of imported merchandise but its character and quality as well; and this right of ascertainment car- ries with it the authority to demand and secure from sugar importers the settlement tests of all importations of sugar, lb. 48. Appraiser of customs at Pittsburg, Pa. — Revival of the office. — The office of appraiser of customs in the collection district of Pitts- burg, Pa., having been abolished in 1880 by the Secretary of the Treasury, under the authority conferred upon him by section 2653, Revised Statutes, that officer has no authority to revive it. By abolishing the office the Secretary exhausted all his power in the premises, and Congress alone can re- create it. 24 Op. 613. Classification Decisions of Board of General Appraisers. See Customs Law, 16-19. f . Inspectors of Customs. 49. Services as special deputy marshal — Not entitled to compensation for. — Where an inspector of customs, while holding that office, rendered service as a special deputy marshal under section 2031, Revised Statutes: Held that he is prohibited by the third sec- tion of the act of June 20, 1874 (18 Stat. 109), from receiving any compensation for such service beyond his salary as inspector of cus- toms. 17 Op. 684. CUSTOMS LAW, II, f, g, h, i, j; III, a 139 50. Inspectors of customs can not lawfully be prevented by the local health officers,from landing at quarantine stations in the discharge of their duties; but the former, while visiting and remaining at such stations, should ob- serve all reasonable regulations in the inter- est of public health. 18 Op. 15. 51. Same — Reasonable quarantine regula- tions. — No local health regulation which denies to inspectors of customs ample oppor- tunities for then and there protecting the public revenue is reasonable. lb. 52. Compensation — Absence. — Inspectors of customs are not entitled to receive a per diem compensation under section 2733, Eevised Statutes, for periods during which they are absent from duty on account of sickness or for any other cause. 19 Op. 420. 53. Same. — The fourth section of the act of March 3, 1883 (22 Stat. 563), with regard to hours of labor and absence of clerks in the several Executive Departments, does not affect the provisions of said section 2733 regulating the compensation of such inspect- ors, lb: g. Examiner. 54. The term "examiner," as used in sec- tions 2, 3, and 4 of the act of March 2, 1883 (22 Stat. 452), signifies any officer authorized by the fifth section to act in that capacity, and nothing more. 17 Op. 585. 55. Same — No new officer created. — It was not the intention of the act to create a new officer to meet its requirements regarding the examination of imported teas. lb. h. Weighers. 56. Suspension — Removal — Compensation. — Where a regularly appointed weigher in the customs service was suspended from duty and pay by the collector, under Article 1371 of the General Regulations of 1888, pending the action of the Secretary of the Treasury, and such receiver was subsequently removed by the Secretary, and now claims compensation during the period of suspension and until he received notice of dismissal, advised, that payment should be declined until the matter shall have been judicially determined in his favor. 19 Op. 463. i. -Subordinate Officers. 57. Leaves of absence. — The subordinate officers and employees of the customs service, wherever employed, and whether they re- ceive an annual or per diem compensation, are entitled to the same privileges of the statute with reference to leaves of absence, as clerks and employees in the Executive De- partments at Washington. 22 Op. 78. j. In General. 58. Customs officers in Porto Rico — Disposi- tion of storage charges, etc. — Storage charges, fines, penalties, and forfeitures, and other col- lections, not duties or taxes, made by customs officers in Porto Rico in the administration of the customs laws, should be deposited to the credit of the . Treasurer of the United States. 24 Op. 621. III. Entry, Appraisal, Bonds, Warehouses, Exportation, Abandonment, etc. a. Entry — Invoice, Declaration, etc. 59. Section 2859, Revised Statutes, in re- gard to entry of imported merchandise, is not repealed by section 9 of the act of June 22, 1874 (18 Stat. 188), or by the act of May 1, 1876 (19 Stat. 49). 17 Op. 683. 60. The act of May 1, 1876 (19 Stat. 49), providing for the separate entry of one or more packages contained in an importation of packed packages consigned to one importer, con- signee, or agent was not repealed by section 29 of the customs administrative act of June 10, 1890 (26 Stat. 141). 20 Op. 5. 61. Same. — The repeal of section 2841, Revised Statutes, by that act has no effect upon the act of 1876, because the latter forms no part of section 2841. lb. 62. Same. — The act of 1876 is of a limited and special character and it is not to be pre- sumed from any general expressions used that Congress had it in contemplation when the statute of June 10, 1890, was passed. lb. 63. Same. — The form of oath prescribed by the act of 1876, referring to section 2841, Re- vised Statutes, is not affected by the subse- quent legislation modifying and afterwards repealing that section and substituting a declaration by the importer, consignee, or agent in the place of the former oath. lb. 64. Manifest— Fee.— The fee of 25 cents "for receiving manifest of each railroad car or other vehicle laden with goods, wares, or 140 CUSTOMS LAW, III, a. merchandise from a foreign contiguous terri- tory" was not abolished by section 22 of the act of June 10, 1890 (26 Stat. 140). This question being a doubtful one, was decided in accordance with the departmental prac- tice, founded upon a decision of the Board of General Appraisers. 20 Op. 730. 63. A certified consular invoice is required by law for the admission to entry of im- ported merchandise not subject to duty, except- ing where Congress has expressly dispensed with that requirement. 19 Op. 225. 66. Declaration of cost. — The statement by the manufacturer of merchandise consigned by him or on his account for sale in the United States, declaring the cost of the pro- duction of such merchandise, which is required by section 8 of the customs revenue act of June 10, 1890 (26 Stat. 135), to be presented to the collector at the time of the entry of the merchandise, should be signed by the manufacturer himself. The signing of such statement by an agent is insufficient. 19 Op. 655. 67. Same. — The , manufacturer is not re- quired to appear in person before the proper consular officer and sign in his presence the statement called for by section 8, in order that it may receive the attestation of such officer. Should the consular officer certify that it has been satisfactorily shown to him that the statement is, as it purports to be, the act of the manufacturer, this would be an attestation of the statement and meet the requirement of the statute. lb. 68. Declaration to invoice. — The person making the declaration to an invoice of goods intended for shipment from a foreign country to the United States under sections 2 and 3 of the customs administrative act of June 10, 1890 (26 Stat. 131), is not required to be actu- ally present before the consul, vice-consul, or commercial agentof the United States in order to authorize such consular officer to certify such invoice. 21 Op. 571. 69. Same. — All that is necessary in order to authorize such consular officer to certify the invoice produced, with the declaration in- dorsed thereon signed, and with the oath attached, is that he shall be satisfied that the person making the oath thereto is the person he represents himself to be; that he is a cred- ible person, and that the statements made under such oath are true. lb. 70. Same. — Where the consular officer has doubts as to the identity of the person mak- ing the declaration, as to his credibility, or as to the truthfulness of the statements set forth in the declaration, he would have the right to require the declarant to come personally before him. lb. 71. Same. — The question as to where and in what manner the oaths to the declarations indorsed on invoices shall be taken is more a matter of regulation or instruction for the gov- ernment of consular officers than of construc- tion of a statute. lb. 72. Declarations. — The Treasury Depart- ment has no authority to insist that declara- tions upon goods obtained by purchase under section 3 of the act of June 10, 1890 (26 Stat. 131), shall contain the further clause declaring that the prices in the invoice represent the actual foreign-market value on the day of shipment, etc. 22 Op. 405. 78. Bonds. — A customs bond executed in a firm name by a partner duly authorized by power of attorney to execute it is obligatory upon the firm. 20 Op. 311. 74. Fenal bond required of agent making entry. — Section 2787, Eevised Statutes, re- quires collectors of customs to take from an agent or person other than the owner mak- ing an entry of imported merchandise a bond in the penal sum of f 1,000, with condition that the actual owner or consignee of the merchandise shall deliver a full and correct account thereof according to the terms and specifications of that section. 25 Op. 66. 75. Same. — General bonds of sufficiently large amount may, in special cases, be law- fully accepted by collectors of customs, in lieu of the special bonds of $1,000 each re- quired by section 2787, Eevised Statutes, from agents making entries of imported mer- chandise for others, requiring them to pro- duce the declaration of the owner in every case where goods may thereafter be imported without the same during a specified period. 25 Op. 177. 76.| Bight to entry — Fur-seal skins — Burden of proof. — 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 im- porter the burden of showing the right, to CUSTOMS LAW, III, a, b. 141 entry of any fur-seal skin, and neither an ac- quittal 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. 23 Op. 63. 77. Entry refused — Foreign books copy- righted in the United States. — 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 im- portations 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 after- wards by him assigned to an American house. A dramatic composition may be a book. 23 Op. 353. 78. Entitled to entry — Goods hearing foreign trade-mark. — The importation into the United States of an article bearing the genuine trade- mark of the maker, by an importer who is not the owner of the trade-mark, is not for- bidden by section 11 of the tariff act of July 24, 1897 (30 Stat. 207), although such trade- mark has been properly registered in the United States and all rights thereunder have been transferred and belong to another party. 24 Op. 551. 79. Same. — The purpose of that section is. twofold — to protect the domestic manufac- turer against encroachment upon his trade- mark, and the public from the imposition of imported articles assuming domestic names. It is the simulation or counterfeit, and not reality or genuineness, at which the section is aimed. lb. b. Appraisal — Reappraisal. 80. Appearance of importers with counsel — Production of witnesses. — Statutory provisions (sees. 2614, 2615, 2785, 2902, 2922, 2930, and 2945, Eev. Stats.) relating to the appraise- ment and reappraisement of imports subject to duty considered, and held that, in the absence of any regulation of the Secretary of the Treasury to that effect, the law does, not permit importers to appear before the ap- praisers, with counsel or otherwise, for the purpose of producing witnesses to be exam- ined in their own behalf, or to cross-examine witnesses called by such appraisers. The entire matter is under the control of the Secre- tary, and subject to such rules and regulations as he may from time to time establish in rela- tion thereto. 18 Op. 360. 81. Coverings. — Tin cans containing Trench peas, prepared meats, fish, fruit, vegetables, and milk food — being neither of material nor form designed to evade the duties thereon, nor designed for use otherwise than in the bona fide transportation of goods to the United States — are not subject to the 100 per cent ad valorem duty prescribed by the proviso to the seventh section of the act of March 3, 1883 (22 Stat. 523). 18 Op. 483. ' 82. Varnish, compounded in Canada and re- turned to the United States. — Varnish, of which a component part of chief value is "dis- tilled spirits" which had been produced in the United States and exported to Canada into warehouse, and, after being compounded into varnish, is returned to the United States, should he appraised according to the general Canadian markets, and not according to Cana- dian markets for articles in bond. 18 Op. 43. See also IV, a, 170-173. 83. Same. — Reconsideration of former opinion (18 Op. 43) in regard to the duty upon certain shellac varnish imported from Canada; and advised that the warehouse value in Canada is to be taken as a basis for com- puting the duty thereon. 18 Op. 109. 84. Sugars — Polariscopic test. — Under Schedule E of the tariff act of July 24, 1897 (30 Stat. 168), specific rates of duties are laid upon imported sugars graduated according to the polariscopic test. Thesetests, whilemade by officers and experts subordinate to the ap- praiser, are reported to him, and by him, after ascertainment of the quality and value of the sugar, reported to the collector for classification. 23 Op. 238. 85. 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. lb. 86. Appraising officers are authorized to de- mand and secure from sugar importers the settlement tests of all importations of sugar. lb. 87. There can be no doubt of the collector's right, under section 16 of the customs ad- 142 CUSTOMS LAW, III, b, c. ministrative act of June 10, 1890 (26 Stat. 138) , to call for such settlement tests, and for practical purposes it is immaterial whether the appraiser obtains this information directly from the importer or through his superior, the collector. lb. 88. Lead bullion — Assay Treasury Regula- tions. — 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. 24 Op. 45. 89. Same. — The Attorney-General declines to modify the views and conclusion expressed in his opinion of May 15, 1902 (ante, p. 45), that paragraph 182 of the tariff act of July 24, 1897 (30 Stat. 166), requires the quantity of metal contained in imported lead bullion to be determined by official weighing only, and that the application of assay to lead bullion under the current Treasury Regulations for bonded smelters and refiners is without war- rant of law. 24 Op. 569. 90. Same. — The statutory percentages of refined metal for exportation may not prop- erly be made up of " such portions of metals as the importer may determine." lb. 91. The export tax imposed by a foreign government is not one of the " costs, charges, and- expenses ' ' referred to in section 19 of the customs administrative act of June 10, 1890 (26 Stat. 139). 21 Op. 108. 92. Goods on vessel wrecked. — Section 2928, Revised Statutes, in regard to appraisal of merchandise taken from a wreck, applies only to goods wrecked while on the voyage to the United States. 21 Op. 121. 93. 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. 22 Op. 542. 94. Same — Abandonment. — The provision of section 23 of the customs administrative act of June 10, 1890 (26 Stat. 140), 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 voy- age, and not to the case of a wreck and loss or damage thereby. lb. 95. Denial of reappraisement. — The action of a collector in denying a reappraisement because the importer refused to answer proper interrogatories propounded to him may be reviewed, first, by the Board of General Appraisers on a protest under section 14 of the act of June 10, 1890 (26 Stat. 137), and next by the circuit court on an application for review under section 15 of that act, 22 Op. 456. 96. Same. — The collector is the authority to determine -whether an interrogatory is proper and the refusal to answer is justified. lb. 97. Same. — An importer refusing to answer a proper question respecting imported mer- chandise has not complied with the require- ments of law, and is not entitled to a re- appraisement, but the original appraisement becomes final and conclusive under section 17 of the act above named. lb. 98. Appraisement of property subject to forfeiture for smuggling, etc. — When property subject to forfeiture for smuggling or cognate offenses is seized, the appraisement should be in accordance with section 3074, Revised Statutes, and not under section 13 of the customs administrative act (26 Stat. 136). 24 Op. 583. See also Customs Law, IX, e. c. Protest. 99. Payment of duties as well as protest. — Section 14 of the customs administrative act of June 10, 1890 (26 Stat. 137), requires the importer, if he desires to make a contest, not only to protest but to pay the duties and charges in full within ten days after liquida- tion where the merchandise is entered for consumption, or to protest within ten days where the merchandise is entered in bond only. 20 Op. 183. 100. The written protest or notice pro- vided for by the customs administrative act of June 10, 1890, is required only for the CUSTOMS LAW, III, c, d, e. 143 purpose of instituting a proceeding before the Board of General Appraisers to review the decision of a collector or appraiser. 21 Op. 92. 101. Not required where duties were paid under mutual mistake of law. — The decisionof an application to withdraw warehoused goods or supplies for vessels under section 16 of the act of June 26, 1884 (23 Stat. 57), is confided by the law in the Secretary of the Treasury. Hence the protest required in sec- tion 1 of the act of March 3, 1875 (18 Stat. 469), is not required where duties were paid by mutual mistake of law on coal withdrawn for use on ocean steamers. lb. 102. Return of duties collected by mistake of law. — Prior to the customs administrative act of June 10, 1890 (26 Stat. 131) , duties col- lected by mistake of law could not be re- turned after one year from the time of entry in the absence of a protest by the importer under section 2931, Revised Statutes. 21 Op. 251. 103. Same — Failure to protest. — The Secre- tary of the Treasury is without authority to re- fund an excess of duties collected under a mis- take of law, lawful protest not having been made. 21 Op. 224. 104. Where matter contained in protest is overlooked. — The Board of General Appraisers have no jurisdiction after the lapse of nearly two years, to reconsider their decision on a protest entered under the customs adminis- trative act of 1890, on the ground that certain matter contained in the protest was over- looked. It was the duty of the importer to watch for the decision of the Board. 21 Op. 144. d. Damages. 105. Allowance for breakage, leakage, or damage to wines, cordials, etc. — The effect of the proviso in the act of March 3, 1883 (22 Stat. 505), declaring "that there shall be no allowance for breakage, leakage, or damage on wines, liquors, cordials, or distilled spirits, ' ' was to repeal all the provisions previously in force which authorized such allowance; but it nevertheless permits the duties to be as- sessed on the actual quantity of merchandise imported, whether in casks or bottles. 17 Op. 613. 106. Same — Duties assessed on the quantity which actually arrives. — Where the quantity which actually arrives is found by the cus- toms officers to be less than the invoiced quantity, a deduction of the excess of the latter over the former, in adjusting the du- ties, is not an allowance within the meaning of the proviso mentioned. J6> See also 17 Op. 203. e. Warehouses and Warehousemen. 107. Private bonded warehouse — Eight to withhold delivery after payment of duty. — After the duty on imported goods which have been deposited in a private bonded warehouse has been paid and a withdrawal permit issued, the Government has no further concern with the goods, and the right to withhold or de- liver same rests with the warehouseman alone. 21 Op. 232. 108. Same. — The collector of customs has no authority to interfere or direct the United States storekeeper to interfere in a contro- versy between the importers and the ware- houseman and deliver the goods. lb. 109. Private warehouse — Eight to refuse delivery.— The Secretary of the Treasury is under no obligation and can not properly grant authority to compel a warehouse com- pany to deliver certain goods for export, where, notwithstanding the permit of the collector, delivery is refused because of the nonproduction of a warehouse certificate. 22 Op. 152. 1 10. Same. — A warehouse is a private insti- tution in charge 'of a public officer, and the Secretary of the Treasury may establish rules and regulations not . inconsistent with law for the due execution of the laws relating thereto and to secure a just accountability under the same. lb. 111. Same. — The private rights of the ware- houseman and those having relations with him as such are in no wise affected by this joint custody, providing the rights of the Government in and about the collection of its customs are not interfered with. lb. 112. Whisky withdrawn from bond, shipped to Bermuda, and transported back to this coun- try. — Whisky withdrawn from bonded ware- house, under section 3330, Revised Statutes, and acts of June 9, 1874 (18 Stat. 64), and March 1, 1879 (20 Stat. 337) , in order to ship it to Bermuda, with the purpose, after land- ing it there, of transporting it back to this country and entering it either for warehous- ing or for consumption under section 2500, 144 CUSTOMS LAW, III, e, f. Revised Statutes, would not be an exportation within the meaning of section 3330, Revised Statutes, and the act of 1874, and would not, upon return to this country, be entitled to the rights and privileges of imported mer- chandise under the warehouse laws. 17 Op. 579. 113. Goods exported in good faith and reim- ported. — Where domestic merchandise, ex- ported in good faith, has been imported back again, and is subject to duty, it is entitled to be admitted to entry for storage in a bonded warehouse under section 2962, Revised Stat- utes. 18 Op. 381. Opinion of July 7, 1883 (17 Op. 579), dis- tinguished, lb. 114. Goods imported and warehoused for nearly three years, then withdrawn and ex- ported, and finally reshipped to the United States by a different merchant, there being no evidence that the transaction was a colorable one to evade the tariff laws, may be entered for warehousing as an " original importation ' ' under section 2971, Revised Statutes. 21 Op. 23, 115. Repeated rewarehonsing. — Section 5 of the act of March 28, 1854 (10 Stat. 272), in part set forth in section 3000, Revised Statutes, does not authorize repeated reware- housing. 20 Op. 309. 116. Same. — Where merchandise has been rewarehoused in conformity with the regula- tions and practice of the Department, the action of the Department can not be declared unauthorized, lb. 117. Warehouses for storage of imported rice.— The act of March 24, 1874 (18 Stat. 24), concerning bonded warehouses for storage of imported rice is still in force. 21 Op. 474. 1 18. Same — By-products. — Warehousemen of importers' bonded warehouses for the storage and cleansing of imported rice in- tended for exportation to foreign countries may withdraw for consumption, certain by- products resulting from the manufacture, viz, rice meal and broken rice, instead of exporting them. 26. 119. Same. — The duty on these by-products should be assessed upon the proportion of uncleaned rice represented by the by-prod- ucts, rather than on the latter themselves, regarded as an independent importation. lb. 120. Imported molasses can not, under par- agraph 241 of the act of October 1, 1890 (26 Stat. 584), be refined in bond between March 1 and April 1, 1891, without payment of duty. The provisions of that paragraph are applica- ble only to sugars in solid form. 19 Op. 697. 121. Goods which arrived in a port of the United States on the 30th of June, 1883, and from want of time to make other disposition of them remained on board ship until the next day, are to be regarded as in a public store or bonded warehouse within the meaning of section 10 of the act of March 3, 1883 (22 Stat. 525). 18 Op. 13. 122. Removal of goods from vessel to ware- house. — The Secretary of the Treasury is authorized by section 3 of the act of June 10, 1880 (21 Stat. 173), to modify the form of the contract made with common carriers so as to permit them to remove goods from a vessel and place them in a warehouse or other secure place, provided care be taken to stipu- late that their liability as common carriers shall continue until 'custody and possession of the merchandise has been delivered to and accepted by the collector. 20 Op. 674. 123. Sale of goods. — The provision in sec- tion 2971, Revised Statutes, requiring mer- chandise to be sold, is applicable to goods remaining in public store or bonded warehouse beyond three years, as well where the duties thereon have been paid as where they have not been paid. At the end of that period they are to be regarded as abandoned to the Government and sold. 17 Op. 650. 124. Same. — The object and requirement of that provision are, however, sufficiently met by the practice of the Department, where- by, in lieu of a formal sale of the goods, the owner, consignee, or agent is permitted to pay the duties, charges, etc., that have ac- crued thereon and take them away. lb. i. Withdrawal from Bond. 125. Time for withdrawal can not be ex- tended. — No officer of the Government has power to extend for one year the time for the withdrawal of certain reimported whisky now in a bonded warehouse. 20 Op. 642. 126. When goods are "entered or with- drawn for consumption, all duties then charged against them, including penal duties, must be paid before the goods are released from Government custody. 21 Op. 418. CUSTOMS LAW, III, f, g, h, i. 145 127. Duties based upon weight at time of withdrawal. — The second proviso in section 50 of the tariff act of October 1, 1890 (26 Stat. 624), providing that when duties are based upon the weight of merchandise deposited in any public or bonded warehouse, said duties shall be levied and collected upon the weight of said merchandise at the time of its with- drawal, applies to importations under the act generally upon which duties are levied by law, and not merely to importations made prior to the taking effect of the act. 20 Op. 80. 128. Reimported whisky when withdrawn from bond is taxable according to the number of gallons at the time of importation. 20 Op. 722. 129. The by-products, such as rice meal and broken rice, resulting from the cleansing of imported rice in importers' bonded ware- houses intended for exportation may be with- drawn for consumption instead of exportation. 21 Op. 474. 130. Goods imported before the act of Au- gust 27, 1894 (28 Stat. 509), and then deposited in store as "unclaimed merchandise," under section 2965, Revised Statutes, may be with- drawn for consumption at the new rates of duty at any time within three years from the date of original importation, as long as they remain unsold. If sold, however, the duties to be deducted from the proceeds of sale are those of the act of 1890. 21 Op. 116. 131. Withdrawal from warehouse — Supplies for vessels. — The decision of an application to withdraw warehoused goods or supplies for vessels under section 16 of the act of June 26, 1884 (23 Stat. 57), is confided by the law in the Secretary of the Treasury. 21 Op. 92. 132. Withdrawal of liquors from bonded warehouses for consumption on foreign war ves- sels.— Section 15 of the act of July 24, 1897 (30 Stat. 207), does not permit the with- drawal, free from internal-revenue duty and the requirements relating to revenue stamps, of liquors from bonded manufacturing ware- houses for consumption aboard war vessels of foreign nations. 23 Op. 418. 133. Same — Not an exportation. — The with- drawal 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. lb. 134. Same — When the privilege is grant- ed. — The privilege granted to foreign vessels of war in our ports, under section 2982, Re- vised Statutes, of purchasing supplies from the public warehouses, duty free, when that privilege is reciprocated in the ports of such foreign nations 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 pur- chased shall be free, is the import duty. lb. g. Removal and Destruction of Merchan- dise in Bond. 135. 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. 24 Op. 58. h. Transportation in Bond. 136. Immediate transportation. — Underthe immediate transportation act of June 10, 1880 (21 Stat. 173), the Secretary of the Treasury may require common carriers de- siring to avail themselves of its privileges to file bonds to accept and transport within a definite fixed period of time all merchandise offered under the act. 21 Op. 369. 137. Immediate transportation — At places without " necessary officers" at passage of act of June 10, 1880. — New legislation is not re- quired by the proviso in section 7 of the act of June 10, 1880 (21 Stat. 174), in order to give the privilege of immediate transporta- tion to any of the places named in that sec- tion which at the time of the passage of that act was without the "necessary officers" therein referred to, but which thereafter has such officers assigned thereto. 18 Op. 120. i. Importation in Sealed Cars. 138. The Secretary of the Treasury has authority under section 3102 of the Revised Statutes to impose similar regulations as to invoices for cars sealed in a contiguous foreign country as are imposed by the immediate- transportation act of 1880 (21 Stat. 198) ; and 18456—08- -10 146 CUSTOMS LAW, III, i, j, k, 1. an entry such as is required under the im- mediate-transportation act may be required by regulation under the anti-smuggling act (18 Stat. 186). 20 Op. 86. 139. Merchandise imported into a contiguous foreign country and then imported into the United States. — Section 2 of the act of June 27, 1864 (13 Stat. 197), providingfor the con- tinuous passage to destination without in- spection, of goods, wares, and merchandise, etc. , imported into this country in sealed cars from any contiguous foreign country, applies as well to merchandise imported into a con- tiguous country and then imported into the United States as to merchandise produced in that foreign country and then imported into the United States. 20 Op. 26. 140. Same. — While the Secretary of the Treasury can not require "a formal entry of goods sealed in a foreign country at a frontier port, he is not concluded by the seals from requiring an examination of the contents of the cars so secured on arrival at the frontier ports, and he may direct such an examination, not- withstanding the seals, as may seem to him best adapted to prevent fraud. lb. 141. Same. — Thereis no obligation by force of the treaty of Washington which prevents a modification of the regulations of the Sec- retary of the Treasury authorized by articles 29 and 30 thereof, in so far as they affect goods and merchandise imported into this country for our consumption. That treaty had no reference whatever to the manner of the in- spection and examination of such goods and merchandise in the country of their destina- tion, lb. 142. Same. —Sections 2 and 3 of the act of 1864 probably contemplated that the sealing of cars should be performed by consular officers. The Secretary of the Treasury has no au- thority by law, and therefore is not required, to appoint new officers especially charged with the duty. lb. j. Transportation of Ooods Through the United Stales. 143. The Secretary of the Treasury has no power to prohibit the transfer of goods through the United States destined to Mexico. 20 Op. 725. 144. The Secretary of the Treasury has no authority to appoint special inspectors of sealed cars. 20 Op. 26. 145. The Secretary of the Treasury may have an examination made of cars sealed in a foreign country for passage through this country. lb. 146. The Secretary of the Treasury may modify the regulations authorized by articles 20 and 30 of the treaty of Washington with regard to sealed cars. lb. k. Goods Shipped from One Port to Another in the United States Through Foreign Territory. 147. In the case of merchandise of domes- tic production shipped at ports on the Great Lakes to other ports in the United States, by routes through Canadian territory, the issu- ance of a certificate by the collector of cus- toms showing that the merchandise so shipped is of domestic production is not authorized by law. 18 Op. 261. 1. Importation, Exportation, Reimportation. 148. If to reduce duty, it is within the statute. — Where a quantity of wool was im- ported at Boston from Liverpool, and two days later was withdrawn for exportation to St. John, New Brunswick, whence (having been carried thither) it was immediately brought back to Boston: Held that if the purpose of the above withdrawal, etc., was to create a second port of importation with the object of reducing the duty, the transac- tion was fictitious, and that Liverpool re- mains the last port or place of exportation within the meaning of the statute. 17 Op. 528. 149. Exportation and reimportation. — Cer- tain liquors which had been manufactured in the United States, in a bonded manufacturing warehouse, out of both domestic and im- ported spirits that were removed to such warehouse without payment of either the internal-revenue or customs duties, and which had been exported therefrom, were im- ported into New York and assessed with the duty prescribed by the statute, Schedule H (22 Stat. 504), as foreign liquors: Advised that — the liquors being of the manufacture of the United States and once exported — section 2500, Revised Statutes, affords the rule under which to levy duties thereon. 19 Op. 243. 150. Same. — That section does not contem- plate the levying of different rates of duty on CUSTOMS LAW, III, 1, m; IV, a. 147 the several different ingredients of which an article may be composed; it is the product that is to be taxed, not its constituent ingre- dients. 26. See also Customs Law, 164. 151. Exportation of refined metals. — The statutory percentages of refined metal for ex- portation, taken from imported lead bullion, not properly be made up of "such portions of metals as the importer may determine. " 24 Op. 569. 152. Lead ores — Reexportation — Duties. — The six months within which the refined metal produced from imported lead-bearing ores must be reexported ortheregularduties paid thereon, under section 29 and paragraph 181 of the tariff act of July 24, 1897 (30 Stat. 166), means six months from the date of the receipt of the ore by the manufacturer at his bonded smelting establishment, and not six months from the date of the receipt of the ore at its port of entry. 23 Op. 46. m. Abandonment of Goods. 153. The operation of section 23 of the customs administrative act of June 10, 1890, is not confined to damaged goods, and goods not damaged may be abandoned to the United States and the importer thereof relieved from the payment of duty. 21 Op. 326. 154. Same. — It is not the intent of Con- gress that the United States should in any case exact as duties an amount greater than the value of the property imported. lb. Abandonment of Goods. See also Customs Law, 153-154. Bonds op Agent Making Entry. See Cus- toms Law, 72-74. Immediate Transportation. See Customs Law, III, h. IV. Duties, Exemption, Classification, etc. a. Duty, Rate and Amount — Dutiable Value. 155. "Alizarine assistant," an article used in dying, is dutiable as a chemical compound, at 25 per centum ad valorem, and not under the similitude clause of section 2499, Revised Statutes. 18 Op. 106. 156.- The duty on the by-products of rice placed in importers' bonded warehouses for storage and cleansing, which is withdrawn for consumption, should be assessed upon the proportion of uncleaned rice represented by the by-products rather than on the latter themselves, regarded as an independent importation. 21 Op. 474. 157. Duties on champagne imported in magnums. — 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 im- ported in legal packages; while the second proviso of the latter paragraph determines the rate of duty on all wines and other liquors when imported in other than legal packages. 23 Op. 48. 158. Same — Rate of duty. — 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 bot- tles, as if imported empty. lb. 159. Confectionery known as "fruit tab- lets " is dutiable under the clause in the act of March 3, 1883 (22 Stat. 502), namely: "Sugar candy not colored, five cents per pound." 18 Op. 606. 160. The article known as " Cooper's Sheep Dipping Powder " is dutiable at 50 per cent ad valorem, under the act of March 3, 1883 (22 Stat. 494). 18 Op. 552. 161. Ginger ale bottled — Ale or beer bot- tled. — Under the clause in the act of March 3, 1883 (22 Stat. 505), providing a duty of 20 per cent ad valorem on ginger ale or gin- ger beer, etc., no separate or additional duty is to be collected on the bottles or jugs con- taining the same. But where the ale or beer is bottled, the ad valorem duty should be levied upon the wholesale value thereof as bottled ale or beer in the general market of the country whence it is imported. 18 Op. 478. 162. Reimportation of liquors manufactured in the United States and exported without pay- ing internal-revenue tax. — In February and March, 1886, certain liquors (which had been manufactured in the United States, in a bonded manufacturing warehouse established under the provisions of section 3433, Revised 148 CUSTOMS LAW, IV, a. Statutes, out of both domestic and imported spirits that were removed to such warehouse without payment of either the internal rev- enue or customs duties, and which liquors had been exported therefrom) were imported into New York and assessed with the duty prescribed by the statute (Schedule. H) as foreign liquors: Advised thai — the liquors be- ing of the manufacture of the United States and once exported — section 2500, Revised Statutes, affords the rule under which to levy duties thereon. 19 Op. 243. 163. Same. — That section does not con- template the levying of different rates of duty on the several different ingredients of which an article may be composed; it is the product that is to be taxed, not its constituent ingredients. lb. 164. A lot of rum which had been manu- factured within the United States from im- ported molasses, was exported December 3, 1883, and drawback thereon allowed, and re- imported October 20, 1884. Held to be duti- able tinder section 2500, Revised Statutes, and not under the act of March 3, 1883 (22 Stat. 488), furthermore, that the importers are entitled to remove the same under section 3433, Revised Statutes. 18 Op. 82. 165. Same. — The word "imported" in sec- tion 3433, Revised Statutes, is used generally, and includes " reimported." lb. 166. In determining the meaning of " iron ore," as used in the provision of the act of March 3, 1883 (22 Stat. 497), which imposes a duty thereon, regard should be had to the commercial signification of the term, as Con- gress must be understood to have used the same in its commercial sense. 18 Op. 466. 167. Imported lead ore is dutiable, under paragraph 199 of the act of October 1, 1890 (26 Stat. 581), at the rate of 1$ cents a pound, irrespective of the quantity of lead which the ore may contain. 19 Op. 690. 168. Same. — The words "all other ores," as used in the proviso of that paragraph, mean all ores other than those known commercially as lead ores. lb. 169. Dutiable value — Lead bullion. — While paragraph 181 of the tariff act of July 24, 1897 (30 Stat. 166) , which imposes a duty on im- ported lead ores, contemplates the determi- nation of the quantity of metal in the ore by assay, by paragraph 182 of that act the deter- mination 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 regu- lations for bonded smelters and refiners is without warrant of law. 24 Op. 45. Affirmed, 24 Op. 569. 170. Sawed boards, planks and deals, etc., of pine wood are dutiable at $2 per thousand feet under the act of March 3, 1883 (22 Stat. 501). 18 Op. 68. 171. Shellac varnish, composed of a mix- ture, made in a Canadian bonded warehouse, of the gum with alcohol distilled in this country and exported without payment of any inter- nal revenue tax here and no exaction of duty upon it in Canada because in bond there, is dutiable under Schedule D, of section 2504, Eevised Statutes, which declares that "on all compounds or preparations of which distilled spirits is a component part of chief value there shall be levied a duty not less than that im- posed upon distilled spirits," namely, $2 per proof gallon. 17 Op. 105. 172. Same. — In determining which is the component of chief value, the value of each in- gredient in the domestic markets of the United States should be the guide. lb. 173. Same. — Varnish, of which a compo- nent part of chief value is "distilled spirits" which had been produced in the United States and exported to Canada into ware- house, and, after being compounded into var- nish, is returned to the United States, should be appraised according to the general Canadian markets, and not according to Canadian mar- kets for articles in bond. 18 Op. 43. See also VI — Refund, Drawback. 174. Wool-tops, imported in the ordinary condition of scoured wool, are not subject to the penal double duty imposed by the act of March 3, 1883 (22 Stat. 508) , on "wool of the sheep, etc., which shall be imported in any other than ordinary condition as now and heretofore practiced," etc. 18 Op. 534. 175. Basis for estimating ad valorem du- ties. — Review of legislation fixing the basis for estimating ad valorem duties, passed prior to the act of March 8, 1883 (22 Stat. 488). 17 Op. 633. 176. Same — Actual market value. — The only change effected by section 7 of that act is to exclude from such basis all costs and charges which, under the law as it pre- viously stood, were required to be added to CUSTOMS LAW, IV, a, b. 149 the current or actual market value or wholesale price of the merchandise in the principal markets of the country whence the same was imported, or of the country of production or manufacture, as the case might be, thus making such current or actual mar- ket value, etc., the sole basis for estimating such duties. lb. 177. Same. — By current or actual market value or wholesale price, as used in the stat- ute, is to be understood the amount of money the article commanded in the foreign market in the condition in which it is there customarily sold and purchased. lb. 178. Same. — The cost of boxes or coverings with which goods are ordinarily prepared for sale in the foreign market, and in which they are usually sold and purchased there, is an element of the actual market value of the goods. lb. 179. Same. — What becomes of the box or covering, in the course of trade, after the importation, does not affect the question of dutiable value. lb. See also 210-213, 222-226. 180. Basis of computation. — The values of foreign coins, as annually estimated and pro- claimed by the Secretary of the Treasury under the provision of section 3564, Revised Statutes, constitute the only lawful basis for computing the invoiced value of importa- tions, and duties on the latter are neces- sarily required to be collected on the values of foreign coins so estimated and proclaimed. 18 Op. 322. 181. The cost of winding on spools, or skeining, yarn or thread, is one of the usual charges for preparing and packing the mer- chandise for transportation, which, by sec- tion 7 of the act of March 3, 1883 (22 Stat. 523) , are not to be included as part of the duti- able value of such merchandise. 18 Op. 515. 182. The expense of brokerage, auctioneer's commissions, and packing, incurred at the place of exportation, are, by section 7 of the act of March 3, 1883 (22 Stat. 523), not to be estimated in determining the dutiable value of imported merchandise. 18 Op. 288. 183. Merchandise in bond, or within a port of the United States when new law goes into effect — Costs and charges. — Merchandise which is in bond, or on shipboard within the limits of a port of entry, on August 1, 1890, the date on which the customs administrative act of June 10, 1890 (26 Stat. 131), goes into effect, is not subject to duty upon a valuation that includes the costs and charges mentioned in section 19 of that act. As to such mer- chandise, the act of March 3, 1883 (22 Stat. 488), by which the costs and charges referred to are excluded as an element of dutiable value, remains in force and determines the duty thereon. 19 Op. 602. 184. Same. — Commissions on imported mer- chandise which do not grow out of the costs, charges, and expenses mentioned in said sec- tion 19 of the act of June 10, 1890, form no part of the dutiable value of merchandise under that act. lb. 185. The new rates of duty imposed by the tariff act of August 27, 1894 (28 Stat. 509), do not apply to any goods theretofore entered for warehouse, unless the goods are with- drawn for consumption within three years from the date of original importation. 21 Op. 116. 186. Goods imported before that act and then deposited in store as " unclaimed mer- chandise," under section 2965, Revised Stat- utes, may be withdrawn for consumption at the new rates of duty at any time within three years from the date of original importation, as long as they remain unsold. If sold, how- ever, the duties to be deducted from the pro- ceeds of sale are those of the act of 1890. lb. 187. The second proviso in section 50 of the tariff act of October 1, 1890 (26 Stat. 624), providing that when duties are based upon the weight of merchandise deposited in any pub- lic or bonded warehouse, said duties shall be levied and collected upon the weight of said merchandise at the time of its withdrawal, applies to importations under the act generally upon "which duties are levied by law, and not merely to importations made prior to the taking effect of the act. 20 Op. 80. Appraisal. See Customs Law, III, b. Goods which ake iist a Port of the United States When New Law Goes into Effect. See Customs Law, 121, 183. b. Goods Subject to Duty. 188. Bituminous coal, imported for the use of the Government, is dutiable under para- graph 432 of the tariff act of October 1, 1890 (26 Stat. 600). 20 Op. 314. 150 CUSTOMS LAW, IV, b. 189. Books imported for the purpose of Bale are not free of duty under paragraph 413 of the tariff act of August 27, 1894 (28 Stat. 538), even though imported to take the place of books which had been previously imported by the same person, and upon which duties had been paid by him, and which he had after- wards sold to a State library. 21 Op. 301. 190. Foreign magazines and newspapers transported by mail from Canada into the United States, addressed to dealers, for the purpose of sale by them, or of being by them distrib- uted among subscribers, are dutiable. 17 Op. 159. 191. Same. — The postal convention with Canada and section 15 of the act of March 3, 1879 (20 Stat. 359), were not intended to affect existing tariff laws. lb. 192. Periodical publications bound in stiff covers in regular book form (each volume containing several numbers of any such pub- lication) lose their character as periodicals and become dutiable as books under the act of March 3, 1883 (22 Stat. 510) . 18 Op. 315. 193. Braids — Feather-stitched braids. — The interpretation acquiesced in hitherto by the Department of Justice by a letter to the Secre- tary of the Treasury, of date January 26, 1893, that "feather-stitched braids" are dutiable as braids under paragraph 354 of the tariff act of 1890 (26 Stat. 593) , should also be applied to the term "braids" as used in paragraph 324 of the tariff act of March 3, 1883 (22 Stat. 506). Pending cases of protest against a different ruling should be settled in accordance with this settled practice. 20 Op. 621. 194. The duty on the by-products, such as broken rice and rice meal, withdrawn for con- sumption from importers' bonded warehouses should be assessed upon the proportion of unclean rice represented by such by-products. 21 Op. 474. 195. Clothing purchased in Canada. — Per- sons crossing into Canada for no other purpose than to purchase clothing there, and imme- diately returning, are not entitled to introduce the same free of duty as "personal effects" under paragraph 752 of the act of October 1, 1890 (26 Stat. 611). 21 Op. 3. 196. A crank shaft and steamer's shafts brought to this country from a foreign country to repair a vessel of that country lying dis- abled in our ports are articles imported into the country within the meaning of section 2503 of the Eevised Statutes and section 2502 of the Eevised Statutes as amended by the tariff act of 1883 (22 Stat. 491, 499), and no refund of duty is allowable thereon. 20 Op. 194. Affirmed, 20 Op. 257. 197. Steel shaft landed in United States for use on foreign vessel. — A steel shaft can not be landed and kept on the dock of the Cunard Steamship Company in the United States, for possible use on the steamships Etruria and XJmbria in case of emergency, without pay- ment of duty thereon. 24 Op. 533. Opinion of February 24, 1899 (22 Op. 360), distinguished. 198. Foreign-made grain bags.— Section 7 of the act of February 8, 1875 (18 Stat. 308), admitting foreign-made bags free of duty "after having been exported from the United States filled with grain and returned empty," was repealed by section 55 of the said act of October 1, 1890 (26 Stat. 625). 20 Op. 630. 199. Same. — Articles not mentioned on free list. — Section 2 of the act of October 1, 1890 (26 Stat. 602) , is exhaustive upon the subject of free entry of goods, so that an article not mentioned in said section can not be held to be nondutiable because of any previous law granting it exemption from duty. lb. 200. 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 merchan- dise 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. 22 Op. 561 . 201. Same. — The admission of merchan- dise 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. lb. 202. Picture frames containing oil paint- ings which are imported into this country for exhibition purposes, are not to be treated as parts of "works of art" and are therefore not entitled to entry free of duty under par- agraph 702 of the tariff act of July 24, 1897 (30 Stat. 203). 25 Op. 276. 203. Where the refined metal set aside as the product of imported lead ore is not reex- ported within six months from the date of the receipt of the ore, the regular duties must be CUSTOMS LAW, IV, b. 151 paid on the imported ore as provided by sec- tion 29 of the tariff act of July 24, 1897 (30 Stat. 151). 22 Op. 285. 204. Refined sugar manufactured in this country from raw sugar imported under the tariff act of 1883. and exported before April 1, 1891, with a drawback of the duties col- lected on the importation, and again imported after April 1, 1891, is subject to duty to the full amount of the drawback allowed on the sugar on its exportation. 20 Op. 77. 205. A steam pump and boring apparatus, used in deep prospecting for oil and coal, with connecting iron tubes, etc., brought into this country by a coal and petroleum seeker for the purpose of pursuing his pro- fession here, do not come within the mean- ing and intent of the clause in the act of March 3, 1883 (22 Stat. 521) , exempting from duty "implements, instruments, and tools of trade, occupation, or employment of per- sons arriving in the United States," and should not be admitted free. 18 Op. 538. 206. Imported scrap tobacco is dutiable as manufactured tobacco under the act of March 3, 1883 (22 Stat. 503). 17 Op. 646. 207. Attaches to tobacco, irrespective of bale or package. — Clause in Schedule F of the act of March 3, 1883 (22 Stat. 503), imposing a duty upon "leaf tobacco," considered and commented on; and advised that the duty attaches to tobacco of the statutory descrip- tion, irrespective of the bale or package in which it is imported, and that, consistently with the terms of the statute, bales and pack- ages may be broken up in order to sort such different grades of leaf tobacco as may be contained therein. 18 Op. 1. 208. The article called toluidine, being a product of coal tar, is within the provision of the act of March 3, 1883 (22 Stat. 493), cov- ering "all preparations of coal tar, not colors or dye, not specially enumerated or provided for, ' ' and is dutiable thereunder. 18 Op. 383. 209. Beimported whisky when withdrawn from bond is taxable according to the number of gallons at the time of importation. 20 Op. 722. 210. The cost of boxes or coverings with which goods are ordinarily prepared for sale in the foreign market, and in which they are usually sold and purchased there, is an ele- ment of the actual market value of .the goods. What becomes of the box or covering, in the course of trade, after the importation, does not affect the question of dutiable value. 17 Op. 633. 211. Coverings — Match boxes. — Boxes in which safety and ordinary matches are usu- ally imported are not dutiable as part of the merchandise which they contain, but ( being composed in part of a material designed for a use other other than that of a bona fide transportation of their contents) they are subject to the duty of 100 per cent ad valorem prescribed by the proviso in section 7 of the act of March 3, 1883 (22 Stat. 523). 18 Op. 510. See also 226, spools. . 212. Coverings of imported merchandise. — The proviso in section 7 of the act of March 3, 1883 (22 Stat. 523), subjecting to a duty of "100 per centum ad valorem upon the actual value of the same," coverings of imported merchandise designed for use otherwise than in the bona fide transportation of such mer- chandise to the United States, etc. , applies to free as well as to dutiable importations. 19 Op. 18. 213. Boxes or cases in which certain philo- sophical instruments were imported, being of dimensions sufficient to hold one instrument, were " designed for use otherwise than in the bona fide transportation" of their contents to the United States, and consequently are dutiable at 100 per cent ad valorem under the proviso of section 7 of the act of March 3, 1883 (22 Stat. 523). Such boxes were in- tended to follow their contents into consump- tion, and to be used therewith both as a pro- tection to them and as furnishing a convenient means of carrying them about. 19 Op. 543. 214. Dutiable articles purchased by the United States from the importers while in bond remain dutiable and the duties must be paid before delivery. Paragraph 385 in the free list of the act of August 27, 1894 ( 28 Stat. 537 ) , applies to articles purchased by the United States in foreign markets and thence im- ported for its own use. 21 Op. 243. 215. In cases of forfeiture. — 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. 135), and the whole of the proceeds from their sale applied to the use of the United States. ' 24 Op. 1. 152 CUSTOMS LAW, IV, b, c. 216. Same. — 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 in- volving forfeiture, lb. See also Contracts, 74. c. Goods, etc. , not Dutiable — Exemptions. 217. A bicycle taken abroad by a citizen for his use, and brought back with him on his return to this country, is not subject to duty, being a "personal effect" (see Free List, Eev. Stat. p. 489). 17 Op. 679. 218. Bicycles are "personal effects" within the meaning of our tariff acts, and therefore exempt from duty under the act of 1890 (26 Stat. 611). 17 Op. 679 adhered to. 20Op.648. 219. The opinions previously rendered by this Department (17 Op. 679; 20 Op. 648) as the dutiability of bicycles adhered to. 20 Op. 719. 220. Bonnets, hats, and hoods, etc., and braids, plaits, flats, laces, etc. — Act not applicable to materials out of which made. — The words "not specially enumerated or provided for in this act," used in Schedule N of the act of March 3, 1883 (22 Stat. 511), in the clauses fixing a duty upon ' ' bonnets, hats, and hoods for men, women, children, composed of chip, grass," etc., and "upon braids, plaits, flats, laces, etc., used for making or orna- menting hats, bonnets, hoods," etc., apply to articles of the description mentioned, and not to the material out of which such arti- cles are made. 17 Op. 672. 221. Burnt bones intended and fitted for other uses in the arts than that of imparting color are duty free (Eev. Stats, pp. 473, 483), although in fact they are black. 17 Op. 676. 222. Coverings, etc. — Sacks, boxes, or cover- ings of any kind, the duty on which as charges was repealed by section 7 of the act of March 3, 1883 (22 Stat. 523), are not subject to duty, either separately from or as a part of the value of the goods imported therein, except- ing where they come under the proviso in that section or fall within some special provision of law. 18 Op. 468. 223. Same.— The 100 per cent ad valo- rem, mentioned in said proviso, can be im- posed upon sacks, boxes, or other coverings of imported merchandise only where their material or form justifies the conclusion that they were used as coverings to evade duties, or where they were designed or contemplated to be applied to some use other than that of coverings for imported merchandise, even though their use as coverings only should continue after the goods had passed beyond the custom-house to the market or con- sumer, lb. 224. Same. — The mere fact that the boxes, sacks, etc., are, after importation, put to other uses, if such uses were not designed at or be- fore the time of importation, and if there was no design to evade duty in using them as coverings, will not subject them to the 100 per cent ad valorem duty. lb. 225 . Coverings. — Certain boxes or cases con- taining zithers, piccolos, cornets, trial glasses, etc., used as coverings for such instruments, Held not subject to the 100 per cent ad valorem duty prescribed in the proviso of section 7 of the act of March 3, 1883 (22 Stat. 523). 18 Op. 479. See also 178, 179, 210-213. 226. Spools on which thread is wound for transportation or shipment are duty free, un- der the provisions of section 7 of the act of March 3, 1883 (22 Stat. 523). .18 Op. 496. See also 212, Match boxes. 227. The "Foxhall" gold and silver cup, having similitude in " material, quality, and texture, and the use to which it may be ap- plied" to a "medal" made of those mate- rials, is free of duty under sections 2499 and 2502, Revised Statutes, as enacted by the act of March 3, 1883 (22 Stat. 489). 18 Op. 62. 228. Goat's hair. — Hair of the common goat, which is unfit for combing purposes, should be admitted free of duty under the provisions in the free list for hair of horses and cattle, and hair of all kinds not specific- ally enumerated, act of March 3, 1883 (22 Stat. 519). 18 Op. 527. 229. Iron turnings are not dutiable as manu- factured iron. 17 Op. 647. 230. Where certain law reports, printed in the year 1840-41, were imported into the United States in an unbound condition, the printed sheets not being even stitched together: Held that they came within the provision of the act of March 3, 1883 (22 Stat. 518), ex- empting from duty " books * * * bound CUSTOMS LAW, IV, c. 153 or unbound * * * which shall have been printed and manufactured more than twenty years at the date of importation," and were therefore not dutiable. 18 Op. 461. 231. Where meat of American production, cured with foreign salt, was exported to Eu- rope (the duty upon the salt being refunded), and subsequently brought back to this country: Advised that, on the duties upon the salt being re-refunded, the meat may be admitted duty free under the act of March 3, 1883 (22 Stat. 514). 18 Op. 139. 232. Philosophical and scientific appara- tus. — An instrument designed for the repro- duction of artists' models, statuary, and decorative architecture, imported for the pur- pose 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. 24 Op. 28. 233. Portland cement for construction of gun emplacements. — The discretion committed to the Secretary of War with reference to the admission of certain materials free of duty by the act of June 6, 1896 (29 Stat. 260, first paragraph ) , is sufficiently broad to embrace and assume, as for or by the United States, such purchases abroad made by contractors as ap- pear to him to be proper. 22 Op. 98. 234. Porto Rican products. — 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. 24 Op. 55. 235. Tobacco grown in Porto Bico after the cession of that island to the United States and brought into this country for warehousing, and afterwards exported to Canada and thence returned to the United States, is within the benefits of paragraph 483 of the act of July 24, 1897 (30 Stat. 195), but subject to the internal- revenue tax provisions of section 3 of the act of April 12, 1900 (31 Stat. 77). 24 Op. 612. 236. Paintings of a native Port Rican resid- ing abroad. — 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 para- graph 703 of the tariff act of July 24, 1897 (30 Stat. 203). 24 Op. 40. 237. Printed matter, other than books, re- ceived by mail from foreign countries, under the provisions of postal treaties or conven- tions, is declared free of duty by section 17 of the act of March 3, 1879 (20 Stat. 360); and no distinction is there made between such as is mailed to subscribers for their own use and such as is mailed to dealers for sale. 17 Op. 187. 238. Same. — There is no warrant of law for inquiry by the Treasury Department as to whether such printed matter is received as merchandise, nor for the imposition of duty thereon. lb. 239. Same. — Books which are admitted to the international mails, exchanged under the provisions of the Universal Postal Union Con- vention, may be delivered to addresses upon the payment of the duty thereon. lb. 240. The Secretary of the Treasury has the power to permit the transfer and delivery to the steamship Kaiser WUhelm II of a piece of machinery known as a "screw boss," brought into the harbor of New York by a sister ship for the purpose of replacing a defective piece in the former, without exacting the pay- ment of duty. 22 Op. 360. 241. Shellfish, such as oysters, Chinese abelones, etc., when prepared by drying or pickling, are entitled to free entry under the free list, Sundries, in the act of March 3, 1888 (22 Stat. 521). 19 Op. 401. 242. Silver ore, ground, is not dutiable under the tariff act of March 3, 1883 (22 Stat. 488). 18 Op. 148. 243. Spanish publications — Philippine Is- lands. — All such Spanish scientific, literary, and artistic works, not subversive of public or- der, which are published in Spain and thence imported into the Philippine Islands as were 154 CUSTOMS LAW, IV, c, d. entitled to free entry into those islands under the Spanish tariff in force when our Govern- ment 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 in- closed, provided such bindings were previ- ously admitted free. 23 Op. 115. 244. Goods coming from Tutuila. — In view of the convention concluded by the United States, Great Britain, and Germany on De- cember 2, 1899 (31 Stat. 1878), the island of Tutuila is not a foreign country within the meaning of our tariff laws, and goods com- ing into the United States from that island are not subject to duty. 23 Op. 629. 245. 'Works of art — American artist. — An artist of foreign birth, but who has resided in the United States for fourteen years and has declared his intention to become a citizen thereof, may properly be treated as an American artist within the meaning of the provision in the act of March 3, 1883 (22 Stat. 521), declaring free of duty "works of art, painting, etc., the production of Ameri- can artists." 18 Op. 163. 246. Goods shipped prior to March 15, 1892, the date named in the President's proclamation for the suspension of free importation of enumerated articles from certain countries, are to be admitted free of duty. 20 Op. 357. 247. Abandonment of damaged goods. — The provision of section 23 of the customs admin- istrative act of 1890 (26 Stat. 140), 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. 22 Op. 542. 248. Section 2 of the act of October 1, 1890 (26 Stat. 602), is exhaustive upon the subject of free entry of goods, so that an article not mentioned in said section can not be held to be nondutiable because of any previous law granting it exemption from duty. 20 Op. 630. d. Classification of Goods. 249. Classification. —Imports in the tariff acts may be "nonenumerated," "generally enumerated," or "specially enumerated;" each phrase marks a different degree of precision in the description of the imports. 19 Op. 272. 250. Same. — When described as a species, they are "specially enumerated," and such enumeration when made determines the clas- sification, lb. 251. Same. — When described as a genus, or in general terms, they are merely enumer- ated, and, in the absence of a specific enum- eration, such general enumeration determines the classification. One such general enum- eration may also be more specific than an- other, lb. 252. Same. — When not described either "specifically" or "generally," they are "non- enumerated." lb. 253. Same. — Only "nonenumerated" im- ports are subject to classification under sec- tion 2499, Revised Statutes. lb. 254. Appollinaris mineral water. — In the light of the information presented, Appolli- naris mineral water is regarded as an artificial mineral water, and dutiable as such. 17 Op. 176. 255. An importation of bird of paradise feathers, being composed of natural feathers which are neither dressed, colored, nor man- ufactured, is not within paragraph 328 of the tariff act of August 28, 1894 (28 Stat. 534). 21 Op. 541. 256. Black of bone or ivory drop black — Bones crude and notmanufactured. — Distinction between the expression in Schedule M (Rev. Stat., p. 473) , " black of bone or ivory drop black." and the expression (Free List, ibid., 483), "bones crude and not manufactured; burned, calcined, ground, or steamed," pointed out; and held that burnt bones in- tended and fitted for other uses in the arts than that of imparting color are duty free, although in fact they are black. 17 Op. 676. 257. Chinese shoes composed of felt, leather, and cotton should be classified under the twelfth clause of Schedule K of the act of March 3, 1883 (22 Stat. 488, 508), which pro- vides generally for " all goods * * * and manufactures of every description, composed wholly or in part of worsted, the hair of the CUSTOMS LAW, IV, d. 155 alpaca, goat or other animals * * * not specially enumerated or provided for." 19 Op. 273. 258. Chinese shoes in which silk is the com- ponent material of chief value should be classi- fied under the fourth clause of Schedule L of the act of 1883 (22 Stat. 488, 510). lb. 259. Opinion of April 3, 1889 (19 Op. 272), respecting the classification for duty of certain descriptions of Chinese shoes, ex- plained; and advised that the opinion referred to does not justify any change in the admin- istration of the customs laws, except as to importations like those concerning which it was written. 19 Op. 301. 260. Same. — The underlying principle of the opinion is that " enumeration must be ex- hausted before assimilation can be resorted to," and that the shoes described were enumer- ated in the twelfth clause of Schedule K of the act of March 3, 1883 (22 Stat. 488, 508. ) lb. 261. Same. — As there were not two enu- merative clauses which might be applicable to the import, the last clause of section 2499 was inapplicable. lb. 262. Same. — The prior clauses of section 2499 were limited to nonenumerated articles, and under the facts were not applicable. lb. 263. Coriander seed should be classified under paragraph No. 636, Tariff Index, as " seeds, aromatic, which are not edible," etc. 19 Op. 75. 264. Flax. — The decision of the Treasury Department of April, 1871, holding that the article known as New Zealand flax is dutiable as flax not hackled or dressed, should, under Schedule J of the act of March 3, 1883 (22 Stat. 507) , be modified so as to classify the article for duty under the provision for sunn, sisal-grass, and other vegetable substances not specially enumerated or provided for. 19 Op. 334. 265. "Household effects "—Cows. —The term "household effects" as used in para- graph 504 of the act of July 24, 1897 (30 Stat. 196), properly includes cows when kept for household use. 23 Op. 310. 266. Same. — That term includes not only those things necessarily kept within the house, but comprises everything that con- tributes to the use or convenience of a house- holder, lb. 267. Same — Treasury Department's rul- ing. — 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, lb. 268. Certain articles of imported mer- chandise, consisting of T-beams, girders, joists, columns, posts, and other manufactures of iron, which, when put together, constitute a floor- frame for one or more floors of a building, should not be classified under the tariff act of March 3, 1883 (22 Stat. 488, 501), as an entirety as a manufacture, but the several parts should be classified under such several specific provisions of the act as are appli- cable to each class of merchandise in the entry. 18 Op. 475. 269. The term "iron ore," as used in the act of March 3, 1883 (22 Stat. 497) , is generic; embracing all the different species of iron ore, regardless of their price, value, or accidental component chemical ingredients. It is the iron ore of commerce. 18 Op. 530. 270. Iron bar ends, consisting of the crop ends, from 1 to 4 inches long, cut off from Swedish bar iron in the process of manufac- turing the bars, have not been "in actual use " so as to justify their classification as scrap iron under Schedule C of the act of March 3, 1883 (22 Stat. 497). 19 Op. 103. 271. The phrase "forgings of iron and steel," as used in clauses Nos. 163 and 167 (T. I., new), of the act of March 3, 1883 (22 Stat. 498), includes forgings made of iron and forgings made of steel, and is not limited to articles composed of both iron and steel com- bined in the same forging. 19 Op. 157. 272. Steel chains used for bicycle gearing should be classified for duty under the pro- vision in the act of March 3, 1883 (22 Stat. 499), for "chain or chains of all kinds, made of iron or steel," etc., and not as "manu- factures, articles, or wares, not specifically enumerated or provided for" (22 Stat. 501). 19 Op. 527. 273. Advised that if certain lap robes or carriage robes, sometimes called railway or traveling rugs, were commercially known at the time of the passage of the act of March 3, 1883 (22 Stat. 488), as mats or rugs, they should be classified under a certain clause of Schedule K of that act, providing f or " Car- pets and carpetings of wool, etc., and mats, rugs," etc. ; but that if not so known, nor by any other designation provided for, they 156 CUSTOMS LAW, IV, d, e. should be classified according to the compo- nent material. 19 Op. 104. 274. Mahogany boards and planks are not dutiable as manufactures of mahogany, under the clause in Schedule D (act of March 3, 1883 (22 Stat. 501), imposing a duty on "manufactures of cedar wood," etc.; but they*fall within the designation of lumber in the clause in same schedule which imposes a duty on "sawed boards, planks, deals," etc., and are dutiable under the latter clause. 18 Op. 535. 275. Sawed mahogany boards are not du- tiable under Schedule D (act of March 3, 1883, 22 Stat. 501) as "manufactures of ma- hogany," but are dutiable under the provi- sion of that schedule ' ' for all other articles of sawed lumber," etc. Opinion of Attorney- General Garland of January 21, 1887 (18 Op. 535), concurred in. 19 Op. 366. 276. " Medicinal soap " is not dutiable as "proprietary medicines," but as soaps not otherwise provided for at 20 per cent ad valorem, or at 25 per cent as a medicinal preparation or compound. 18 Op. 344. 277. Advised, that the classification of roll paper heretofore adopted under paragraph 392, Tariff Index, new, should be adhered to. 19 Op. 59. 278. Silk— Chief valne.— The word "chief," as used in the provision of section 1 of the act of February 8, 1875 (18 Stat. 307), im- posing a duty of 60 per cent ad valorem on all goods, wares, and merchandise made of silk, or of which silk is a component material of chief value, etc., means greater than either of the other materials; not greater than their aggregate. 17 Op. 337. 279. Where certain merchandise, consist- ing of a fabric composed of silk, cotton, and worsted, met all the requirements of Schedule L of the act of March 3, 1883 (22 Stat. 510), and also fulfilled all the conditions imposed by Schedule K of the same act for classifica- tion for duty thereunder: Held that under section 2499, Revised Statutes, it should be classified for duty under Schedule L, which imposes the higher rate. 18 Op. 367. 280. The word "wool," as used in para- graph 297 of the tariff act of 1894 (28 Stat. 531), refers to hair of the sheep only, and the new duties upon articles made of the hair of other animals went immediately into effect upon the passage of the act. 21 Op. 66. .281. Same. — The phrase "manufactures of wool ' ' in theabove paragraph does not include articles of which wood is a component mate- rial but of which it is not the material of chief value. lb. 282. Same. — The phrase in question having been given a restrictive meaning in prior tariff acts, there is a presumption, in the absence of anything to the contrary, that Congress in- tended it still to have the same significance. lb. 283. Same. — All doubts arising under the act are presumptively to be resolved in favor of the lower rate of duty, save where the act mentions or describes the same article in two different places, when the higher rate governs. lb. e. Discriminating Duties. 284. Paragraph 608 of the tariff act of August 27, 1894 (28 Stat. 544), imposing a discriminating duty on salt imported from a country which imposes » duty on salt exported from the United States, does not violate the ' ' most favored nation clause ' ' in the treaty of May 1, 1828, with Prussia. 21 Op. 80. 285. As to whether a discriminating duty should be imposed under the act of 1894 upon salt imported from Germany, which country imposes a duty in the nature of an internal excise tax on salt exported from the United States? Quaere. 21 Op. 377. 286. Diamonds imported into the United States from Canada, not in the usual course of strictly retail trade, which were the pro- ductions of a foreign country not contiguous to the United States, are subject to a dis- criminating duty of 10 per cent under section 22 of the tariff act of July 24, 1897 (30 Stat. 209). 21 Op. 591. 287. Same. — In determining the liability of the diamonds to the discriminating duty, it is not necessary to ascertain the mode of convey- ance used in transporting them into the United States from Canada. 76. 288. Certain goods came from Japan via Vancouver, B. C, and thence by railroad through Canada to Chicago in cars sealed at Vancouver by a United States consular officer: Held not to be subject to a discriminating duty, as sec- tion 4228, Eevised Statutes, is not repealed by section 22 of the Dingley tariff act of July 24, 1897 (30 Stat. 209"). 21 Op. 597. CUSTOMS LAW, IV, e, f, g; V, a, b. 157 289. The purpose of this section (section 22 of the Dingley act) was to secure to United States vessels the transportation of goods by sea by discriminating against transportation in other vessels to the United States, and also to prevent evasion to a contiguous country. lb. 290. Same. — To hold that there should he a discrimination by different duties upon im- portations, direct or indirect, under section 22 of the above act, would be to pnt a new pur- pose in the law and destroy its unity. This is not compelled by its language or any mis- chief intended to be remedied. lb. 291. Same. — Section 22 of this actandsection 4228, Bevised Statutes, as amended, are not co- extensive in scope, therefore are complements of each other. lb. 292. Same. — Section 4228, Bevised Statutes, is in effect made a proviso to section 22 of the Dingley tariff act by the discriminating duties act of July 24, 1897 (30 Stat. 214), and as such is not repugnant to the latter sec- tion, lb. 293. Same. — The operation of section 22 commences with its passage and continues until it is suspended according to section 4228, Bevised Statutes, and again takes effect if the reciprocal exemptions of foreign nations be withdrawn, jib. f. Additional Duty. 294. Goods in bond over one year. — Where the date of original importation of merchan- dise in bond was more than one year prior to August 1, 1890, the date when the act of June 10, 1890 (28 Stat. 131), went into effect, such merchandise is subject to the "addi- tional duty of 10 per centum" imposed by section 2970, Revised Statutes, by virtue of the saving clause in section 29 of said act of June 10, 1890, which saves to the Govern- ment all rights that existed in its behalf when that act took effect. 19 Op. 668. See aho IX, b, 387, etc. g. Proclamation. 295. Effect— Power of the President. — The President has no power to issue the procla- mation provided for in section 3 of the act of October 1, 1890 (26 Stat. 612), to take effect infuturo, nor has he the power to reimpose duties on one or more of five articles enumerated in said section but not on the others. In the proclamation the particular country on whose products the duties are to be reimposed should be named. 20 Op. 290. Y. Payment, Collection, and Liquidation of Duties. a. Payment. 296. The payment of duties and charges on goods entered for consumption, as well as the protest, must be made within ten days after their liquidation if the importer desires to con- test the rate of duty assessed. 20 Op. 183. b. Collect ion of Duty. 297. The " collection of the revenue" under the superintendence of the Secretary of the Treasury within the meaning of section 249, Bevised Statutes, relates to the proceedings of the collectors and their subordinates, and not to those of district attorneys. 20 Op. 714. 298. On goods prohibited from entry. — The Treasury Department is not required by the statutes to levy and collect duty or its equiva- lent on goods the importation of which is specifically and absolutely prohibited. 24 Op. 556. 299. Appropriation for collection can not be expended for erection of a building. — The Sec- retary of the Treasury is not authorized to employ any part of the appropriation for col- lecting the revenue from customs in the erec- tion of a temporary structure at a collection port for the purposes of the customs service. 19 Op. 607. 300. Same. — No building, even of a tem- porary character, to be used for storage pur- poses, can be erected at the public expense without special authority from Congress, lb. 301. Sale of goods. — The provision in sec- tion 7129 Revised Statutes, requiring mer- chandise to be sold, is applicable to goods remaining in public store or bonded warehouse beyond three years, as well where the duties thereon have been paid as where they have not been paid. At the end of that period they are to be regarded as abandoned to the Government and sold. 17 Op. 650. 302. Same. — The object and requirement of that provision are, however, sufficiently met by the practice of the Department, where- 158 CUSTOMS LAW, V, b, c, d; VI, a. by, in lieu of a formal sale of the goods, the owner, consignee, or agent is permitted to pay the duties, charges, etc., that have ac- crued thereon and take them away. 26. c. Liquidation — Beliquidation. 303. Premature liquidation — Beliquida- tion. — Where, notwithstanding the instruc- tion of the Secretary of the Treasury that collectors of customs should delay final liqui- dation of duties on certain merchandise until further orders, duties were nevertheless liqui- dated and subsequently reliquidated: Held, such original liquidation was complete and subsisting until changed by reliquidation. 24 Op. 34. 304. The Secretary of the Treasury is au- thorized under section 1 of the act of March 3, 1875 (18 Stat. 469), to order a reliqnidation of the assessment of duties in the interest of the importer and to direct a return of the papers by the Board of General Appraisers to the collector where the dnties were assessed and collected upon errors of fact, discovered within one year from the date of payment, protest and appeal having been duly made. 21 Op. 152. 305. Section 14 of the act of Tune 10, 1890 (26 Stat. 137), did not in any way limit the power of the collector of customs to reliquidate duties in the interestof the Government within one year after entry. 21 Op. 334. d. Deposit of Duties. 306. All duties paid to a collector must be placed to the credit of the Treasurer of the United States. 21 Op. 345. VI. Return or Abatement of Duties, Tees, etc. a. Refund, Abatement. 307. Limitation. — Section 10 of the act of March 3, 1883 (22 Stat. 525), relating to re- fund, extends only to goods which had not been in bonded warehouse more than three years at the date that act took effect. 17 Op. 650. 308. Same. — Sections 2971 and 2977, Be- vised Statutes, place a limitation upon the priv- ilege of exportation with refund of duties, and require that it shall be exercised within three years from the date of importation; otherwise the privilege is lost. lb. 309. Same. — The provision in section 2971, Revised Statutes, requiring merchandise to be sold, is applicable to goods remaining in public store or bonded warehouse beyond three years, as well where the duties thereon have been paid as where they have not been paid. At the end of that period they- are to be re- garded as abandoned to the Government and sold. lb. 310. Same. — The object and requirement of that provision are, however, sufficiently met by the practice of the Department, where- by, in lieu of a formal sale of the goods, the owner, consignee, or agent is permitted to" pay the duties, charges, etc., that have ac- crued thereoli and take them away. lb. 311. Mutual mistake of fact. — The Secre- tary of the Treasury is authorized to make a refund of duties where there was an error due to a mutual mistake of fact. 21 Op. 454. 312. Mistake of fact. — The authority of the Secretary of the Treasury to refund duties erroneously collected, on the ground of mis- take, is to be restricted to mistake of fact. 24 Op. 34. 313. 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. lb. 314. Same — Common-law mistake of fact. — 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), denned in 21 Opin. 224, to be a common-law mistake of fact. lb. 815. Mistake of law— Protest. — The Secre- tary of the Treasury is without authority to refund an excess of duties collected under a mistake of law, lawful protest not having been made. 21 Op. 225. 316. Same. — The cases in which the Secre- tary of the Treasury is authorized to make such refunds, in the absence of a proper pro- test, are the following: First, when the duties, as provisionally fixed and paid upon entry of the goods, called "unascertained duties," are reduced upon the final liquidation (sec. 24, act of June 10, 1890, 26 Stat. 140); Becond, dior mere clerical error (id) ; third, for errors of fact (sec. 1, act of Mar. 3, 1875, 18 Stat. 469). 16. 317. Same.— The "errors of fact" referred to in section 1 of the act above referred to, CUSTOMS LAW, VI, a. 159 are mistakes of fact within the meaning of . the common law — that is, mutual mistakes of facts. lb. 318. Same. — For a mutual mistake of law the importer has no remedy. lb. 319. Prior to the customs administration act of June 10, 1890 (26 Stat. 131), duties collected by mistake of law could not be re- turned after one year from the time of entry in the absence of a protest by the importer under section 2931, Revised Statutes. 21 Op. 251. Opinion of September 21; 1895 (21 Op. 224), reaffirmed. lb. 320. Protest. — Honeys improperly exacted from and paid by vessels proceeding under section 29 of the act of June 26, 1884 (23 Stat. 59), to unlade at places other than a port of entry, may be refunded by the Secretary of the Treasury, without formal protest by the applicant, in cases where application has been made within one year of such payment. 19 Op. 646. 321. Protest. — A mistake on the part of the Treasury Department in estimating the equiv- alent of the Spanish pound, or libra, in the absence of due protest by the importers, is not sufficient to warrant a refund of the excess of duties paid under such erroneous estimate. 21 Op. 454. 322. Where importer did not bring suit. — The Secretary of the Treasury is not author- ized under section 3012J, Revised Statutes, to refund excess of duty illegally exacted, where the importer, though having made due protest and appeal, did not bring suit. 17 Op. 336. 323. Same — Reaffirmed. — Opinion of April 20, 1882 (17 Op. 336), on the power of the Secretary of the Treasury to refund duties erroneously exacted, reaffirmed. 17 Op. 642. 324. Same. — Section 3012J, Revised Stat- utes, confers upon him power to refund sub modo only; i. e., upon appeals heard by him under section 2931, Revised Statutes, when made in the form and within the time there- in specified. lb. 325. Excess of duties erroneously exacted. — The Secretary of the Treasury has power to refund excess of duties erroneo.usly exacted, upon the dismissal of the suits brought to re- cover such excess. 17 Op. 657. 326. Supplies withdrawn for vessels — No protest. — The Secretary of the Treasury has no authority under section 1 of the act of March 3, 1875 (18 Stat. 469), to refund duties erroneously collected, but without formal pro- test, on certain warehoused coal; but he is authorized to make such refund on coal with- drawn for use on ocean steamers, where the duties were mid by mutual mistake of law. 21 Op. 92. 327. Same. — The decision of an application to withdraw warehoused goods or supplies for vessels under section 16 of the act of June 26, 1884 (23 Stat. 57), is confided by law in the Secretary of the Treasury; hence the protest required by section 1 of the act of March 3, 1875 (18 Stat. 469), is not required where duties were paid by mutual mistake of law on coal withdrawn as above, lb. 328. The Secretary of the Treasury has no power to refund penal duties which have been paid into the Treasury, on the ground that they were incurred without willful negligence or an intention of fraud on the part of the im- porter. 21 Op. 320. 329. Same.^— Section 20 of the anti-moiety act of June 22, 1874 (18 Stat. 190), confers no power upon the Secretary of the Treasury to refund any duties, penal or otherwise, lb. 330. Additional duties remitted after having been paid into the Treasury. — Where a cus- toms entry was made in June, 1900, and the additional duties levied and collected thereon were remitted by the Secretary of the Treasury on the ground of a mani- fest 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 of 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 mani- fest clerical error upon an entry within a year from the time of their payment. The authority to refund in such case is a neces- sary consequence of the authority to remit. 23 Op. 442. Opinion of March 13, 1896 (21 Op. 320), distinguished. lb. 331. Costs. — Refund due an importer in case of judgment against the United States for illegal assessment of duties does not include costs. 20 Op. 273. 332. Interest. — No authority exists for the payment of interest upon refunds made in con- 160 CUSTOMS LAW, VI, a, b. fortuity with judgments contained in cases of appeal under section 15 of the customs ad- ministrative act of June 10, 1890 (26 Stat. 131). 20 Op. 238. 333. Cement barrels being deemed non- dutiable charges, it is recommended that the instructions of the Treasury Department of July 20, 1885, be so amended as to apply to cases of exaction of duties on such barrels where the value thereof was added by the im- porter at the time of entry under a requirement made by the order of April 10, 1884, as con- tained in the circular of that Department of April 12, 1884. 18 Op. 363. 334. A crank shaft and steamer's shafts brought to this country from a foreign country to repair a vessel of that country lying dis- abled in our ports are articles imported into the country within the meaning of section 2503 of the Revised Statutes and section 2502 of the Revised Statutes as amended by the tariff act of 1883 (22 Stat. 491, 499), and no refund of duty is allowable thereon. 20 Op. 194. Reaffirmed. 20 Op. 257. 335. Loss caused by freezing.— The provi- sions of section 2984, Revised Statutes, au- thorizing the abatement or refund of duty on imported merchandise which, under the cir- cumstances therein stated, is injured or de- stroyed by accidental fire or other casualty, extend to a loss caused by freezing. 18 Op. 519. 336. Goods delivered and afterwards de- stroyed by fire. — Befund of duties is not allow- able under section 2984, Revised Statutes, on merchandise which, pending further exami- nation and appraisement, and upon proper bond being given, has been delivered to the importer, who stored it in his warehouse, where it was destroyed by fire. That sec- tion contemplates merchandise which at the time of its destruction is in the custody of the officers of the customs. 18 Op. 578. 337. Remission. — The Secretary of the Treasury has no power to remit any part of duties strictly so called, however erroneously they may have been assessed, but he may re- mit the "additional duties" provided for by section 7 of the act of June 10, 1890 (26 Stat. 134) , as they are penalties and not duties. 20 Op. 660. See also Customs Law, 196. b. Drawback, Fees. 338. "Drawback moneys" are duties — re- payment to the importer or the person to whom he has transferred his rights, of a part of the duties which have been paid by him upon receiving his goods. 21 Op. 255. 339. The term "custom-house broker" in section 23 of the tariff act of 1894 (28 Stat. 552) , includes persons dealing in drawback matters exclusively, as well as those who combine all branches of custom-house work. Such a broker, w^en his license has been revoked, can not thereafter deal directly with the customs officials, except when acting for themselves as principals. lb. 340. The authority to collect drawback may be delegated by a manufacturer to a general selling agent or to some attorney at law, but such a person must conduct his business through a licensed broker unless he obtains himself a license. lb. (258.) 341. The person entitled to the drawback under section 3019, Revised Statutes, is the exporter of the goods — i. e. , the owner and ship- per or consignor thereof to the foreign port — and he may collect it by his duly authorized agent. 19 Op. 638. 342. Same. — Where the shipper acts only as the agent of the owner, the drawback belongs to the latter; and if the shipper is without authority from the owner to receive the draw- back, it should be paid to the owner. lb. 343. Same. — The power to make regulations for the ascertainment of the person to whom the drawback is payable, conferred upon the Sec- retary of the Treasury by said section, is a power to declare the rules of evidence upon which the Government officers will act in de- terming who that person is; and the only limitation upon it is that its exercise shall be reasonable, lb. 344. Same. — It would be a reasonable regu- lation to declare that the shipper (the con- signor in the bill of lading), in the obsence of any evidence to the contrary, will be regarded as the owner or exporter of the goods and as entitled to the drawback. lb. 345. The additional duty imposed by sec- tion 7 of the customs administrative act of June 10, 1890 (26 Stat. 131), is not subject to drawback upon the exportation of the article, but must be regarded in the light of a penal duty. 20 Op. 247. CUSTOMS LAW, VI, b. 161 346. The exportation of alcohol with the in- tention of its reimportation, in order to take advantage of the drawback privilege, is to be regarded as colorable only. The alcohol is forfeitable, the persons engaged in the trans- action are punishable and there is no right to drawback. 21 Op. 501. 847. Same. — If, however, the exportation was genuine, and with intent to dispose of the al- cohol abroad, so that upon its arrival there it is to be regarded as absorbed in the general mass of foreign commodities, the subsequent importation of the goods in such cases is proper. 76. 348. Same. — Imported articles of domestic origin are to be regarded as "imported mate- rials" within the meaning of section 22 of the act of August 28, 1894 (28 Stat. 551), when their prior importation was not merely colorable. lb. 349. Coal — Used on vessels. — The provision in the act of March 3, 1883 (22 Stat. 511), allowing a drawback on bituminous coal imported into the United States, which is afterwards used for fuel on steam vessels of the United States engaged in the coasting or foreign trade, is repealed by the act of Octo- ber 1, 1890 (26 Stat. 567, 625). 19 Op. 687. 350. Same. — Withdrawal from bond for use on vessels. — The term "supplies," as employed in section 16 of the act of June 26, 1884 (23 Stat. 57), includes coal. lb. 351. Certain car brakes, springs, and light- ing apparatus were imported into the United States for the purpose of being used as parts of the equipment of certain railroad cars to be manufactured in this country for export. They were not installed in the cars, but were present for inspection and were shipped in their original packages, or were repacked and shipped, with the parts of the cars to which they were subsequently to be attached: Held that such articles were not used "in the manufacture of articles manufactured or pro- duced within the United States," within the meaning of section 30 of the act of July 24, 1897 (30 Stat. 211); and, as the articles were removed "from the custody and control of the Government," they are within the inhi- bition of section 3025, Revised Statutes, and are not now entitled to drawback under any provision of law. 25 Op. 125. 352. Coal imported and used as fuel on ves- sel plying between New York and Honolulu. — 18456—08 11 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 afterward® 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. 24 Op. 6. 353. Cotton bales — Burlaps. — Imported bur- laps, on which duty has been paid, when used as coverings on the so-called "roundlap" bales of cotton, are not, when reexported, entitled to drawback under section 30 of the tariff act of July 24, 1897 (30 Stat. 211), for the reason that the bale is not an article manufactured or produced within the mean- ing of that section. It is merely a package of material peculiarly constructed which may be resolved into covering and contents. 24 Op. 575. 354. The question of drawbacks upon the exhibits of foreign Governments at the World's Fair of 1893 is governed by section 11 of the act of April 25, 1890 (28 Stat. 64), and not by section 3025, Revised Statutes. 21 Op. 36. 355. Camel's hair noils, resulting from the separation of imported camel's hair and noils, were not entitled to drawback as a manufac- tured article under section 25 of the tariff act of October 1, 1890. 21 Op. 159. 356. Camel's hair noils. — The separation of imported camel's hair into "tops" and "noils" by combing, for the purpose of pre- paring the material for manufacture, does not result in such "noils" becoming a dis- tinct manufactured article and entitled to drawback within the meaning of section 30 of the tariff act of July 24, 1897 (30 Stat. 211). 24 Op. 53. 357. The drawback law contemplates the manufacture of a separate and complete article which is not merely the finished material of a further stage. lb. 358. Oil cake. — A drawback is allowable under section 22 of the tariff act of August 27, 1894 (28 Stat. 551), on oil - cake made from imported linseed. 21 Op. 109. 359. Oil cake. — Linseed, which was im- ported 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 162 CUSTOMS LAW, VI, b. 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). 23 Op. 395. 360. Oil cake produced from imported lin- seed. — The prohibition contained in para- graph 285 of the tariff act of October 1, 1890 (26 Stat. 586), prevents the allowance of drawback under section 22 of the tariff act of August 27, 1894 (28 Stat. 551) , on_oil cake produced from linseed imported and entered for consumption under the provisions of the former act, but exported after the act of 1894 went into effect. 25 Op. 115. 361. Same. — In a mass of lead,, of which 90 per cent is foreign in origin and 10 per cent domestic, the domestic lead can be regarded neither as a mere incident to the other nor as small enough in amount to be disregarded and is not entitled to drawback. 21 Op. 110. 362. Same. — Drawback is allowable under section 25 of the act of October 1, 1890 (26 Stat. 617), onlyin cases where the article man- ufactured or produced can be so separated chemically or mechanically into its component materials that the relative portions of each material may be ascertained without refer- ence to past books of account. lb. 363. Same. — The above section is intended to apply only to articles made of two or more materials, lb. 364. White lead made in this country from a mixture of domestic and imported pig lead, obtained from foreign and domestic lead ores, is not entitled upon exportation to draw- back under section 25 of the act of October 1, 1890 (26 Stat. 617), because that part of the lead which came from the imported ore does not so appear in the completed product that its quantity or measure can be ascertained in the manner contemplated by that act. 21 Op. 229. 21 Opinions 110, reaffirmed, lb. 365. Drawback on articles exported, made in part from imported and in part from domestic materials. — The provision of section 25 of the act of October 1, 1890 (26 Stat. 617), allowing a drawback on articles exported which are made in part from imported and in part from domestic materials, deals only with the ascer- tainment of the quantity or measure of the imported material existing in the completed article, and has nothing to do with the iden- tification of such materials. 22 Op. 111. 366. Same.— The proviso of this section does not prescribe how the imported materials shall appear, except that they shall so appear that the quantity and measure thereof may be ascertained. lb. 367. Same. — Ascertainment of quantity and measure is an act of the mind, and the required appearance is therefore not a visual but a mental presentation. lb. 368. Same. — The meaning of the proviso is that where the article exported is made in part from domestic materials, the imported materials shall so appear in the completed article — that is, be shown to the satisfaction of the customs officers to exist in the completed article — that the quantity or measure thereof may be ascertained. lb. 369. Same. — Satisfactory proof having been presented to the customs officers to establish the identity of certain imported lead ore used in the manufacture of pig lead, to ascertain the quautity thereof, and to compute the duties paid thereon, and. it being satisfactorily shown that the imported lead so appears in the exported product that the quantity or measure thereof may be ascertained, a draw- back is allowable, lb. 370. A drawback may be allowed of the duties paid on imported lead, refined, in a bonded warehouse, subsequently withdrawn therefrom on payment of duties, for domestic consumption, as provided in section 29 of the act of July 24, 1897 (30 Stat. 210), upon the exportation of articles manufactured wholly from such lead under the provision of section 30 of that act. 22 Op. 119. 371. Same — Identification of the imported lead. — Section 29 of the above act, which pro- vides that 90 per cent of the refined metal shall be set aside each day, conclusively dis- tinguishes the product of the foreign from that of the domestic ore,' and identifies the lead set aside as imported lead. lb. 372. Lead. — 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 Be- ing originally part of a quantity of base bul- lion that had been imported and upon which regular duties had been paid under paragraph 182 of the same act, should be based on the quantity of refined lead thus used, plus 2 per CUSTOMS LAW, VI, b; VII. 163 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. 23 Op. 131. 873. Antimony — Drawback requirements. — 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 per cent 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. 23 Op. 134. 374. Imported Canadian wheat. — Where upon the exportation of a product manufac- tured in the United States from a combina- tion of domestic material and foreign material which has paid duty, the quantity or measure of the foreign material actually present in the completed article can be identified to the satis- faction of the customs officials by the evi- dence of books of account, or otherwise, the exporter is entitled under section 30 of the tariff act of July 24, 1897 (30 Stat. 211), to drawback of the duties paid upon the im- ported material thus ascertained to be actu- ally present in the completed article. 25 Op. 344. 375. Same. — The word "ascertained," as used in the proviso to said section 30, is ob- viously used to describe knowledge which is obtained from evidence, and not merely that which is obtained from the exercise of the senses. lb. 376. Same. — The word " appear," as used in that section, does not require that the im- ported materials should appear in the sense of being seen in the completed articles, but only in the sense, of being proven to be pres- ent in the completed articles. lb. Opinion of July 13, 1898, in regard to draw- back on lead (22 Op. Ill), reaffirmed. lb. 377. Computation of drawback on imported wheat. — In computing the drawback on the export of flour made from imported wheat, the relative values of the flour and other products at the time and place of manufacture should be used as the basis of calculation. 25 Op. 374. 378. Same. — Where only a part of the products from imported wheat is exported, the proportionate value of the same for draw- back purposes should be determined without allowing anything for the increased price such part would bring in domestic markets because of the privilege of drawback. 76. 379. It being possible to ascertain the quantity of imported sugar present in fruit canned for export, drawback on such sugar should be allowed under section 30 of the act of July 24, 1897 (30 Stat. 211). 22 Op. 127. 380. Automobile reexported in form of an express wagon. — An importer is not entitled to a refund of duties paid upon an automo- bile 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). 23 Op. 625. 381. Same. — 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 manu- facture within the meaning of the drawback laws. lb. 382. Illegal fees. — A person who at dif- ferent times between April, 1882, and October, 1887, paid to customs officers, by deductions from drawbacks allowed him, alleged illegal fees, but gave no notice of dissatisfaction and took no appeal from the decisions of such offi- cers to the Treasury Department, can not re- cover back such fees by suit. 19 Op. 238. VII. Importations Prohibited. 383. The importation of foreign-made chro- mos which have not been copyrighted, but which are copies of a foreign painting that has been copyrighted, is not prohibited by the act of March 3, 1891, amending section 4956, Re- vised Statutes. 21 Op. 416. 384. The prohibitive proviso to the above- named act (26 Stat. 1107) applies only to books, chromos, lithographs, or photographs copyrighted as thereinbefore directed, and can not be held to include chromos or photo- 164 CUSTOMS LAW, VIII, IX, a, b, c. graphs protected merely by the copyright of the original painting. lb. Vm. Violations of Customs Laws. 385. Smuggling is the actual passage of dutiable goods through the lines of the cus- tom-house without paying of securing the payment of the duties thereon. 24 Op. 583. Included also 386, 402-404, 418, 419, 429, 448. IX. fines, Penalties, and Forfeitures. a. Fines. 886. Amount accepted in lien of forfeiture treated as a fine and not as a duty. — Where, upon the seizure of smuggled or unentered goods, the Secretary of the Treasury, in the exercise of his power to remit fines and pen- alties, accepts in lieu of forfeiture the pay- ment of such an amount as he deems just and equitable, the amount paid should be treated as a fine imposed rather than as a duty col- lected. 24 Op. 583. b. Penalties — Additional or Penal Duties. 387. Additional duty — How levied. — The additional duty of 20 per cent ad valorem in section 2900, Revised Statutes, can not be legally exacted on costs, charges, and com- missions, but should be levied only on the "appraised value" of the merchandise im- ported, exclusive of such charges. 17 Op. 268. 388. Same. — The additional duty of 20 per cent in section 2908, Revised Statutes, is a separate and distinct penalty, which can legally be exacted on the charges as entered, and only on this element of the dutiable value of the merchandise, lb. 389. Same. — The legislation on the subject reviewed, and those sections construed. lb. 390. Opinion of Attorney-General Devens, of October 4, 1878 (16 Op. 158), that im- ported merchandise entered upon pro forma invoices, in the absence of regular invoices authenticated by United States consular officers, when advanced in value on appraisement more than 10 per cent, is not liable to the 20 per cent ad valorem additional duty under section 2900, Revised Statutes, concurred in. 18 Op. 259. 391. Same. — The words "original invoice" found in section 2900, Revised Statutes, were intended to refer only to the consular in- voice, lb. 392. The additional duty imposed by sec- tion 7 of the customs administrative act of June 10, 1890 (26 Stat. 131), is not subject to drawback upon the exportation of the article. 20 Op. 247. 393. Same. — As between the United States and the importer, and in reference to the subject of drawback and debenture, such additional duty must be regarded in the light of a penal duty. lb. 394. The "additional duties" provided for by section 7 of the customs administrative act of June 10, 1890 (26 Stat. 134), are pen- alties within the meaning of sections 5292 and 5293, Revised Statutes, and sections 17-20 of the anti-moiety act of June 22, 1874 (18 Op. 189). 20 Op. 660. 395. Same — Remission. — The Secretary of the Treasary may, therefore, remit such addi- tional duties, but has no power to remit any part of the duties strictly so called, however erroneously they may have been assessed. lb. 396. Penal duties — Special deposits of, with collector. — The Secretary of the Treasury has no power to permit collectors of customs to receive special deposits of penal duties, to be returned by them to the importers in case the duties should be remitted. All duties paid to the collector must be placed to the creditof the Treasurer of the United States. 21 Op. 345. 397. Collection of. — The Treasury Depart- ment has no authority, when goods are entered or withdrawn for consumption, to suspend the collection of penal duties accruing thereon pending an application for remission, "the goods in the meanwhile having been delivered from the custody of the Govern- ment." 21 Op. 418. 398. Wool tops, imported in the ordinary condition of scoured wool, are not subject to the penal double duty imposed by the act of March 3, 1883 (22 Stat. 508), on "wool of the sheep, etc., which shall be imported in any other than ordinary condition as now and heretofore practiced," etc. 18 Op. 534. c. Forfeitures. 399. Forfeitures provided for by section 9 of the customs-administrative act of June 10, CUSTOMS LAW, IX, c. d. 165 1890 (26 Stat. 135), are not confined (except as to the general clause covering every ' ' will- ful act or omission") to oases in which the United States has been actually deprived of law- ful duties. 20 Op. 633. 400.- Where package claimed not dutiable contains some dutiable merchandise. — Where an importation of packages was entered at the custom-house as containing personal effects only and not subject to duty, but it turned out on examination that the packages contained dutiable merchandise of consider- able value: Held that the entire packages were not forfeitable but only the dutiable mer- chandise, the case being governed by section 2802, Revised Statutes, which is unaffected by the provisions of section 12 of the act of June 22, 1874 (18 Stat. 188). 18 Op. 326. 401. Importation by mail. — Precious stones and other articles, where the same are liable to customs duty, are prohibited by the Uni- versal Postal Union Convention of June 1, 1878, to be sent through the mail; and if imported by mail they become subject to seizure and forfeiture under section 3061, Revised Statutes. 18 Op. 457. 402. Smuggled goods are to be associated with prohibited goods and are not liable to duty. The Government should, therefore, limit its action to forfeiture of the goods and prosecution of the offender. 24 Op. 583. 403. Burden of proof — Former acquittal on charge of smuggling. — The burden imposed by section 9 of the act of December 29, 1897 (30 Stat. 227), and the Treasury regulations made in pursuance thereof, imposing upon the importer the burden of showing the right to entry of any fur-seal skin, rests and remains upon the claimant, and neither an acquittal on the charge of smuggling, nor any other proceeding under the customs- revenue laws, have the effect of shifting the burden of proof in the entirely distinct pro- ceeding to forfeit seal skins brought into the United States in violation of that act. 23 Op. 63. 404. Same — Not a bar to proceedings in rem. — An acquittal upon the charge of smug- gling, 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, lb. 405. Same — Evidence. — To support an in- dictment under sections 2865 and 3082, Re- vised Statutes, there must be sufficient evi- dence of a criminal intent, while a proceed- ing in rem to forfeit, under sections 2802 and 3061, Revised Statutes, presents a civil liabil- ity rather than an offense, and does not re- quire proof of such intent. lb. 406. Duties in cases of forfeiture. — 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. 135), and the whole of the proceeds from their sale applied to the use of the United States. 24 Op. 1. 407. 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 for- feiture. 24 Op. 1. 408. Release of goods subject to forfeiture. — The Secretary of the Treasury may release ci- gars imported in violation of section 26 of the act of August 28, 1894 (28 Stat. 552), amend- ing section 2804, Revised Statutes, on pay- ment of a fine equal to the duty, when in his opinion the importation does not involve fraud. 24 Op. 588. d. Seizures. 409. A seizure implies an actual caption of the thing seized — open, visible possession, taken and maintained. 17 Op. 83. 41 0. Seizure and destruction of fur-seal skins unlawfully imported. — While collectors of cus- toms and other revenue officers, under the direction of the Secretary of the Treasury, are the proper officers to seize and destroy fur- seal skins imported into the United States in violation of section 9 of the act of December 29, 1897 (30 Stat. 226), yet the usual proceed- ings for condemnation and forfeiture should be instituted in order to determine whether or not the seizure of such skins was justifiable and their destruction a necessary conse- quence. 24 Op. 577. 411. Same — Authority of collectors of cus- toms, etc. — The authority of such officers to seize and destroy by summary action rather than under judicial proceedings is reached by implication, as the statute is not explicit upon 166 CUSTOMS LAW, IX,- d, e, f, g. that point. Where rights of person and prop- erty are involved, an implied authority which is summary and might be used arbitrarily should not be lightly assumed. In such cases the inference should not only be persuasive but irresistible. 76. 412. Precious stones and other articles, where the same are liable to customs duty, are prohibited by the postal convention of June, 1878, to be^ent through the mail;, and if imported by mail they become subject to seizure and forfeiture under section 3061, Re- vised Statutes. 18 Op. 457. e. Appraisement. 413. Undervaluation. — Merchandise seized for violation of section 32 of the act of July 24, 1897 (30 Stat. 151, 211), should be ap-. praised under the provisions of section 13 of the customs administrative act of June 10, 1890 (26 Stat. 131, 136), and not under section 6074, Revised Statutes. 23 Op. 377. 414. Same— Customs administrative act. — 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. lb. 415. Same. — 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. lb. 416. Same. — The appraisement procedure in undervaluation cases which aims. at the levy of additional duties is none the less civil because forfeiture may be insured as a possible ulti- mate result, lb. 417. Same. — Section 3074, Revised Stat- utes, may properly be held to refer to such provisions as existed when the Revised Stat- utes took effect. lb. 418. Appraisement of property subject to for- feiture for smuggling. — When property subject to forfeiture for smuggling or cognate offenses is seized, the appraisement should be in ac- cordance with section 3074, Rev. Stat., and not under section 13 of the customs adminis- trative act (26 Stat. 136). 24 Op. 583. f . Release, Condition of. 419. Smuggled or unentered goods. — The purpose of the law as to smuggled or unentered goods requires the exaction of the so-called "home value" as the condition of release on payment of the appraised value, but not as implying the assessment of duties on such goods. 24 Op. 583. 420. Power to release goods illegally im- ported. — The Secretary of the Treasury may release cigars imported in violation of section 26 of the actof August 28, 1894 (28 Stat. 552),"" amending section 2804, Revised Statutes, on payment of a fine equal to the duty, when in his opinion the importation does not involve fraud. 24 Op. 588. g. Remission — Compromise. 421. Power of the Secretary of the Treasury to remit. — The Secretary of the Treasury may remit the ^additional duties" or penalties, provided for by section 7 of the customs- administrative act of June 10, 1890 (26 Stat. 134), but he has no power to remit any part of the duties, sttictly so-called, however erroneously they may have been assessed. 20 Op. 660. 422. Power of the Secretary to remit penal duties is unavailing where payment is required before delivery of the goods. — Where payment of the penal duties imposed under section 7 of the act of June 10, 1890, is required as a condition precedent to the delivery of the goods, the power of the Secretary of the Treasury to remit such penalties is unavail- ing in many cases, but not in the case of warehoused goods, nor where the penalties are first assessed upon final liquidation after the delivery of the goods to the importer. 21 Op. 418. 423. The Secretary of the Treasury has the power to remit penal duties under Revised Statutes, section 5293, in the case of any in- voice under $1,000, although it may be part of an entry whose total amount is over $1,000. 21 Op. 283. 424. Section S292, Bevised Statutes, in its relation to penal duties, was repealed by the anti-moiety act of June 22, 1874 (18 Stat. 186) . lb. 425. The Secretary of the Treasury is not authorized to remit penalties incurred under section 7 of the customs-administrative act of June 10, 1890 (26 Stat. 134), amounting to more than SI, 000, until after the proper pro- ceeding before a district judge. 21 Op. 101. CUSTOMS LAW, IX, g, h. 167 426. Same. — Section 17 of the anti-moiety act of June 22, 1874, supersedes section 5292, Revised Statutes, as to all cases arising under the customs-revenue laws, except those of vessels and merchandise seized or subject to seizure and of less value than $1,000. lb. 427. Same. — Penalties not over $1,000 in customs-revenue cases may be remitted under section 5293, Revised Statutes, without a pro- ceeding before the district judge. lb. 428. Same.— Said limit of $1,000 refers to the amount of the penalty to be remitted and not to the value of merchandise. lb. 429. Fines accepted in lieu of forfeiture. — Where, upon the seizure of smuggled or un- entered goods, the Secretary of the Treasury,- in the exercise of his power to remit fines and penalties, except in lieu of forfeiture the pay- ment of such an amount as he deems just and equitable, the amount paid should be treated as a fine imposed rather than as a duty col- lected. 24 Op. 583. 430. Same. — The power of the Secretary of the Treasury to release and remit fines, penal- ties, and forfeitures under sections 3081 and 5293, Revised Statutes, and under sections 17 and 18 of the act of June 22, 1874 (18 Stat. 189), now subject to the restriction of sec- tion 7 of the customs administrative act as amended (30 Stat. 212), relates only to civil liability and consequences where the value of the property seized or the amount of the fine or forfeiture incurred does not exceed $1,000; but does not include penalties ' ' accrued " or " in- curred" which have been "adjudged" as part of the punishment under an " indictment." lb. 431. The Secretary of the Treasury has no power to remit the forfeiture of articles con- tained in the same package with other articles imported in violation of section 2491, Revised Statutes. 18 Op. 424. 432. The Secretary of the Treasury can not remit a penalty imposed on a firm for fraudu- lent undervaluation by one member of the firm, notwithstanding the fact that it was his pur- pose to cheat his own firm as well as the United States. 21 Op. 90. 433. Ill proceedings forremission of penal- ties under sections 17 and 18 of the act of June 22, 1874 (18 Stat. 189), the Secretary of the Treasury may return the findings to the United States commissioner for a further hear- ing before him upon a claim of newly discov- ered evidence. 21 Op. 289. 434. The Secretary of the Treasury has no right, in case of an application for a remis- sion of penalty under section 17 of the act of June 22, 1874 (18 Stat. 189), to prosecute a further inquiry into the facts after the United States commissioner has reported his find- ings in the case under section 18 of said act. 21 Op. 549. 435. When certain merchandise was seized and libeled under section 32 of the act of July 24, 1897 (30 Stat. 211), and the United States attorney recommended the acceptance of an offer of claimants to compromise under sec- tion 3469, Revised Statutes, finding no fraud or irregularity on their part, Held not to be a proper case for compromise under section 3469, Revised Statutes. 22 Op. 491. 436- Same. — A forfeiture can not be remit- ted, under the above-named section, after it has been adjudged and decreed. lb. 437. The Treasury Department has juris- diction of the remission of fines, penalties, and forfeitures imposed by section 2809, Revised Statutes, and of the issuing of instructions re- lating to the execution of sections 2779 to 2784, Revised Statutes, inclusive. 25 Op. 535. 438. Compromise. — The remedy offered by sections 17 and 18 of the act of June 22, 1874 (18 Stat. 189), to one who is exposed to a fine, penalty, or forfeiture, in the cases provided for in that act is not exclusive, but relief, by way of compromise, may also be extended under section 3469, Revised Statutes. 20 Op. 727. See also TkeasCry Department, II, a, 34-58. For Refund, Abatement, Drawback, see Customs Law, VI, a, b. h. Informers' Compensation. 439. Informers who are appointed special inspectors without compensation except their interest as informers in the result of seizures are not officers of the United States within section 1 of the anti-moiety act of June 22, 1874 (18 Stat. 186), neither are persons on the weighers' pay roll as temporary laborers but at the time off duty — that is, receiving no pay. 20 Op. 754. 440. Treasury officials debarred. — The anti- moiety act of June 22, 1874 (18 Stat. 186), debars Treasury officials from receiving moie- ties under section 4233, Revised Statutes. 20 Op. 592. 168 CUSTOMS LAW, IX, h, i, j; X. 441. Canadian customs official. — The Secre- tary of the Treasury is authorized under section 4 of the act of June 22, 1874 (18 Stat 186), notwithstanding the absenee of the certificate provided for by section 6 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. Revised Statutes. 24 Op. 61. 442. 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 re- ward for original information leading to the discovery of any fraiid upon the customs revenue. 24 Op. 61. 443. Neither inspectors nor general agents are "chief officers of the customs," within the meaning of section 4 of the anti-moiety act of June 22, 1874 (18 Stat. 186). 20 Op. 675. 444. The phrase " chief officers of the cus- toms" refers to the collector or acting collector of each collection district, including the sur- veyor of any district in which there is no collector, and also to the officer legally in charge of any statutorily recognized port, not being the headquarters of a collection district. lb. 445. Informers are not entitled to compen- sation under section 4 of the anti«moiety act of June 22, 1874 (18 Stat. 186), unless the in- formation is conveyed directly to the chief officer of the customs. Giving information to an inferior officer is not necessarily equivalent thereto. 20 Op. 690. 446. Same. — The Secretary of the Treasury can make regulations for the future covering cases where it is desirable that informers should communicate with the collector other- wise than personally, lb. 447. Where a claimant was both seizor and informer under the act of June 22, 1874 (18 Stat. 186), in the case of goods forfeited for violation of the customs laws, compensation may be allowed him by the Secretary of the Treasury in either capacity; and the fact that the claimant originally presented his claim as seizor does not estop him from subse- quently changing its form and making claim as informer. 18 Op. 69. . i. Sale of Goods Seized. 448. Goods smuggled into the United States may be seized and sold by a collector of customs although protected by patents. 21 Op. 72. j. Clearance Refused. 449. For incorrect manifest. — A collector of customs may lawfully refuse a clearance to a vessel whosemaster is alleged to be amenableto the penalty provided by section 2809, Revised Statutes, for bringing into the United States merchandise not included in the manifest required and described in the preceding sec- tions. Such refusal is not a seizure, and the act of February 8, 1881 (21 Stat. 322), is inap- plicable. 17 Op. 82. 450. Same. — A seizure implies an actual caption of the thing seized; open, visible pos- session taken and maintained. lb. X. Board of General Appraisers. 451. Acceptance of decision as a rule of action. — While the Treasury Department may accept decisions of the Board of General Ap- praisers as a rule of action to be followed in the classification of other importations, it is not compelled by law to do so. 20 Op. 648. 452. Classification decisions — Binding effect of. — The Secretary of the Treasury and col- lectors of customs are bound by classification decisions of the Board of General Appraisers, when unappealed from, only so far as such decisions affect the goods immediately before the Board for classification. 25 Op. 81. 453. Same.— The Secretary of the Treasury has authority, and it his duty, to instruct col- lectors of customs to what extent, if at all, they are to be guided by the conclusions, general doctrines, and expressions contained in any opinion by the Board of General Appraisers, except as regards the merchandise concern- ing which the decision was made. lb. 454. Same. — Where there is conflict between a decision of the circuit court on appeal from the Board of General Appraisers, and a sub- sequent decision of the Board, the Secretary of the Treasury should give greater consid- eration to the decision of the court. lb. 455. The General Appraisers appointed under the provisions of the act of June 10,. CUSTOMS LAW, X, XI. 169 1890 (26 Stat. 131), are officers of the Treasury Department. 21 Op. 85. 456. Same. — In case of inefficiency, neglect of duty, or malfeasance in office, it is the duty of the Secretary of the Treasury to investi- gate the matter for the advice of the Presi- dent, lb. 457. The Board of General Appraisers, in passing upon the reappraisement of certain items of an invoice which had been referred to it for decision under the provisions of sec- tion 13 of the act of June 10, 1890 (26 Stat. 136), had no authority to pass upon items which were not embraced in the case submitted, and should have confined itself to those items only which were covered by the importers appeal. 19 Op. 665. 458. Reappraisal. — A general appraiser, acting under a collector's direction for the reappraisement, must confine himself to the particular items of the importation on account of which a reappraisement was ordered. Section 13 of the customs administrative act of June 10, 1890 (26 Stat. 137), construed. 20 Op. 39. 459. The Board of General Appraisers has jurisdiction under section 14 of the act of June 10, 1890 (26 Stat. 137), to decide whether cartage charges as made by a collector of cus- toms are proper. 21 Op. 262. 460. Review of collector's decision. — In an application for an abandonment of dutiable goods under section 23 of the customs admin- istrative act of June 10, 1890, the Board of General Appraisers had jurisdiction to review the collector's decision, which review is final for all purposes, since the importers did not appeal. 21 Op. 402. 461. Be view. — The action of a collector in denying a reappraisement because the importer refused to answer proper interrogatories pro- pounded to him may be reviewed, first, by the Board of General Appraisers on a protest un- der section 14 of the act of June 10, 1890 (26 Stat. 137), and next by the circuit court on an application for review under section 15 of that act. 22 Op. 456. 462. Same. — The Board of General Ap- praisers were warranted in refusing to hear and pass upon the question whether the im- porter was justified in refusing to answer in- terrogatories under sections 16 and 17 of the above-named act. lb. 463. The Board of General Appraisers have no jurisdiction, after the lapse of nearly two years, to reconsider their decision on a pro- test entered under the customs administrative act of 1890 (26 Stat. .131), on the ground that certain matter contained in the protest was overlooked. It was the duty of the importer to watch for the decision of the board. 21 Op. 144. 464. A majority of the tea board of the Board of General Appraisers may properly hear and decide questions presented to it, and their decision is valid and binding, even though the third member of the board should not be present at the hearing. 24 Op. 634. 465. Incompatible service.. — 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 en- gaged 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 compen- sation, 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 connec- tion 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. 24 Op. 12. 466. Same — Office. — -There is no incompati- bility 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 compensa- tion, and not an office. lb. XI. Suits. 467. The remedy by suit against a collector, provided by section 3011, Revised Statutes, is given only to an importer who has paid the duties to the collector whom he proposes to make defendent in the suit; it does not apply to cases in which, by reason of the failure of the importer to pay the collector, the payment is sought to be enforced by suit against the former. 17 Op. 142. 468. There is no statute giving the Secre- tary of the Treasury any direct control over 170 CUSTOMS LAW, XI, XII, XIII— DAMAGES. suits instituted for the collection of unpaid duties, lb. 469. An action for the recovery of duties on goods previously smuggled would be simply an action of assumpsit, not involving any is- sue of fraud, and therefore not coming under the direction of the Secretary of the Treasury by section 376, Revised Statutes. 20 Op. 714. 470. Same. — Such action would be a suit " in which the United States is a party, or interested," within the meaning of section 379, Revised Statutes, and as such the Solic- itor of the Treasury has power to instruct dis- trict attorneys in regard thereto. lb. 471. Direction of — Frauds upon the reve- nue. — The Secretary of the Treasury , and not the Attorney-General, should, under the peculiar provisions of section 376, Revised Statutes, direct prosecutions for fraud or attempted fraud upon the revenue. 20 Op. 715. 472. Attachment of goods while in custody of customs officers. — Imported merchandise, while in the custody of the customs officers, is not subject to attachment at the suit of private parties; and those officers should pay no attention to process of that kind against such merchandise when served on them. 19 Op. 101. 473. Certiorari from circuit court of appeals — Considerations warranting. — The question whether or not the writ of certiorari should be applied for in all customs-revenue cases decided by the circuit court of appeals de- pends upon the extent and value of the im- portation, the loss to the Government by reason of the adverse decision, the degree of doubt as to the proper construction, the fact that different circuit courts of appeals have reached opposite conclusions upon the same question, and other like considerations. 20 Op. 533. XII. Importations for the Government. 474. Bituminous coal, imported for the use of the Government, is dutiable under para- graph 432 of the act of October 1, 1890, chapter 1244 (26 Stat. 600). 20 Op. 314. XIII. Reciprocal Commercial Agreements. 475. Neither the argols of Tunisian or Algerian origin imported from Marseille are entitled, as products of France, to the benefit of the reciprocal commercial arrangement negotiated between France and the United States under section 3 of the tariff act of July 24, 1897 (30 Stat. 203) . 22 Op. 477. Assay. See Customs Law, III, a, 88-90. Attachment. See Customs Law, 472. Bonds of Agent Making Entey. See Cus- toms Law, 73-75. Costs. See Customs Law, VI, a, 331. Coverings. See Customs Law, 210-213, 222- 226. Goods which are in United States When New Law Goes into Effect. See Cus- toms Law, 121, 183. Importation by Mail. See Customs Law, 401. Leakage. See Customs Law, 105. Refusal of Entry. See Customs Law, 77. Regulations, Circulars, etc., of the Treas- ury Department. See Treasury Depart- ment, IV. Release of Goods Illegally Imported. See Customs Law, 419, 420. Smuggling. See 385, 386, 402-404, 418, 419, 429, 448. Storage Charges. See Customs Law, 58. DAIEY AND FOOD PRODUCTS. See Food Product. DAMAGES. 1. There is no ground to support the claim for indemnity of the British Eastern Exten- sion Australasia and China Telegraph Com- pany for cutting the cable at Manila during the war with Spain. 22 Op. 315. 2. 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. 22 Op. 654. 3. Unless authorized by Congress the head of a Department has no power to adjust and pay claims for unliquidated damages, even when arising from the breach of a contract, except where such claims are for work and labor done or materials furnished under a con- tract silent as to the price and the amount thereof unliquidated. 22 Op. 437. See also Claims, III; contracts, V. DAMS— DEPARTMENT OF AGRICULTURE, II, a. 171 DAMS. See Navigable Waters, III, b. DANGEROUS CONTAGIOUS DISEASES. See Immigration, 47. DATE. The date is no part of the substance of a sealed instrument, and need not necessarily be inserted. The real date is the time of its delivery, which may always be proved. 21 Op. 469. DEAF AND DUMB INSTITUTION. See District of Columbia, IV. DECLARATIONS. See Customs Laws, III, a; Pensions, I, b. DEDUCTIONS. From pay of Mail Contractors. See Postal Service, III, c. DEEDS. See State Tax. DEFINITIONS. See Words and Phrases. DELAWARE INDIAN CLAIMS. ■ Indians, V, 137-139. DELEGATION. Of Legislative Power or Function. See Executive Departments, 54; Navigable Waters, 19, 145, 157; Department of Ag- riculture, 33. DELIVERY. Of Mail. See Postal Sevice, III, d. To Importer. See Customs Laws, III, e. DEPARTMENT OF AGRICULTURE. I. In General, 1-2. II. Officers. a. Secretary of Agriculture, 3-14. b. Ass't Secretary of Agriculture, 15. c. Chiefs of Divisions, 16. III. Bureaus, Divisions. a. Animal Industry, 17. b. Weather Bureau, 18-23. IV. Clerks, Employees, etc., 24-30. V. Regulations, 31-34. VI. Publications, Printing, 35-38. VII. Seed Distribution, 39-48. VIII. Meat, Cattle Inspection, etc., 49-61. IX. Food and Dairy Products, 62. I. In General. 1. An Executive Department. — The term "Executive Departments" in the Federal statutes refers only to those Departments specified in section 158, Revised Statutes, to which has since been added the Department of Agriculture. 22 Op. 62. 2. • An appropriation to enable the Secretary of Agriculture to prepare certain property for an experiment station and to remove a pre- vious experiment station to » new site, is a "permanent specific appropriation" within the meaning of section 5 of the act of June 20, 1874 (18 Stat. 110). 20 Op. 599. Importations of Hay and Straw. See 33. II. Officers. a. Secretary of the Treasury. 3. Detail of officer to Civil Service Commis- sion. — The Secretary of Agriculture can legally 172 DEPARTMENT OF AGRICULTURE, II, a, b, c; III, a. detail any such officers or employees from his Department as may be requested by the Civil Service Commission, but he can not assign an officer of the Army detailed for service in the Weather Bureau to any other duties than those for which he is by law authorized to be detailed in the Weather Bureau. 20 Op. 750. 4. The Secretary of Agriculture may detail a person now in the classified service of his De- partment to duty elsewhere within the classified service of his Department provided his com- pensation be not increased. 20 Op. 573. 5. Promotion of employees. — He may pro- mote from class 1 to class 3 and from class 2 to class 4, without regard to intermediate steps. 76. 6. It is not necessary for the Secretary of Agriculture to give a notice of furlough without pay of assistant microscopists over his official signature in each individual case when their services are not required. 21 Op. 318. 7. Same. — A general order, signed by him, directing inspectors in charge of assistant microscopists to furlough them without pay when their services are not required will be sufficient. lb. 8. Traveling expenses of agents. — The Sec- retary of Agriculture probably has the power to compensate agents employed for the De- partment, by stated salaries which shall be in full for all traveling expenses as well as for services, but the matter is one of consid- erable doubt and uncertainty. 20 Op. 601. 9. The Secretary of Agriculture has authority to procure and furnish to the Public Printer, the illustrations, engravings, maps, and charts to accompany the bulletins and special reports, prepared in his Department. 20 Op. 41. 10. Seeds. — Joint resolution No. 27 of March 3, 1896 (29 Stat. 467), authorizes and directs the Secretary of Agriculture to pur- chase and distribute seeds for the year 1896 in accordance with the practice followed by the Department prior to the year 1895. 21 Op. 321. 11. Same. — If the practice has been varied from year to year, the Secretary is to exer- cise his discretion, but it will be a discretion of choice and not a discretion to do or leave undone. lb. 12. Same. — The last part of the resolution authorizes and directs the purchase of seeds for the year 1896 in open market at the dis- cretion of the Secretary, without resorting to advertisement for bids. 76. 13. Importation of meats from Germany. — The Secretary of Agriculture is not author- ized under the act of March 3, 1903 (32 Stat. 1157), to request the Secretary of the Treas- ury to refuse admission into the United States of certain meats and meat prepara- tions coming from Germany, because of the action of the German Government in prohib- iting the importation of similar goods into that country. 25 Op. 62. 14. Commissioner of Agriculture. — The pro- visions in the act of May 29, 1884 (23 Stat. 31), giving the Commissioner of Agriculture power to expend money in such disinfection and quarantine measures as may be necessary to prevent the spread of pleuro-pneumonia from one State or Territory into another, does not authorize him to purchase animals infected with that disease for the purpose of slaughter, 18 Op. 154. Authority to Employ Counsel. See 17. Permit For Use and Occupancy op Alex- ander Archipelago Forest Reserve. See Alaska. b. Assistant Secretary of Agriculture. 13.. The Assistant Secretary of Agriculture is not a clerk or employee within the meaning of the statute; as to the chiefs of divisions, quaere. 20 Op. 728. c. Chiefs of Divisions. 16. Chiefs of division in the Department of Agriculture are subject to all the regulations in accordance with law which may be pre- scribed by the head of the Department. 20 Op. 703. See also 22. III. Bureaus, a. Animal Industry. 17. Employment of counsel. — The provision in the act of July 18, 1888 (25 Stat. 333), making an appropriation "for carrying out the provisions of the act of May 29, 1884 (23 Stat. 31), establishing the Bureau of Ani- mal Industry," does not authorize the Com- missioner of Agriculture to employ counsel DEPARTMENT OF AGRICULTURE, III, a, b; IV; V. 173 for the defense of employees of the Bureau for acts done by them in carrying out such provisions under its direction. Employment of counsel in such cases is governed by sec- tions 189, 362, and 363, Revised Statutes. 19 Op. 328. Order No. 124. See 33. b. Weather Bureau. 18. Transfer from War Department. — The Secretary of Agriculture is authorized by the act of October 1, 1890 (26 Stat. 653), trans- ferring the weather service from the War Department to the Department of Agricul- ture, and by the agricultural appropriation act of March 3, 1891 (26 Stat. 1044), to reduce the compensation of any of the persons thus transferred so as to conform to the grading within the classified civil service. 20 Op. 395. 19. Same — Appointment — Promotion. — He may appoint any person transferred to one of the $1,500 places specified in the act of 1891, and may promote to the vacancy thus created any other person of the transferred class, although the salary of the person promoted becomes increased thereby, lb. 20. Same. — The provisions of section 5 of the act of 1890 (26 Stat. 653), continuing the compensation of the persons transferred as it should be June 30, 1891, was intended as a protection, rather than as a bar to their pro- motion, lb. 21. The employees of the Weather Bureau of the Department of Agriculture, on duty away from and outside of the city of Wash- ington, are not members of the classified civil service. 20 Op. 345. 22. A vacancy in the office of Chief of the Weather Bureau can only he filled- in the mode provided by section 4 of the act of October 1, 1890 (26'Stat. 653), to wit, by appointment by the President or by detailing the Chief Signal Officer of the Army. 21 Op. 189. 23. Any publication in an official circular by the Weather Bureau of the ground upon which an employee of the Government has heen suspended or discharged from the public service will not support a cause of action for libel against the chief of that Bureau for making such publication, provided it was made in good faith, without malice, in the performance of official duty, and with the design only of promoting the public inter- ests. 21 Op. 320. IV. Clerks, Employees, etc. 24. Promotion. — In the Departmentof Agri- culture it is permissible to promote from class 1 to class 3 and from class 2 to class 4 without regard to intermediate steps. 20 Op. 573. 25. Detail. — The Secretary of Agriculture may detail a person in the classified service of his Department to duty elsewhere within the classified service of his Department pro- vided his compensation be not increased. lb. 26. All appointments and removals of mes- sengers and laborers in the Department of Agriculture must be made by the Secretary or Acting Secretary. 21 Op. 355. 27. Hours of labor^Leave of absence. — The provisions of section 5 of the act of March 3, 1893 (27 Stat. 715), relating to the hours of service annually and sick leave of Depart- ment clerks, are applicable to the Department of Agriculture. 20 Op. 728. 28. Same. — The nature of the evidence re- quired from applicants for leave and suffi- ciency of reasons for extending or limiting hours of labor are matters within the discre- tion of the Secretary as to which the Attorney- General can not advise. lb. 29. Same. — An employee not connected with the Department during the entire cal- endar year is not entitled to full annual or sick leave, which should be prorated, lb. 30. Agents — Compensation for traveling expenses. — The Secretary of Agriculture prob- ably has the power to compensate agents employed for the Department, by stated sala- ries which shall be in full for all traveling ex- penses as well as for services, but the matter is one of considerable doubt and uncertainty. 20 Op. 601. V. Regulations. 31. Chiefs of division in the Department of Agriculture are subject to all the regulations in accordance with law which may be pre- scribed by the head of the Department. 20 Op. 703. 32. Opinion of Attorney-General. — While certain regulations posted in the Department of Agriculture seem to be valid, yet until the lawfulness of some particular regulation is actually called in question no opinion respect- ing its legality can properly be asked for or given. lb. 174 DEPARTMENT OF AGRICULTURE, V, VI, VII. 83. The order of the Department of Agricul- ture of April 26, 1904 (Bureau of Animal In- dustry Order No. 124), prohibiting the importa- tion of hay and straw from continental Europe as a means of preventing the introduction of foot-and-mouth disease among cattle in the United States, is a regulation of commerce with foreign nations and an exercise of legis- lative power, and therefore void. 25 Op. 249. 34. Same.— The act of February 2, 1903 (32 Stat. 791), merely authorizes the Secretary of Agriculture to make such regulations and take such measures as are administrative in their nature for the enforcement of the- pur- poses of that law. lb. Meat Inspection. See VIII. VI. Publications, Printing. 35. The expense of printing and binding such Animal Industry Reports as the Secretary of Agriculture is authorized to publish, may, under his direction, be paid out of the $850,000 appropriation approved July 5, 1892 (27 Stat. 79), for the use of the Bureau of Animal Industry. 20 Op. 573. 36. Same. — Such expense should not be paid out of the $75,000 appropriated and placed in the hands of the Public Printer for use in the Department of Agriculture. lb 37. The Secretary of Agriculture has au- thority to procure and furnish to the Public Printer, the illustrations, engravings, maps, and charts to accompany the bulletins and special reports prepared in his Department. 20 Op. 41. 38. Bulletins. — Section 89 of the act of January 12, 1895 (28 Stat. 622), limits the number of pages of the bulletins of the De- partment of Agriculture to 100, and the maximum size of the pages to octavo. 22 Op. 265. VII. Seed Distribution. 39. The act making appropriations for the purchase of seeds for the Department of Agri- culture for the fiscal year 1895 does not author- ize the purchase of any others than those described in section 527, Revised Statutes. 21 Op. 55. 40. The sec ds purchasable out of the appro- priation made in the act approved March 2, 1895 (28 Stat. 733), for the purchase, propa- gation, and distribution, as required by law, of valuable seeds, bulbs, trees, shrubs, vines, cuttings, etc., are limited to those described in section 527,. Revised Statutes, and must be such as are adapted to general cultivation and to promote the general interests of hor- ticulture and agriculture throughout the United States. 21 Op. 162. v 41. The Secretary of Agriculture is author- ized to make the purchases of seeds referred to conformably to section 3709 of the Revised Statutes, reserving the right to reject any and all bids. lb. 42. Joint resolution No. 27 of March 3, 1896 (29 Stat. 467), authorizes and directs the Secretary of Agriculture to purchase and dis- tribute seeds for the year 1896 in accordance with the practice followed by the Depart- ment prior to the year 1896. 21 Op. 321. 43. Same. — If the practice has been varied from year to year, the Secretary is to exercise his discretion, but it will be a discretion of choice and not a discretion to do or leave un- done, lb. 44. Same. — The last part of the resolution authorizes and directs the purchase of seeds for the year 1896 in open market at the dis- cretion of the Secretary, without resorting to advertisement for bids. lb. 45. The act making appropriations for the Department of Agriculture for the fiscal year ending June 30, 1897 (29 Stat. 99, 106), author- izes the Department to pay $130,000 for seed already put up in packages and labeled, ready for distribution. 21 Op. 372. 46. Adulterated or misbranded seeds — Pub- lication of names of vendors. — The provision in the act of Congress of March 3, 1905 (33 Stat. 869), directing the Secretary of Agricul- ture to obtain in the open market seeds of grass, clover, or alfalfa, test the same, and if found to be adulterated or misbranded to publish the result of the tests, with the names of the persons by whom the seeds were offered for sale, is a valid law. 25 Op. 553. 47. Same. — That provision can not prop- erly be regarded as an attempt to regulate the sale, shipment, and transportation of seeds; it provides merely for the dissemination of information regarding seeds. Id. . 48. Same.— The fact that the effect of the publication of the information may be to lessen the sale of misbranded or adulterated DEPARTMENT OF AGRICULTURE, VIII. 175 seed is not sufficient to transform a measure intended for the education of the public into a regulation of commerce or police. lb. VIII. Meat, Cattle, and Hay Inspection, etc. 49. Regulation requiring classification of meats. — The act of March 2, 1895, section 2 (28 Stat. 732), does not authorize the making of a regulation by the Secretary of Agriculture requiring that meats other than beef prod- ucts shall be so marked as to show the spe- cies of animal from which it was produced, classifying all unmarked packages of meats as uninspected beef, and refusing clearance to vessels having on board such unmarked packages. 21 Op. 229. 50. Regulations to prevent transportation, etc., of condemned carcasses of cattle, etc. — The provisions of the act of March 2, 1895 (28 Stat. 727, 732), authorizing the Secretary of Agriculture to make such rules and regulations as he may deem necessary to prevent the transportation, etc., of condemned carcasses or parts of carcasses of 'cattle, sheep, and swine, which have been inspected in accord- ance with the provisions of the act, imposes the duty to make such rules and regulations. 21 Op. 168. 51. Same. — A regulation requiring that in- spected articles found to he diseased and unfit for human food shall he at once removed and rendered in such manner as to prevent its withdrawal as a food product, under the supervision of employees of the Department of Agriculture, is not authorized by the grant of power to make regulations to prevent transpor- tation, lb. 52. Same. — The Secretary of Agriculture is not required to effect the prevention of the con- sumption of diseased meat as human food within the State of its origin and without its having been carried out and brought back into such State; nor, if the Secretary decides that pork affected with trichinae is unfit for human food, does the law provide for or authorize its destruction as food or grant authority to license its use under limitations or restric- tions, lb. 53. A criminal prosecution will not lie for falsely representing in a label placed on canned meat that the meat contained in the can has been inspected in accordance with the act of March 3, 1891 (26 Stat. 414). 21 Op. 128. 54. Seizure and slaughter of sheep adjudged to be diseased, or to have been exposed to dis- ease. — The authority of the Department of Agriculture, under section 8 of the act of August 30, 1890 (26 Stat. 416), to seize and slaughter sheep adjudged to be diseased or to have been exposed to disease, and errone- ously believed to have been imported in viola- tion of that law, without compensation by the Government, is doubtful 21 Op. 460. 55. Same — Duty of Secretary. — The Secre- tary is to adopt and enforce regulations for adjudging whether or not the animals are diseased, or have been exposed to disease so as to be dangerous, and, without having re- gard to possible claims, to resort to, slaughter- ing if, in his judgment, such a measure is required to prevent the spread of the disease among animals in this country, lb. 56. Same. — Congress intended by the above act that exposed animals, as well as those ac- tually infected, imported in violation of that act, should be slaughtered indiscriminately without regard to the question of the legality of the importation, lb. 57. Same — Compensation. — The Secretary of Agriculture may cause to be slaughtered such sheep as are adjudged to be infected with a contagious disease or exposed to such infection, and, in making the compensation provided by section 8 of the act of August 30, 1880 (26 Stat. 414), he is limited to those which were exposed to infection but in which the existence of the disease was not manifest. 22 Op. 390. 58. Same. — The language of section 8 of. this act authorizing the slaughter of infected animals, is in terms merely permissive and not mandatory. The power conferred is to be exercised or not, and when, and to what extent, according to the discretion of the Sec- retary of Agriculture, which should be exer- cised with due regard to its necessity upon the one hand, arid for the rights of private property upon the other, lb. 59. Importations of meat from Germany. — The Secretary of Agriculture is not author- ized under the act of March 3, 1903 (32 Stat. 1157), to request the Secretary of the Treas- ury to refuse admission into the United States of certain meats and meat preparations coming from Germany, because of the action 176 DEPT. OF AGRICULTURE, VIII— DEPT. OF COMMERCE AND LABOR, I. of the German Government in prohibiting the importation of similar goods into that country. 25 Op. 62. 60. The order of the Department of Agri- culture of April 26, 1904 (Bureau of Animal Industry Order No. 124), prohibiting the im- portation of hay and straw from continental Europe as a means of preventing the intro- duction of foot-and-mouth disease among cattle in the United States, is a regulation of commerce with foreign nations and an exer- cise of legislative power, and therefore void. 25 Op. 249. 61. The act of February 2, 1903 (32 Stat. 791), merely authorizes the Secretary of Agri- culture to make such regulations and take such measures as are administrative in their nature for the enforcement of the purposes of that law. lb. IX. Dairy and Food Products. ,62. False labeling or branding. — The De- partment of Agriculture and the Treasury Department have no jurisdiction or power under the act of March 3, 1903 (32 Stat. 1157), to prevent or punish the false label- ing or branding of dairy or food products after they have passed the custom-house and are delivered to the owner or consignee. 24 Op. 675. See also Food Products. Assistant Microscopists. See, 6, 7. DEPARTMENT OF COMMERCE AND LABOR. I; In General, 1-7. II. Officers, 8-23. III. Bureaus, 24-34. I. In General. 1. Transferof land to Department of Com- merce and Labor for light-house reservation pur- poses. — The Secretary of the Navy has authority to transfer control of certain land at San Juan, P. R. , reserved by Executive order for naval purposes, to the Department of Commerce and Labor, for the extension of the light-house reservation at that place. 25 Op. 269. 2. Anchorage and anchorage grounds. — Matters arising under the acts of May 16, 1888 (25 Stat. 151), February 6, 1893 (27 Stat. 431), March 6, 1896 (29 Stat. 54), and June 6, 1900 (31 Stat. 682), relating to an- chorage and anchorage grounds, have been transferred by the act of February 14, 1903 (32 Stat. 825), from the Treasury Department to the Department of Commerce and Labor. 25 Op. 37. 3. Regulations governing steamboats, etc., at yacht races. — The making of rules and regu- lations under the act of May 19, 1896 (29 Stat. 122), to insure the safety of passengers on excursion steamers, etc., at regattas or yacht races, and their subsequent enforce- ment by revenue cutters, is "business within the jurisdiction" of the Department of Com- merce and Labor; and when revenue vessels are detailed for that purpose, they are sub- ject to the direction and control of the Sec- retary of that Department in all matters relating to such business. 25 Op. 27. 4. Revenue-Cutter Service — Department of Commerce and Labor — Seal protection. — The act of February 14, 1903 (32 Stat. 825), giving the Department of Commerce and Labor juris- diction and control of the seal fisheries, does not transfer to that Department the Revenue- Cutter Service or any of its vessels or officers, and the Secretary of the Treasury is not au- thorized by said act, or otherwise, to assign revenue vessels to the duty of seal protection. 25 Op. 4. 5. Same. — Vessels assigned by authority of the President to the protection of the seal fisheries will henceforth, while so assigned, be subject to the direction of the Secretary of Commerce and Labor in respect to those duties, but their internal government and duties concerning the revenue while thus engaged will be under the Secretary of the Treas- ury, lb. 6. Same. — Appropriations for the Revenue- Cutter Service will continue to be expended by the Secretary of the Treasury, except such portions, if any, as may be applied to extraor- dinary business concerning seal protection, which latter will be under the control of the Secretary of Commerce and Labor. lb. 1. The general line of cleavage between the Department of Commerce and Labor and the Treasury Department, as established by the act creating the former Department, leaves DEPARTMENT OF COMMERCE, AND LABOR,. I, II. 177 "navigation" with the former, and little with the Treasury Department which does not con- cern the collection, keeping, minting, and dis- bursing of the public treasure. 250p; 29, 152: II. Officers. Secretary of Commerce and Labor. 8. Seal for Census Office.. — The Secretary of Commerce and Labor . is authorized, under the act of February 14, 1903 (32 Stat. 825), which places the Census Office under his jurisdic- tion, to require the. Director of the Census to provide a seal for that office, as directed . by section 31 of the act of March 3, 1899 (30 Stat. 1021 ) , and to give it a device in accord- ance with his (the Secretary's) views. 25 Op. 1. 9. Same. — There is nothing in the nature of this duty that is judicial or quasi-judicial, or of such a character that its performance should not be subject to the direction of the head of the Department. lb. 10. Correspondence with collectors of cus- toms.— The Secretary of Commerce and Labor is not required, in the execution of the duties imposed upon him by the act of February 14, 1903 (32 Stat. 825), to correspond with col- lectors of customs through the Secretary of the Treasury. 25 Op. 3. 11. Boarding of vessels. — The execution of the act of March 31, 1900 (31 Stat. 58), enti- tled "An act concerning the boarding of ves- sels," has been transferred by section 10 of the act of February 14, 1903 (32 Stat. 825) , from the Secretary of the Treasury to the Sec- retary of Commerce and Labor. 25 Op. 51. 12. Certificates of registry of vessels. — The duty imposed upon the Secretary of the Treasury by section 4158, Revised Statutes, of transmitting to collectors of customs blank forms of certificates of registry of vessels, was, by the act of February 14, 1903 (32 Stat. 825), transferred to the Secretary of Com- merce and Labor. 25 Op. 49. 13. Same — Expense — Comptroller of the Treasury. — The question as to whether the expense of preparing such blank forms and furnishing them to collectors can be paid out of the appropriation for defraying the ex- penses for collecting the revenue from cus- toms, is peculiarly one for the Comptroller of the Treasury to decide (23 Op. 468). lb. 14. Regulation of steam vessels. — The Sec- retary of Commerce and Labor is not author- ized by section 4462, Eevised Statutes, to amend, modify, or repeal existing regulations, or to adopt new regulations for the enforce- ment of the provisions of Title 52, Revised Statutes,' entitled "Regulation of Steam Ves- sels," without prior action thereon by the Board of Supervising Inspectors. The Secre- tary has, therefore, no authority whatever in the matter, except as conferred by section 4405, Revised Statutes. 25 Op. 67. 15. Same. — Called meetings of the -Board of Supervising Inspectors may be held at places other than Washington, within the judgment of the Secretary of Commerce and Labor, sec- tion 4405 specifying merely the place. where the annual meeting of the Board shall be held. lb. 16. Designation of river and harbor lines. — The power and authority to designate lines dividing the high seas from rivers, harbors, and inland waters, conferred upon the Secre- tary of the Treasury by section 2 of the act of February 19, 1895 (28 Stat. 672), was, by section 10 of the act of February 14, 1903 (32 Stat. 829), transferred to the Secretary of Commerce and Labor. 25 Op. 149. 17. Penalties. — The Secretary of Com- merce and Labor has no authority to direct the discontinuance of a suit for the recovery of a fine or penalty imposed for a violation of the Hew York Harbor act of June 29, 1888 (25 Stat. 209) , nor did the Secretary of the Treas- ury have such power prior to the taking ^effect of the act of February 14, 1903 (32 Stat. 825), creating the Department of Com- merce and Labor. 25 Op. 220. 18. The word "vessels," as used in the New York Harbor act (25 Stat. 209), does not relate to vessels in the sense contemplated by sections 5292-5294, Revised Statutes, au- thorizing the remission of fines, penalties, and forfeitures by the Secretary of the Treasury. lb. 19. Remission of penalty — Improper mani- fest. — The Secretary of Commerce and Labor has no authority to remit or to reduce a fine or penalty imposed under section 15 of the act of March 3, 1903 (32 Stat. 1217), for fail- ure to comply with sections 12-14 of that act in regard to the manifests or lists of alien passengers required to be furnished by mas- ters of vessels arriving within the United 18456—08- -12 178 DEPARTMENT OF COMMERCE AND LABOR, II, III. States, such power not having been specific- ally conferred by Congress. 25 Op. 336. 20. Lease of St. Paul and St. George Islands—Authority. — The act of February 14, 1903 (32 Stat. 829), transferred to the Secretary of Commerce and Labor the same authority over the islands of St. Paul and St. George, Alaska, that was theretofore pos- sessed by the Secretary of the Treasury, and he may therefore lease those islands to the North American Commercial Company for the propagation of blue foxes. 25 Op. 497. 21. Same. — The Secretary of Commerce and Labor has authority to lease, for the pur- pose of, propagating foxes, such other islands in the waters of Alaska as had been so leased by the Secretary of the Treasury prior to May 14, 1898. lb. 22. Same. — The Secretary of Commerce and Labor has no authority to regulate the killing of fur-bearing animals in Alaska, other than fur-bearing seals. lb. 23. The Secretary of Commerce and La- bor has authority to sell a windmill formerly used for pumping water at the oyster claire, Lynnhaven, Va., but which is no longer needed or used for that purpose. 25 Op. 567. Light-House at Diamond Shoal. See Light-Houses 7. III. Bureaus. 24. Naming the bureaus. — The Secretary of Commerce and Labor is authorized, under' the act of February 14, 1903 (32 Stat. 825) , creating the Department of Commerce and Labor, to change the names of the Department of Labor, the Fish Commission, and other offices thereto assigned, as the business and good government of his Department requires. 24 Op. 697. 25. Printing of special bureau reports — Beef industry report. — Section 89 of the act of Jan- uary 12, 1895 (28 Stat. 622), authorizes the printing of 2,500 copies of special as well as annual reports of Department bureau chiefs, when such printing is directed by the head of a Department. 25 Op. 377. 26. Employment of honorably discharged soldiers. — 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 per- manent Census Office is not absolute and re- gardless of qualifications. Such preference is to be given if the person is equally quali- fied; but the appointing power still retains and must exercise its discretion and judg- ment in determining the fitness for the re- quired work of the persons to be selected and retained. 24 Op. 64. 27. Same — Standard of fitness. — 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 regula- tions may relate to age, experience, rating, proposed time of service, etc. lb. 28. Same. — 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 dis- missing an efficient employee to give him another chance. lb. See also Civil Service, V. 29. Special agents. — 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. 24 Op. 78. 30. Same. — 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. lb. 31. Appropriation act of March 3, 1903 (32 Stat. 1059). — The unexpended balance of the census appropriation referred to by the pro- viso in the act of March 3, 1903 (32 Stat. 1059), is available for census purposes, not- withstanding the specific appropriations made therefor by the act of February 25, 1903 (32 Stat. 896). 24 Op. 699. 32. The Census Office is an integral part of the Department of Commerce and Labor, and as such is subject to the direction of the Secre- tary of that Department. 25 Op. 11. Various objections thereto considered. lb. 83. Seal for Census Office.— The Secretary of Commerce and Labor is authorized, under the act of February 14, 1903 (32 Stat. 825), which places the Census Office under his juris- diction, to require the Director of the Census DEPT. OF COMMERCE AND LABOR, III— DEPT. OF INTERIOR, II, a. 179 to provide a seal for that office, as directed by section 31 of the act of March 3, 1899 (30 Stat. 1021), and to give it a device in accord- ance with his (the Secretary's) views. 25 Op. I. 34. The special agents of the, Census Office appointed to collect the statistics referred to in sections 7, 8, and 9 of the act of March 6, 1902 (32 Stat. 52 ) , "to provide for a permanent Census Office," are required, under section 18 of the act of March 3, 1899 (30 Stat 1019),' to take an oath or Affirmation before entering upon the discharge of their duties. 25 Op. 228. DEPARTMENT OF THE INTEEIOE. I. In General, 1-3. n. Officers. a. Secretary of the Interior, 4-19. b. Assistant Secretary, 20-22. c. Commissioner of Indian Affairs, 23-25. m. Bureaus or Offices. a. Patent Office, 26-29. b. Pension Office, 30-36. c. General Land Office, 37-38. d. Indian Office, 39. e. Census Office, 40-45. f. Geological Survey, 46-47. I. In General. 1. Jurisdiction — Pension laws. — The Com- missioner of Pensions and Department of the Interior have sole jurisdiction to administer and construe the pension laws. 20 Op. 178. 2. The Columbia Institution for the Deaf and Dumb is in the Department of the Interior, in, the sense that its expenditures of public money are under the head of that Depart- ment, and subject to the provisions of section 3709, Revised Statutes, in the matterof making purchases and contracts for supplies or serv- ices. 22 Op. 1. 8. By section 2 of the act of March 3, 1899 (30 Stat. 1014), the Census Bureau is made a part of the Interior Department, and as such its accounts are subject to such rules and regulations as the Secretary may pre- scribe, pursuant to section 22 of the act of 1894 (28 Stat. 211). 22 Op. 414. II. Officers. a. Secretary of the Interior. 4. Census appointees — Plan for taking the census— Contracts for supplies, etc. — The Sec- retary of the Interior is not required to ap- prove the selection of appointees, the plan of the Director of the Census for taking the census, or of making contracts for supplies, etc. 22 Op. 414. 5. The expenditures incurred by the Direc- tor of the Census, within: the li inil s authorized by the act of 1899 (30 Stat. 1014), are proper and lawful, and the Secretary of the Interior should approve them, if it is biff duty to do so at all, as a ministerial a*t, saA not as one in which he is to exercise judgment or dis- cretion touching the wisdom or advisability of the expenditure. lb. 6. Power to review decision of Commissioner of Patents in interference case. — The Secretary of the Interior has the authority under sec- tion 441, Revised Statutes (see also sec. 481, Rev. Stats.), to review a decision of the Commissioner of Patents made in an in- terference case under Rule 110, Rules and Practice of the Patent Office, upon a motion to amend a preliminary statement. 17 Op. 205. 7. Purchases from contingent fnnd. — Opin- ion of July 16, 1886 (18 Op. 424), in regard to the power conferred upon heads of Depart- ments by section 3683, Revised Statutes, re- specting purchases payable from the contin- gent fund, does not apply to the Assistant Secretary of the Interior while in the exer- cise of authority prescribed for him by the Secretary of the Interior under section 439, Revised Statutes. 18 Op. 432. 8. Forest reservations — Control and occu- pancy. — Congress has the right to place the control of the occupancy and use of forest reservations in the hands of the Secretary of the Interior for their preservation, and to provide that any occupancy or use in viola- tion of the rules and regulations adopted by him shall be punishable criminally. 22 Op. 266. 9. Forest reserves, prohibition of hunting upon. — 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 180 DEPARTMENT OF THE INTERIOR, II, a, b. of game thereon may be forbidden. 23 Op. 589. 10. Same.— 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 Inte- rior this power. lb. 11. Freedmen's Hospital and Asylum. — The relations of the Secretary of the Interior and the Freedmen's Hospital and Asylum are unchanged by the act of March 3, 1893 (27 Stat. 537), save that the Commissioners of the District of Columbia are given the su- pervision and control of expenditures for the Freedmen's Hospital and Asylum. 20 Op. 652. 12. Freedmen's Hospital— Water main. — The Secretary of the Interior has authority to prevent the Commissioners of the District of Columbia from laying a water main across the land upon which the Freedmen's Hos- pital is to be erected; 25 Op. 515. 13. Same. — The permission granted the Commissioners of the District of Columbia by the Chief of Engineers in charge of the public buildings and grounds in the District to lay a water main across the land upon which the Freedmen's Hospital is to be erected was a mere license, without considera- tion, and, being still executory, is revocable at will. lb. 14. Rio Grande River — Damming. — The Secretary of the Interior has no power, under the provisions of the act of March 3, 1891 (26 Stat. 1101), to authorize the damming of the Rio Grande River for irrigation purposes. 21 Op. 518. 15. Kesurvey of private land claim. — An ap- peal does not lie to the President to set aside a decision made by the Secretary of the Inte- rior touching the. correctness or validity of a resurvey of a private land claim. 18 Op. 31. 16. Railroad land grants — Application of case of Sjoli v. Dreschel (199 TJ. S. 564).— The Secretary of the Interior, in the administration of the several land grants to railroads, is not bound to follow the broad principles quoted in the decision of the Supreme Court in the case of Sjoli v. ' Dr'eacRel (199 U. S. 564), but may confine what is said therein to a state of facts similar to those then before the court. 25 Op. 632. 17. Same.- — No title passes to lieu lands be- fore approval by the Secretary of the Interior, of the company's list of selections; and, when so approved, the lands are to be considered as fully selected as of the date of the listing, so as to give to the company superiority over the right of homestead or preemption claim- ants settling after the listing by the com- pany, lb. 18. The stretching of wires without au- thority across the Iowa reservation in the Dis- trict of Columbia is governed by section 1818, Revised Statutes, and should be brought to the attention of the Secretary of the Interior. 21 Op. 224. 19. Payment of Indian depredation judg- ments. — All authority and discretion in regard to the approval or disapproval of the pay- ment of Indian depredation judgments from annuities and property of Indians or from appropriations on their account are vested in the Secretary of the Interior. 21 Op. 131. • Authority and Duties in Regard to In- dians. See Indians, under appropriate headings. Charitable Institutions in the District of Columbia. See District of Columbia, V. Annulment of Action Approving Loca- tion of Railroad Through Public Lands. See Railroads, 9. • Approval of Ellis Contract. See Indians, 128-134. Right of Way Through Indian Reserva- tion. See Indians, 47, 48. b. Assistant Secretary. SO. The consideration and determination of appeals to the Secretary of the Interior from the Commissioner of the General Land Office may be made by the Assistant Secretary of the Interior, under a regulation prescribed by the Secretary, pursuant to section 439, Revised Statutes. 19 Op. 133. 18 Op. 432 affirmed. lb. 21. Same. — When the Assistant acts at a time the Secretary is not absent or sick, under a regulation made by the Secretary prescrib- ing his powers, he should sign with his own proper official designation. lb. 22. Same. — When the Secretary is absent or sick, if the Assistant is in charge of the De- partment, in pursuance of sections 177 or 179, Revised Statutes, he should sign as Acting Secretary. lb. DEPARTMENT OF THE INTERIOR, II, c; III, a, b. 181 Purchases from Contingent Fund. See Department of the Interior, 7; Execu- tive Departments, 71, 72. C. Commissioner of Indian Affairs. 23. Acceptance of Indian Supplies. — Where a contract for the delivery of certain supplies at an Indian agency provided for the accept- ance of goods inferior in quality to the sam- ple where the emergency demanded it, the question whether the necessities of the serv- ice compelled acceptance of the articles of- fered was a question determinable only by the Commissioner of Indian Affairs or bis agents, under the direction of the Secretary of the Interior. 17 Op. 384. 24. Bemoval of trespassers from Indian res- ervation. — The Commissioner of Indian Af- fairs and his subordinate, the Indian agent, have full discretion under sections 2118, 2147, and 2149, Revised Statutes, to remove from the Puyallup Indian Reservation, Wash., any person not of the tribe of Indians en- titled to remain thereon, and in so doing may, by direction of the President, use any military force necessary for the purpose. 20 Op. 245. 25. Same. — An order of a State court re- straining the Indian agent from so doing is beyond its jurisdiction and void, and should be disregarded. lb. Commissioner of Patents. See III, Patent Office. III. Bureaus or Offices, a. Patent Office. 26. Beview of decisions of the Commissioner of Patents.— The Secretary of the Interior has the authority, under section 441, Revised Statutes (see also sec. 481, Rev. Stat.), to re- view a decision of the Commissioner of Pat- ents made in an interference case under Rule 110, Rules and Practice of the Patent Office, upon a motion to amend a preliminary state- ment. 17 Op. 205. 27. Promulgation of a rule limiting appeals to six months. — It is not unlawful for the Com- missioner of Patents, with the approval of the Secretary of the Interior, to promulgate a rule limiting appeals to six months from the time when the matter is in condition for appeal. 21 Op. 122. 28. Same.— A rule or regulation made by the Commissioner of Patents and adopted and approved by the Secretary of the Interior, under section 483, Revised Statutes, is a regu- lation prescribed by the head of a Department, and as such, when not inconsistent with law, has the force of law and is taken judicial notice of by the courts. lb. 29. Legal advice. — The Commissioner of Patents should submit to the law officers as- signed to the Department of the Interior questions arising in the administration of his Department upon which legal advice is de- sired. 21 Op. 174. b. Pension Office. 30. The Commissioner of Pensions is not invested with power to audit and adjust ac- counts for the last sickness and burial of de- ceased pensioners arising under section 4718, Revised Statutes. This power belongs solely to the proper accounting officers of the Treas- ury by virtue of section 236, Revised Statutes. 17 Op. 440., Opinion of April 28, 1882 (17 Op. 339), distinguished. lb. See also 20 Op. 178. 31. , It is the duty of the Commissioner of Pensions, in a case where money has been paid on a pension certificate alleged to have been fraudulently obtained, to furnish the Solicitor of the Treasury with all the material facts and evidence in the case at his command, or which he can obtain, including facts and evi- dence with regard to certificates of deposit and mortgages that have been made and pur- chased with part of such money, and in every way in his power to aid in the prosecution of such suits as may be brought. 19 Op. 210. 32. Special examiners of the Pension Bureau authorized to be appointed by the act of July 7, 1884 (23 Stat. 187), and by the act of March 3, 1885 (23 Stat. 418), come within the purview of the civil-service act of January 16, 1883 (22 Stat. 403) ; and in appointing such officers the latter act and rules thereunder should be observed. 18 Op. 172. 33. Same. — The term of service to which a special examiner is appointed is one year. The office is as new a creation by the act of 182 DEPARTMENT OF THE INTERIOR, III, b, c, d, e, f. March 3, 1885, as it was by the act of July 7, 1884. lb. 34. Medical referee— Medical examiners and law clerks — Civil service. — The officers in the Pension Bureau described as medical referee, assistant medical ■ referee, medical examiners, and law clerk, being ' ' exclusively professional," do not fall within the opera- tion of the civil-service law ; they are excepted therefrom by Rule XIX. 18 Op. 187. 35. Principal examiners. — Those described as principal examiners for review board are not excepted and in appointing them the civil service law and regulations should be ob- served, lb. 36. Five supervising examiners. — The spe- cial authority given by the act of July 11, 1888 (25 Stat. 286), to appoint or detail five supervising examiners in the Bureau of Pen- sions, with headquarters in the District of Columbia, is prohibitory of the appointment or detail of a greater number for the District or for places other than the District. 19 Op. 327. See also Pensions. c. General Land Office. 37. Commissioner of General Land Office — Auditing of accounts relating to public lands. — The First Comptroller has no power to direct the Commissioner of the General Land Office forthwith to audit any particular account re- lating to the public lands, where in his opin- ion further delay would be injurious to the Government. 18 Op. 450. 38. Same. — The Commissioner, with re- spect to the discharge of his duties in such matter, is subject only to the direction of the Secretary of the Interior. lb. Appeals to the Secretary, Consideration of by the Assistant Secretary. See Department op the Interior, 20-22. Timber Depredations. See Public Lands, XIII. d. Indian Office. 39. The proceeds of sales of articles manu- factured in Indian manual and training schools should be received by the Indian Bureau and used for the benefit of the Indian chil- dren in the schools. 17 Op. 531. e. Census Office. 40. Payment of certificates issued to em- ployees after assignment. — An order may be made by the Secretary of the Interior direct- ing payment of the certificates given by the Superintendent of the Census in cases where such certificates are assigned in strict con- formity to section 3477, Revised Statutes. 17 Op. 266. 41. The Director of the Census and his sub- ordinates are not subject to the supervision, control, or direction of the Secretary of the' Interior. 22 Op. 413. 42. Same. — The Secretary of the Interior is not required to approve the selection of ap- pointees, the plan for taking the census, or of making contracts for supplies, etc. lb. 43. Same. — By section 2 of the act of March 3, 1899 (30 Stat. 1014), the Census Bureau is made a part of the Interior Depart- ment, and as such its accounts are subject to such rules and regulations as the Secretary may prescribe, pursuant to section 27 of the act of 1894 (28 Stat. 211). lb. 44. Same. — Expenditures incurred by the Director of the Census, within the limits author- ized by the act of 1899, are proper and lawful, and the Secretary of the Inierior should ap- prove them, if it is his duty to do so at all, as a ministerial act, and not as one in which he is to exercise judgment or discretion touch- ing the wisdom or advisability of the expendi- ture, lb. 45. Same. — Questions with reference to the manner of drawing funds from the Treasury, and the administrative examination of the accounts of the officer disbursing them, is one which should be submitted to the Comp- troller of the Treasury, under section 8 of the act of July 31, 1894 (28 Stat. 208). lb. Seal for Census Office. See Department of Commerce and Labor, 8, 9. See also Department of Commerce and Labor, III. f. Geological Survey. 46. The appropriation made by the act of June 16, 1880 (21 Stat. 259, 274), "for the ex- penses of the Geological Survey, and the classi- fication of the public lands, and examination of the geological structures, mineral resources, and products of the national domain, to be expended under the direction of the Secretary of the Interior," is not applicable to the pay- ment of rent of the building in Washington, D. C, leased from Dr. J. W. Bulkley, July 9, DEPARTMENT OF THE INTERIOR, III, f— STATE, I. 183 1880, and used as offices for the Geological Survey. 17 Op. 87. 47. Same. — That appropriation not being "in terms" made for the rent of any building or part of any building in the District of Co- lumbia to.be used by the Geological SurYey, and no provision therefor being made else- where, the lease of July 9, 1880, was forbidden by the act of March 3, 1877 ( 19 Stat. 363, 370 ) , and is void. 16. DEPARTMENT OF JUSTICE. I. In General, 1-5. II. Officers, etc., 6-10. I. In General. 1. Direct tax cases— Stipulation waiving right of appeal. — It is unwise for the Depart- ment of Justice to adopt any general rule waiving by stipulation the right of appeal from judgments of the Court of Claims in di- rect tax cases, thus allowing the payment of such claims prior to the expiration of the ninety days within which appeals must be taken. 20 Op. 547. 2. Matters relating to the employment of special counsel in foreign countries for the in- stitution of suits on behalf of the United States for the recovery of damages caused to war vessels of the United States should be re- ferred to the Department of Justice. 21 Op. 195. 3. Suits by the United States. — The Depart- ment of Justice is charged with the duty of de- termining when the United States shall sue, for what it shall sue, and that such suits shall be brought in appropriate cases. lb. 4. Whether or not an act constitutes a crime is a question that in but rare instances can arise except in the Department of Justice. 21 Op. 133. 5. Exportation of arms and warlike material to China. — The Department of Justice can do nothing to restrict the exportation of arms and warlike material to China during the present insurrectionary movements in that country. 24 Op. 26. II. Officers. Attorney-General. See Attorney-General. 6. The Solicitor of the Treasury is an officer of the Department of Justice and not of the Treasury Department. 20 Op. 714. See also Treasury Department, 143-145. 7. Same — Power to instruct district attor- neys. — An action for the recovery of duties on goods previously smuggled would be a suit "in which the United States is a party, or interested," within the meaning of section 379, Revised Statutes, and as such the Solicitor of the Treasury has power to instruct district attorneys in regard thereto. lb. 8. Same,— Suits and proceedings by the re- ceiver of a failed national bank are, under sec- tion 380, Revised Statutes, within the duties of a district attorney, acting under the direction of the Solicitor of the Treasury. 20 Op. 476. 9. Same. — The district attorney's compensa- tion therefor is not regulated by the fee bill prescribed by statute, nor should it be paid by the Government and not out of the fund of the trust, but the amount of fees to be al- lowed in any given case is a matter to be ad- justed by the Comptroller in the exercise of a legal discretion, under the advice of the Solicitor of the Treasury. lb. 10. Examiners — Prosecution of claims againstthe United States. — Section 190, Revised Stutates, prohibiting employees of any of the Executive Departments from prosecuting cer- tain claims against the United States for two years after the termination of their employ- ment, applies to examiners of the Depart- ment of Justice. 20 Op. 696. DEPARTMENT OF STATE. I. In General, 1-6. II. Officers, 7-20. I. In General. 1, Records of — Right of the Spanish Treaty Claims Commission to call for certified copies of records. — 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 184 DEPARTMENT OF STATE, I, II. other Department, or«ertified 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 dis- cretion to send either the original papers or certified copies thereof, upon a request of the Commission for certified copies of such papers. 23 Op. 470. 2. Fees of consular agents. — The proposed regulation of the State Department that con- sular agents, ' ' as compensation for their serv- ices to American vessels and seamen and for other official acts, shall receive one-half the official fees collected for such services: Pro- vided, Such compensation shall not exceed in any fiscal year the sumof $1,000; and all such fees in excess of such compensation shall be remitted to the consul in whose district the agency is located," is consistent with sections 1703 and 1733, Revised Statutes. 22 Op. 1633. 3. Landing of Cables. — The application of the Commercial Cable Company for leave to land its cable in the United States is within the jurisdiction and control of the Department of State, acting for the President. 22 Op. 408. See also Cables. 4. Claims of foreign subjects against Hawaii which accrued prior to annexation should be presented to the Department of State and thence transmitted to the government of Hawaii for adjustment. 22 Op. 583. 5. Passports. — The provisions of sections 4075 and 4076; Revised Statutes, which con- fer 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. 23 Op. 509. 6. Extradition from Mexico — Rearrest and trial for a crime other than the one for which extradited. — 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 Depart- ment of State at this time to secure his release would be premature. 23 Op. 604. See also 13; and Extradition. II. Officers. Secretary of State. 7. The chief clerk, chiefs of bureaus, and translators of the State Department are clerks within the meaning of section 169, Revised Statutes, and are to be appointed by the Secre- tary of State. 21 Op. 363. 8. Appointment of stenographers and type- writers. — An appointment by the Secretary of State, without . reference to or conformity with the regulations prescribed for appoint- ments in the classified service, made pursuant to the act of July 1, 1898 (30 Stat. 645), au- thorizing the temporary employment of ste- nographers and typewriters in his Depart- ment, is lawful. 22 Op. 556. 9. Copies of Congressional documents or- dered from the Public Printer under section 90 of the public printing and binding act of January 12, 1895 (28 Stat. 623), by the Sec- retary of State to a number not exceeding the number of bureaus in his Department, should not be charged to the allotment of the Public Printer's appropriation for such Department. 21 Op. 423. 10. Director of the Bureau of American Republics. — The Secretary of State of the United States is authorized to appoint the Director of the Bureau of American Repub- lics without the assent of the other countries contributing' to the support of the Bureau, and to remove such director and appoint another in his place without such assent. 20 Op. 558. 11. Monthly Bulletin of the Bureau of American Kepublics-^Advertisements in. — It is competent for the Secretary of State to pro- hibit the publication in the Monthly Bul- letin of the Bureau of American Republics of advertisements of private firms or corpo- rations. 21 Op. 514. 1 2. Extradition. — The Secretary of State has power to review the proceedings in an extradi- tion case certified to him, and his power ex- tends to the review of every question therein DEPARTMENT OF STATE, II— DEPOSITORY. 185 presented, under section 5272 Revised Stat- utes. 17 Op. 184. See also, 6. 13. Passports. — The provisions of sections 4075 and 4076, Revised Statutes, which con- fer 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. 23 Op. 509. 14. Certificates of the votes of a State not delivered to the President. — It is the duty of the Secretary of State, under the provisions of section 141 Revised Statutes, as amended by the act of October 19, 1888 (25 Stat. 613), t to send a special messenger to the district judge holding the certificates of the votes of his State, in each of the four States where the messenger has failed to deliver to the President on the fourth Monday in January, 1893, the package containing the certificate of the votes of his State. 20 Op. 522. 15. Same. — The expression "Whenever a certificate of v.otes from any State has not been received," as found in the act of October 19, 1888 (25 Stat. 613), should be construed so as to read "whenever any certificate of votes required by law from any State has not been received. " lb. 16. Sureties on official bonds — Corpora* tions. — It is competent for the Secretary of State, under section 1697 Revised Statutes, to accept as sureties upon official bonds of United States consular officers, corporations organized under State or United States laws as surety or guaranty companies authorized by their charter to undertake such obliga- tions. 20 Op. 16. 17. Eeid claim — Brig ■ "General Arm- strong" — No authority to pass upon. — Under the power conferred by the act of May 1, 1882 (22 Stat. 697) , the Secretary of State had no authority to pass upon the claim of Mr. Reid to be reimbursed expenses incurred by him as agent in the prosecution" of the claims of the "captain, owners, officers, and crew" of the brig General Armstrong. 17 Op. 626. 18. Same. — The Secretary of State is not required to make payment or ' recognize the claim of S. C. Reid, as administrator of the estate of Henry Coit, one of the claimants to the Armstrong fund, which administration was obtained upon an erroneous statement that the estate owed him a sum equal to one- half of Ooit's share of a fund remaining in the hands of the State Department, for the reason that Reid has been paid in full, and that his claim is barred by the Statute of Limitations, and precluded from recovery by the decisions of the State Department. 20 Op. 372. 19. Samel — The United States, as trustee for the true owner or as the ultima hares, is entitled to be heard in the disposition of the amount claimed, and should intervene by way of suggestion to the court that the letters of administration be vacated and set aside, lb. ■ See also Claims 13-28. 20. Construction of wharf at "Wakefield, Va. — The Secretary of State can not lawfully, under the terms of the joint resolution of Congress approved February 25, 1893 (27 Stat. 756), authorize the construction of a wharf at Wakefield, Va., different in character from that specified in the resolution, even if from a Change Of circumstances the construc- tion of that sort of wharf with that appro- priation has become impracticable. 20 Op. 653. DEPARTMENTAL REGULATIONS. See Executive Departments, III; and the several Executive Departments indi- vidually. DEPARTMENTAL PRACTICE AND CON- STRUCTION. See Executive Departments, VI; Attorney- General, II, h. DEPORTATION. See Chinese, V. DEPOSIT. Of Savings. See Navy, 10, 115-117. Op Public Moneys. See Disbursing Officers or Agents. DEPOSITORY. Of Mail. See Postal Service, 166, 167. 186 DEPUTY MARSHALS— DIPLOMATIC AND CONSULAR OFFICERS, II. DEPUTY MARSHALS. See United States Marshals. DEPUTY SURVEYORS OF CUSTOMS. See Customs Law, II, d. DESERTER. Who Reenlists. See Army, I, b. From German Vessels. See Extradition, 13. Deserting Seamen. See Seamen, 25. DESIGNS. For Coins op the United States. See Treasury Department, 174. DESTRUCTION OF MERCHANDISE HELD IN BOND. See Customs Laws, III, g. DETAIL. Op Clerks to the Civil Service Commis- sion. See Civil Service, II, e. Op Registry Clerk to White House. See Post-Oppice Department, 13. Op Army Ofpicers to Colleges. See Army, 86-89. Op Men of the Marine Corps. See Navy, III, a. DINOLEY ACT. (Act oi July 24, 1897, 30 Stat. 151.) DIPLOMAS. See Expositions and Fairs, 23, 28. DISCHARGE CERTIFICATE. See Army, 201. DIPLOMATIC AND CONSULAR OFFICERS. I. Diplomatic, 1-2. II. Consular, 3-27. III. Foreign Representatives, 28-34. I. Diplomatic. 1. Minister-resident — Bond — Commission — Duties — Pay. — A person appointed minister resident and consul-general who takes the oath of office, but fails to execute a bond as required by section 1697, Revised Statutes, and his commission is, accordingly, not deliv- ered to him — is not qualified to receive the commission or to enter upon the duties of the office, and consequently is not entitled , to pay as an incumbent of such office. 18 Op. 157. 2. The charge 1 d'affaires to Paraguay and Uruguay, whose office was raised to minister, but who did not receive his commission or take the oath of office until nearly two months after appointment, is entitled to salary as minister from the date on which he qualified and entered upon the duties of the office, and not from the date of his appointment. 19 Op. 219. (2- Op. 27, 638; 3 Op. 105, 124, 641; 4 Op. 123, 250, 318, 348; 5 Op. 132; 7 Op. 304; 10 Op. 250, 308.) II. Consular. 3. Consular officers — Bonds — Corporations may be accepted as sureties. — It is competent for the Secretary of State, under section 1697, Revised Statutes, to accept as sureties upon official bonds of United States consular officers, corporations organized under State or United States laws as surety or guaranty companies authorized by their charter to undertake such obligations. 20 Op. 16. 4. Inspection certificates. — Consular officers of the United States can not extend expired inspection certificates granted to American steamers, nor is there any authority of law for sending local inspectors out of the country to make inspection. 21 Op. 52. 5. Declaration to invoice. — The person mak- ing the declaration to an invoice of goods in- tended for shipment from a foreign country to the United States under sections 2 and 3 DIPLOMATIC AND CONSULAR OFFICERS, II. 187 of the customs administrative act of June 10, 1890, is not required to be actually present be- fore the consul, vice-consul, or commercial agent of the United States in order to au- thorize such consular officer to certify such invoice. 21 Op. 571. 6. Same. — All that is necessary in order to authorize such consular officer to certify the in- voice produced, with the declaration indorsed thereon signed, and with the oath attached, is that he shall be satisfied that the person making the oath thereto is the person he repre- sents himself to be ; that he is a credible per- son, and that the statements made under such oath are true. lb. 7. Same. — Where the consular officer has doubts as to the identity of the person making the declaration, as to his credibility, or as to the truthfulness of the statements set forth in the declaration, he would have the right to require the declarant to come personally before him. lb. 8. Discharge of seaman. — The United States consul-general at Panama was justified in dis- charging a seaman where both master and sea- man requested it, and where, although no unusual or cruel treatment was claimed, yet from the evident ill will displayed by the master he had reason to fear that such treat- ment would supervene. 22 Op. 212. 9. Under the laws and usages governing the American consular service, the authenti- cation, noting, etc., of marine protests are to be regarded as official consular services. 19 Op. 196. 10. Consuls in barbarous or semi-barbarous states are to be regarded as investing with ex- traterritoriality the place where their flag is planted, and if justice is to be administered at all, so far as concerns civilized foreigners visiting such states, it must be by tribunals such as are named in section 4088, Revised Statutes. 18 Op. 219. 11. Same. — Where a citizen of the United States, trading in the island of Gnap, a bar- barous or semi-civilized country, was charged with cruelly and inhumanly punishing a boy on said island: advised that the case is cognizable by a consul or commercial agent under the provisions of section 4088, Revised Statutes, and that a special commercial agent might be sent to the island for the trial of the accused. lb. 12. The sentence of imprisonment imposed in any of the consular courts of China may be served out in the prison at Shanghai and not necessarily within the limits of the consul's ordinary jurisdiction. 20 Op. 391. 13. The question as to whether the consul's jurisdiction is limited to the cognizance of matters occurring within the territory nearer his consulate than to any other consulate of the United States in China is not one which it is proper for the Attorney-General to answer, as it does not arise in the adminis- tration of an Executive Department, and is therefore purely hypothetical. lb. See also Consular Couhts. 14. When a consul intervenes in a contro- versy between master and seamen, by mutual consent of the disputants, he acts as an arbitrator and not as consul. 21 Op. 201. 15. Sale of American vessel, unseaworthy. — A United States consul at a foreign port is without authority to direct the sale of an American vessel which has become . unsea- worthy at that port and whose master has notified him that he has abandoned the ves- sel. 17 Op. 552. 16. Same. — In such case the consul should notify the owners of the condition of their property and in the meantime care for it. lb. 17. Same. — The sales mentioned in the Con- sular Begulations of 1874 are sales under the authority of the master, the intervention by consul being for the purpose of ascertaining the existence of those conditions which under general law authorize the sale. lb. 18. Same. — Where, on application of the master, an American vessel, Brig Mary C. Comery, lying in a foreign port was condemned as unseaworthy by the port officers, the pre- sumption in favor of the validity of those proceedings is a strong one, and it does not appear to be the duty of the American consul to do more than see that the foreign law as to jurisdiction, etc., is being observed. lb. 19. Consuls — Fees for furnishing inspection cards — Unofficial service. — The President may prescribe a fee, as provided by section 1745, Revised Statutes, for the services of a consul in furnishing inspection cards to steerage passengers on vessels destined to the United States, as required by the quarantine regula- tions of April 1, 1903, but he has no authority to declare such a fee unofficial and to permit the consul to retain it as such. 24 Op. 672. 188 DIPLOMATIC AND CONSULAR OFFICERS, II, III. 20. Same. — No service by a consul can be unofficial when the applicant has a right to demand it and the consul no right to refuse it. lb. 21. Consular service — Fees. — Under the laws and usages governing the American consular service, the authentication, noting, etc., of marine protests are to be regarded as official consular service. 19 Op. 196. 22. Certified consular invoice — Fees. — The new edition of the Consular Regulations of 1888 contains provisions making the fee for a consular certificate to an invoice of mer- chandise not subject to duty, official and re- turnable to the Treasury. 19 Op. 225. 23. Same. — The fee for such certificate may be rendered official by Executive order, and specially included in the tariff of official fees under the Revised Statutes. lb. 24. Fees. — Foreign-built vessels owned by citizens of the United States are not exempted by the act of June 26, 1884 (23 Stat. 53) , from the payment of fees for services of consuls. ^ 18 Op. 111. 25. Same. — Foreign-built vessels owned by citizens of the United States are not within the provisions of the act of June 26, 1884 (23 Stat. 53), forbidding the collection of fees by consular officers from American vessels. 18 Op. 234. 26. Consular agents — Compensation. — The proposed regulation of the State Department that "consular agents, as compensation for their services to American vessels and seamen and for other official acts, shall receive one- half the official fees collected for such serv- ices: Provided, Such compensation shall not exceed in any fiscal year the sum of $1,000; and all such fees in excess of such compen- sation shall be remitted to the consul in whose district the agency is located," is con- sistent with sections 1 703 and 1733, Revised Statutes. 22 Op. 163. 27. A person placed in charge of a consular office by the incumbent of the consulate, but without appointment and qualification as pre- scribed by the Constitution and laws of the United States, can not lawfully perform the regular official duties of the post, nor should he be permitted to perform those other unofficial services, such as notarial services, which a consul is not required by law to perform, but the chief value of which depends entirely on the fact that the person rendering them is a consular officer. 20 Op. 92. Army Officer Who Accepted Consular Position Ceased to be a Military Officer eo imtanli. See Army, 106-109. Claim Against Consul for Money Paid Him for Clothing Supplied Wrecked Crew. See Claims, 72, 73. Convicts of Consular Courts, Jurisdic- tion. See Consular Courts. HI. Foreign Representatives. 28. Head tax — Alien diplomatic officers. — The act of March 3, 1903 (32 Stat. 1213), which requires the payment by transporta- tion companies of a duty of $2 for each and every passenger not a citizen of the United States, or of Canada, Mexico, or Cuba, who shall be brought into the United States by them, applies as well to alien officials coming into the United States on diplomatic missions as to aliens who are private individuals and come here for other purposes. 25 Op. 370. 29. Same — Charge upon transportation com- panies. — The duty thus imposed is not a tax upon the officials of foreign governments, but is merely a charge imposed upon the transportation company for every passenger brought into the United States by it. lb. 30. Hunters' license — Foreign representa- tives — Exemption. — 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 exemp- tion from its payment has been made in favor of the diplomatic or consular representatives of foreign governments residing within the United States. 23 Op. 607. 31. The issuance of a writ of execution against the person or chattels of a foreign minister is a "suing out" within the mean- ing of section 4064, Revised Statutes, and renders the party obtaining such writ liable to the penalty prescribed. 17 Op. 563. 32. Same. — Cases within thatsectionshould be prosecuted by the United States attorney of the proper district, as other misdemeanors are prosecuted. 33. Same. — The marshal in whose hands the writ is placed for execution is not an "officer DIRECT TAXES— DIRECTIONS ON MAIL MATTER. 189 concerned in executing it" under the statute, where he merely serves notice upon the min- ister, But does not in fact execute the writ. lb. 84. A foreign consul, residentin the United States, must look for protection in his personal and property rights to the laws of the State in which he resides. 19 Op. 16. DIEECT TAXES. 1. Indiana — Set-off. — It is the duty of the Secretary of the Treasury to withhold from the amount to be paid the State of Indiana, under the act of March 2, 1891 (26 Stat. 822), pro- viding for a refund of the direct taxes col- lected under the act of August 5, 1861 (12 Stat. 292), an amount equal to the indebt- edness of that State to the United States arising from certain overpayments. 20 Op. 363. 2. Kansas — Set-off. — The amount claimed to be due from the State of Kansas to the United States on account of the direct tax should be retained out of the amount appro- priated for payment to that State by the act of March 3, 1881 (21 Stat. 414, 428). 17 Op. 228. 3. Mississippi — Set-off unwarranted. — The withholding the amount of the " 2 and 3 per cent funds" due the State of Mississippi, and crediting the State therewith on account of the direct tax, was unwarranted by law, as no liability rests upon the State for the pay- ment of such tax. 17 Op. 671. 4. Tennessee. — The Secretary of the Treas- ury is anthorized under the act of March 2, 1891 (26 Stat. 822) providing fbr the refund of direct taxes, to pay to the governor of Tennes- see as trustee moneys received by the United States on the resale of land in Tennessee in excess of the tax assessed thereon, and of the amount bid therefor at the original sale made for the collection of the direct tax. 20 Op. 701. 5. Vermont. — The Secretary of the Treas- ury is anthorized under the act of March 2, 1891 (26 Stat. 822) to repay to tfre State of Vermont, the full amount of the direct tax collected under the act of August 5, 1861 (12 Stat. 292), notwithstanding the existence of an unadjusted claim of the United States for arms, accouterments, clothing, etc., over- drawn by that State during the Civil War, under the act of 1808 (now sec. 1661 R. S.), a a portion of which were afterwards sold by the State, and the proceeds covered into the Treasury, and against which the State has a counter claim for uniforms, garrison and camp equipage, etc., furnished its own mili- tary organizations during that war. 20 Op. 134. 6. Same. — The act of March 3, 1875 (18 Stat. 455), directing the Secretary of War to, credit to the respective States the sums charged against them for overdrawal of arms and the ordnance stores during the civil war, upon » showing by such States of a faithful disposition thereof, and to refuse credit where such stores have been sold or otherwise misapplied, is without effect upon the question above considered. lb. 7. West Virginia— Set-off. — Section 3481, Revised Statutes, makes it the duty of the Secretary of the Treasury to insist upon the right of set-off against the demands of the State of West Virginia for refund of the di- rect tax to the extent of the equitable pro- portion of the debt of Virginia to the United States for which West Virginia is liable. 20 Op. 240. 8. Interest and penalties are collections within the meaning of the act of March 2, 1891 (26 Stat. 822), and should be repaid the same as the direct taxes authorized by that act; but costs attending the collection should not be repaid, as such funds never came into the Treasury of the United States. 20 Op. 412. 9. Same.— Where, under the act of June 7, 1862 (12 Stat. 422), redemptions of lands held for direct taxes were made, the party in inter- est should be refunded the tax, penalties, and interest paid by him for such redemption. lb. 10. Same. — The act of 1891 supersedes the provisions in the act of March 3, 1883 (26 Stat. 595) in regard to the surplus proceeds of lands sold for direct taxes, and it is now the duty of the Secretary of the Treasury to re- pay not merely the surplus but the entire amount collected under that law and brought into the Treasury. 78. DIRECTIONS ON MAIL MATTEB. See Postal Service, IV. 190 DIRECTOR "OF THE MINT— DISTILLERY. DIRECTOR OF THE MINT. See Treasury Department, II, d. DISABILITY. Incurred in the Line of Duty. See Pension, II, 57-63. DISBURSEMENT. Overpayment of Army Officers. See Army, 168-177. DISBURSING OFFICERS OR AGENTS. 1. Deposit of moneys received. — A special disbursing agent of the board of town-site trustees of Oklahoma Territory who deposited moneys received by him as such agent in two banks that suspended payment, is liable, with his sureties, for any loss that may arise from the failure of these banks* and he is not re- lieved from liability by the fact that these banks were designated by the board of trus- tees as places of deposit. 20 Op. 24. 2. Same. — The regulations of the Secretary of the Interior, providing for the designation by the town-site board of a bank for the depositing of money in the hands of the dis- bursing agent, must be construed in the light of sections 3639 and 3620 of the Revised Stat- utes to limit power of designation by the board to banks which are lawful depositories of public money within the statutes, which these banks were not. lb. 3. Same. — The fact that some of the money so deposited was collected from assessments, and never in the Treasury, is immaterial, in- asmuch as it was public money, and his bond expressly bound him to account for all public moneys coming into his hands. lb. 4. Checks or drafts issued by the disbursing officers of the United States upon Government funds on deposit, in payment of its obliga- tions or dues, are exempt from the stamp tax of 1898 (30 Stat. 448). 22 Op. 134. 5. Checks of disbursing officers of the Gov- ernment 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 attor- ney from such payee or indorsee. 22 Op. 637. 6. The five years' limitation fixed by sec- tion 2 of the act of August 8, 1888 (25 Stat. 387), within which suits may be brought upon the official bonds of disbursing officers of the Government begins to run from the time the accounting officers of the Treasury make the statement of the account showing an indebt- edness to the United States. 22 Op. 611. See also Treasury Department, II, i; Pub- lic Buildings, 26-37. DISCHARGE. See Army, 15, 126. DISCRIMINATING DITTIES. See Customs Laws, IV, e. DISMISSAL. . See Army, 122-125; Naval Academy. DISPATCH BOAT "DOLPHIN. ' See Navy, 194. DISPENSART LAW. See South Carolina. DISPOSAL OF USELESS PAPERS. See Treasury Depabtment, I, c. DISTILLERY. See Indian Territory, 5. DISTILLERY WAREHOUSES-DISTRICT OF COLUMBIA, III. 191 DISTILLERY WAREHOUSES. See Internal Revenue, V. DISTRIBUTION. Arms to the Militia. See Army, 220-222. Loyal Creek Fund. See Indians, 147. Moneys Due on Contracts. See Treasury Department, I,b; Contracts, VI, b. United States Reports. See Courts, 7-16. DISTRICT ATTORNEYS. See United States Attorneys. DISTRICT OF COLUMBIA. I. In General, 1. II. Laws, Regulations, etc., 2-7. III. Officers and Employees, 8-26. IV. Charitable Institutions, 27-34. Y. Parks, Reservations, and Grounds, 35-49. VI. Water Supply, 50-60. VD. Land Titles, 61-64. vni. District Militia, 65-70. IX. Claims Against, 71-74. I. In Oeneral. 1. The District of Columbia is a corporate agent, through which the United States ad- ministers certain executive functions over the locality which includes the national capital. The chief executive authority is vested in three Commissioners, and the assistant at- torney of the District is an officer under and appointed by them. 18 Op. 161. II. Laws, Regulations, etc. 2. Code — Commissions of judges of the police court. — 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 appoint- ments of such judges. 23 Op. 572. 3. Building line in Georgetown. — The ap- proval of the Secretary of War is required for projections beyond the building line in that part of the city of Washington formerly known as Georgetown. 23 Op. 9. 4. Same. — Congress has power to prevent all projections beyond the building line in any part of the city of Washington, as now established, and therefore may permit pro- jections upon such conditions as it may see fit to impose. This power is in no wise dependent upon the ownership of the fee in the streets. lb. 5. Wharves — Licenses for erection of. — The Chief of Engineers of the Army is not and never has been vested with authority to grant licenses for the erection of wharves along the river front of the city of Washington, D. C. 18 Op. 441. 6. Steam engineers. — Section 7 of the act of February 28, 1887 (26 Stat. 427), to regu- late steam engineering in the District of Columbia, withdraws from the operation of section 6 of that actaH steam engineers hold- ing Federal or State licenses. 19 Op. 25. 7. Saturday — Half holiday. — "Every Satur- day after 12 o'clock noon" is a holiday for all purposes within the District of Columbia, and is therefore one of the "days declared public holidays by law" within the meaning of the statutes' regulating the number of hours of labor which must be required of all clerks and employees in the Executive Depart- ments. Consequently, heads of Departments are not obliged to require labor of such clerks, etc., after the hour of noon on Satur- days. 25 Op. 40. HI. Officers and Employees. 8. Commissioners — Term of office. — All ap- pointments to the office of Commissioner of the District of Columbia, are, with the ex- ception of the first two, to be for the term of three years. (Sec. I of the act of June 11, 1878, 20 Stat. 103.) 17 Op. 158. 9. Same. — The word " term," or " terms," in this statute, means "term of service." lb. 10. The official term of each of the Commis- sioners of the District of Columbia, appointed 192 DISTRICT OF COLUMBIA, III. from civil life, excepting the first two ap- pointments, is three years (act of June 11, 1878, 20 Stat. 103); and in case of the death, resignation! or removal of the ' incumbent during such term, his successor should be appointed, not fbr the full term of three years, but for the unexpired term of such incumbent, if any remains; ' 17 Op'. 476. Opinion of July 7, 1880 (1-6 Op. 537), dis- sented from. lb. 1 1 . Commissioners — Can not act without full Board. — No power is expressly conferred by statute upon any two of the Commissioners of the District of Columbia to act without the third, and it seems that the three Commis- sioners should be present and acting' when any business -of 1 importance pertaining to their office is to be transacted. 17 Op. 354. 12. Accounts for disbursements — Accounting officers of the Treasury. — Section 4 of the act of June 11, 1878 (20 Stat. 102), which re- quires the Commissioners of the District of Columbia to render accounts for their dis- bursements thereunder to the accounting of- ficers of the Treasury for adjustment and set- tlement, necessarily implies that the settle- ment and adjustment shall be in accordance with the laws and regulations arid usages by which those officers are governed, so far as the same are applicable to such accounts. 17 Op. 574. 13. Same. — The provisions of sections 3623 and 3678, Revised Statutes, are applicable to the Commissioners, and they and their bonds- men are liable to suit on. their bond for the recovery of balances found due from them on settlement of their accounts, lb. 14. The Commissioners of the District of Columbia are, by the act of March 3, 1893 (27 Stat. 537), given the supervision and con- trol of expenditures for the Freedman's Hos- pital and Asylum. Otherwise the relations of the Secretary of the Interior and that institu- tion are unchanged by that act. 20 Op. 652. 15. Sale of land in District of Columbia — Conveyance. — The power given the Commis- sioners of the District of Columbia by the sixth section of the act of March 3, 1881 (21 Stat. 467), "to sell to the highest bidder at public auction" all the right, title, and in- terest of the United States in and to a certain lot of ground situated in the city of Wash- ington, carries with it authority to make a conveyance to' such bidder 1 , as an incident to the execution of the power. 17 Op. 100. 16. Advised that an assistant attorney of the District of Columbia is not an officer of the Government or of the United States within the provisions of sections 1782 and 5498, Re- vised Statutes, prohibiting such officers from acting as agents or attorneys in the prosecu- tion of any claim against the United States, etc. 18 Op. 161. 17. The District of Columbia is a corporate agent, through which the United States ad T minister certain executive functions over the locality which includes the national capital. The chief executive authority is vested in three Commissioners, and the assistant attor- ney in question is an officer under and ap- pointed by them. 26. 18. Auditor for the District. — A clerk in the office of the auditor of the District of Columbia who was appointed a referee by the Court of Claims under the provisions of the act of June 16, 1880 (21 Stat. 284), and performed serv- ices as such, and in consideration of such services received certificates issued by the court fixing the amount of compensation al- lowed therefor, is entitled to receive the amount thus allowed. 18 Op. 303. 19. Board of fire commissioners — May be abolished. — The Commissioners of the District of Columbia have power, undei' the act of June 11, 1878 (20 Stat. 102, 104), to abolish a part or the whole of the board of fire com- missioners of said District. 17 Op. 494. 20. The civil-service act of January 16, 1883 (22 Stat. 403), can not lawfully be ap- plied to the officers and employees of the Dis- trict of Columbia. ; 22 Opi' 59. 21. Same. — The officers and employees of the District of Columbia are not officers and employees of the General Government of the United States, but of the municipal corpora- tion known as the District of Columbia. lb. 22. Same.-T-Such officers and employees are as distinct from the civil service of the United States as would be the officers of any city government in one of the States of the Union from the civil service of the State itself. lb. 23. A notary public appointed for the Dis- trict of Columbia has no power to take ac- knowledgments of deeds in foreign countries, where he may at the time be, for property situated in said district. 19 Op. 81. DISTRICT OF COLUMBIA, III, IV, V. 193 24. Police force — Removal. — Under the pro- visions of the act of July 11, 1878 (20 Stat. 102, 107), the Commissioners of the District of Columbia have power, in their discretion, to remove members of the police force of the District of Columbia without such trial as is contemplated by section 356 of the Revised Statutes of said District. 17 Op. 489. 25. Register of wills — Recorder of deeds. — The President has power to require a bond of the register of wills and the recorder of deeds of the District of Columbia, for the faithful accounting by them of the fees re- ceived by them, and he may likewise pre- scribe periods at which such accountings shall be had" and payments made by them into the Treasury of the United States. 20 Op. 508. 26. The watchmen employed by the Gov- ernment under the act of August 5, 1882 (22 Stat. 243), for service in the public squares or reservations in the District of Columbia, are by that act invested with the powers of the metropolitan police, and may make arrests outside of such squares and reservations for offenses committed within the same. 18 Op. 433. IV. Charitable Institutions. 27. The Columbia Institution for the Deaf and Dumb is not a part of the Interior De- partment, and advertisements for proposals under section 3709, Revised Statutes, are not required for supplies for services for this insti- tution. 21 Op. 349. 28. The Columbia Institution for the Deaf and Dumb is in the Department of the Interior, in the sense that its expenditures of public money are under the supervision of the head of that Department and subject to the pro- visions of section 3709, Revised Statutes, in the matter of making purchases and contracts for supplies or services. 22 Op. 1. 29. Freedmen's Hospital and Asylum. — The relations of the Secretary of the Interior and the Freedmen's Hospital and Aaylum are unchanged by the act of March 3, 1893 (27 Stat. 537), save that the Commissioners of the District of Columbia are given the supervi- sion and control of expenditures for the Freed- men's Hospital and Asylum. 20 Op. 652. 30. Freedman's Hospital — Water main. — The Secretary of the Interior has authority to prevent the Commissioners of the District of Columbia from laying a water main across the land upon which the Freedmen's Hospital is to be erected. 25 Op. 515. 31. Same. — The permission granted the Commissioners of the District of Columbia by the Chief of Engineers in charge of the public buildings and grounds in the District to lay a water main across the land upon which the Freedmen's Hospital is to be erected was a mere license, without consider- ation, and, being still executory, is revocable at will. lb. 32. The Government Hospital for the In- Bane, the Washington Hospital for Foundlings, the Columbia Institution for the Deaf and Dumb, and the Freedmen's Hospital and Asylum are charitable or eleemosynary institutions within the meaning of the act of June 6, 1900 (31 Stat. 664), which creates a Board of Charities for the District of Columbia. 23 Op. 287. 33. Same — Supervision — Board of Chari- ties — Secretary of the Interior. — The Board of Charities has general supervision of these in- stitutions, and, under the order of the Dis- trict Commissioners, has power of investiga- tion with the duty of submitting a report and recommendation to Congress. With this exception, the powers and duties of the Sec- retary of the Interior are unchanged by the act of June 6, 1900, and remain the same as before its enactment. lb. 34. Insane persons indicted in United States Courts outside of the District of Columbia. — The provision in section 4851, Revised Statutes, that "if any person charged with crime be found in the court before which he is charged to be an insane person, such court shall certify the same to the Secretary of the Interior, who may order such person to be confined in the hospital for the insane," etc., applies only to persons charged with crime before the courts in the District of Columbia; it does not extend to persons indicted in United States courts elsewhere. V. Parks, Reservations, and Grounds. 35. Rock Creek Park — Selection and acqui- sition of lands. — The Rock Creek Park Com- mission, limited Dy the act creating it to the expenditure of a certain sum of money, and having assessed the value of the land pro- 18456—08- -13 19.4 DISTRICT OF COLUMBIA, V. posed to be taken at less than that amount, but fearing that many of the owners will not accept the amounts awarded, and that the assessments in a judicial proceeding would cause the entire cost to exceed the amount appropriated, should nevertheless proceed with its work, and if necessary make selec- tion and acquire such of the lands selected most to be desired as will come within the appropriation. 20 Op. 67. 36. Commission may purchase certain lands by agreement although proceedings have been commenced for assessment of value. — The mere fact that the law authorizing the acquisition of land for Bock Creek Park, of date Septem- ber 27, 1890 (26 Stat. 492), requires the Com- mission, if unable to agree with the owner of the land selected within thirty days' time, to apply for an assessment of the value of such land as it has been unable to purchase at its assessed price, does not preclude the Commis- sion from later purchasing by agreement the land of certain property owners, although judicial proceedings have been commenced for the assessment of the value of the land. 20 Op. 129. 37. Beport of appraisers on valuation — President not authorized to decide that such prices are reasonable if total is in excess of appropriation. — Where an appropriation for acquiring title to land for a public park is limited to $1,200,000, and the law requires the President to decide that the prices to be paid for various parcels of land are reason- able, and the Commission appointed by the act has presented for his decision a report of appraisers in condemnation that would make the cost of the park considerably exceed that amount, it would not be lawful for the Presi- dent to decide that the prices as submitted are reasonable. 20 Op. 326. 38. Same. — The President is authorized to determine, parcel by parcel, whether the valu- ation of the lands embraced within the reduced area of the contemplated Eock Creek Park, as recommended by the Eock Creek Park Commission, bringing the total cost within the amount appropriated by the act of September 27, 1890 (26 Stat. 492), is reasonable or unreasonable. 20 Op. 377. 39. Same. — The validity and regularity of the proceedings culminating in the above recommendation are judicial questions, for the determination of the court and not for the Executive. lb. 40. Bock Creek Park — Beservoir. — The board of control of Eock Creek Park, created by the act of September 27, 1890 (26 Stat. 492), has no power to authorize the water department of the District of Columbia to construct a res- ervoir for the use of the District within the limits of that park. 21 Op. 566. 41. Zoological Park Commission — Ex- penses — Erection of buildings, etc. — The Com- mission created by section 4 of the act of March 2, 1889 (25 Stat. 808), for the estab- lishment of the Zoological Park in the Dis- trictof Columbia, have authority to defray out of the appropriation made by that section ail necessary expenses incidental to the selection and acquisition of the land for the park, but not to apply the appropriation to laying out the land, erecting buildings thereon, etc. The provisions of that section extend no fur- ther than the selection and acquisition of the land. 19 Op. 286. 42: Eviction of unlawful occupants of the public lands in. — The only intent of section 1797, Eevised Statutes, as amended by the act of April 28, 1902 (32 Stat. 152), is to em- power the United States marshal of the Dis- trict of Columbia to eject summarily transient or disturbing persons from the public grounds in the District under the direct supervision of the Chief of Engineers, and does not apply to occupants who have been in actual posses- sion, under a claim of right, for a long period of years. In such cases the Government should apply to the courts to obtain posses- sion. 24 Op. 616. 43. Same. — Section 1797, Eevised Statutes, as amended by the act of April 28, 1902 (32 Stat. 152), authorizes summary proceedings against those persons only who are in unlaw- ful occupancy of public buildings or grounds in the District of Columbia. This involves the question of title of the United States to the property in question, and the officer charged with this duty must determine cor- reotly, at his peril, that the occupant is such trespasser. 25 Op. 18. 44. Same. — The above section does not authorize the summary deprivation of a right- ful possession without due process of law; and, except in a few rare instances, mere legislation, or ministerial acts under it, would not be due process. lb. DISTRICT OF COLUMBIA, V, VI. 195 45. Same. — Occupants of lands in the Dis- trict of Columbia who have been in possession thereof for a number of years under claim of title are not required to establish their right in court, and thereby relieve the Government from the burden of first establishing its own title or right to possession, as it must, if these are contested. 76. 46. Same. — The marshal has no discretion in the performance of the duty imposed upon him by the statute, and in so doing has the same right to summon assistance that he has in executing other lawful process. lb. 47 . Unlawful occupation of public grounds — Secretary of the Interior. — Section 1818, Revised Statutes, which directs the. Secretary of the Interior to prevent the unlawful occupation of "the public streets, avenues, squares, or reservations in the city of Washington," is still in force and has not been modified by subsequent legislation, including that portion of the act of April 28, 1902 (32 Stat. 152), amendatory of section 1797, Bevised Statutes, which imposes a similar duty on the Chief of Engineers in regard to "the public buildings and grounds in the District of Columbia. ' ' 25 /Op. 111. 48. The laying of conduits or erection of overhead wires for electric lighting in any park or reservation in the District of Columbia for the purpose of lighting the park or reserva- tion is prohibited under the act of March 3, 1897 (29 Stat. 673), making appropriations for the District of Columbia. 21 Op. 545. 49. The unauthorized stretching of wires across the Iowa Reservation in the District of Columbia is governed by section 1818, Be- vised Statutes, and should be brought to the attention of the Secretary of the Interior. 21 Op. 224. .VI. Water Supply. " 50. Washington Aqueduct. — The act of July 15, 1882 (22 Stat. 168), entitled "An act to increase the water supply of the city of Washington, and for other pur- poses," is operative as- well in the State of Maryland as in the District of Columbia; it may also affect riparian rights and the title to soil in the State of Virginia. 17 Op. 587. 51. Same — Acquisition of land. — The steps to be taken under that act are (1) the survey and preparation of maps for the extension of the aqueduct, for the reservoir, for the land necessary for the dam, including the land now occupied by the dam, and. for the land on which the gatehouse at_ Great Falls stands; (2) the Attorney-General must proceed to ascertain the owners or claimants of the premises embraced in the survey by making a publication describing said lands, with notice that the same" has been taken; (3) the Secretary of War may then take posses- sion of the premise's and proceed with the construction. lb. 52. Same — Work on the project need not be delayed until Congress shall appropriate a sum equal to the assessed value of the land needed. lb. 53. Same. — Proceedings for the condemna- tion of the land for the reservoir can not be commenced in advance of those for the con- demnation of lands for the aqueduct exten- sion and the dam at Great Falls. The statute contemplates but one survey and map, and but one publication, etc. lb. 54. Washington Aqueduct tunnel. — The Secretary of War may extend the time for the completion of the work on the Washington Aqueduct tunnel, under the contract with Beckwith & Quackenbush, in case the work is not completed by the 1st of November, 1888. 19 Op. 192. 55. Same. — The clause in the act of March 30, 1888, namely, "all of said work to be completed by November first, eighteen hun- dred and eighty-eight," is to be understood as directory merely. lb. 56. Same — Construction of contract. — Pro- visions of the contract with Messrs. Beckwith & Quackenbush, entered into on October 29, 1883, for the construction of a tunnel to increase the water supply of Washington, D. C, and of the agreements supplementary thereto, considered with reference to certain inquiries propounded, and advised (19 Op. 287): 57. That should Major Lydecker, or his successor, legally appointed, with the sanc- tion of the Chief of Engineers, annul the con- tract, and give notice thereof to the con- tractors, the right of the latter to make good the defective work may legally be denied; but so long as the contracts remain in full force the contractors have the right, at their own ex- 196 DISTRICT OF COLUMBIA, VI, VII, VIII. pense, within a reasonable time, to make the defective work good. lb. 58. That should the contracts be annulled, as above,, the contractors can not, be legally compelled, thereafter to make the defective work good, but they can be made liable for the actual necessary expenditure which the Government may incur in making it good. lb. 59. That to meet such liability the Govern- ment may retain any money it now has, to which the contractors would have been entitled had the work been good. lb. 60. That the expenditure authorized by the resolution of October 19, 1888, includes expenses attending the inspection of the repairs necessary to protect and preserve the work already done, but not those attending the inspection of other work. lb. VH. land Titles. 61. Correction of records — Title to land in Washington, D. C. — Claimant having fur- nished 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. 23 Op. 21. 62. Potomac River — Title to land — Com- mencement of work. — The provision in the act of August 2, 1882 (22 Stat. 198), making it "the duty of the Attorney-General to ex- amine all claims of the title to the premises to be improved under this appropriation," i. e., the appropriation "for improving the Potomac River in the vicinity of Washing- ton," etc., does not forbid the commence- ment of the work until the Attorney-General shall have performed the said duty. 17 Op. 453. 63. Same. — The existence of certain claims of title to the "Potomac flats" is not an obstacle to the expenditure of the appropriation made by the act of July 5, 1884 (23 Stat. 138). 18 Op. 66. 64. Same.— Title of the United States to certain parts (Sees. II and III, as indicated on a map submitted) of the Potomac Flats im- provement considered, and advised that the prohibition contained in the acts of August 5, 1886 (24 Stat. 335, 336) , against the expenditure of money appropriated for the improvement, does not apply to such parts. 18 Op. 437. Eviction From Public Lands. See Dis- trict of Columbia, 42-46. VIII. District Militia. 65. National Guard. — An employee of an Executive Department absent from his duty while at Omaha, Nebr., at a prize drill, duly ordered thereto by a superior officer of the National Guard of which he was a mem- ber, is entitled to his pay while absent. 20 Op. 437. 66. Same. — Employees of the United States who are members of the National Guard are not entitled to leave of absence from their respective duties without loss of pay or time in order to engage in rifle practice, even al- though in the general orders of the command- ing general of the militia such rifle practice may be called a parade. 20 Op. 669. 67. Same. — Rifle practice is not a parade within the meaning of section 49 of the act of March 1, 1889 (25 Stat. 779). lb. 68. Same. — Section 49 of the act of March 1, 1889 (25 Stat. 779), in regard to leaves of absence of officers and employees of the United States who are members of the Dis- trict of Columbia National Guard, was not repealed or modified by section 5 of the act of March 3, 1893 (27 Stat. 715) . The object of the former was to provide for the public de- fense and that of the latter to regulate leaves of absence for private reasons or purposes. 21 Op. 353. 69. Same. — Leaves of absence of employees of the Government in the discharge of military duties are not to be charged to the thirty days allowed them annually for rest and recrea- tion, lb. 70. The commanding general of the Na- tional Guard of the District of 'Columbia, though accepting a commission and acting as colonel in the Volunteer Army, forlervice in the war with Spain, is still the commanding officer of the District militia, and is anthor- DISTRICT OF COLUMBIA, IX— DRAWBACK. 197 ized, under the act of May 11, 1898 (30 Stat. 404), to nominate candidates for appointment as officers in the naval battalion. 22 Op. 237. IX. Claims against the District of Columbia. 71. Claim of Samuel Strong — Payment of award. — Where a special tribunal of arbitra- tors appointed under a joint resolution of July 10, 1888 (25 Stat. 1248), to arbitrate and settle certain claims of Samuel Strong against the District of Columbia, which reso- lution provided that payment of the award should be made "in the same manner that judgments against the District of Columbia are paid when ordered by the Court of Claims," and where various assignments of the claim were made both before and after the award, and the claimant was enjoined by the Supreme Court of the District from re- ceiving payment of the award; and where the several suits were consolidated and re- ceivers appointed by the court to receive payment of the award, and the claimant also demands payment thereof to him, Held that the Secretary of the Treasury can not properly pay the award either to the re- ceivers or to the claimant, but should hold the fund until the controversy between the claimant and his assignees, now pending in the Supreme Court of the District, shall have been finally determined by a decree. 19 Op. 450. 72. Same — When payment may be made. — It is. only when payment is made under the compulsion of an order of a court of com- petent jurisdiction that the party paying is relieved of liability as to the money paid, and the Secretary of the Treasury is not subject to the jurisdiction of the said court with regard to the fund in question. lb. 73. Same. — The case of George H. Oiddings (16 Op. 367) distinguished from the present case. lb. 74. Same — Settlement. — .Questions arising in settlement of an award made under a joint resolution of Congress approved July 10, 1888 (25 Stat. 1248), to arbitrate and settle certain questions at issue between the District of Columbia and Samuel Strong, relative to the amount of the award, parties to whom pay- able, and rates of interest, considered and answered. 21 Op. 87. Civil Service. See District op Columbia, 20, 22. Insane. See District of Columbia, 34. Naval Battalion. See District of Co- lumbia, 70. Potomac Flats. See District of Columbia, 62-64. Sale of Land, Conveyance. See District of Columbia, 15. Steam Engineers. See District of Colum- bia, 6. Transient Paupers, Medical Treatment of. See Army, 43. Wharves, Licenses for Erection of. See District of Columbia, 5. DOCKERY ACT. (Act of July 31, 1894, 28 Stat. 162.) DOLPHIN, DISPATCH BOAT. See Navy, VII, 194. DOUBLE PENSIONS. See Pensions, 5-7. DRAFT ACT. (Act of Mar. 3, 1863, 12 Stat. 731.) DRAFTSMEN. See Civil Service, IV, a. DRAWBACK. See Customs Law, VI, b. 198 DRAGOON BAERAOKS LOT— EIGHT-HOUR L\W. DRAGOON BARRACKS LOT, ST. AUGUSTINE, TLA. See United States, 88. DRAWBRIDGES. See Navigable Waters, 159, 162-164. DREDGE. See Navigable Waters. II, 62, 63. DRY DOCK. See Contract, II, 84; Eight Hour Law, 24; Navy Department, II, 21. DDE PROCESS OF IAW. See Constitutional Law, 5; Words and Phrases, 66. DUTIABLE VALUE. See Customs Law, IV, a. EADS CONTRACT. See Navigable Waters, II, b. EAGLE. Device on Fire Arms. See Fire Arms. EAST RIVER. See Navigable Waters, 3. EIGHT-HOUR LAW. 1. Construction of. — The opinionsof former Attorneys-General construing the provisions of the act of June 25, 1868 (15 Stat. 72), known as the eight-hour law (sec. 3738, Rev. Stats.), reviewed, and the following conclu- sions deduced therefrom (17 Op. 341) : 2. That the act prescribes the length of time which shall constitute a day's work, but it does not establish any rule by which the compensation for a day's work shall be de- termined, lb. 3. That it does not contemplate a reduction of wages simply because of the reduction there- by made in the length of the day's work; but, on the other hand, it does not require that the same wages shall be paid therefor as are received by those who in similar private employments work a greater length of time per day. lb. 4. That it does not forbid the making of con- tracts for labor, fixing a different length of time for the day's work than that prescribed in the law. lb. 5. That this exposition of the act is in har- mony with the opinion of the Supreme Court in the case of United States v. Martin (94 U. S. 400). lb. 6. The act of June 28, 1868 (15 Stat. 77), embraced in section 8788, Revised Statutes, known as the eight-hour law, prescribes the length of time which shall constitute a day's work for employees of the Government; but it does not establish any rale by which the com- pensation for a day's work shall be determined — this being left to be fixed in the ordinary or customary manner where the law does not otherwise provide. 18 Op. 389. 7. Same. — That act does not contemplate a reduction of wages simply because of the re- duction thereby made in the length of the day's work; but, on the other hand, it does not require that the same wages shall be paid therefor as are received by those who, in similar private employments, work a greater length of time per day. This matter of wages is to be dealt with as pointed out in the preceding paragraph, having due regard to the public interests. lb. 8. Same. — It does not forbid the making of contracts for labor, fixing a different length of time for the day's work than that prescribed in the law. lb. EIGHT-HOUR LAW. 199 9. Same. — The provisions of the act are not applicable to mechanics, workmen, and laborers who are in the employment of a con- tractor of the United States. It was- not in- tended that the act should extend to any others thanthe immediate employees of the Government. lb. 10. Same. — All persons who are employed and paid by the day are included within the act, even though they do not fall within the strict language of "laborers, workmen, and mechanics." lb. 11. Same. — Where there is a special agree- ment between the employer — in this case the Government — and the laborer that the laborer shall work less or more than eight hours a day, and it is reasonable, there is nothing in the statute to prohibit such a contract. lb. 12. Same. — Where the employees under- stood that they were to work nine or ten honrs per day or to be discharged, and continued in employment with that understanding, they must be held to the conditions of a contract both voluntary and reasonable, and they can not now recover as for overtime. lb. 13. Same. — The act is a legislative declara- tion that for the persons described therein eight honrs a day is a reasonable day's labor ; and where the public interests can be sub- served, this should be a guide to officers, both civil and military, in contracting for the public service. lb. 14. The eight-hour law merely prescribes a nnit of measure for a day's labor in the absence of any specific contract. 19 Op. 685. 15. In awarding contracts for supplies for the Government under section 3709, Revised Statutes, no account can be taken of the fact that the contractor's employees work over eight hours a day. lb. 16. The eight-hour law, act of August 1, 1892 (27 Stat. 340), as to laborers and mechan- ics in the direct employ of the Government and of the District of Columbia, is of general ap- plication, and the limitation as to public works in that act applies only to such per- sons as are in the employ of contractors and subcontractors. 20 Op. 459. 17. Same. — Whether or not specified persons are such laborers is a question of fact not for the Attorney-General to determine, lb. 18. The Attorney-General is not author- ized to give his opinion upon the application of the eight-hour law to a proposed contract, where the contractors whose bids have been accepted desire to be advised before signing the con- tract what portion of the work that law will affect, as it is not a question which the Secre- tary of the Treasury is called upon to de- cide. 20 Op. 463. 19. Same. — It is not permissible for the Attorney-General to give an opinion upon the application of the eight-hour law to con- tracts for the construction of levees on the Mississippi River, as that is not a question arising in the administration of one of the Departments. 20 Op. 465. 20. Same. — The Attorney-General declines to express an opinion as to whether certain employees of the Mississippi Commission are "laborers" or "mechanics" within the meaning ,of the act' of August 1, 1892 (27 Stat. 340), for the reason that those words are used in the statute in their ordinary sense, and the determination of that question is, therefore, a matter of administration only, involving the ascertainment of a question of fact, upon which the Attorney-General is not authorized to express an opinion. 20 Op. 487. 21. Same. — The Attorney-General declines to give an opinion as to whether the so-called eight-hour law is applicable to a certain con- tract for public work, for the reason that the contractor and not the Secretary of the Treasury is responsible for a violation of the law. 20 Op. 500. 22. The eight->hour law (act of Aug. 1, 1892, 27 Stat. 340), providing that laborers employed on public works of the United States shall be limited in service to eight hours a day, does not apply to a contract for furnishing materials such as post-office lock boxes, to be used in a Government building. 20 Op. 454. 23. A bid which was formally accepted four days prior to the act of August 1, 1892 (27 Stat. 340), limiting to eight hours daily labor upon public works of the United States, but which left the determination of minor de- tails and the formal execution of the con- tract to a later date, was not a contract within the meaning of section 3 of that act. 20 Op. 445. 24. Same. — A timber dry dock is one of the "public works" of the United States under the eight-hour law of August 1, 1892. lb. 25. Certain employees at the Fort Leaven- worth military prison, some of them desig- 200 EIGHT-HOUR LAW— ELLIS ISLAND. nated "foremen of mechanics," are not "laborers and mechanics" within the eight-hoar law of August 1, 1892 (27 Stat. 340). 21 Op. 32. 26. Panama Canal.— The act of August 1, 1892 (27 Stat. 340), which limits and re- stricts to eight hours the daily service of laborers and mechanics employed by the Government of the United States or by; any contractor or subcontractor upon the •public works of the United States, applies to thee employment of laborers and mechanics in the construction of the Panama Canal. 25 Op. 441. 27. Same. — That act, however, does not apply to the office force of the Isthmian Canal. Commission stationed on the Isthmus of Pan- ama, or to any of the employees of the Gov- ernment who are not within the ordinary meaning of the words ' ' laborers and mechan- ics." lb. 28. Same. — The scope of the act is not lim- ited by the territorial jurisdiction of Con- gress, but is coextensive with the subject- matter to which it was directed, to wit, the eonduct of officers and agents of the United States in respect to the hours of labor of me- chanics and laborers upon all public works of the United States. lb. 29. Same. — Congress may fix the hours of labor upon all the works of the United States, wherever conducted, and make the law bind- ing upon the officers of the United Statesand, through the agency of contracts, upon all contractors with the United States. 30. Panama Railroad. — Thewords "laborers and mechanics" as used in the eight-hour law of August 1, 1892 (27 Stat. 340), apply" to all persons who may fairly come within the de- scription of laborers and mechanics, whether they are paid by the year, by the month, or by the day. 25 Op. 465. 31. Same. — The above-named act does not apply to laborers and mechanics in the employ- ment of the Panama Railroad and Steamship Line, such persons being employed by the corporation and not by the United States. lb. ELECTORAL VOTES. 1. It is the duty of the Secretary of State, under the provisions of section 141, Revised Statutes, as amended by the act of October 19, 1888 (25 Stat. 613), to send a special mes- senger to the district judge holding the cer- tificates of the votes of his State, in each of the four States where the messenger has failed to deliver to the President on the fourth Monday in January, 1893, the package con- taining the certificate of the votes of his State. 20 Op. 522. 2. The expression "whenever a certificate of votes from any State has not been received," as found in the act of October 19, 1888 (25 Stat. 613), should be construed so as to read "whenever any certificate of votes required by law from any State has not been received." lb. ELECTIONS. Special deputy marshals — Compensation, — Where an inspector of customs, while hold- ing that office, rendered service as a special deputy marshal under section 2031, Revised Statutes: Held, that he is prohibited by the third section of the act of June 20, 1874 (18 Stat. 109), from receiving any compensation for such service beyond his salary as inspector of customs. 17 Op. 684. ELECTION LAWS. See Utah. "ELEU," STEAM TUG. Sale of. See Hawaii, 41. ELIGIBILITY. See Civil Service, III, a; Postal Service, II, b, 43. ELLIS, E. JOHN. Contract with Indians. See Indians, V, 128-134. ELLIS ISLAND. See Immigration, VII. EMERGENCY PURCHASES -EVIDENCE. 201 EMERGENCY PURCHASES. See Army, I, g. EMINENT DOMAIN. 1. The Secretary of War has fall authority under the river and harbor act of August 18, 1894, (28 Stat. 359), and the act of April 24, 1888, (25 Stat. 94), to condemn the land neces- sary for the construction of a boat railway pro- vided for in the former act. 21 Op. 221. 2. Same. — If a change in the location of an existing railroad is a necessity in the building of said boat railway, the acquisition by the Secretary of War of the necessary land to make such a change is merely an incident to the enterprise intrusted to him. lb. 3. Philippine insular government — Land re- quired by United States for military posts. — A good title can be acquired by the United States to land in the Philippine Islands required for use as military posts under either section, 1 or 2, of the act of the Philippine Commission of March 5, 1903 (No'. 665), the method pro- vided by section 1 being slightly more cir- cuitous than that provided by section 2, in that it provides for condemnation by the Philippine insular government and subse- quent transfer to the United States. 24 Op. 640. 4. States may acquire land by condemnation for the Federal Government. Decision in the case of Trombley v. Humphrey (23~Mich. 472), held to be erroneous. lb. 5. The Philippine government derives the power of eminent domain from section 63 of the organic act (32 Stat. 706). lb. 6. The Secretary of the Treasury can not by contract bind the Government to exercise its power of eminent domain to enable persons to sell to the Government land which they do not own. 19 Op. 269. Condemnation. See Public Buildings, 2, 11, 14, 19-21; Reservations and Parks, 7, 29; United States, V, 73, 75-80. EMPLOYMENT. Op Counsel. See Department op Agricul- ture, III, 17; Department op Justice, 2; Navy Department, II, 18. Op Troops. See Army, 1-9. Op. Honorably Discharged Soldiers. See Civil Service, V; Department op Com- merce and Labor, III, 26-28. ENGINEER CORPS. -See Navy, IV. ENGINEER'S LICENSE. Alteration op. See Steamboat Inspection Service, 16. ENGRAVING AND PRINTING. See Public Printing, III. ENTRY. See Customs Laws, III, a; Shipping, I, f; Public Lands, I. EQUITY. A bill in equity will not lie against the State of Minnesota for the purpose of vacat- ing a patent issued to that State under the swamp-land grant, on the mere ground that the land thus patented was not in fact swamp land. 19 Op. 684. See also California Debris Commission, 5. ESCHEAT. See United States Naval Asylum at Phil- adelphia. EVICTION. See District op Columbia, 42-47, EVIDENCE. 1. 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 202 EVIDENCE— EXECUTIVE DEPARTMENTS, I. design had not been established; but if re- ceived, the error may be cured by the subse- quent introduction of proof of the conspiracy existing at the time the alleged declarations were made. 22 Op. 589. 2. Testimony tending to show such a rela- tion or understanding between alleged conspir- ators as indicates a purpose to defrand the Government by means of contracts for public works to be given out and carried on under charge of the accused is admissible, even though it relates to matters antedating the time of the particular conspiracy charged, lb. 3. Indictment for smuggling — Proceeding in rem. — 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 Stat- utes, presents a civil liability rather than an offense, and does not require proof of such intent. 23 Op. 64. 4. Citizenship of Chinese. — A certificate of the governor and commander in chief of the colony of Hongkong and its dependencies and vice-admiral of the same, to the effect that he believes a person to be a British subject, is not competent evidence to prove such citi- zenship. 20 Op. 424. See Courts-Martial, III. EXAMINEE. See Customs Law, II, e, 45; Department op EXAMINATION. See Civil Service, III, a, (65, 69, 72), b; Navy, III, b, 125-132. EXCHANGE. Of Gold Bars for Gold Coin, ury Department, 171-173. See Treas- EXCLTTSION. Of Canned and Chopped Meats. See Food Products, 9. Of Chinese. See Chinese, IV, V. EXCLUSIVE JTTEISDICTION. See United States, V; Public Buildings 38^0. EXECUTIVE ACTION. 1. After statute is repealed. — Mistakes, if any, made in the execution of an act which is subsequently repealed, can not be rectified by Executive action after such repeal. 17 Op. 60. 2. No mere omission or failure to provide for contingencies, for which it might have been wise to provide specifically justifies any judi- cial or Executive addition to the language of a statute. 22 Op. 405. EXECUTIVE CLERK. See President, XI, 98. EXECUTIVE COUNCIL. See Porto Rico, 30-33. EXECUTIVE DEPAETMENTS. I. In General, 1-14. II. Officers and Employees. a. Generally, 15-18. b. Heads of Departments, 19-43. c. Clerks and Employees, 44-48. d. Prosecution of Claims by 49-50. III. Rules and Regulations, 51-55. IV. Contracts, 56-70. V. Expenditures, 71-73. VI. Departmental Practice, 74-84. VII. Official Mail, 85. I. In General. 1. What constitutes. — The term " Executive Departments" in the Federal statutes refers only to those Departments specified in section 158, Revised Statutes, to which has since been added the Department of Agriculture. 22 Op. 62. EXECUTIVE DEPARTMENTS, I, II, a. 203 2. Same. — No board, commission, bureau, or office which is not expressly or by implication under the control of one of the Executive Departments can be considered as belonging properly to one of them. lb. 3. Same. — The Civil Service Commission is not attached in any wise to any of the Executive Departments, nor is it subject in any wise to the control of any of the heads of such De- partments, lb. 4. The Civil Service Commission is not an Executive Department within the meaning of section 190, Revised Statutes, respecting the prosecution of claims. 25 Op. 6. 5. Honrs of labor. — Section 7 of the act of March 15, 1898 (30 Stat. 316), requires seven hours of labor each day of clerks and other employees of the several Executive Depart- ments, and does not permit of the allowance of half an hour for luncheon within the seven hours. 22 Op. 62. 6. Same. — "Every Saturday after 12 o'clock noon " is a holiday for all purposes within the District of Columbia, and is therefore one of the " days declared public holidays by law " within the meaning of the statutes regulating the number of hours of labor which must be required of all clerks and employees in the Executive Departments. Consequently, heads of Departments are not obliged to require labor of such clerks, etc., after the hour of noon on Saturdays. 25 Op. 40. 7. Same. — Heads of Departments must require at least seven hours' labor of all their clerks and other employees every day in the year except Sundays and days declared to be holidays by section 1389 of the Code of the District of Columbia, and during authorized leave; and, if the public service requires it, the hours of labor may be extended by special order and may include holidays as well as ordinary days. lb. 8. Printing and binding. — Section 3706, Revised Statutes, which requires all binding for the Executive Departments to be done at the Government Printing Office does not in- clude illustrations and engravings, maps, or charts. 20 Op. 41. 9. Same — Number of copies of Government publications allowed. — The head of an Execu- tive-Department has no right under section 90 of the printing act of January 12, 1895 (28 Stat. 623), to make a requisition upon the Public Printer for a greater number of copies of Government publications, Other than "bills and resolutions," than the number of bureaus in the Department and divisions in the office of the head thereof. 21 Op. 370. 10. Same — Where cost is charged against the printing appropriation of Department. — He has, ' however, the right to make such requisition, provided the cost of printing is to be charged against the printing appropria- tion for his Department, and the Public Printer has no authority to pass upon the character of publications which he may deem essential for carrying out the work of his De- partment, lb. 11. Printing of special reports of bureau chiefs. — Section 89 of the act of January 12, 1895 (28 Stat. 622), authorizes the printing of 2,500 copies of special as well as annual reports of Department bureau chiefB, when such printing is directed by the head of a Department. 25 Op. 377. 12. Official opinions of the Attorney-General should be followed by other Departments. 20 Op. '648. 13. Transfer of land from one Executive Department to another. — The Secretary of the Navy has authority to transfer control of cer- tain land at San Juan, P. R., reserved by Executive order for naval purposes, to the Department of Commerce and Labor, for the extension of the light-house reservation at that place. 25 Op. 269. 14. Supplies furnished by one Department to another — Reimbursement. — Where one De- partment receives from another Department supplies which are within the scope of ap- propriations belonging to each a reimburse- ment of the appropriation of the one from the appropriation of the other, of the cost of such supplies, is not a violation of section 3678, Revised Statutes ; nor do the provisions of section 3618, Revised Statutes, apply to such case. 17 Op. 480. Leaves op Absence. See Leaves of Ab- II. Officers and Employees. a. Generally. 13. Temporary appointments to fill vacan- cies. — Section 180, Revised Statutes, provid- ing that vacancies occasioned by the death or resignation of an officer of an Executive Department must not be temporarily filled 204 EXECUTIVE DEPARTMENTS, II, a, b. for a longer period than ten days, applies as well where they are filled (under sees. 177 or 178, Rev. Stats. ) without action by the President, as where they are filled (under sec. 179, Rev. Stats.) by his authority and direction. 17 Op. 535. 16. Same. — The discretionary power given the President by section 179, Revised Stat- utes, may be exercised after the vacancy has already been supplied under the operation of either of the two preceding, sections ; and in that case the ten days' limitation is to be computed from the date of the President's action. lb. But see 39-13. See also Office and Offi- cers, II. 17. Vacancy — Subordinate filling office tem- porarily. — Where the office of Sixth Auditor became vacant by the death of the incumbent, and the duties thereof devolved by operation of the statute upon the deputy auditor: Ad- vised that the period during which such duties may be discharged by the deputy is limited by statute to ten days. 18 Op. 50. 18. Temporary recess appointments. —The President has the right under the Constitution, and impliedly under section 181, Revised Statutes, to make a temporary appointment, designation, or assignment of one officer to perform the duties of another in the case of a vacancy caused by death, disability, or other- wise, dnring the recess of the Senate, and such temporary appointment, designation, or as- signment is not limited by law to any par- ticular period. 25 Op. 258. b. Heads of Departments. 19. Communications to Congress. — Requests made on heads of Departments by Congres- sional committees, or by either House of Con- gress, for information on matters relating to ordinary and current legislation, may with propriety be answered directly, without pass- ing through the Executive office; otherwise as to communications which concern radical changes in existing laws affecting public policy. 17 Op. 254. 20. Same. — Subordinate officers of, the sev- eral Departments should communicate with Congress through the heads of their Depart- ments, respectively, lb. 21. Act of head of an Executive Department sometimes the act of the President. — Many things may be done by the head of an Execu- tive Department without the actual signature of the President, which, when done, are his acts; but in such case the documents should de- clare it to be the act of the President per- formed by the head of the Department as his representative. 22 Op. 82. 22. Can not allow contractor to withdraw bid after acceptance. — The head of an Execu- tive Department is not at liberty to allow a contractor to withdraw his bid after accept- ance, upon the ground of an error in stating the amount he intended to bid. 17 Op. 70. 23. Same. — A bid or proposal, and its ac- ceptance by an Executive Department, con- stitute an obligation of the same force and effect as if a formal contract had been written out and signed by the parties. lb. See also Contracts, I, b. — Bids. 24. Personal liability. — The head of a De- partment incurs no personal liability by exe- cuting an instrument which should not have been executed if he acts in reliance upon properly chosen subordinates whose ability and good faith he has no reason to question. 20 Op. 573. 25. Cooperation with a contractor in assign- ment of balance due. — The head of a Depart- ment is prohibited by section 3477, Revised Statutes, from cooperating with a contractor having a balance due him in the Treasury in assigning this balance to an outsider before the issuing of a warrant or warrants for pay- ment of the amount proposed to be assigned. 20 Op. 578. 26. It is competent for a head of a Depart- ment to alter the disposition among the various bureaus and offices of his Department, of the clerks allowed by law, as he may find it neces- sary and proper to do, taking care that in no case shall any such clerk be paid from any appropriation made for contingent expenses, or for any specific or general purpose, unless such payment is specifically provided for in the law granting the appropriation. 20 Op. 750. See also Civil Service, II, e. 27. Appointment — Clerks. — The head of a Department has no authority to withdraw his notice to the Civil Service Commission of his revocation of a selection for appointment and appoint the same party previously certified without a further certification from the Com- mission; and this although through a mis- EXECUTIVE DEPARTMENTS, II, b. 205 understanding a wrong has been done the party originally selected. 20 Op. 64. 28. Appointment. — The sole responsibility of every appointment in an Executive Depart- ment rests upon the head of that Department, except where otherwise specially provided by statute. 21 Op. 355. 29. The power of appointment and removal in an Executive Department being discretion- ary in character, they can not be delegated. lb. SO. Sick leave. — Heads of Departments have no authority, in view of section 5 of the act of March 3, 1893 (27 Stat. 675), to grant to clerks and employees sick leave with pay for more than sixty days in any one calendar year. 20 Op. 670. See also Leaves op Absence. 31. There is no limit to the right of the head of a Department to demand service of his subordinates. 20 Op. 728. 32. Opinion of the Attorney-General. — The head of a Department can not require the Attorney-General's opinion as to his powers to do an act unless it is his intention to be guided thereby. lb. 33. Heads of Departments are alone au- thorized under section 3683, Revised Statutes, to give orders for purchases payable from the contingent fund and to approve vouchers therefor. 18 Op. 424. See also Department of the Interior, II, a. 34. Opinion of July 16, 1886 (18 Op. 424), in regard to the power conferred upon heads of Departments by section 3683, Revised Stat- utes, respecting purchases payable from the contingent fund, does not apply to the Assistant Secretary of the Interior while in the exercise of authority prescribed for him by the Secre- tary of the Interior under section 439, Re- vised Statutes. 18 Op. 432. 35. Heads of Departments — Subpoena, ap- pearance, and testimony. — The head of an Ex- ecutive Department is not legally bound, in obedience to a subpoena of a court, to appear in a suit between private parties and testify to facts which have come to his knowledge officially; but he may appear and give such testimony as he shall deem proper. 25 Op. 326. 36. Same. — The head of an Executive De- partment may properly decline to furnish offi- cial records of his Department, or copies thereof, or to give testimony in a cause pend- ing in court between private parties, respect- ing facts which have come to his knowledge officially, whenever in his judgment the pro- duction of such papers or the giving of such testimony might prove prejudicial, for any reason, to the Government or to the public interest. lb. 37. Same. — The head of an Executive De- partment may legally prohibit the chief of a bureau from producing in court any official records of the Department, or certified copies thereof, in obedience to a subpoena duces tecum, and from making or certifying copies of such official records. lb. 38. Same. — The records of Executive De- partments are quasi-confidential in their na- ture, and must be classed as privileged Htm- munications whose production can not be compelled by a court without express au- thority of law. lb. 39. Ad interim appointments — Ten-day limit — Head of a Department. — Under sections 177, 178, 179, and 180, Revised Statutes, the President has power to fill temporarily (by an appointment ad interim, as there pre- scribed) a vacancy occasioned by the death or resignation of the head of a Department, or of the chief of a bureau therein, for a period of ten days only. When the vacancy is thus temporarily filled once for that period, the power conferred by the statute is exhausted. It is not competent to the President to appoint either the same or another officer to thereafter perform the duties of the vacant office for an additional period of ten days. 16 Op. 596. 40. Same.— Sections 177, 178, 179, and 180, Revised Statutes, considered with reference to the power of the President to make ad interim appointments, and opinion of Attor- ney-General Devens (16 Op. 596-7) concurred in. 17 Op. 530. 41. In the case of a vacancy in the office of Secretary of the Treasury, caused by the death of the incumbent: Advised that the duties of the office can not be performed by any other officer, under sections 177, 179, 180, and 181, Revised Statutes, for a longer period than ten days. 18 Op. 58. 42. Where there is a vacancy in the head of a Department, it can not be temporarily filled for a longer period than ten days, either by operation of law or by designation of the President (sec. 180, Rey. Stats. ). 20 Op. 8. 206 EXECUTIVE DEPARTMENTS, II, b, c, d; III. 43. Same. — The view expressed in 17 Op. 535, that twenty days may be taken to fill such vacancy by allowing the statutory occu- pation of the office for ten days, followed by a designation by the President for an addi- tional ten days, is not accepted, lb. See 15-18; see also Office and Officers, 14-22. c. Clerks and Employees. 44. The chief clerk, chiefs of bureaus, and translator in the State Department are all "clerks" within the meaning of section 169, Revised Statutes, and are to be appointed by the Secretary of State. 21 Op. 363. 45. Appointment and removal. — Depart- mental clerks, messengers, and laborers are to be appointed and removed by the head of the Department, when not otherwise provided by statute. This power, being discretionary in character, can not be delegated, but must be exercised by the Secretary or Acting Secretary. 21 Op. 535. 46. Disposition of clerks among the various Bureaus, etc. — It is competent for a head of a Department to alter the disposition among the various bureaus and offices of his Depart- ment of the clerks allowed by law, as he may find it necessary and proper to do, taking care that in no case shall any such clerk be paid from any appropriation made for con- tingent expenses, or for any specific or gen- eral purpose, unless such payment is spe- cifically provided for in the law granting the appropriation. 20 Op. 750. 47. Witness fees. — ADepartment clerkwhen subpoenaed to testify on behalf of the United States has no right to witness fees, but his expenses are allowable. When subpcenaed by a private party he may demand and accept witness fees. 21 Op. 263. 48. An employee of an Executive Depart- ment absent from his duty while at Omaha, Nebr., at a prize drill, duly ordered thereto by a superior officer of the National Guard, of which he was a member, is entitled to his pay while absent. 20 Op. 437. See also Leaves of Absence. d. Prosecution of Claims by. 49. Section 190, Revised Statutes, pro- hibiting employees of any of the Executive Departments from prosecuting certain claims against the Government for two years after the termination of their employment, applies to all claims which were pending in any of the Departments while the employee was in the employ of the Government. 20 Op. 695. 50. That section applies to examiners' of the Department of Justice, being persons re- ceiving regular employment who take oath of office and have power to administer oaths to witnesses, although they hold no office known to the statute law, but are employed and paid under a general appropriation for detection of crimes, etc. 20 Op. 696. See also Civil Service, 43, 44. III. Rules and Regulations. 51. The regulation of commerce and navi- gation being entirely within the control of Congress, there is no authority for an Execu- tive Department to make or enforce rules or regulations relative to the registry of vessels or kindred matters connected with such sub- jects. 22 Op. 566. 52. A regulation made in pursuance of an act of Congress has the force of law. 22 Op. 568. 53. Departmental regulations— Construction of. — The question as to whether or not a citizen of Porto Rico, legally a resident of New York, is eligible for appointment in the Marine-Hos- pital Service under a departmental regulation which requires the applicant to be a citizen of the United States, or, if of foreign birth, to furnish proof of American citizenship, does not involve any question of law within the meaning of section 356, Revised Statutes, and is not, therefore, one properly calling for an opinion of the Attorney-General. The require- ment not being demanded by law, its inter- pretation may properly be left to the depart- ment or bureau responsible for its existence and execution. 18 Op. 521; 20 Op. 649; 21 Op. 255, followed. 25 Op. 183. 54. Departmental regulation — Delegation of legislative authority. — The order of the De- partment of Agriculture of April 26, 1904, prohibiting the importation of hay and straw from continental Europe as a means of pre- venting the introduction of foot-and-mouth disease among cattle in the United States, is a regulation of commerce with foreign nations and an exercise of legislative power, and therefore void. 25 Op. 249. EXECUTIVE DEPARTMENTS, III, IV. 207 85. Same.— The act of February 2, 1903 (32 Stat. 791), merely authorizes the Secre- tary of Agriculture to make such regulations and take such measures as are administrative in their nature for the enforcement of the purposes of that law. lb. See also Statutory Construction, 10-24. IV. Contracts. 56. Advertisements. — All purchases and con- tracts for supplies in any of the Departments of the Government must be made by adver- tisement unless immediate delivery is neces- sary. 21 Op. 59. 57. Same. — The first two sentences of sec- tion 3709, Revised Statutes, as amended by the acts of January 27 (28 Stat. 33), and April 21, 1894 (28 Stat. 62), apply to purchases any- where in the United States. The remaining three sentences apply only to purchases in the city of Washington. lb. 58. Same. — The word " miscellaneous," in section2of theact of April 21, 1894 (28 Stat. 62), must be restricted to that class of commodities which must be purchased on a considerable scale and used alike by many or all of the various Departments and Government establishments in the city of Washington. lb. 59. Same. — It is not necessary under ex- isting law for the Secretary of the Treasury to advertise in six newspapers published in the District of Columbia as provided by the act of January 21, 1881 (21 Stat. 317), for proposals for the interior finish of the post-office building in the city of Washington. 21 Op. 595. 60. Same. — The selection of newspapers in which to publish advertisements of this char- acter in the District of Columbia is within the discretion of the head of the'Department. lb. 61. Advertisement for supplies. — In adver- tising for supplies for the various Depart- ments of the Government as provided in section 3709, Revised Statutes, as amended by the act of January 27, 1894 (28 Stat. 33), the advertisement may be issued in the name of all the Departments, for supplies common to all, provided the advertisement contains the quantity of supplies required by each Depart- ment; but contracts for supplies can only be entered into by the appropriate officer of each Department. 25 Op. 607. 62. Payment for advertisements. — Section 853, Revised Statutes, is superseded by the act of June 20, 1878 (20 Stat. 216), as regards the payment for advertisements by the sev- eral Departments of the Government. 19 Op. 159. 63. Bids — Consideration of, after hour ap- pointed. — There is nothing in the acts of Jan- uary 27, 1894 (28 Stat. 33), and April 21, 1894 (28 Stat. 58), amending section 3709 of the Revised Statutes, inconsistent with the legal right of the board of award of the -Department of Agriculture to consider any bid received by them through the mail after the hour of 2 o'clock p. m. 21 Op. 546. 64. Same. — The designation of 2 o'clock p. m. " for the opening of all such proposals in each Department" means only that such proposals shall not be opened before 2 o'clock p. m. lb. 65. Same. — A proposal received after that hour, under circumstances which warranted the belief that it had been prepared and sub- mitted in the light of the proposals submitted by other bidders, which had been already opened and made known, should not be re- ceived or entertained; but a proposal received under conditions which precluded the possi- bility of such unfairness should not be rejected because it happens to be received by the board of award a few minutes after 2 o'clock p.m. lb. For bids and bidders generally, see Con- tracts, lb. 66. Envelopes! — Postmaster-General — Con- tracts for all the Departments. — A question re- garding the construction of section 96 of the act of January 12, 1895 (28 Stat. 624), which provides that "The Postmaster-General shall contract for all envelopes, stamped or other- wise, designed for sale to the public or for use by his own or other Departments, is a gen- eral question, applicable to all the Depart- ments, and is of sufficient importance to war- rant its submission to the Attorney-General for his opinion thereon. 21 Op. 181. 67. Same. — Section 96 of the act of January 12, 1895 (28 Stat. 624), does not apply where an exigency requires an immediate delivery of envelopes to a particular Department and the public Service might be seriously impaired by the necessity of a requisition upon the Postmaster-General, but it does apply to 208 EXECUTIVE DEPARTMENTS, IV, V, VI. those cases in which contracts' are to be made by advertisement. lb. 68. Same. — Where the public exigency re- quires the immediate delivery of the envelopes, they may be purchased, under section 3709, Eevised Statutes, by the head of the Depart- . ment in which the exigency arises. 76. 69. Supplies. — It is unlawful for an Execu- tive Department to make a, contract for sup- plies for a longer term than one year from the time the contract was made. 21 Op. 304. 70. Breach of contract. — Unless authorized by Congress the head of a Department has no power to adjust and pay claims for unliqui- dated damages, even when arising from the breach of a contract, except where such claims are for work and labor done or mate- rials furnished under a contract silent as to price and the amount thereof unliquidated. 22 Op. 437. V. Expenditures. 71. Purchases from contingent fund. — Heads of Departments are alone authorized, under section 3683, Revised Statutes, to give orders for purchases payable from the con- tingent fund and to approve vouchers there- for. 18 Op. 424. 72. Same.— Opinion of July 16, 1886 (18 Op. 424) , in regard to the power conferred upon heads of Departments by section 3683, Revised Statutes, respecting purchases pay- able from the contingent fund, does not apply to the Assistant Secretary of the Interior ■while in the exercise of authority prescribed for him by the Secretary of the Interior under section 439, Revised Statutes. 18 Op. 432. 73. Continuing employment of contractors after appropriation is exhausted. — Executive officers are prohibited by sections 3679, 3732, 3733, and 5503, Revised Statutes, from con- tinuing the employment of the contractors and involving the Government in expendi- tures or liabilities beyond those contemplated by Congress, or authorized by law. 21 Op. 244. VI. Departmental Practice and Construction. 74. Matters passed upon and finally dis- posed of. — No rule of administrative practice is better settled than that when a matter has once been passed upon and finally disposed of by the head of a Department, it should not be disturbed or reopened by his successors, excepting under extraordinary circumstances, such as the discovery of new facts, and the like. 17 Op. 315. 75. Same. — The fact that an application for reexamination of a matter disposed of had been made to and had not been acted upon by the head of the Department by whom the decision was rendered does not withdraw the case from the operation of the rule. lb. 76. When the meaning of a statute is clear it can not be affected by departmental prac- tice. 20 Op. 592. 77. Departmental practice. — In case of am- biguity in a statute, departmental practice may affect its construction, when long con- tinued, uniform, and familiar, but not when merely recent and occasional. 20 Op. 746. 78. A practice of twenty years can not be lightly overturned, and when there is grave doubt as to the proper construction of a statute, the departmental practice is con- trolling. 20 Op. 358. 79. Long settled construction. — When Congress adopts substantially the language of a previous statute, whether from the stat- ute book of the United States or from that of any State, it is presumed to adopt therewith the judicial construction already placed upon the language of the act. The same principle applies in lesser degree to long settled de- partmental construction, 20 Op. 719. 80. Uniform departmental practice should receive great, if not controlling, weight in statutory construction, especially where the statutory language was not modified when incorporated in the Revised Statutes. 21 Op. 349. 81. When an act of Congress has received for ten years a uniform departmental construc- tion, which was known to Congress, and a subsequent act in pari materia is enacted, without change of language, there is a pre- sumption of considerable force that the new language is intended to receive the same construction as the old. 21 Op. 338. 82. The principle of res adjudicata applies to departmental action of a final nature. 20 Op. 280. 83. When departmental practice is not uniform it affords no guide to the construc- tion of the law. 21 Op. 363. EXECUTIVE DEPARTMENTS, VI— EXPOSITIONS AND FAIRS, I. 209 84. The Attorney-General declined to pass upon the original merits of a doubtful question, where the departmental practice had been in accordance with a decision of the Board of General Appraisers. Such practice should not be changed without a decision of the court. 20 Op. 730. VII. Official Mail. 85. Free registration of official mail. — The second proviso of the third section of the act of July 5, 1884 (23 Stat. 158) , which author- izes 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. 23 Op. 316. See also Postal Service, VI and VII. EXECUTORS AND ADMINISTRATORS. A legacy or distributive share, in contem- plation of law, does not pass to an execu- tor or administrator, but passes through them to such person as is entitled. 22 Op. 298. See oho Cuba, 24. EXEMPTIONS. See Customs Law, IV, c. EXHORTO. See Letters Rogatory. EXPORT BILLS OF LADING. See Internal Revenue, 77. EXPORTATION. See Customs Law, III, 1. EXPORTATION BOND. See Internal Revenue, 151-154. EXPOSITIONS AND FAIRS. I. World's Columbian Exposition, 1-29. II. Inventions International Exposition, 30. III. Paris Exposition of 1900,31-32. IV. Tennessee Centennial Exposition, 33. V. World's Industrial and Cotton Centennial Exposition, 34. I. World's Columbian Exposition. 1. Congress has power to impose new condi- tions upon the World's Columbian Exposition, not named in the act of August 5, 1892 (27 Stat. 389), unless said exposition furnish adequate security for the return and payment oftheS570,880appropriatedbytheactofMarch 3, 1893 (27 Stat. 586), and set apart for the expenses of the bureau of awards. 20 Op. 566. 2. Same. — In case the exposition fails to furnish such security, it will be the duty of the Secretary of the Treasury to retain a like amount from the appropriations under the act of August 5, 1892, but not the whole of the unexpended balance of that appropria- tion, lb. 3. Same. — The Secretary of the Treasury can pay out the sum of $570,880, or any part thereof, for the purposes named in that por- tion of the act of 1893 (27 Stat. 586) above referred to. lb. 4. Same.— Even if the exposition should furnish the security and receive the amount of the above appropriation it could not sasume the entire cost of the bureau of awards and thereby relieve itself of the indemnity which it is required to file. lb. 5. Same. — The act of March 3, 1893, is an appropriation of a specific amount of money, 18456—08- -14 210 EXPOSITIONS AND FAIES, I. devoted to certain purposes, and to be de- livered to the World's Columbian Exposition under the conditions named in the act. lb. 6. Same. — The expenses of the bnrean of awards are to be paid out of the 1570,880 ap- propriated in the act of March 3, 1893, and not out of the $2,500,000 provided by the act of August 5, 1892; of which last named sum an amount equal to the $570,880 is to be retained in the Treasury in case of default as to security by the World's Columbian Exposition. lb. 7. The appropriation of the sundry civil act of March 3, 1893 (27 Stat. 586), providing $93,190 for the use of the lady managers of the World's Columbian Exposition, is not in subjection to the proviso in the act of August 5, 1892 (27 Stat. 363), that all expenses of ad- ministration and installation in the Woman's Building shall be paid by the exposition. 20 Op. 594. 8. Commissioners. — Alaska is a Territory within the meaning of sections 2 and 3 of the act of April 25, 1890 (26 Stat. 62), and, as such, is entitled thereunder to be represented by two commissioners in the World's Co- lumbian Commission. 19 Op. 700. 9. The President is authorized under the act of April 25,1890 (26 Stat. 62j, to appoint commissioners of the World's Columbian Ex- position from such Territories only as are organ- ized and have a political status under the acts of Congress. The Indian Territory is not such a Territory. 20 Op. 452. 10. The commissioner from New Mexico to the World's Fair of 1893, appointed under the act of April 25, 1890 (26 Stat. 62), may be removed by the concurrent action of the Gov- ernor and the President, although the statutes contain no express provisions therefor. The appointment of a successor to fill the vacancy thus created was legally made. 20 Op. 641. 11. Appropriations contained in the act of August 5, 1892 (27 Stat. 389), for the World's Fair, are still available notwithstanding the fact that the fair is open on Sundays. 20 Op. 623. 12. The branch post-office at the World's Fair of 1893 must be closed on Sunday. Act of April 25, 1890 (26 Stat. 62), section 4 of the act of July 13, 1892 (27 Stat. 148), and the provision in the act of August 5, 1892 (27 Stat. 363), relating to Sundays considered in connection therewith. 20 Op. 598. 13. The detail. of an officer of the Army to . report to the president of the World's Colum- bian Commission, with a view to his assign- ment by the latter to the duties of an engineer in the preparation and construction of build- ings, grounds, etc. , for the Columbian Expo- sition, is within the prohibition of section 1224, Revised Statutes, provided that the performance of such duties require the officer to be separated from his company, regiment, or corps, or interfere with the discharge of his military duties. 19 Op. 600. 14. Same. — Where a. leave of absence is asked by an army officer for the very purpose of enabling him to undertake the employments prohibited by said section, the granting of such leave would be an evasion of the statute and be unwarranted. lb. 15. The Secretary of the Navy has authority to detail men from the Marine Corps to guard and protect property of the Government placed on exhibition at the World's Columbian Ex- position. 20 Op. 576. 16. Same. — The cost of transportation and sustenance of such detail must be paid from the fund provided for the Marine Corps and its subsistence, and is only limited by the consideration of the question whether there are sufficient' funds available for that purpose, as to which the Secretary of the Navy is the sole judge. 76. 17. The Navy Department is authorized to pay for the actual subsistence of the enlisted men of the Navy employed in taking care of and preserving the stores and other Government property placed on exhibition at the World's Columbian Exposition under the supervision of the Navy Department and in pursuance of law. 20 Op. 577. 18. Same. — The expenses necessarily accru- ing out of the transportation and subsistence of the marines detailed for that purpose may be paid from the fund provided for the Marine Corps and its subsistence. lb. 19. Clerks, storekeepers, and other per- sons coming to this country for the sole pur- pose of aiding the exhibitor to take part in the exposition are outside of and not subject to contract-labor laws of the United States. 20 Op. 151. 20. Skilled employees of foreign exhibitors at the World's Columbian Exposition, who come in good faith for the purpose of setting up and operating the machinery of such EXPOSITIONS AND FAIRS, I, II, III, IV. 211 exhibitors, are outside of and not subject to the contract-labor laws of the United States. 20 Op. 89. 21. The power given the President by sec- tion 16 of the act of April 25, 1890 (26 Stat. 64), to "designate additional articles for exhi- bition," is not limited to articles belonging to the Executive Departments and institutions therein mentioned, but extends to such other articles as he may deem fit and proper to be designated; and this power carries with it authority to employ such persons as shall be necessary to properly prepare and care for the articles which may be thus designated. 19 Op. 703. 22. The question of drawbacks upon exhibits of foreign governments at the World's Fair of 1893, is governed by section 11 of the act of April 25, 1890 (26 Stat. 64). 21 Op. 36. 23. The receipt and distribution of medals and diplomas awarded by the World's Colum- bian Commission at Chicago in 1893 are purely ministerial acts. They could there- fore be delegated by the Commission, and they were delegated, so that delivery can be made either to its executive committee or to the board of reference and control. 21 Op. 216. 24. Same. — The Secretary of the Treasury has no power to make distribution to the exhibitors directly. lb. 25. So much of section 3 of the act of August 5, 1892 (27 Stat. 389), as provides for the duplication of medals awarded at the World's Fair at the mints of the United States was repealed by the act of March 3, 1893 (27 Stat. 587). 21 Op. 253. 26. The law authorizing the Seoretary of the Treasury to furnish electrotypes and photographs of the medals of award to exhib- itors at the World's Fair to whom medals have been awarded, and to newspapers and periodicals for publication, carries with it the authority to those to whom such electrotypes and photographs may be furnished to have prints made therefrom without further or more specific authority. 21 Op. 330. 27. Same. — The exhibitors, printers, or pub- lishers have not the right to insert the name of the exhibitor in the blank space which will be used for that purpose on the medal, lb. 28. Same. — After the exhibitors shall have received the medals and diplomas awarded them, the Treasury Department has no fur- ther authority over them, and is not author- ized to say what use shall or shall not be made of them, or to restrict the making or using of facsimiles of them by exhibitors to whom they have been awarded, beyond what is prescribed by the express provisions of the statutes referred to in this opinion. lb. 29. The Secretary of the Treasury is au- thorized to make payment to Mrs. Susan Gale Cooke out of the fund appropriated by the act of March 3, 1891 (26 Stat. 965), for the use of the Board of Lady Managers of the World's Columbian Exposition, for her services as secretary pro tempore of that board. 20 Op. 237. See also Lottery. II. Inventions International Exposition. 30. The President can not appoint an honor- ary commissioner to the "Inventions Interna- tional Exposition" at London, such office not existing by virtue of any law of the United States. 18 Op. 171. III. Paris Exposition of 1900. 31. The commissioner-general of the United States to the Paris Exposition of 1900 has no authority to let a contract for the printing and publication of a catalogue of the United States exhibit, etc., in which the contractor is to re- ceive no money from the United States, but is to derive his compensation therefor from the proceeds of the sale of the catalogue and the insertion of advertisements therein. 22 Op. 388. 32. Same. — Any money that might be de- rived by the commissioner-general through the granting of concessions, or the sale of a catalogue, belongs to the United States and should be turned into the Treasury. lb. IV. Tennessee Centennial Exposition. 33. The Secretary of the Treasury has authority to limit the number of Chinese to be admitted to the United States as participants in the Tennessee Centennial Exposition. 21 Op. 517. 212 EXPOSITIONS AND FAIRS, V— EXTRADITION. V. World's Industrial and Cotton Centennial Exposition. 34. The appropriation made by the act of March 3, 1885 (23 Stat. 512), in aid of the World's Industrial and Cotton Centennial Exposition, held in New Orleans, La., is not applicable to any objects other than those specifically enumerated in the act. 18 Op. 146. Reaffirmed, 18 Op. 153. EXTRA COMPENSATION OK PAT. See Office, VII; United States Attorneys; United States Marshals; United States, II; Army, I, c; II, d, (2); IV. EXTRADITION. 1. The Secretary of State has power under section 5272, Revised Statutes, to review the proceedings in an extradition case certified to him, and this power extends to the review of every question therein presented. 17 Op. 184. 2. Translation of papers containing charges. — In an application by the Government of Mex- ico to a United States commissioner for the extradition of a fugitive under the treaty of December 11, 1861 (12 Stat. 1200), with that country, the. commissioner should decline to proceed with the inquiry until a translation of the papers containing the charges are pro- duced before him ; but in such a case he should so advise that Government and make a lib- eral allowance of time for the production of such translation before returning the papers. 21 Op. 428. 3. Same. — While the treaty does not in terms provide for such translation, yet the proceedings thereunder must accord with the rnles and forms of the tribunals of that juris- diction to which recourse is had; and inas- much as the commissioner is the sole judge of the weight and sufficiency of the evidence upon which extradition is sought, it follows that such evidence must he presented in a lan- guage that is intelligible to him. lb. 4. From Canada — Rearrest and trial on another charge. — 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. 23 Op. 431. 5. Same — Obligatory upon prisoner to invoke treaty provisions. — Underwood, an American citizen, having been extradited from Canada in 1897 on a charge of murder committed in Texas, was tried and acquitted and imme- diately 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. lb. 6. Same — Duty of the Executive. — The ques- tion involved is a legal one and respects the legal rights of the prisoner under the ex- tradition treaty; his remedy, therefore, is a legal one; and, under the circumstances of this case, there are no steps which may appropri- ately be taken by the Executive in order to fulfil the obligations of that treaty. lb. 7. From Mexico — Rearrest and trial on an- other charge. — 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 con- victed 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 Gov- ernment 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. 23 Op. 604. 8. Same. — The primary resort of the de- fendant is to the courts. He may either apply to the Federal courts for a writ of EXTRADITION— FINES, PENALTIES, AND FORFEITURES. 213 habeas corpus, or interpose the alleged irreg- ularity of his arrest as a matter of defense on the trial of his case in the State court. lb. 9. Same — Authority of the Federal Govern- ment. — 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 inter- national obligation, is not decided. lb. 10. Personal effects taken from prisoner at time of his arrest — Surrender of. — Under the usages which govern extraditions, property found upon the person of a criminal at the time of his arrest, if obtained by the commis- sion 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. 23 Op. 535. 11. Same. — The money taken from the per- son of C. W. Fi Neely at the time of his arrest in this country for offenses committed in Cuba, "not having been turned over to the author- ities of that island at the time of his extradi- tion, 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. lb. 12. Same. — 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. lb. 13. Deserters from German vessels. — The question as to whether deserters or alleged deserters from German ships of war or mer- chant vessels must, under article 14 of the con- sular convention of 1S71 between the United States and Germany (17 Stat. 929 ) , be given up without the examination authorized by sec- tion 5280, Revised Statutes, upon the written request of a German consul, and the filing of certain papers named in that article, should be submitted to the proper court for a judicial determination. 25 Op. 77. "FAVORITE" (Vessel}. See Claims, II, 80. FEES. See United States Attorneys; United States Marshals, 4; Shipping, III, 78-79; Cus- toms Law, III, 64, and VI, 382; Coubts- Maetial, 21, 22; Diplomatic and Con- sular Officers, 19-25; Pensions, 16-18; Revenue Marine, 21; Shipping Commis- sioners, 2, 3. FERRYBOATS. See Steamboat-Inspection Service, 4, 6, 7. FALSE LABELING. See Food Products. FINES, PENALTIES, AND FORFEITURES. 1. There is a clear distinction between the compromise of a doubtful case and the remission of a penalty, forfeiture, or disability. The former is strictly a fiscal one, while the latter is in the nature of a pardoning power. 21 Op. 264. 2. Mitigation before trial — Timber depre- dation. — The Secretary of the Navy has power under section 4751, Revised Statutes, to mitigate, before trial and conviction of the offender, any fine, penalty; or forfeiture in- curred under the provisions of the statutes therein referred to, which relate to timber depredations. 17 Op. 282. 3. Same. — Where proceedings are already commenced, it is the duty of the prosecuting officer, upon receipt of the order of mitiga- tion, and on the terms and conditions thereof being complied with, to carry it into effect by discontinuing the proceedings. lb. 4. Same. — The word "incurred" as em- ployed in section 4751, Revised Statutes, denotes a condition of liability to the penalty and forfeiture; the meaning of the clause "all penalties and forfeitures incurred" being the same as if it read "all penalties and forfeitures to which any person has be- come liable under the provisions,'' etc. The penalty or forfeiture is "incurred" in the sense in which that word is used in the first 214 FINES, PENALTIES, AND FORFEITURES— FIREARMS. clause of that section before any proceedings for the recovery thereof have been com- menced, lb. (283,284.) 5. Masters of vessels become liable to a fine of $5 for each passenger, other than a cabin passenger, carried in violation of section 2 of the act of August 2, 1882 (22 Stat. 189), which provides that there shall not be in any compartment or space on a vessel occu- pied by "such passengers" (immigrant pas- sengers) more than two tiers of berths, nor more than one person in a berth not double. 22 Op. 499. 6. Refund — Protest.— Section 26 of the shipping act of June 26, 1884 (23 Stat. 59), dqes not require that a protest shall have accompanied the payment of a fine, etc., a refunding of which by the Secretary of the Treasury is asked. 18 Op. 63. 7. Section 5294, Revised Statutes, as amend- ed by the act of December 15, 1894 (28 Stat. 595), applies to fines and penalties only, and does not authorize the Secretary of the Treasury to remit a forfeiture. 21 Op. 291. 8. Counterfeit coin — Return of bullion there- in contained. — 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 was taken the counterfeit or the value of the bullion it contained. 23 Op. 458. 9. Same — Duty of Treasury Department. — 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, lb. 10. Same — Due process of law. — Such seiz- ure and forfeiture is not a taking of property without due process of law within the mean- ing of the Fifth Amendment to the Constitu- tion. Counterfeit coin is neither property nor the subject of property; it is the product of a felonious act, and outside the law. lb. 11. Same. — The due process of law re- quired by that amendment was never de- signed to apply to such rights as a person unlawfully in possession of counterfeit coin may hf fe in it, but was intended for the protection of substantial rights in lawful property: lb. 12. Remission — Prize of war — The Presi- dent's authority. — The President has author- ity to grant remission of forfeiture in cases of prizes of war after the vessels have been con- demned, but before the prize money has been deposited in the Treasury of the United States. 23 Op. 360. 13. Same — His jurisdiction. — His jurisdic- tion in these matters rests upon his pardon- ing power, as defined in section 2, Article II, of the Constitution. lb. 14. Same. — Congress can not abridge, mod- ify, or condition the exercise of this power. It is coextensive with the punishing power and extends to cases of penalties and for- feitures, with a limitation that a fine or penalty may not be remitted if the money has been paid into the Treasury. lb. 15. Regulations for the forfeiture or destruc- tion of imported prohibited articles may be so framed as to provide due process of law. 22 Op. 29. 16. The violation of the provisions of a statute that subject a person to a penalty, whether a forfeiture or otherwise, must be something more than an accidental or unwitting violation. 22 Op. 390. 17. When property is of trifling value, and its destruction is necessary to effect the object of a valid law, it is within the power of the legislature to order its summary destruction without obtaining a forfeiture by judicial proceedings. 22 Op. 70. See Customs Law, IX: Treasury Depart- ment, 34-43, 182-184; Shipping, III, a; Internal Revenue, IV, 138-143; Depart- ment of Commerce and Labor, II, 17-19; Seal Fisheries, 1-3. FIREARMS. The United States, having first appropri- ated the device of an eagle, with the letters U. S. under it, for the purpose of marking firearms manufactured by the Government, may prevent any private manufacturer using the same device on firearms manufactured by him, and thus falsely representing to the world that his firearms were made by the United States. 19 Op. 361. FISH COMMISSION— FOOD PRODUCTS. 215 FISH COMMISSION. Employee holding office as village constable. — In the case of an employee of the United States Fish Commission, not in the service by appointment, who holds the office of village constable: Advise4 that he may properly exercise the functions of the latter office, pro- vided this does not interfere with the regular and efficient discharge of his employment under the Government. 18 Op. 3. FISHERIES. I 1. The regulation of fisheries in navigable waters within the territorial limits of the sev- eral States, in the absence of Federal treaty, is a subject of State rather than of Federal jurisdiction. 22 Op. 214. 2. Bight to take fish from Lake Champlain. — The waters of Lake Champlain, within the limits of the United States, being partly in New York and partly in Vermont, the right to take fish therefrom depends solely upon the laws of the one or of the other of those States, according as the locus is within the boundaries of the one or of the other. The General Government can afford no relief. 17 Op. 74. See also Seal Fisheries. FLOOD TIDE. See Navigable Waters, 69. FLOYD COUNTY, GA., BONDS. The proposed issue of interest-bearing bonds by the county commissioners of Floyd County, Ga., will not be in conflict with the banking laws of the United States. 21 Op. 70. FON DU LAC INDIAN RESERVATION. Title to Timber Cut Thereon. See Indians, 120-123. FOOD PRODUCTS. 1. False labeling — Act applies to articles imported from foreign countries. — The act of July 1, 1902 (32 Stat. 632), prohibiting the introduction into any State or Territory of any dairy or food product which shall have been falsely labeled or branded as to the State or Territory where grown, applies not only to domestic articles, but also to those imported from foreign countries which are labeled as being of domestic origin. 24 Op. 675. 2. Same. — The Department of Agriculture and the Treasury Department have no jurisdic- tion or power under the act of March 3, 1903 (32 Stat. 1157), to prevent or punish the false labeling or branding of dairy or food prod- ucts after they have passed the custom-house and are delivered to the owner or con- signee, lb. 3. "Birkenwald's Daisy Sugar Corn." — The use of the words "Birkenwald's Daisy Sugar Corn, S. Birkenwald Co., Milwaukee, Wis.," by that company on canned goods produced in another State, is a violation of section 1 of the act of July 1, 1902 (32 Stat. 632), which prohibits the false labeling or branding of dairy or food products. These words clearly imply that the goods referred to were manu- factured or prepared in Wisconsin. 24 Op. 697. 4. Rule of interpretation.— Wherever the natural inference to be drawn from the form or words of a brand or label is contrary to the fact as to the State or Territory in which the article referred to is made, produced, or grown the case would seem to be within the letter and spirit of the above-named act. lb. 5. Omission of place of manufacture — Name of wholesale dealer. — The act of July 1, 1902 (32 Stat. 632) , which prohibits the false label- ing 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 Terri- tory in which they are produced. It pro- vides 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 in- stances 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 216 FOOD PRODUCTS— FOREIGN JUDGMENTS. the label or brand necessarily a representa- tion that he is the manufacturer or producer. 24 Op. 125. 6. Imported food products— False labeling. — Food products produced, manufactured, or put up at Marseille, France, but which are labeled "Bordeaux," are falsely labeled within the meaning of that provision of the act of March 3, 1903 (32 Stat. 1158), which forbids the importation of food products "falsely labeled in any respect in regard to the place of manufacture," and are therefore not entitled to admission into the United States. 25 Op. 142. 7. Same. — The words "place of manufac- ture," as used in that act, do not mean merely the "country of production," but refer to the particular locality or district in which the goods are produced or manufactured. lb. 8. Importations of meats from Germany. — The Secretary of Agriculture is not author- ized under the act of March 3, 1903 (32 Stat. 1157) , to request the Secretary of the Treasury to refuse admission into the United States of certain meats and meat preparations coming from Germany, because of the action of the German Government in prohibiting the im- portation of similar goods into that country. 25 Op. 62. 9. Importationofcannedandchoppedmeats. — The provision in the act of April 23, 1904 (33 Stat. 288), authorizing the Secretary of the Treasury to refuse delivery to the con- signee of any goods which the Secretary of Agriculture finds "are forbidden entry or to be sold, or are restricted in sale in the coun- tries in which they are made or from which they are exported," is not retaliatory in its nature, and does not empower the Secretary of the Treasury to exclude meats brought from countries that refuse entry to, or restrict the sale of, similar meats from the United States. 25 Op. 244. 10. Oleomargarine. — The various simple and compound substances mentioned in sec- tion 2 of the act of August 2, 1886 (24 Stat. 209), known as oleomargarine, must be "made in imitation or semblance of butter, or, when so made, calculated or intended to be sold as butter or for butter," before any of them can be regarded as taxable under that act. 18 Op. 489. FOOT-AND-MOUTH DISEASE. See Executive Departments, 54. FORAKER ACT. (Act of Apr. 12, 1900, 31 Stat. 77. See 24 Op. 65.) FORAGE. See Akmt, 187, 188. FOREIGN-BUILT VESSELS. Registry. See Shipping, I, c. Fees. See Shipping, III, e. FOREIGN CABLES. See Cables. FOREIGN COIN. See Customs Law, 180. FOREIGN CONSUL. See Diplomatic and Consular Officers, 34. FOREIGN JUDGMENTS. 1. Enforcement of.— The adoption by this Government of certain propositions relating to the enforcement of judgments of foreign tribunals in civil and commercial matters, suggested by a resolution adopted at the con- ference held at Milan in 1883 by the Associa- tion for the Reformation and Codification of International Law, would not lead to any im- provement in the existing state of our law FOREIGN JUDGMENTS— FORFEITURES. 217 in respect to the enforcement of such judg- ments. 18 Op. 84. 2. Same. — According to the general cur- rent of American authority, the judgment of a foreign tribunal having jurisdiction of the parties and of the subject-matter of the con- troversy, where no fraud is shown, is recog- nized by the courts of this country as creating an obligation upon which an action can be maintained, and where an action is brought to enforce the obligation thus created such judgment is taken to be conclusive upon the merits. lb. 3. Same. — Among the several States of this Union the same doctrine applies to judg- ments rendered by the courts of sister States, so that these judgments practically stand on no higher or different footing than the judg- ments of foreign courts. lb. 4. Same. — The prevailing doctrine, both as regards State judgments and judgments of foreign countries, is believed to be as liberal as the interests of justice require. lb. 5. Same. — Under the law as it now exists it is a good defense to such an action that the judgment was obtained by the fraud of the party seeking to enforce it ; and, moreover, no court will lend its aid to enforce a judg- ment opposed to good morals or to the public law of the State. 26. 6. Same. — The mode of enforcing a foreign judgment (and the same mode exists among the several States of the Union with respect to the judgments of other States) is by the institution of a suit thereon; and a judgment obtained in the suit thus instituted has the same vigor and effect as other domestic judgments, and is executed in the same way. The foreign judgment has no effect of itself, other than to create an obligation upon which an action may be brought, or to con- stitute an exceptio rei judicatse available in de- fense of an action. lb. FOREIGN LAWS. 1. The laws of a foreign country are not known to the Attorney-General, but are facts to be proved by competent evidence. 21 Op. 80. 2. The existence of a foreign law is a question oMact. 21 Op. 377. FOREIGN-MADE BAGS. See Customs Law, 198, 199. FOREIGN MAIL SERVICE. See Ocean Mail Service ; Treaties and Con- ventions, IV, 65-73. FOREIGN POSTAGE STAMPS. See Counterfeiting. FOREIGN REPRESENTATIVES. See Diplomatic and Consular Officers, III; Hunting. FOREIGN VESSELS. Registry. See Shipping, I, c. Masters of. See Shipping, II. Fees. See Shipping, III, e. Penal tax — Transportation of Passengers, etc. See Shipping, III, a. FOREIGN TRADE-MARK. See Trade-Marks. FOREIGNER. See Words and Phrases. FOREST RESERVES. See Reservations and Parks, IV; Public Lands, VII, 26-30. FORFEITURES. See Customs Law, IX, c; Fines, Penalties, and Forfeitures; Guam, 4; Recognizance; Public Lands, VIII. 218 FORMER ACQUITTAL— FRANCHISES. FORMER ACQUITTAL. See Customs Law, 403, 404. FORT BRADY. See Reservations and Parks, II. FORT BROWN MILITARY RESERVATION. See Reservations and Parks, II. FORT KEOGH RESERVATION. See Reservations and Parks, II. FORT MISSOULA MILITARY RESERVATION. See Reservations and Parks, II. FORT SELDON, N. MEX. See Reservations and Parks, II. FORT SILL MILITARY RESERVATION. See Reservations and Parks, II. FORT TAYLOR, FLA. 1, The United States can hold possession of the sites of the advanced martello towers, out- works of Fort Taylor, Fla., which were erected during the rebellion, and exclude all intruders therefrom, whether they claim to be owners or not, and no proceedings to oust the United States from such possession are maintainable. 17 Op. 6. But, see United States v. Lee (106 U. S. 196). 2. Advised, that if the title to such land has not been acquired by the Government, but is held by individuals, and it is deemed expedi- ent to permanently retain possession thereof for military purposes, application be made to Congress by the War Department forauthority to acquire the same, instead of forcing the owners to go there for relief. lb. 3. Same. — 17 Opinions 6, concurred in, ex- cept in so far as that opinion held that proceed- ings to oust the United States from possession of the premises were not maintainable. Such pro- ceedings, while not maintainable directly against the United States, may yet be main- tained against the individuals in possession of the premises. 21 Op. 383. 4. Same. — The United States had authority to take possession of and use real estate during the period of the war for war purposes, but had not the authority to divest the title of the owner. They had not the power to retain possession of real estate originally taken for war purposes beyond the period during which the occasion for the taking continued. lb. 5. Same. — The United States having taken possession and still retaining same, such possession can not be surrendered by the officers of the Government without authority from the Secretary of War. lb. 6. Same. — If the United States, being in possession of such real estate, have been forci- bly ejected — even by the lawful owner — such possession is unlawful and should be restored to the United States by a possessory action in the courts. lb. 7. Same. — If the United States have abandoned such real estate and the lawful owner has entered and taken possession, his possession is lawful and should not be disturbed, lb. FORTIFICATIONS. See Armament and Fortifications. FRANCE. See Crimes and Criminals, 4; Customs Law, 475. FRANCHISES. See Concessions; Cuba, 35-36; Porto Rico, 31-33; Philippine Islands, 29-39; Navi- gable Waters, III, a, 119. FRANKING PRIVILEGE— GARLAND COUNTY, ARK. 219 FRENCH SPOLIATION CLAIMS. See. Claims, I, d. FRANKING PRIVILEGE See Postal Service, VI. FRAUD. A fraud committed by one member of a partnership in a transaction which he is con- ducting on behalf of the firm is regarded as a fraud of the firm, whether successful or un- successful, and although it was the purpose of the partner to cheat his own firm as well as the other party. 21 Op. 90. See also Claims, 98; United States, 52. FRAUD ORDERS. See Lottery; Postal Service, 13-15. FRAUDULENT VOUCHER. See Indian Agents, 7, 8. FREE DELIVERY SERVICE. See Civil Service, III, g, 99-101; Postal Service, III, d, 104-109. FREE LIST. See Customs Law, IV, c. FREE REGISTRATION. Official Mail. See Postal Service, VII. FREEDMEN'S HOSPITAL. -See District of Columbia, IV. FREIGHT. Claims for by Bond-Aided Railroads. See Railroads, II. Freight Rates. See Interstate Commerce. FUR SEALS. See Seal Fisheries; Customs Law, IX, d. FURLOUGHS. See Department of Agriculture, 6.7, GALENA, ILL. See Surveyor of Customs. GALVESTON HARBOR. See Navigable Waters, II, c. GAMBLING. See Lottery. GAME. Importation of bodies of game animals. — 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 im- portation, if living, is prohibited by section 2 of said act, and does not prohibit the im- portation of "all dead bodies of any foreign game animals," etc. 23 Op. 213. See also Hunting. GARLAND COUNTY, ARK. Grant of Land to, for Public Building. See Public Lands, VIII. 220 GENERAL APPRAISERS— GOVERNMENT ADVERTISEMENTS. GENERAL APPRAISERS. See Customs Law, X. GENERAL ARBITRATION BOARD. (Provided for by treaty of The Hague.) 1. Members of — Appointment. — The mem- bers of the general arbitration board pro- vided for by the treaty of The Hague, who are to be appointed by the President, are not officers of the United States whose appoint- ments require confirmation by the Senate. 23 Op. 313. 2. Same — Are nofpersons holding office." — 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 be- tween the nations so appointing them. lb. "GENERAL ARMSTRONG" (THE.) See Claims, I, b, 13-28. GENERAL ORDERS. See Army, 238. GENERAL SERVICE MESSENGERS. See Army, I, c, 26. GEOLOGICAL SURVEY. See Department of the Interior, III. f, GERMAN LETTERS ROGATORY. See Letters Rogatory. GERMANY. As to whether a discriminating duty should be imposed under the act of 1894 upon salt imported from Germany, which country imposes a duty in the nature of an internal excise tax on salt exported from the United States. Qusere. 21 Op. 377. See also Treaties, II, d. GETTYSBURG BATTLEFIELD. 1. The appropriation made by the act of March 3, 1887 (24 Stat. 535), "for the erection of monuments or memorial tablets for the pur- pose of marking the position of each of the commands of the regular army engaged at Gettysburg," is not applicable to the purchase of land for the sites of such monuments or tablets. 19 Op. 79. 2. Construction of a trolley railroad over — Injunction to restrain. — The Secretary of War is authorized by the act of March 3, 1893 (27 Stat. 600), and the laws of Pennsylvania of 1889 (pp. 106-108) to take condemnation proceedings to acquire certain land, being a portion of the battlefield of Gettysburg over which a trolley railroad is being constructed, and may apply to the court for an injunction to restrain the operation and construction of said railroad. 20 Op. 628. GIFTS. From a Prince or Foreign State, stitutional Law, 16. See Con- GOLD. Gold Bars Exchanged for Gold Coin. Treasury Department, 171-173. See GOODS IMPORTED FOR THE GOVERNMENT. See Customs Law, XII. GOVERNMENT ADVERTISEMENTS. See Executive Departments, IV. GOVERNMENT CONTRACTS— GREAT FALLS ELECTRIC RY. CO. 221 GOVERNMENT CONTRACTS. Relating to any particular Executive Depart- ment, see that Department. Relating to Executive Departments generally. See Executive Departments, IV. Government contracts generally. See Con- tracts. GOVERNMENT EMPLOYEES. See United States, II; Executive Depart- ments; and the several Executive Depart- ments. GOVERNMENT HOSPITAL FOR THE INSANE. See District of Columbia, IV. GOVERNMENT PRINTING OFFICE. See Public Printing, II. GOVERNMENT PROPERTY. See United States, VL GOVERNMENT TRANSPORTATION. See Railroads, 10-16, 29, 35, 38, 39, 65-70. GOVERNMENTAL REGULATION. Oe Freight Rates. See Interstate Com- merce, 9-15. GRADE. See Army, II, d; Navy, II, d. GREAT BRITAIN. See Claims, II, 80-87; Extradition, 5; Trea- ties, II, e; IV. GREAT FALLS. 1. Dam at Great Falls. — The appropriation by the act of March 2, 1895 (28 Stat. 752), for raising the height of the dam at Great Falls, and for damages on account of flooding of land and other damages, was intended to cover all damages that might result from raising the dam 2J feet higher than had been contemplated under the act of July 15, 1882 (22 Stat. 168). 21 Op. 223. 2. Ownership of the land and water power — Not the dnty of the Attorney-General to inves- tigate and report to the Senate in regard to. — In response to a resolution of the Senate di- recting the Attorney-General to investigate and report to that body who are the owners of the land and water power at the Great Falls of the Potomac River: Advised that any information on the subject found in the records of the Department would be gladly furnished the Senate, but that beyond this, it was submitted, such investigation is not within the duties of the Attorney-General as prescribed by law. 17 Op. 324. GREAT FALLS ELECTRIC RAILWAY COM- PANY. 1. Approval of survey. — The Secretary of War is not authorized, under the provisions of the act of July 29, 1892 (27 Stat. 326), to approve a survey of the Great Falls Electric Railway Company over the lands of the Washington aqueduct, where the inner rail of said railway will be less than the required distance from the point specified in said act. 21 Op. 294. 2. The granting of a revocable license to the Washington and Glen Echo Railway Com- pany to lay a single track on the Aqueduct Reservation near Cabin John Bridge does not conflict with the acts of July 29, 1892 (27 Stat. 326), and June 3, 1896 (29 Stat. 246), authorizing the construction of the Washing- ton and Great Falls Railway and providing that there shall be but one railway parallel to and near the Conduit road, that provision being merely a restriction upon the latter company. 22 Op. 240. 3. The license granting the right to con- struct the road should contain such restrictions 222 GREAT FALLS ELECTRIC RY. CO.— GUANTANAMO NAVAL STATION. or regulations as may be necessary to fix its lo- cation and protect Government property. lb. 4. Long-continued exercise of a power of this kind by the Secretary of War, and the open and notorious use of Government reser- vations by such licensees without legislative objection from Congress or the adoption of any legislative rule on the subject, implies the tacit assent of Congress to this custom. lb. 5. The right to issue such a license can not be maintained upon any gronnd except the benefit to the public interests, and can not be used as a basis for granting, under the guise of a temporary license, a permanent right to maintain a railroad. It confers no contractual right upon the licensee. lb. GREAT KANAWHA RIVER, W. VA. See Navigable Waters, 49. GREAT LAKES. See Navigation, 1, 2. GREAT SIOUX RESERVATION. See Indians, 37. GREECE. See Treaties, 34-36. GUADALUPE HIDALGO. See! Treaties, 40, 42, 45. GUAM. 1. Governor of — Condemnation — Title. — In June, 1900, the military governor of Guam undertook to condemn, by proceedings not in conformity with Spanish law, certain pri- vate property in that island needed for public use, and subsequently, on the 23d of the same month, issued an order declaring abrogated, retroactively from the 3d of that month, all Spanish law concerning the condemnation of property in that island. On July 9, 1900, the owner of the property accepted theamount awarded and gave a receipt therefor. Held that such proceedings and the acceptance of the award thereunder by the owner vested the title to the property in the United States. 25 Op. 59. 2. Same — Power. — The power of the gov- ernor, under instructions dated January 12, 1899, was intended to be plenary, and he had authority to do what the exigencies of mili- tary government required. lb. 3. Same. — The Constitution of the United States has not been extended to Guam. lb. 4. Transportation of cargoes from San Fran- cisco to Guam in British vessels. — Cargoes may be transported from San Francisco to Guam in British vessels without incurring the pen- alty of forfeiture under section 4347, Revised Statutes, as amended by the acts of June 19, 1886 (24 Stat. 79), Februany 15, 1893 (27 Stat. 455), and February 17, 1898 (30 Stat. 248) . 25 Op. 128. 5. Navigation laws not extended to Guam. — Congress has not yet extended the laws' of the United States relating to entry, clearance, and manifests of steamships, and other similar laws, to 'Guam. lb. 6. Title to lot 144, city of Agana. — Under article VIII of the treaty of peace with Spain of 1898, the United States acquired by ces- sion a valid title to lot 144, city of Agana, island of Guam, which at that time belonged to the Spanish Government. 25 Op. 242. 7. The Secretary of the Navy may issue com- missions to the naval officers serving as mili- tary governors of the islands of Guam and Tutuila. 25 Op. 292. GUANTANAMO NAVAL STATION. 1 . Proof of title . — The provisions of section 355, Revised Statutes, are not applicable to the expenditures authorized by the act of March 3, 1903 (32 Stat., 1188), for the erec- tion of necessary improvements on lands at Guantanamo, Cuba, leased by. the United States from the Republic of Cuba for the purposes of a naval station. 25 Op. 160. GUANTANAMO NAVAL STATION— HAWAII. 223 2. Same.- — The advance payments of rental to the Government of Cuba provided for in article 1 qf the agreement of July 2, 1903, may lawfully be made without further proof of title than the certified copies of the deeds conveying the lands to that Government. lb. GUESSES. See Lottery, 13-18. GUITEAU, CHAKLES J. See Reprieve. GUNBOAT. See Navy, VII, 204. GUNS, CARRIAGES, ETC. See Armament and Fortifications, 3, 4. GUNNERS. See Navy, II, d, 89, 90. HALF PAT PENSIONS. See Pensions, 8. HAMILTON-BROOKS CIGAR STAMP. See Internal Revenue, 11, 12. HANDWRITING. See Courts-Martial, 13, 14. HARBORS. See Navigable Waters, II, c, 3; III, c. HEADS OF EXECUTIVE DEPARTMENTS. See Executive Departments, II, b. HAWAII. 1. 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 Gov- ernment of the United States. 22 Op. 574. 2. Same. — 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. lb. 3. Disposal of public lands. — By the reso- lution 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. 22 Op. 627. 4. Same. — All interest of the Republic of Hawaii in public lands at the time the reso- lution of annexation took effect was thereby transferred to the United States, and thence- forth the officials of Hawaii were without power to convey by grant or cession the legal or equitable title of the United States. lb. 5. 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 cere- monies took place formally transferring pos- session, lb. 6. 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 condi- tions entitling such persons or entrymen to a grant have been subsequently performed, such power having been transferred to the United States. lb. 7. Congress having failed to legislate on the subject of public lands for the Hawaiian Islands, the government of Hawaii is not re- invested with its former power of their dis- position, lb. 8. The Hawaiian Republic, as a separate and sovereign power, ceased to exist when the reso- lution of annexation took effect, and it exists as an organized government only for the 224 HAWAII. 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. lb. 9. Public lands of.^The President is au- thorized, under section 91 of the Organic Act of the Territory of Hawaii (31 Stat. 159) , to take such of the public lands of Hawaii as he deems proper for the uses and purposes of the United States. 24 Op. 600. 10. Acquisition of Federal building site in Honolulu. — The Secretary of the Treasury may, if authorized by the President, accept a site for a Federal building in Honolulu acquired in exchange for public land in Hawaii and assume the custody and control thereof, no objection thereto arising under section 3736, Revised Statutes, or other- wise, lb. 11. Admission of Chinese. — The restrictions placed upon the admission to the United States of Chinese persons of the exempt class, and the regulations affecting the departure and return to this country of registered Chinese laborers, are to be held applicable to Chinese persons applying for admission to the Hawaiian Islands or to such persons residing there who may wish to depart with the intention of returning. (Par. 8 of the resolution of July 7, 1898 (30 Stat. 751). 22 Op. 249. 12. The laws of the United States affecting the Hawaiian Islands, as well as the laws of such islands, are to remain generally undis- turbed by reason of the resolution of annexa- tion, until Congress provides a government therefor. lb. 13. Any law of the Hawaiian Islands incon- sistent with the terms of the resolution of annexation is invalid and inapplicable, lb. 14. Return of Chinese.— The Secretary of the Treasury has authority to admit to the Hawaiian Islands such Chinese persons as departed therefrom under regulations of the existing government, allowing them to return, as they are not excluded by the extension to the islands of the law and regulations now operative within the United States. 22 Op. 353. 15. Citizenship of Chinese. — All Chinese persons who on August 12, 1898, were citi- zens 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. 23 Op. 509. 16. Same. — 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." 23 Op. 352. 1 7. American registry — Vessels carrying an Hawaiian registry. — Such naturalized Chinese citizen may take the oath required by sec- tions 4131 and 4142, Revised Statutes, and have his vessel admitted to registry as an American vessel, provided it carried an Hawaiian register on the 12th of August, 898, and was at that time owned bona. fide by a citizen of Hawaii or of the United States. lb. 18. Citizenship of Chinese born or natural- ized in Hawaii. — Under the provisions of sec- tion 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. 23 Op. 345. 19. Same. — The wife and children of such naturalized Chinaman are entitled to enter the territory " by virtue of the citizenship" of the husband and father. lb. 20. Same. — 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. lb. 21. Entrance of Chinese now legally resi- > dent in the United States. — 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). 23 Op. 487. 22. The "further immigration of Chinese" forbidden by the resolution of . annexation is immigration from other countries than the United States. lb. 23. Bight of Chinese to return to United States from Hawaii. — The question of the right of such Chinese persons to return to the HAWAII. 225 United States from the Hawaiian Islands not decided. lb. 24. Certain claims of foreign subjects against Hawaii which accrued prior to annexation and which have been presented to the Depart- ment of State should properly be presented to, considered, and paid by the Hawaiian govern- ment. All such claims should first be received by the Department of State, through diplo- matic channels, and then be transmitted to the government of Hawaii for adjustment. 22 Op. 584. 25. Similar claims of citizens of the United States maybe presented directly to the Hawaiian government, or such other proceedings be taken in court as the municipal laws of Hawaii allow. 26. 26. These and similar questions may be sub- mitted by the Department of State to the Court of Claims for determination, but the Attorney- General cannot consistently advise such refer- ence, lb. 27. 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. 22 Op. 578. 28. The registration laws of Hawaii have been abrogated as a necessary consequence of its annexation to the United States, and an orderof the Executive suspending the issuance of Hawaiian registers would be a legal exercise of power under the resolution of Congress annexing Hawaii, lb. 29. Copyright laws. — The inhabitants of Hawaii, in the absence of affirmative legisla- tion by Congress to that effect, are not entitled to the benefits of the United States copyright laws. 22 Op. 268. 30. Legislature of — Increase of circuit judges. — The power of the Territorial legis- lature 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. 23 Op. 539. 31. Same. — The grant of the power of legis- lation conferred by section 55 of that act, within' the limitation prescribed, confers the power to organize the courts of that Terri- tory, to fix their jurisdiction, and the number of their judges. lb. 32. Same — Not an abdication of power by Congress. — -This grant of power is not an abdi- cation 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. lb. 33. Tonnage tax. — Vessels from Hawaiian ports are still, notwithstanding the annexa- tion of those islands to the United States, vessels from foreign ports, within the meaning of the tonnage-tax law. 22 Op. 150. 34. Same. — The resolution annexing the Hawaiian Islands is intended to have the effect of a treaty of cession merely, whereby those islands become, in a broad sense, subject to American sovereignty. How that sover- eignty will regulate their status with regard to itself and its laws is not thereby intended to be determined. lb. 35. Same. — In that resolution Congress af- firmatively indicated its intent that such laws as our tonnage-tax laws are to remain undisturbed until it shall provide a form of government for such islands, or until the commission shall advise and Congress shall enact legis- lation therefor. lb. 36. When territory is acquired by treaty or conquest, or otherwise, its relation to the na- tion acquiring it depends upon the laws of that nation, unless controlled by the instru- ment of cession. lb. 37. National banks. — 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 permis- sion for the organization of national banks therein. 23 Op. 177. 38. Same. — 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. lb. 39. Honolulu is a Pacfic port of the United States within the meaning of the tariff act of July 24, 1897 (30 Stat. 151, 190), and coalim- ported into the United States, which is after- wards used for fuel on board a vessel pro- pelled by steam plying between the ports of 18456—08- -15 226 HAWAII— HEALTH AND QUAKANTINE. New York and Honolulu and registered under the laws of the United States, is en- titled to drawback under paragraph 415 of that act. 24 Op. 6. 40. Title to Kahauiki Military Reserva- tion. — By the joint resolution of Congress of July 7, 1898 (30 Stat. 750), accepting the ces- sion of the Hawaiian Islands and the transfer to the United States of the ownership of all public lands therein, and by acquiring by purchase from individuals the leases held by them covering the lands comprising the mili- tary reservation of Kahauiki, Oahu Island, the United States acquired complete title to that reservation. 25 Op. 225. 41. Sale of steam tug "Eleu."— The sale of the steam tug Eleu by the superintendent of public works of Hawaii, -which vessel be- came the property of the United States upon the annexation of the Hawaiian Islands in 1898, not having been authorized by Congress as provided in section 91 of the act of April 30, 1900 (31 Stat. 159), is void. 25 Op 522. HAZING. See Naval Academy. HEAD TAX. See Immigration, V. HEALTH AND QUARANTINE. 1. Quarantine is not actus Dei, but an ordi- nary incident of travel, to be contemplated by one undergoing a voyage. 21 Op. 575. 2. Local health officers can not lawfully pre- vent inspectors of customs from landing at quarantine stations in the discharge of their duties; but the latter, while visiting and re- maining at such stations, should observe all reasonable regulations in the interest of pub- lic health. 18 Op. 15. 3. Same — Reasonable quarantine regula- tions. — No local health regulation which denies to inspectors of customs ample oppor- tunities for then and there protecting the public revenue is reasonable. lb. 4. The Surgeon-General of the Marine-Hos- pital Service and the Secretary of the Treasury may, with the approval of the President, make needful and proper quarantine regula- tions, not inconsistent with State laws and reg- ulations. 20 Op. 466. 5. The only limitation on the powers con- ferred upon the Surgeon-General of the Marine- Hospital Service and the Secretary of the Treasury, subject to the approval of the President, to make quarantine regulations with reference to immigration from infected ports is that Federal regulations must not interfere with State laws. It is competent for those officials to prescribe a longer quarantine period, both for persons and cargo, than the State law requires, the regulations carefully providing that the Federal jurisdiction should attach upon the expiration of State action. 20 Op. 468. 6. A proposed quarantine regulation requir- ing the inspection by Federal authorities of State and local maritime quarantines in order to ascertain whether the national quarantine regulations are being complied with, prepared by the Secretary of the Treasury, under theact of February 15, 1893 (27 Stat. 449), is legal and in accordance with that act. 20 Op. 645. 7. In view of the outbreak of cholera in Asia Minor and other places on the continent of Europe, the President has authority to use so much of the unexpended balance of the sum appropriated by the joint resolutions approved September 26 and October 12, 1888 (25 Stat. 954), for quarantine service and the preven- tion of epidemics, as may be necessary in his judgment to keep the various quarantine sta- tions open throughout the fiscal year 1889-90. 19 Op. 398. 8. A quarantine regulation against yellow fever, which provides for an exception in the case of vessels bound for ports of the United States north of the yellow fever danger line, does not constitute a discrimination within the meaning of the quarantine law of Febru- ary 15, 1893 (27 Stat. 449), providing that ' ' all rules and regulations made by the Secre- tary of the Treasury shall operate uniformly and in no manner discriminate against any port or place." 21 Op. 446. 9. The President is authorized by the act of March 27, 1890 (26 Stat. 31), in the event he is satisfied that cholera, yellow fever, smallpox, or plague exists in any State or Ter- HEALTH AND QUARANTINE— HOLIDAYS. 227 ritory or in the District of Columbia, to adopt and enforce such rules and regulations as may be necessary to prevent its spread into another State or Territory or into the District of Columbia, and this notwithstanding the pro- visions of the act of February 15, 1893 (27 Stat. 450). 22 Op. 106. 10. Same. — The general provisions of sec- tion 3 of the act of February 15, 1893, do not repeal or supersede the special provisions of section 1 of the act of March 27, 1890. lb. 11. Alien immigrants pronounced by com- petent authority under the act of March 3, 1891, to be suffering from a loathsome or dan- gerous contagious disease are not entitled to enter the United States. 22 Op. 122. 12. 'Same. — Entrance by land, as well as landing from a vessel, is forbidden by the act. lb. 13. Same. — Transportation companies con- ducting the business of transportation, either by land or by water, are included within the term "person," as used in section 6 of this act, and are accordingly liable to the penalties prescribed therein. lb. 14. Same. — The officers or servants of a cor- poration responsible for or actually engaged in breach of the immigration laws under the act of 1891 are liable to the penalty imposed by section 6, in addition to which the corporation itself is liable for such violations. lb. 15. The Secretary of Agriculture may slaughter such sheep as are adjudged to be in- fected with a contagious disease or exposed to such infection, and in making the compensation provided by section 8 of the act of August 30, 1880 (26 Stat. 414), he is limited to those which were exposed to infection but in which the disease was not manifest. 22 Op. 390. 16. Same. — The language of section 8 of this act, authorizing the slaughter of in- fected animals, is in terms merely permissive and not mandatory. The power conferred is to be exercised or not, and when, and to what extent, according to the discretion of the Secretary of Agriculture; which should be exercised with due regard to its necessity upon the one hand, and for the rights of pri- vate property upon the other. lb. 17. The provision in the act of May 29, 1884 (23 Stat. 31), giving the Commissioner of Agriculture power to expend money in such disinfection and quarantine measures as may be necessary to prevent the spread of pleuro- pneumonia from one State or Territory into another, does not authorize him to purchase animals infected with that disease for the pur- pose of slaughter. 18 Op. 154. 18. Under section 7 of act of August 30, 1890 (26 Stat. 416), the Secretary of Agri- culture may adopt and enforce regulations requiring that food and attendance should be provided to quarantined cattle by the owners. 21 Op. 193. 19. Same. — In cases where an outlay becomes necessary to prevent the loss of quarantined cattle, such outlay may lawfully be made from the appropriation act of March 2, 1895 (28 Stat. 733); and the Secretary of Agricul- ture may hold such, cattle until such expenses are repaid, and sell them upon failure or re- fusal to repay within a reasonable time. lb. 20. Same. — Owners should be advised of the expenditure and of the time within which such expenses must be paid. lb. See also Executive Departments, 54, 55. HIGH SEAS. Jurisdiction op Offenses Committed on. See Treaties, IV. HOLDING MORE THAN ONE OFFICE. See Office and Officers, V. HOLDING OVER. See Office and Officers, IV. HOLIDAY ADJOURNMENT See Congress, III, 26, 28. HOLIDAYS. 1. Per diem employees at the Washington Navy- Yard on duty April 6, 1899, should be allowed and paid for that day without reduc- tion of compensation for the portion of the day that the navy-yard was closed by Execu- tive order of the President. 22 Op. 472. 228 HOLIDAYS— HUNTING. 2. Navy - Yard employees — Philippine Islands. — The resolutions of January 6, 1885 (23 Stat. 516), and January 23, 1887 (24 Stat. 644), allowing pay to per diem employees "on duty in the United States," for services on certain legal holidays, do not extend to the Philippine Islands. 25 Op. 127. 3. Saturday holiday in the District of Columbia — Hours of labor in Executive Depart- ments. — "Every Saturday after 12 o'clock noon" is a holiday for all purposes within the District of Columbia, and is, therefore, one of the ' ' days declared public holidays by law" within the meaning of the statutes reg- ulating the number of hours of labor which must be required of all clerks and employees inthe Executive Departments. Consequently, heads of Departments are not obliged to require labor of such clerks, etc., after the hour of noon on Saturdays. 25 Op. 40. 4. Same — District Code. — Heads of Depart- ments must require at least seven hours' labor of all their clerks and other employees every day in the year except Sundays and days declared to be holidays by section 1389 of the Code of the District of Columbia, and during authorized leave ; and, if the public service requires it, the hours of labor may be extended by special order and may include holidays as well as ordinary days. lb. HOMESTEAD. Public Lands, II. HONOBABLY DISCHAEOED SOLDIERS. jStee Civil Service, V; Department of Com- merce and Labor, III, 26-28. HOSPITAL POINT LIGHT STATION. 1. The grant to the Government of the site of the Hospital Point Light Station in Massachusettes, which is bounded by a line running to the shore and thence by the shore, etc., does not include the shore. 19 Op. 20. 2. Had the site been bounded in the deed "on or by the sea" instead of "by the shore," the result would have been different. lb. HOT SPRINGS RESERVATION. See Reservations and Parks, 2-4. HOURS 07 LABOR. See Executive Departments, 5-7; Panama, 9-11, 15-16. HOUSE OF REPRESENTATIVES. See Congress, IV. HOUSTON STREET, KNOXVILLE, TENN. Jurisdiction Over. See United States, V. HUDSON HIGHLAND BRIDGE AND RAIL- WAY COMPANY. See Navigable Waters, III, a, 135. HUDSON RIVER. Obstruction to Navigation. See Navigable Waters, III, c, 170. HUMACAO, PORTO RICO. See Cabbas Island. HUNTING. 1 . Hunters' license — Foreign representa- tives — Exemption. — 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 exemption from its payment has been made in favor of the diplomatic or consular representatives of foreign governments residing within the United States. 23 Op. 607. HUNTING— IMMIGRATION, I. 229 2. Prohibition of hunting upon forest re- serves. — The Secretary of the Interior can not, without express authority of law, pre- scribe 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. 23 Op. 589. 3. Same. — 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 In- terior this power. lb. HYDRAULIC MINING. See California Debris Commission. ILLEGAL TEES. Paid to Customs Law, VI, 382. Officers. See Customs ILLINOIS. A statute of Illinois providing that the United States "shall have the right of ex- clusive legislation and concurrent juris- diction" is not a compliance with an act of Congress for the erection of a building at Galesburg, which provides for exclusive jurisdiction save as to the "administration of the criminal laws of said State and the service of civil process therein. ' ' 20 Op. 242. IMMEDIATE TEANSPOBTATION. (Act of June 10, 1S80, 21 Stat. 173.) See Customs Law, III, h, 136, 137. IMMIGRANT FUND. See Porto Rico, 20, 21; Immigration, 27, 91, 92. IMMIGRATION. I. In General, 1-19. II. Officers, etc. a. Secretary of the Treasury, 20-26. b. Superintendent of Immigration, 27. c. Inspectors, 28-29. d. Boards of Immigration, 30. III. Laws and Regulations. a. Contract Labor Laws, 31-42. b. Regulations, 43-44. Immigration Laws, see under the various divisions of the subject Immigration. IV. Exclusion and Deportation, 45-52. V. Head Tax, 53-73. VI. Eines, Penalties and Forfeitures, 74-90. VII. Ellis Island, 91-103. I. In General. 1. Half-breed Indians emigrating to the United States from Canada are not precluded by existing legislation from retaining the bounty of the United States in addition to that of the Dominion of Canada. 18 Op. 423. 2. "Immigration" means the act of im- migrating, and to immigrate is to come into a country of which one is not a native, and in which one has not acquired a residence or domicile. 22 Op. 353. 3. An alien domiciled and residing in the United States who ships on a vessel for a round voyage from a port in this country is an alien resident and not an alien immigrant, within the meaning of the act of March 3, 1893 (27 Stat. 569). 23 Op. 278. 4. Same. — An alien immigrant is one who for the first time enters this country with the intention of making it his home. lb. 5. Same — Returning horsemen — Treasury Circular No. 135, of 1899.— The fact that a steamship company which ships in this coun- try horsemen who intend to return, fails to obtain the certificate required by Treasury Circular No. 135, of 1899, does not preclude the admission of such returned horsemen, of whose fundamental right to enter this coun- try under such circumstances, as resident aliens, the Secretary of the Treasury is as- sured, lb. 6. An alien who has resided in this country without becoming naturalized, and who de- 230 IMMIGRATION, I, II, a. parts with the intention of returning, is not to be deemed an immigrant upon his return, al- though he was an alien immigrant when he first entered the country. 22 Op. 353. 7. Bona fide seamen have always been ex- cepted from the operation of our immigra- tion 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. 23 Op. 521. 8. Same. — Only such seamen are excepted from the class of passengers upon whom the head-money tax is imposed by the act of Au- gust 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 en- try into this country. lb. 9. "An alien seaman" is one who, in pur- suit 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 in it. lb. 10. Deserting seamen — alien immigrants. — 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. lb. 11. Same — Right to detain and examine. — 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 Secre- tary of the Treasury, the execution of the immigration statutes requires it. Hi. 12. Same — Power of the Secretary of the Treasury. — It is within the power of the Sec- retary of the Treasury to make such exam- ination and take such precaution as may be reasonably necessary to prevent an alien im- migrant, whether he be a sailor or not, from entering this country in the sense that all immigrants enter it. lb. 13. Same — Question of good faith. — 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 in- tention 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, lb. 14. The list of immigrants required by section 1 of the act of March 3, 1893 (27 Stat. 569), should be made by masters of vessels before departure from a foreign country. 22 Op. 460. 15. Under this act the immigrants can not be classed as such according to the parts of the vessel they occupy, as the word "immigrant" undoubtedly embraces persons who may be, and sometimes are, in the cabins. lb. 16. The separation of those who should and who should not be subjected to the examination and listing is a matter of practical administra- tion intended to be regulated by the Secretary of the Treasury. lb. 17. The Secretary of the Treasury is vested with power to make and apply such rules rela- tive to the question of immigration as may be shown from time to time to be necessary and convenient. lb. 18. Immigrant list — Alien residents ship- ping for a round voyage. — 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 mean- ing of that act. 23 Op. 278. 19. Castle Garden business privileges. — The Commissioners of Emigration of the State of New York are not bound under the act of August 3, 1882 (22 Stat. 214), and their contract made by the Secretary of the Treasury agreeably thereto to account for and pay over to the Treas- ury Department moneys received by them for privileges granted. to individuals to transact in Castle Garden certain business with the immi- grants there. 19 Op. 155. II. Officers. a. Secretary of the Treasury. 20. Power of Secretary of the Treasury — Not confined to employment of State agencies. — In carrying out the provisions of the immi- gration act of August 3, 1882 (22 Stat. 214), the Secretary of the Treasury is not restricted IMMIGRATION, II, a, b, c, d; III, a. 231 to the employment of the means and agencies mentioned in sections 2 and 4 of that act, to wit, entering into contracts with State com- missioners, boards, or officers, to take charge of the local affairs of immigration, and to pro- vide for the support and relief of needy immi- grants, etc., but may, in his discretion, have recourse to other appropriate means and agencies. 19 Op. 486. 21. The power vested in the Secretary of the Treasury by section 2 of the act of August 3, 1882 (22 Stat. 214), to contract with commis- sions, boards, or other legal officers of immigra- tion designated by the governor of any State, is withdrawn by the provisions of section 7 of the act of March 3, 1891 (26 Stat. 1085). 20 Op. 69. 22. Same. — In so far as the later act is an amendment of the former the two acts are to be construed together as one act, and one part is to be interpreted by the other. Ib. 23. The Secretary of the Treasury has full authority over the management of immigration affairs and over the proper use and applica- tion of all moneys to be used in such affairs, and especially over all moneys of the immi- grant fund. 20 Op. 380. 24. The separation of immigrants who should and who should not be subjected to the examination and listing is a matter of prac- tical administration intended to be regulated by the Secretary of the Treasury. 22 Op. 460. 25. The Secretary of the Treasury is vested with power to make and apply such rules relative to the question of immigration as may be shown from time to time to be necessary and convenient. Ib. 26. It is within the power of the Secre- tary of the Treasury to detain and examine all seamen of a given vessel if, in his judgment, the execution of the immigration statutes re- quires it, and to 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. 23 Op. 521. Immigrant Fund. See 27, 91, 92. Insane. See 50. Matters Relating to Ellis Island. See VII. Power to Make Rules and Regulations. See 43, 44. Remission of Fines or Penalties. See VI. b. Superintendent of Immigration. 27. The salaries of the Superintendent of Immigration and of his clerical assistants authorized by section 7 of the act of March 3, 1891 (26 Stat. 1085), may be paid by the Sec- retary of the Treasury out of the immigration fund created under section 1 of the act of August 3, 1882 (22 Stat. 214). 20 Op. 69. c. Inspectors. 28. The salaries of the inspectors of immi- gration appointed underthe second paragraph of section 8 of the act of March 3, 1891 (26 Stat. 1085) , may be paid in the discretion of the Secretary of the Treasury out of the immi- grant fund or out of the immigration appro- priation of the sundry civil act of 1891 (26 Stat. 968). 20 Op. 69. 29. Supervising inspector — Special inspect- or. — The Secretary of the Treasury has power to appoint or designate a supervising inspector or special inspector to perform such duties as he shall direct and to serve at such places as will, in the judgment of the Secretary, best promote the administration of the Immigrant- Inspection Service, and such appointee may properly be paid from the immigrant fund. 20 Op. 259. d. Boards of Immigration. 30. It is not the duty of a United States attorney to advise or defend boards of immi- gration; but the Secretary of the Treasury is empowered by the act of August 3, 1882 (22 Stat. 214), to employ, and pay out of the im- migrant fund, counsel for those purposes. 18 Op. 108. III. Laws and Regulations. a. Contract Labor Laws. 31. 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. 23 Op. 381. 32. Same. — The case of the Church of the Holy Trinity v. United States (143 U. S. 457) considered. The proper distinction, founded on this case (ib. 463), is that between manual labor, including the mechanical trades, on the one side, and the professions on the other. Ib. 232 IMMIGRATION, III, a, b; IV. 33. Same. — Alien lacemakers, if not en- titled 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 un- skilled, who have come to this country in order to perform labor or service. lb. 34. Skilled employees of foreign exhibitors at the World's Columbian Exposition, who come in good faith for the purpose of setting up and operating the machinery of such exhibitors, are outside of and not subject to the contract-labor laws of the United States. 20 Op. 89. 35. Clerks, storekeepers, and other persons coming to this country for the sole purpose of aiding the exhibitor to take part in the ex- position are outside of and not subject to contract-labor laws of the United States. 20 Op. 151. 36. Compromise of judgment — Power of the Secretary of the Treasury. — It is doubtful if the power given to the Secretary of the Treasury by section 3469, Revised Statutes, to com- promise "any claim," extends to a judg- ment recovered by the United States against a corporation in a suit for a penalty for vio- lation of the contract-labor law of February 26, 1885 (23 Stat. 332). 19 Op. 345. 37. Same. — Neither section 2 of the act of March 3, 1891 (26 Stat. 1084), nor any other previous law referred to in that section, gives authority to anyone to settle or compromise judgments entered under section 3 of the contract-labor act of February 26, 1885 (23 Stat. 333). 20 Op. 530. 19 Op. 345, adhered to. lb. 38. The transfer of a Chinese crew from one vessel to another within a port of the United States is not a violation of the alien contract- labor laws. 24 Op. 111. 39. The transfer of the Chinese crew of the Danish steamer Arab to the Danish steamer Stanley Dollar, and of a Chinese crew from a vessel of the Pacific Mail Steamship Line to the steamer Siberia, of the same line, in a portof the United States, would not involve a violation of either the Chinese exclusion laws or the alien contract-labor laws. Those laws have no application to seamen who, in good faith, are engaged in navigation, and who are temporarily within a port of the United States for that purpose. 24 Op. 553. 40. Certain natives of the Philippine Islands, not being professional actors, artists, or singers, within section 5 of the contract-labor law of February 26, 1885 (23 Stat. 332), are properly excluded, unless on other grounds they may be regarded as not within the prohibition of the law. 22 Op. 495. 41. Same. — As the claim of these aliens for admission appears meritorious and no possible competition with American labor will be involved, and as they will be returned to their country in due time, there is no con- clusive objection to the Secretary of the Treas- ury exercising his administrative discretion favorably in admitting them. lb. 42. Same. — The law does not necessarily exclude all persons who do not come within its express exceptions if they are not manual laborers, lb. b. Regulations. 43. Regulations for landing of passengers. — Section 3 of the act of August 3, 1882 (22 Stat. 214), known as the immigration act, invests the Secretary of the Treasury with power to make all necessary regulations for carrying out its provisions; and under this power he may, by regulation, forbid the land- ing by the master of any passenger from his vessel until an examination of the passen- gers thereon is had, whether cabin or steer- age. 9 Op. 706. 44. Same. — The Secretary of the Treasury is vested with power to make and apply such rules relative to the question of immigration as may'be shown from time to time to be necessary and convenient. 22 Up. 460. For Immigration laws in general, see under various divisions of the subject Immigra- tion. IV. Exclusion and Deportation. 45. Criminals. — Immigrants who formerly resided temporarily in the United States, but took no steps to become citizens thereof, and returning to Italy were convicted there of crime and served out a sentence and upon their discharged were given passports to the United States, are not exempted from the provisions of sections 2 and 4 of the act of August 3, 1882 (22 Stat. 214), and section 1 of the act of March 3, 1891 (26 Stat. 1084), and should be returned to Italy. 20 Op. 371. 46. Same — Pardon — May land. — Where it appeared that an immigrant from a foreign IMMIGRATION, IV, V. 233 State was convicted of an offense there, sen- tenced to imprisonment, and after having served a portion of his sentence was given an unconditional pardon: Held that section 4 of the act of August 3, 1882 (22 Stat. 214), and section 5 of the act of March 3, 1875 (18 Stat. 477) , do not forbid his landing in the United States. 18 Op. 239. 47. A Chinese person suffering from a dan- gerous contagious disease belongs to one of the classes of aliens which should be excluded from the United States under the provisions of the immigration act of March 3, 1903 (32 Stat. 1213). 24 Op. 706. 48. Section 36 of the act of March 3, 1903 (32 Stat. 1213). — The object of the proviso in section 36 of the above-named act was to pre- vent a misinterpretation of the repealing clause in that section, and to forestall any attempt to secure the admission of Chinese theretofore prohibited, from entering the United States under a claim that this act was intended to contain all provisions regulating the immigration of aliens, and that it expressly repealed the Chinese-exclasion laws. lb. See also VI — Fines, Penalties, and Forfei- tures. 49. Insane. — Provision of section 2 of the act of August 3, 1882 (22 Stat. 214), that if among the passengers of a vessel arriving at one of our ports is found a "convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge," such person shall not be permitted to land, considered; and held not to apply to the case of a lunatic whose father will engage satisfactorily that he will not become a public charge. 18 Op. 500. 50. Same. — -The Secretary of the Treasury is authorized to permit an insane alien immi- grant to land in this country upon receiving a satisfactory bond that the immigrant will not become a public charge and that the country shall be protected against loss by reason of her coming here. (18 Op. 500, followed.) 20 Op. 79. 5 1. Custody pending deportation or appeal. — By the immigration act of March 3, 1891 (26 Stat. 1084), steamship companies are held responsible for the custody of immigrants pro- nounced to belong to the prohibited classes by the Commissioner of Immigration at Ellis Island, and awaiting deportation, or pending proceedings on appeal or habeas corpus. 20 Op. 415. 52. Same. — Shipowners, chargeable, as above stated, with the safe custody of aliens, may detain them at some suitable place off the ship until the time of sailing, provided the permission of inspection officers be first ob- tained in every case. lb. Contract Laborers. See III, a. V. Head Tax. 53. The duty of 50 cents a passenger im- posed by the act of August 3, 1882 (22 Stat. 214) , upon all itinerant persons, not citizens of the United States, coming to our ports in steam or sail vessels from foreign ports, should be collected on each successive return as often as any such person enters one of our ports. 18 Op. 196. 54. Same. — The tax of 50 cents imposed by the act of August 3, 1882 (22 Stat. 214) , is applicable to all passengers, not citizens of the United States, who shall come by steamer or sail vessel from a foreign port to any port within the United States, whether as immi- grants or merely as tourists. 18 Op. 185. 55. The duty imposed by the act of August 3, 1882 (22 Stat. 214), upon passen- gers, other than citizens, coming to any port within the United States, is to be exacted of convicts, lunatics etc., although by the terms of the statute they are not to be permitted to land and are required to be returned to whence they came. 18 Op. 135. 56. Collection of. — The act of August 3, 1882 (22 Stat. 214), known as the immigra- tion act, confers upon the collector of customs, under proper regulations of the Secretary of the Treasury, the power to require the master of a vessel arriving within his collec- tion district from a foreign country to detain all passengers on such vessel until they shall have been examined by the customs officers, for the purpose of determining the amount of head money collectible under that act from the master. 19 Op. 706. 57. Same. — Section 3 of that act invests the Secretary of the Treasury with power to make all necessary regulations for carrying out its provisions; and under this power he 234 IMMIGRATION, V. may, by regulation, forbid the landing by the master of any passenger from his vessel until an examination of all the passengers thereon is had, whether cabin or steerage, lb 58. Same. — Detention of passengers for purposes of quarantine or tax charge is clearly within the power and duty of the master, where it is required of him by law, or by regulation pursuant to law. lb. 59. Same. — Provisions of section 9 of the act of August 2, 1882 (22 Stat. 186), called the passenger act, considered and construed in connection with the same subject. 76. 60. The Secretary of the Treasury is au- thorized, under section 26 of the shipping act of June 26, 1884 (23 Stat. 59), to refund the head tax levied in the case of the steamship Russia under the provisions of the act of August 3, 1882 (22 Stat. 214), or so much thereof as" he may think proper, if, upon in- vestigation, he finds that the same was illegally, improperly, or excessively imposed. 19 Op. 660. 61. Same.— As sections 2932 and 3013 of the Revised Statutes were repealed before the date of the exaction under consideration, it does not appear that any power to refund the money illegally exacted exists, except under section 26 of the act of June 86, 1884 (23 Stat. 59). lb. 62. Same. — Assuming that the money was illegally levied and is unlawfully withheld from the rightful owner, a construction that will do justice may properly be adopted if it can be done in accordance with existing statutes. lb. 63. Same. — Head tax is a lien upon the ves- sel as well as a debt against the owner thereof, and has no relation to the collection of cus- toms duties, lb. 64. Same. — Head tax is not subject to the customs revenue act of June 10, 1890 (26 Stat. 131), any further than it may be affected by the repeals contained in section 29 thereof. Neither section 14 nor section 24 covers or includes this tax. lb. 65. Citizens of the Philippine Islands com- ing to the United States from foreign ports are not required to pay the head tax prescribed by section 1 of the act of March 3, 1903 (32 Stat, 1213). 25 Op. 131. 66. Alien diplomatic officers — Act applies to.— The act of March 3, 1903 (32 Stat. 1213), which requires the payment by transporta- tion companies of a duty of $2 for each and every passenger not a citizen of the United States, or of Canada, Mexico, or Cuba, who shall be brought into the United States by them, applies as well to alien officials coming into the United States on diplomatic missions as to aliens who are private individuals and come here for other purposes. 25 Op. 370. 67. Same — A charge upon transportation companies. — The duty thus imposed is not a tax upon the officials of foreign governments, but is merely a charge imposed upon the transportation company for every passenger brought into the United States by it. lb. 68. Immigration regulations — Head-tax de- posit. — The requirement of Eule 15 of the Immigration Regulations of August 26, 1903, for the enforcement of the act of March 3, 1903 (32 Stat. 1213), requiring a deposit of $2 for each alien passenger arriving at the port of San Francisco on steamers from Sydney, New South Wales, and way ports, seeking admission into the United States and claim- ing to be in transit through the same, is not invalid. 25 Op. 109. 69. Same. — Officers charged with the en- forcement of the above-named regulation must not, however, apply the rule with such strict- ness or harshness as to render the refunding of the sums paid thereunder, in proper cases, impossible or unreasonably difficult of attain- ment, lb. 70. Tax does not apply to persons en route to another country. — The passengers on whom the tax provided by the acts of August 3, 1882 (22 Stat. 214), and August 18, 1894 (28 Stat. 391), is imposed are those who make the United States their place of destination, and not those who touch at our ports en route to some other country. 21 Op. 543. 71. Alien passengers — Transshipped in port of the United States. — The mere transfer from one vessel to another in a port of the United States of alien passengers en route to their destination in a foreign country does not sub- ject such persons to the payment of the "head tax" or duty prescribed by section 1 of the act of August 3, 1882 (22 Stat. 214), as amended by the act of August 18, 1894 (28 Stat. 391). 24 Op. 590. 72. The head tax upon alien passengers brought into ports of Forto Bico should be ac- counted for and credited to the "immigrant fund," as is done with like collections upon IMMIGRATION, V, VI. 235 alien passengers arriving at ports in the United States. 24 Op. 86. 73. Seamen in good faith excepted. — Only such seamen are excepted from the class of passengers upon whom the headmoney 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 in- tention, by reason of their passage, to leave the ship and make entry into this country. 23 Op. 521. VI. Fines, Penalties, and Forfeitures. 74. Remission for violation of immigration laws, not authorized. — The Secretary of the Treasury is not authorized under Title LXVIII, Rev. Stat., to remit a fine or penalty incurred for violation of the alien immigra- tion laws. 20 Op. 705. 75. Section 3292, Revised Statutes, is liable to erroneous construction by reason of defect- ive punctuation. It may be understood to mean " any person who shall have incurred any fine, penalty, or forfeiture, or disability, or" [who'] "may be interested in any vessel or merchandise which has become subject to. any seizure, forfeiture, disability," thus pro- viding for two distinct classes of cases. By reference to the original act (1 Stat. 506) it will be seen by the title that "any person" and "any fine, penalty," etc., is limited to the "certain cases therein mentioned." lb. 76. The case of a fine or penalty incurred for violation of the alien immigration law does not fall within the purview of the statutes embraced under Title LXVIII, Revised Statutes. lb. 77. The fines imposed after a verdict of guilty of the statutory misdemeanor of allow- ing certain foreign pauper immigrants to land after being ordered to detain them are not a claim in favor of the United States within the meaning of section 3469, Revised Statutes, and can not be compromised under that statute. 20 Op. 685. 78. Remission of fines. — 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. 23 Op. 271. 79. Same. — Neither is the power of remis- sion in such cases oonferred by section 5294, Revised Statutes, as amended by the act of March 2, 1896 (30 Stat. 39). lb. 80. Same. — The fact that it might be equit- able 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 lan- guage and application of the law. lb. 81. Contract labor. — To constitute a viola- tion 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. lb. 82. Same — Escape of alien immigrant where due precaution was taken. — 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. lb. 83. Same — Return of deposit not a remission of a fine or penalty. — The Secretary has au- thority 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. lb. 84. Improper manifest — Fine — Collection. — Section 15 of the aet of March 3, 1903 (32 Stat. 1217), and rule 24 of the Immigration Regulations prescribe a penalty of $10 for each alien on board a vessel entering a port of the United States concerning whom the master has either not furnished a list or man- ifest or has furnished one which does not contain the information required by sections 12, 13, and 14 of that act; and a collector of customs has no authority to impose a fine or to collect a sum of less than that amount for each such violation of the statute. 25 Op. 336. 85. Same. — The proper method of enforcing collection of a penalty imposed for a viola- tion of sections 12, 13, and 14 of the act of March 3, 1903, where payment is refused, is by a prosecution for the offense or an action to recover the penalty. lb. 236 IMMIGRATION, VI. VII. 86. Same — Remission. — The Secretary of Commerce and Labor has no authority to remit or to reduce a fine or penalty thus imposed, such power not having been specifically con- ferred by Congress. lb. 87. Transportation companies bringing into the United States aliens afflicted with disease pronounced to be "loathsome or dangerous contagious," are liable to the penalties pre- scribed by section 6 of the act of March 3, 1891 (26 Stat. 1085). 22 Op. 122. 88. Same. — Corporation officers or servants responsible for or actually engaged in such breach of the immigration laws are liable to fine and imprisonment under that act. lb. 89. Same. — A corporation is liable for the acts of its officers, agents, or servants done by ts authority, and for every wrong it commits, or for quasi-criminal acts, and in such case the doctrine of ultra vires has no application. lb. 90. Same. — Transportation companies con- ducting the business of transportation, either by land or water, are included within the term " person," as used in section 6 of said act. lb. VII. Ellis Island. 91. Ellis Island — Expenditure of immigrant fund. — The Secretary of the Treasury is au- thorized to expend from the immigrant fund such money as may be necessary for finish- ing certain contracts and making final pay- ments thereon in connection with putting Ellis Island in condition for use as a receiv- ing station for immigrants. 20 Op. 379. 92. The Secretary of the Treasury has full authority over the management of immigration affairs and over the proper use and application of all moneys to be used in such affairs, and especially over all moneys of the immigrant fund. lb. (380). 93. Annulment of contracts for rentals. — The express stipulation in certain contracts with reference to rentals at Ellis Island that they may be annulled by the Secretary of the Treasury for cause implies some facts or state of facts inducing or justifying an abroga- tion of the contract for the benefit of the United States. 21 Op. 115. 94. Revocable license — Exhibition hall, etc. — The Secretary of the Treasury may grant a license, revocable at his will, to use a por- tion of Ellis Island, an immigrant station, for the purpose of erecting and maintaining an exhibition hall and conducting a land and labor bureau. 21 Op. 473. 95. Secretary has no authority to lease any part of Ellis Island. — The Secretary of theTreas- ury has no power to lease for a term of years, or for any length of time, the property of the Government placed in his charge without express authority of law, and no authority exists under which he can lease any part of Ellis Island. 21 Op. 476. 96. Same. — -He has power under section 9 of the act of March 3, 1893 (27 Stat. 569), to grant exclusive privileges in connection with Ellis Island immigrant station, after public competition, subject to such limitations and conditions as he may prescribe. lb. 97. Same. — There can not strictly be a lease of a use. lb. 98. Ferriage and subsistence contract. — The Secretary of the Treasury is authorized by the act of August 3, 1882 (22 Stat. 214), and sec- tions 7 and 8 of the act of March 3, 1891 (26 Stat. 1085), to contract both as to ferriage to and from Ellis Island, and subsistence of im- migrants and employees, for a reasonable term, subject to the rights of the officers and agents of the Government, to any legislation that Congress may enact, and to such rules and regulations as the Secretary may adopt. The contract may confer the exclusive privi- lege of transportation and the collection of a reasonable compensation therefor. 20 Op. 217. 99. Same. — The inhibition contained in section 3735, Revised Statutes, is not applicable to the contracts under consideration. lb. 100. Termination of the contract. — In the contract for ferry service between Ellis Island immigrant station and the barge office, New York, to continue for three years, and there- after from year to year, until terminated by notice from either party, given sixty days before the end of the original period or any one year thereafter, and in which it was also covenanted that the contract might be an- nulled and terminated at any time by the Secretary of the Treasury for good and suffi- cient cause: Held that the burning of the build- ings on Ellis Island, the removal of the immi- grant station from that place, and the discon- tinuance of the ferry service, supplied a good and sufficient cause for the termination of the IMMIGRATION, VII— INDIAN AGENTS. 237 contract by the Secretary of the Treasury. 21 Op. 585. 101. Same. — What one party to a contract may have personally understood a provision to mean at the time the contract was made can not avail. What both parties understood controls, and that is to be ascertained from the language of the contract itself. lb. 102. Money exchange privilege — Construc- tion of contract.— A stipulation in a contract between the Government and a certain firm granting to the latter the money exchange privilege at the Ellis Island immigrant sta- tion, New York Harbor, which provides that the contractors shall "cash all checks and drafts drawn on banks and banking houses in the city of New York of well- known standing" presented by aliens arriv- ing at that station, can not be construed to refer to domestic drafts only. 25 Op. 133. 103. Same. — The understanding between the officers of the Government and the con- tractors prior to the making of the contract that drafts drawn upon a certain individual need not be cashed, was equivalent to an agreement that his establishment was not of the standing referred to in the stipulation. lb. Chinese Immigration. See Chinese. Compromise. See 36, 37, 77. Custody of Prohibited Classes, 51, 52. Ellis Island. See VII. Employment of Counsel. See 30. Expenditure of Immigrant Fund. See 27, 91, 92. Expenditure, Ellis Island. See 30, 91, 92. Pardon. See 46. Remission. See 74, 75, 78-86. Quarantine. See Health and Quaran- tine. Seamen. See 3, 7-10, 18. See also Aliens; and Citizenship. IMPLIED WARRANTY. See Contracts, 83. IMPORTATIONS. Generally. See Customs Law. By Mail. See Customs Law, 401. For the Government. See Customs Law, XII. Of Meats. See Food Products, 8, 9. Of Crank Shaft, etc., for Disabled For- _ eign Vessel. See Customs Law, 196, 197. On Imported Wheat. See Customs Law, 374-378. Drawback. See Customs Law, VI, b. Importations Prohibited. See Customs Law, VII. IMPRESSMENT. See Claims, 11. IMPRISONMENT. See Claims, III. IMPROPER MANIFEST. Remission of Penalty for. See Immigra- tion, VI, 84. INCOME TAXES. See Internal Revenue, II, i. INCOMPATIBLE SERVICE. See Office, V, 87-89. INDEMNITY. See Cables, 20; Public Lands, VII. INDIAN AGENTS. 1. Use of penalty envelopes. — Indian agents and registers and receivers of land offices are, by virtue of section 29 of the act of March 3, 1879 (20 Stat. 362), entitled to use the penalty envelope for the transmission of official mail matter between themselves and other officers of the United States or between themselves and the Executive Departments, but not for 238 INDIAN AGENTS— INDIAN TERRITORY. the transmission of such matter to private persons. 17 Op. 255. 2. Same. — These officers are not "depart- mental in their character" within the mean- ing of sections 5 and 6 of the act of March 3, 1877 (19 Stat. 335, 336). lb. 3. Same. — When supplied with official postage stamps by the Departments,- they may use them for the transmission of official mail matter as well to private persons as to other officers of the Government. lb. 4. Section 3 of the act of July 5, 1884 (23 Stat. 158), making appropriations for the service of the Post-Office Department, etc., does not grant to Indian agents, or receivers and registers of land offices, the right to free registry of official letters and packets. Such letters and packets are not registered by either a Department, or a Bureau of a Department, within the provisions of that act. 18 Op. 54. 5. May act as deputy marshals. — No statute prohibits a person from acting as an -Indian agent and a deputy marshal at the same time. 20 Op. 494. 6. Same. — The Attorney-General is pre- cluded from answering the question as to whether the appointment of an Indian agent as a deputy marshal is likely to cause any contention or conflict of authority, as that is not a legal question. lb. 7. Where an Indian agent's account con- sists of a receipt roll, not the original paper, but merely the abstract of several vouchers accompanying it, one of which contains but one item that is false that bears no relation to the other items in the account, the penalty of section 8 of the act of July 4, 1884 (23 Op. 97), reaches no further than to take away the agent's right to credit for any part of that item. 20 Op. 561. 8. Where the false item occurs in the printed form entitled "Pay roll of . regular employees," and is signed by twelve persons, each stating opposite his name the kind of work done by him, the receipts thus taken are so many separate and distinct vouchers within the meaning of the proviso of the above section. lb. INDIAN COUNTRY. See Indian Territory; Oklahoma, 3. INDIAN DEPREDATION CLAIMS. See Claims, I, c. INDIAN INSPECTORS. See Indians, XI. INDIAN OFFICE. INDIAN POLICE. See Indians, XI. INDIAN SCHOOLS. See Indians, II, b. INDIAN SUPPLIES. See Indians, IX. INDIAN TERRITORY. 1. Internal-revenue taxes on distilled spirits, fermented liquors, tobacco, etc., pro- duced in the Indian Territory, and special taxes on the manufacture and sale of those articles in that Territory, may lawfully be collected within the same. 18 Op. 66. 2. Where property is seized by the military authorities in the Indian country for violation of the laws relating to the Indians, on or as soon as practicable after report is .made to the United States attorney it should be placed in the custody of the proper civil officers. 18 Op. 544. 3. Same. — The provision of section 3086, Revised Statutes, by which property seized under any law relating to the customs is left in the custody of the collector or principal officer of the customs of the district, is not INDIAN TERRITORY— INDIANA. 239 to be considered as embraced in the pro- ceedings contemplated in section 2125, Re- vised Statutes, so as to permit the military employed in making seizures to retain the custody of the property to abide adjudication. lb. 4. The opinion of May 15, 1889 (19 Op. 306), holding that sections 2139 and 2140, Revised Statutes, are no longer applicable in Oklahoma, and that the sale of spirituous liquors and beer in such Territory is not for- bidden, does not conflict with the collection of the special tax on retail liquor dealers in the Indian country and Alaska under section 3244, Revised Statutes. 21 Op. 25. 5. The establishment of a distillery in the Indian Territory on lands wherein the Indian title is said to be extinct would be in contra- vention of the laws relating generally to the Indian country (sec. 2141, Rev. Stats.), and also of section 8 of the act of March 1, 1895 (28 Stat. 697), which applies specially to the Indian Territory. 22 Op. 232. 6. There is no portion of the Indian Territory wherein the Indian title has become extinct to the extent that it has ceased to be Indian country, or where the prohibition above re- ferred to does not apply. lb. 7. Same. — While the general Indian coun- try ceases to be such upon the extinction of the Indian title, the Territory as organized and defined by meets and bounds and named Indian Territory does not at all cease to be such upon any such contingency. lb. See Oklahoma, 3. 8. United States marshal — Powers. — The marshal appointed under the act of March 1, 1889 (25 Stat. 783), providing for the or- ganization of a court in the Indian Territory, has the same powers in that Territory which a sheriff in Arkansas has in his own county; and his power to appoint deputies is limited only by the necessity of the case. 19 Op. 293. 9. Same — Posse comitatus. — He may call to his assistance, in the execution of the law civilians, but not the military forces of the United States, the use of the latter as a posse comitatus being forbidden by section 15 of the act of June 18, 1878. (20 Stat. 145, 152. ) 16. 10. Same. — It is competentfor the President, under section 5298, Revised Statutes, to direct the military forces to render the marshal such aid as may be necessary to enable him to maintain the peace and enforce the laws of the United States in that Territory. lb. 11. The troops of the United States can not be employed in the Indian Territory for the purpose of assisting in the preservation of peace and the arrest of bandits and outlaws unless they are trespassing upon Indian country, or absconding offenders within the provisions of section 2152, Revised Statutes. 21 Op. 72. 12. Appointment of commissioners. — The United States court for the Indian Territory is not invested with authority to appoint commissioners; and hence the accounts of commissioners thereby appointed, for issuing writs for the arrest of persons charged with offenses, are inadmissible. 19 Op. 443. 13. Same. — Such writs are no protection to the marshal for anything he may do under them, nor is he entitled to compensation for serving them. lb. 14. A National bank can not be lawfully established at Muscogee, a town in the terri- tory of the Creek nation. The effect of cer- tain provisions in the treaties with the Creek Nation of Indians of August 28, 1856, and August 11, 1866, which render inoperative in the Creek territory the various national bank- ing laws, considered. 19 Op. 342. 15. National banks. — In view of the pro- visions of the act of May 2, 1890 (26 Stat. 81), entitled "An act to provide a temporary gov- ernment for the Territory of Oklahoma," etc. , there no longer exists any obstacle to the establishment of national-banking associations in the Indian Territory. 19 Op. 585. 16. The President is not authorized to appoint a commissioner of the World's Colum- bian Exposition from Indian Territory. 20 Op. 452. Courts op. See Indians, VII. INDIAN WAR CLAIMS. See Claims, I, c. INDIANA. Refund of Direct Taxes. See Direct Taxes. 240 INDIANS, I, a, b. INDIANS. I. Generally. a. Status, 1-3. b. Part Blood, 4-11. c. Citizenship or Membership — Inter- marriage, 12-23. d. Removal, 24. II. Reservations and Schools. a. Reservations, 25-48. b. Schools, 49-51. III. Lands. a. Allotment — Patents, 52-62. b. Trespassers, 63-76. c. Claimants, 77-87. d. Sale, Compensation, Distribution of Proceeds, etc., 88-94. e. Lease, 95-104. f. Contracts— Coal Mines, 105. g. Taxation, 106-109. IV. Timber, 110-124. V. Claims, Trust funds. a. Attorneys' fees, 125-140. b. Compensation for sale of lands, 141- 146. c. Payment — Trust Funds, 147-151. d. Assignment, 152. e. Certificates of Indebtedness, 153-158. VI. Laws, 159-165. VII. Courts, 166-168. VIII. Trade Intercourse and Residence among, 169-175. IX. Contracts, 176-182. X. Suits, 183. XI. Indian Inspectors and Police, 184-186. XII. Crimes and Offenses, 187-190. XIII. Immigration, 191-193. XIV. Indian Treaties. I. Generally, a. Status. 1. While Indians are not commonly under- stood to be embraced by laws of Congress, yet they may be and often are, and whether they are or not is a question of intent. 21 Op. 466. 2. An Indian residing in the Indian Terri- tory, who is a member of one of the tribes there, and subject to tribal jurisdiction, is not eligible to appointment as a postmaster, he being incompetent, in contemplation of law, to take the required oath of office. 18 Op. 181. 3. Same. — It is also doubtful if such Indian would be competent to give the required official bond. lb. b. Part Blood. 4. The question whether or not the Sioux half-breed or quarter blood is an Indian within the meaning of the act of March 2, 1889 (25 Stat. 888), is to be determined not by the common law, but by the laws or usages of the tribe. 20 Op. 711. 5. Same. — Such laws or usages are not mat- ters of which judicial notice can be taken, but present questions of fact upon which the Attorney-General can not advise. lb. 6. Same. — Presumptively, a person appar- ently of mixed blood residing upon a reser- vation and claiming to be an Indian is in fact an Indian. lb. Eeaffirmed, as to the meaning of the word "Indians." 20 Op. 742. 7. The presumption is that a person partly of Sioux blood, residing on the reservation and claiming to be an Indian, is in fact an Indian until the contrary is shown. 20 Op. 742. 8. Treaty stipulations are deemed to apply to half-breeds as well as full bloods, unless otherwise therein specially provided. lb. 9. The acceptance of scrip under the Siouz half-breed scrip act of July 17, 1854 (10 Stat. 304), is no estoppel to a claim of being a Sioux Indian. lb. 10. Mrs. Jane P. Waldron — Presumption. — Neither the treaty of Prairie du Chien of July 15, 1830 (7 Stat. 328), nor any of the proceedings thereunder, overthrow the pre- sumption arising from Mrs. Jane E. Wald- ron's race, residence, and claim to. Indian citizenship, and the recognition of said claim by the United States officials before and at the time of the agreement of 1889 (25 Stat. 888). lb. 11. Identification of part-blood Mississippi Choctaw Indians. — Paragraph 41 of the agree- ment of March 21, 1902, between the United States and the Choctaw and Chickasaw tribes of Indians, ratified by act of Congress approved July 1, 1902 (32 Stat. 641), does not authorize the identification of part-blood children of Mississippi Choctaws who are themselves identified solely by reason of full INDIANS, I, b, c. 241 blood. Such children must in some other way, if possible, establish their claims to participate in the benefits arising from the treaty of September 27, 1830 (7 Stat. 333), between the United States and the Choctaw Nation. 24 Op. 689. c. Citizenship — Intermarriage. 12. Citizenship — Intermarriage— Subsequent marriage to white person. — The seventh sec- tion of the Choctaw intermarriage act of November 9, 1875, which provides that citi- zens of the United States intermarrying into the Choctaw -Nation and subsequently, as widow or widower, marrying a white person having no rights of Choctaw citizenship by blood shall lose all rights acquired by the former marriage, is not inconsistent with the Constitution, laws, or treaties of the United States. 19 Op. 109. 13. Same. — That section is valid and bind- ing on all citizens of the Choctaw Nation, but affects only their rights acquired under said act. lb. 14. Same — Divorce. — The fact that a white man was divorced from his Indian wife, upon her petition, is evidence that he parted from her without just provocation, and brings the case within the provision of the Choctaw act of ' October, 1840, declaring that any white man parting from his wife without just provoca- tion shall be deprived of citizenship, lb. 15. Citizenship — Intermarried white — Di- vorce. —Claim of James Bragg to citizenship in the Choctaw Nation of Indians reconsidered; and advised that upon the'record of the case as now made up tending to show that he was divorced from his wife upon his own appli- cation and for good cause, he is entitled to such citizenship. 19 Op. 179. 16. Citizenship — Father a member of tribe, and names upon tribal pay rolls. — W. C. lykins and E. W. W. Lykins, brothers claiming to be members of the confederated tribes of the Kaskaskias, Peorias, Weas, and Piankeshaws, whose father was a member of the Kaskaskias tribe, and whose names appear upon the tribal pay rolls, must be treated by the United States as members of the tribe. 19 Op. 115. 1 17. Intermarried white — Bight of suf- frage. — Article 38 of the treaty of April 28, 1866 (14 Stat. 769), with the Choctaws and Chickasaws, which declares that "every 18456—08 16 white person who, having married a Choctaw or Chickasaw, resides in the said Choctaw or Chickasaw. Nation, etc., is to be deemed a member of said nation," does not confer upon such white person the right of suffrage. 19 Op. 389. 18. Same. — Whether he is entitled to such right must be determined, not by that article alone, but by the provisions of the constitu- tion of the nation in which he may be domi- ciled, and its laws relating to suffrage and elections. lb. 19. Choctaw and Chickasaw citizenship court — Annulment of judgment of citizenship. — The annulment by the Choctaw and Chicka- saw citizenship court of a judgment of the United States court for Indian Territory af- firming a favorable decision of the Commis- sion to the Five Civilized Tribes, upon an application for enrollment as a citizen, as provided in the act of June 10, 1896 (29 Stat. 339), so far deprived the applicant of a favor- able judgment as to devolve upon him the duty of transferring his cause to the citizen- ship court for hearing therein, as provided in section 31 of the act of July 1, 1902 (32 Stat. 641), in order to protect and to pre- serve his claimed rights. 25 Op. 152. 20. Same. — The annulment of such a j udg- ment of the United States court did not re- vive and put into force and effect the judg- ment of the Commission admitting an ap- plicant to citizenship, and an enrollment by the Commission based upon such a theory would be a clear violation of the rights of the Indian nations, lb. 21 . A North Carolina Cherokee Indian who removed into the Cherokee Nation and perma- nently located there subsequent to the date of the act of the Cherokee legislature of 1870 relating to the admission to citizenship in that nation of North Carolina Cherokees, and made proof as in said act is required, and was thereupon admitted to citizenship by the chief justice of the supreme court of the Cherokee Nation under its provisions, thereby became fully invested with the rights, privileges, and immunities of Cherokee citizenship. 19 Op. 229. 22. Same. — The action of the chief justice, under the act, is final, and leaves nothing for review. lb. 23. Same. — The Interior Department is un- der no obligation to respect a later decision of 242 INDIANS, I, c, d; II, a. .the Cherokee authorities made pursuant to the ; order of a commission subsequently established. lb. See also Indians, 10, 59. d. Removal. 24. Cherokee Indians of North Carolina. — In the case of certain Cherokee Indians of North Carolina, who left their homes in that State on the supposition that they would be furnished by the United States with trans- portation to the lands owned by their tribe in the Indian Territory: Advised that there is no authority, under existing legislation to effect the removal of these Indians in the manner supposed, as above. Act of July 29, 1848 (9 Stat. 264), considered. 17 Op. 72. Allottees. See III, a. II. Reservations and Schools. a. Reservations. 25. Construction of dam across Yakima River by irrigation company.— The question as to the right of an irrigation company to construct a dam across the Yakima Eiver, whicn is one of the boundaries of the Yakima Indian Res- ervation, is not one arising in a matter before the Interior Department, as the Secretary has, no authority to settle that question;, it is essentially judicial .in character, and there- fore the Attorney-General has no power to give an opinion thereon. 20 Op. 314. 26. Trespassers — Removal of.— The Com- missioner of Indian Affairs and his subordi- nate, the Indian agent, have full discretion under sections 2118, 2147, and 2149, Revised Statutes, to remove from the Puyallup Indian Reservation, Wash., any person not of the tribe of Indians entitled to remain there; and in so doing, may, by direction of the President, use any military force necessary for the purpose. . 20 Op. 245. 27. .Same. — An order of the State court restraining the Indian agent from so doing is beyond its jurisdiction and void, and should be disregarded. lb. 28. Trespassers on Indian lands. — 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 permis- sion will be granted. 23 Op. 214. 29. Same — Ejectment of trespassers. — Sec- tions 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. lb. 30. Same. — 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 con- ducted without the same; and to remove all cattle which are being pastured on said land without Indian permit or license. lb. 31. Restoration to public domain — Old Win- nebago and Crow Creek reservations. — The con- tiguous tracts of land lying on the east bank of the Missouri River in the Territory of Dakota, known as the Old Winnebago and Crow Creek reservations, are protected by the provisions of the. treaty of April 29, 1868 (15 Stat. 635), with the Sioux Indians ; and the Executive order of February 27, 1885,_ restoring portions of such tracts to the public domain, is in violation of that treaty, and consequently inoperative and void. 1 8 Op. 141. 32. Restoration to public domain where statute not strictly complied with. — Where the statute (act of June 15, 1880, 21 Stat. 199), providing for the sale of T/ncompahgre Ute Indian Reservation lands, bound the United States to give and the Indians to receive in severalty certain other lands in Colorado, if sufficient agricultural land should be found there, and if not, then such other agricultural lands as may be found in that vicinity and in Utah, and said Indians have been located wholly in Utah, additional legislation is re- quired to enable the Secretary of the Interior to treat the former reservation as public land. 17 Op. 366. 33. The President has power to make a reservation for the occupation of Indians, from public domain lying within the limits of a State. 17 Op. 258. 34. Reservation for Indians not born or commorant in the United States. — The power of INDIANS, II, a. 243 the President to set apart a portion of the public domain for the exclusive occupancy of Indians does not include the case of a reservation for Indians not born or commorant in the United States. 18 Op. 557. SS. Where Indians on a reservation made by order of the President are organized tribe's or bands, and placed under the charge of an agent appointed by the Government, the laws applicable to Indian reservations must be re- garded as applicable to them. 18 Op. 563. 86. Sioux Reservation — Sheyenne Island. — At the date of the Sioux treaty of April 29, 1868 (15 Stat. 635), Sheyenne Island was within the Sioux Eeservation, thereby established, the east line of which was the east bank of the Missouri River at low-water mark. The island having since gradually become attached to the mainland on the east bank of the river, so that it is wholly surrounded by water only in seasons when the water is high, the low- water mark is now on the west side of the island instead of the east side as formerly: Held, that the island is still a part of the reser- vation, notwithstanding the abandonment of its former channel on the east side of the same, whether the island now belongs to the reservation being determinable by the line of low-water mark on the east bank of the Missouri, not according to the present course of that river, but according to its coarse at the date of the treaty. 18 Op. 230. 37. Great Sioux Reservation. — The appro- priation made by section 25 of the act of March 2, 1889 (25 Stat. 893) , to be applied and used toward surveying the lands therein described as being opened for settlement, does not become available until acceptance by the different bands of Sioux Indians of the terms of that act as provided in the twenty- eighth section thereof. 19 Op. 467. 38. Same. — That act takes effect when, as matter of fact, the consent of the Indians thereto has been obtained. The proclama- tion issued under the provisions of section 28 of the act is only designed to be a public evidence of such consent. lb. 39. Ute Indian Reservation in Utah — Open- ing—Allotments. — The lands of the TJte Indian Reservation in Utah Territory can not be de- clared open for settlement and disposal, un- der the act of June 15, 1880 (21 Stat. 203), before allotments provided for in that act are made. 17 Op. 262. 40. Same. — If, previousto such allotments, it is thought advisable that any land within the reservation should be opened to settle- ment and disposal, additional legislation will be necessary to enable this to be done. lb. 41. Timber on reservations — Right of In- dians to cut and remove dead and fallen tim- ber.— Indians occupying reservations the title to which is in the United States subject to their occupancy have no right to cut and remove the dead and fallen timber thereon for the purpose of sale alone, such timber, where not used by the Indians for fuel or for agricultural or other purposes connected with the occupation of the land, being the property of the United States. 19 Op. 194. See also Indians, IV. 42. William G. Langford's claim to land — Nez Perces Indian Reservation. — Opinion of Attorney-General Williams, of May 3, 1875 (14 Op. 569), as to the rights of William G. Langford in 640 acres of land within the Nez Perces Indian Reservation in Idaho Territory, reaffirmed; and advised that he has no such possessory interest in such land as would warrant the Interior Department in accepting the compromise proposed. 17 Op. 306. 43. Right to fish. — The Klamath River where it flows through the Klamath Indian Reservation, is a navigable stream, and the public have the right to fish there, and use it in any other way that does not amount to an interruption of, or an interference with, interstate or foreign commerce or navigation, or a violation of some law of the State of California. 19 Op. 35. 44. Same. — It is inexpedient for the Attor- ney-General to express an opinion upon certain questions proposed, relating to a right of fishery in the Klamath River, California, claimed in behalf of the Klamath Indians, such questions being justiciable in the appro- priate courts at the suit of the Indians them- selves who are interested in them. 19 Op. 56. 45. Railroad through Indian Territory — Taking of timber, etc., for its construction.— The Kansas and Arkansas Valley Railway Com- pany has no right under the act of June 1, 1886 (24 Stat. 73), authorizing its construction through the Indian Territory, to go beyond the limits of the right of way therein pre- scribed for the purpose of taking timber or 244 INDIANS, II, a, b; III, a. other materials for the construction of such railroad. 19 Op. 42. 46. Same. — The courts named in section 8 of that act have jurisdiction over controversies between said company and the Cherokee Nation growing out of the taking of timber and other materials by the former beyond said limits. But the right of the Cherokees to go into court does not dimmish in any degree the duty of the Executive Department of the Government to use its power for their pro- tection, lb. 47. Bight of way for railroad. — The Secre- tary of the Interior has authority under the act of May 30, 1888 (25 Stat. 160), granting to the Washington and Idaho Railroad Com- pany a right of way through the Coeur d'Alene Indian Reservation, to permit the construction of a railroad across the reservation prior to the ascertainment, fixing, and payment of the compensation as provided for in section 3 of that act. 19 Op. 199. 48. Same. — By that section three conditions precedent are annexed to the grant, namely: (1) The plats made upon actual survey for the definite location of the road must be filed; (2) those plats must be approved in writing by the Secretary of the Interior; (3) the compensation must be fixed and paid. Un- til all of these conditions are performed no right of any kind respecting the right of way becomes vested in the company. lb. Bed Oase Lake Indian Reservation, Sale op Intoxicating Liquors on. See VIII. b. Schools. 49. Industrial schools — Erection of build- ings. — The appropriation made by the act of May 17, 1882 (22 Stat. 86), "for the purpose of further instructing and civilizing Indian children west of the Mississippi River," etc., is not applicable to the establishment of an industrial school and the erection of build- ings therefor. 17 Op. 647. 50. Superintendents and teachers — Appoint- ment. — The eighth section of the act of June 29, 1888 (25 Stat. 217, 238) , making appro- priations for the current and contingent ex- penses of the Indian Department, etc., had no effect on the then existing appointments of superintendents, teachers, etc., connected with Indian schools wholly supported by the Government. The incumbents -of the vari- ous positions referred to were lawfully in the public service after that act went into oper- ation, and are legally entitled to be paid for their services during such period. 19 Op. 252. 51. The proceeds of sales of articles manu- factured in Indian manual and training schools should not be turned into the Treas- ury, but be received by the Indian Bureau and used for the benefit of the Indian chil- dren in the schools. 17 Op. 531. III. Lands, a. Allotment— Patents. 52. The allotments of land to Indians pro- vided for by the act of February 8, 1887 (24 Stat. 388), should, under the requirements of the third section of that act, be made jointly by an agent specially appointed for that pur- pose and the agent in charge of the reserva- tion. 19 Op. 14. 53. Surveys of allotment lands — Appropria- tion for, — By the ninth section of the act of February 8, 1887 (24 Stat. 391), an appro- priation is made "for the purpose of making the surveys and resurveys mentioned in sec- tion two ' ' of that act. In section 2 there is no mention of "surveys and resurveys." But section 1 of the same act contains a provision for "surveys and resurveys." Advised that the appropriation made as above is appli- cable to the making of "surveys and resur- veys," as provided for in said section 1 — such being the clear intent of Congress. 18 Op. 593. 54. Allottees — Extension of trust patents beyond the period of twenty-five years. — The allotment act of February 8, 1887 (24 Stat. 388), does not contemplate that the President may extend the period of twenty-five years as to all trust patents issued to Indian allot- tees of land, but only that such extension may be made in particular cases, in the dis- cretion of the President. 25 Op. 483. 55. Approval of patents to Choctaw and Chickasaw lands. — The Secretary of the In- terior "is authorized to approve the patents executed by the principal chief of the Choc- taw Nation and the governor of the Chicka- saw Nation for the lands allotted to the INDIANS, III, a, b. 245 members of those tribes of Indians in, accord- ance with the provisions of the act of June 28, 1898 (30 Stat. 495, 507), and his approval thereof is essential to constitute such patents a transfer to the allottees of such title as was intended by that act. 25 Op. 460. 56. It is the duty of the Government to pro- tect the Indian allottees under the act of March 2, 1889 (25 Stat. 998), in the enjoy- ment of their allotments, and in the dis- charge of that duty the military forces of the United States may, if necessary, be employed by the President for their protection. 19 Op. 511. 57. The Indian allottees of the Kickapoo tribe, under the treaty of June 28, 1862 (13 Stat. 623), take their rights to the tracts allotted to them which have not yet been patented, under and by virtue of the said treaty as extended by the act of August 4, 1886 (24 Stat. 219), and not under act of February 8, 1887 (24 Stat. 388). 19 Op: 255. 58. Same. — Patents to those allottees to whom certificates were given under said treaty, but who had not received patents, should be issued under and in accordance with the terms of the treaty as extended by the said act of 1886. lb. 59. Same. — The sixth section of said act of 1887, with respect to citizenship, applies to the Kickapoos who took allotments under the said treaty before the passage of that act as well as to those who have taken allotments since its passage and in pursuance of its pro- visions. But as the right of citizenship is only to be accorded after the patent is grant- ed, the oath and proof required by the treaty, being prerequisites thereunder, must be taken and furnished. lb. 60. The lands of the Ute Indian Reserva- tion in Utah Territory can not be declared open for settlement and disposal, under the act of June 15, 1880 (21 Stat. 203), before allotments provided for in that act are made. 17 Op. 262. 61. Same. — If, • previous to such allot- ments, it is thought advisable that any land within the reservation should be opened to settlement and disposal, additional legislation will be necessary to enable this to be done. lb. "62. Lease or rent. — An Indian allottee, un- der the act of February 8, 1887 (24 Stat. 388), can not lawfully lease or rent the whole or any part of his allotment, either with or without the approval of the Secretary of the Interior. 19 Op. 559. Cutting or Removing Timber. See In- dians, IV. b. Trespassers. 63. Trespassers — Removal. — The Interior Department has power to remove intruders from lands of the Choctaws and Chickasaws in the Indian Territory, and it is its duty to do so under the provisions of the treaty of June 22, 1855 (11 Stat. 612-613). 17 Op. 134. 64. Same. — All persons (other than Choc- taws or Chickasaws by birth or adoption) not comprised within some one of the excepted classes described in article 7 of that treaty, or article 43 of the treaty of April 28, 1866 (14 Stat. 779), are intruders, lb. 65. Same. — The permit laws of the Choctaws and Chickasaws are valid ; and those persons who are permitted thereunder to reside within their territory, or to be employed by their citizens as teachers, mechanics, or skilled agriculturists, may enter and remain on the lands of these tribes; but the right to remain there ceases when the permit ex- pires, lb. 66. Same. — Teachers, mechanics, and skilled agriculturists, not in the employ of the Govern- ment, and who are on such lands without per- mits from thelndianauthorities, are intruders, and should be removed therefrom. lb. 67. Removal of trespassers. — The Commis- sioner of Indian , Affairs and his subordi- nates, the Indian agents, have full discretion under sections 2118, 2147, and 2149, Revised Statutes, to remove from the Puyallup Indian Reservation, Wash., any person not of the tribe of Indians entitled to remain there, and in so doing may, by direction of the President, use any military force necessary for the purpose. 20 Op. 245. 68. Same. — An order of the State court restraining the Indian agent from so doing is beyond its jurisdiction and void, and should be disregarded. lb. 69. Trespassers on Indian lands. — 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 coun- try occupied by these tribes without their permission, and they have the right to impose 246 INDIANS, III, b, c. the terms upon which such permission will be granted. 23 OpT 214. 70. Same — Indian licenses or taxes.— 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 extinguish- ment 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 legisla- tion, lb. 71. Same — Notice. — 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. lb. 72. Same — Ejectment of trespassers. — Sec- tions 2147 to 2150, inclusive, of the Revised Statutes, .expressly confer the right to use the military forces of the United States in eject- ing trespassers upon Indian lands, and the grant of this power carries with it the duty of its exercise. lb. 73. Same — Dnty of the Department of the Interior. — It is the duty of the Department of the Interior to remove all classes forbid- den by treaty or law who are within the. domain of the Five Civilized Tribes with- out Indian permission, to close all busi- nesses which require permit or license and are being conducted without the same, and to remove all cattle which are being pas- tured on said land without Indian permit or license. lb. 74. Sheep are "cattle'' within the meaning of section 2117, Revised Statutes, which im- poses a penalty for driving any stock, etc., to range and feed on Indian lands without the consent of the tribe. 18 Op. 91. 75. Seizure. — Property, consisting of hunt- ing traps, etc., seized by the military under the provisions of section 2137, Revised Stat- utes, which prohibit hunting on Indian lands, should, as soon as practicable, after report of seizure to the United States attorney, be placed in the custody of the proper civil offi- cers. 18 Op. 555. 76. Same. — Section 5388, Revised Statutes, which imposes a fine for timber depredations upon the public lands of the United States, makes no provision for seizure of property belonging to a wrongdoer. lb. Seizures. See also Indian Territory. Trespasses on Reservations. See Indians, 25-30. c. Claimants. 77. Langford's claim to land within the Nez Perce' Indian Reservation. — The title of the American Board of Commissioners for Foreign Missions to the missionary station within the limits of the Nez Perc6 Indian Reservation, de- rived under the acts of August 14, 1848 (9 Stat. 323), and March 2, 1853 (10 Stat. 172), (assum- ing that a title passed to said board by virtue of those acts) was then, and has ever since continued to be, subject to the Indian right of occupancy in the Nez Perce tribe of Indians ; and until this Indian right is extinguished, the present holder of that title has no right, merely by virtue of such title, to enter upon and take possession of the premises. 14 Op. 568. 78. Same. — Langford, who claimed title to the tract of land included by said station, as assignee of said board, recovered judgment by default in the territorial court in an action to recover possession of the premises brought against an Indian agent occupying the same, and obtained actual possession thereof under a writ issued upon said judgment: Heldth&t the judgment determined nothing adverse to the Indian right; that the writ founded on such judgment was ineffectual to give Langford legal possession of land to which the Indian right still adheres; and that in entering upon the reservation thereunder he was simply an intruder, and may be summarily removed therefrom in the mode provided by section 2118 of the Revised Statutes. lb. 79. Same — Compromise. — Opinion of May 3, 1875 (14 Op. 569), as to the rights of claimant, William G. Langford, in 640 acres of land within the Nez Perce Indian Eeser- vation in Idaho Territory, reaffirmed; and Advised that he has no such possessory in- terest in such land as would warrant the Interior Department in accepting the com- promise proposed. 17 Op. 306. 80. Same. — An allotment to . individual members of the Nez Perce" tribe of Indians under the allotment act of 1887 (24 Stat. 388) of 640 acres of land at the mouth, of INDIANS, III, c, d. 247 the Lapwai, in Idaho, now included in the reservation of. that tribe and occupied by it, would not terminate the Indian right of oc- cupancy and vest the right of immediate pos- session in one William G. Langford, who claims title through a grant of Congress to the missionary society that formerly occu- pied a station on that tract. 20 Op. 42. 81. Same. — The Indian right of occupancy is the right to enjoy the land forever, with the right of alienation limited to one alienee, the United States, or to such persons as the United States, in its capacity of guardian over the Indians, may permit. 20 Op. 48. 82. Same. — A right to land which is sub- ject to the Indian right of occupancy is subject to the possibility and probability of the Indians reaching such a state of civiliza- tion as to make necessary an allotment of that right. lb. 83. Same. — A mere partition of the Indian right of occupancy among the members of the tribe is no injury to Langford's title to the ulti- mate fee, if in fact he has any such title. 76. 84. Boysen's right of selection — Shoshone Indian lands.— The act of March 3, 1905 (33 Stat. 1016), which amends and ratines an agreement with the Shoshone Indians for the cession of lands, does not, by Article II thereof (p. 1020), confer upon Asmus Boysen the right to make a selection of the 640 acres of land therein referred to, within the un- ceded or diminished reserved lands of those Indians. 25 Op. 524. 85. Same. — That act does not confer upon Boysen the right to make examinations and selections within the ceded portion of the reservation outside the tract covered by the rease formerly held by him. lb. 86. Same. — The act confers upon Boysen the right to prospect for and to locate lands hearing minerals other than coal. lb. 87. Same.— The Attorney-General declines to express an opinion upon the question of the propriety of the Secretary of the Interior permitting Boysen to go upon the reserva- tion . and make examinations prior to the completion and approval of the surveys of the ceded portion, it not being within his province to pass upon the propriety of the exercise by the Secretary of the Interior of his official discretion. lb. Claims Other Than for Land. See Indi- ans, V. d. Sale, Distribution of Fund, etc. 88. Eastern Miami — Distribution of fund for cession of lands where claimants shared in Western Miami's fund.— The children of Thomas F; Bichardville, a Miami Indian, of Indiana, are entitled to share with other persons upon the roll of the Eastern Miamis equally, and without deduction, in the distribution of the fund ($221,257.86) appropriated by the act of March 3, 1881 (21 Stat. 433), for the payment of the Miami Indians of Indiana, notwith- standing they have already received unlaw- fully, as alleged, from the Western Miami's fund. 17 Op. 381. 89. Miamis — Sale of lands — Distribution of proceeds — Who entitled. — The lands which have been or are to be sold and the proceeds distributed by the act of May 15, 1882 (22 Stat. 63), were set apart for the sole benefit of the Miami tribe of Indians, meaning thereby those who at the time of the survey of the reservation had emigrated and settled on the lands. 17 Op. 410. . 90. Same. — This class of Miamis only are entitled to the proceeds of the sales of the residue mentioned in the second article of the treaty of June 5, 1854 (10 Stat. 1093), be- ing the same lands referred to in section 3 of the act of May 15, 1882. lb. 91. Same.— Those individual Miamis or persons of Miami blood who are named in the corrected list referred to in the Senate amendment to the fourth article of the treaty of June 5, 1854, and their descendants, have no right to or interest in the said residue or the proceeds of the sales thereof. lb. 92. Approval of sale of inherited Indian allot- ment lands — Secretary of the Interior. — The courts for the northern district of the Indian Territory have no jurisdiction or power to de- cree partition and sale of an inherited Indian allotment covered by a patent without the approval of the Secretary of the Interior, whose authority to approve or disapprove such sales is not disturbed by section 2 of the act of April 28, 1904 (33 Stat. 573). 25 Op. 532. 93. Same. — The difference between a ftua- paw allotment and others is that title is not given to the United States in trust in the case of the Quapaws. lb. Sale op Land in Kansas. See Kansas 9. 248 INDIANS, III, d, e, f, g. 94. Compensation for lands taken by rail- road. — The President has power to direct, by an Executive order, the manner in which compensation shall be ascertained arid de- termined for property taken or destroyed in the construction of the Missouri, Kansas and Texas Bailway through the reservation of the Chickasaw and Choctaw tribes of Indians. 17 Op. 265. e. Lease. 95. Mining leases — Approval. — Advised that certain mining leases made by citizens of the Choctaw Nation of Indians, in the Indian Territory, and the Osage Coal and Mining Company, a Missouri corporation, for the mining of coal, etc. , in said territory, are not such as may properly receive the approval of the Secretary of the Interior under existing laws. 18 Op. 486. 96. Same. — The inhibition contained in sec- tion 2116, Revised Statutes, has the same ap- plication to individual Indians that it has to Indian nations and tribes. lb. 97. The lands lying in the "Cherokee Strip " which are leased to whites are not lands of the United States within the meaning of section 5388, Revised Statutes, which penalizes the cutting or destroying of timber on the lands Of the United States. 18 Op. 555. 98. Interior Department can not authorize Indians to lease their lands. — There is no law empowering the Interior Department to au- thorize Indians to lease their lands for grazing purposes. 18 Op. 235. 99. Same. — Neither the President nor the Secretary of the Interior has authority to make a lease, for such purposes, of any part of an Indian reservation ; nor would their approval of any such lease made by Indians render it lawful and valid. lb. 100. The Cherokee Nation of Indians can not make a valid lease of their lands without the consent of the Government. Opinion of July 21, 1885 (18 Op. 235), reaffirmed. 19 Op. 499. 101. An Indian allottee, under the act of February 8, 1887 (24 Stat. 388), can not law- fully lease or rent the whole or any part of his allotment, either with or without the ap- proval of the Secretary of the Interior. 19 Op. 559. 102. Lease of Cherokee mineral lands— Sec- retary of the Interior. — An instrument dated July 9, 1901, purporting to be a mineral lease from a Delaware Indian of certain' lands in the Indian Territory, was void at its incep- tion, as the power to make such a lease was, at that time, vested exclusively in the Secre- tary of the Interior. Act of June 28, 1898, sees. 13, 16 (30 Stat. 498). 25 Op. 168. 103. Same. — This authority was taken from the Secretary of the Interior by section 73 of the act of July 1, 1902 (32 Stat. 727), and it is now impossible for him to give validity to the lea"s"e, 'either in whole or in part. lb. 104. Same. — Under section 72 of the act of July 1, 1902 (32 Stat. 726), Cherokee citizens have the power, with the approval of the Secre- tary of the Interior, to lease their allotments, when selected, for mineral purposes, lb. t. Contracts — Coal Mines. 105. Advised, that the contract relating to certain coal mines at Savannah, Choctaw Nation, between Mrs. A. G. Beam and her husband and the Atoka Coal Mining Company, dated No- vembers, 1883, be considered as in full force for the period for which it was executed and approved by the Commissioner of Indian Affairs and Secretary of the Interior, not- withstanding it does not appear affirmatively that the agreement was before the Choctaw and Chickasaw court in any manner. 18 Op..242. Lease of Coal and Mineral Lands. See Indians, 95, 102-104. g. Taxation. 106. Exemption. — Lands entered and pat- ented to Indians under the provisions of sec- tion 15 of the act of March 8, 1875 (18 Stat. 420), before the act of July 4, 1884 (23 Stat. 76), became a law, are exempt from taxation for a period of five years from the date of the patent issued therefor. 19 Op. 161. 107. Same— Under act of 1884. — The said act of July 4, 1884, is supplementary to the said act of March 3, 1875, and its provisions apply to all entries under the latter act for which patents had not issued when the former act took effect. Under the act of 1884 the lands entered are exempt from taxation for a period of twenty-five years from the date of the patent, lb. INDIANS, III, g, IV. 249 108. Same. — Under the act of January 18, 1881 (21 Stat. 315), for the benefit of the Win- nebago Indians, the land entered is expressly exempt from taxation for twenty years. lb. 109. Same. — Lands allotted to Indians un- der the provisions of the act of February 8,1887 (24 Stat. 388), are exempt from taxation for twenty-five years, lb. Indian Tax on Hay. See Indians, 161, 162. IV. Timber. 110. Bight to cut and sell merchantable timber standing. — An Indian allottee of land underthe actof February 8, 1887 (24 Stat. 388), does not possess the right to cut and sell mer- chantable timber standing upon the land, excepting such as it may be necessary to cut in clearing the premises for agricultural or grazing purposes, or to erect suitable build- ings thereon. 19 Op. 232. 111. Same. — Until the second patent pro- vided for by the fifth section of said act is granted, it is the duty of the Interior Depart- ment, by virtue of the legal title remaining in the Government and the trust relation assumed by it, to prevent the cutting of timber except for the above-mentioned purposes, whether the land is or is not within an In- dian reservation. lb. 1 12. Bight to remove and sell dead timber. — An Indian allottee under the act of February 8, 1887 (24 Stat. 388), may remove and sell dead timber, standing or fallen, from his allotment. 19 Op. 559. 113. Same. — Such allottee can not lawfully lease or rent the whole or any part of his allot- ment, either with or without the approval of the Secretary of the Interior. lb. 114. Same. — Nor can he lawfully impart to a third person, by contract, the right to erect upon his allotment mills for the manufacture of lumber or other products. lb. 115. Same. — The patent to be first issued to an Indian allottee, under section 5 of the act of 1887, is not intended to convey to him the title of the United States, but is in the nature of a declaration of a trust in the land or a covenant to stand seized of it to the use of the allottee and his heiis until the time shall have arrived when it shall be deemed proper to put an end to the trust by vesting the legal title in him or his heirs. lb. (562). 116. Same.— The effect of the allotment and -declaration of trust are to place the allottee in possession of the land allotted and - to give him a qualified ownership therein. lb. 117. Same. — Appropriating and selling dead timber of any kind is not waste at common law or by the law of Wisconsin, lb. 118. Indians occupying reservations, the title to which is in the United States subject to their occupancy, have no right to cut and remove the dead and fallen timber thereon for the purpose of sale alone; such timber, where not used by the Indians for fuel or for agri- cultural or other purposes connected with the occupation of the land, being the prop- erty of the United States. 19 Op. 194. 119. The cutting or destroying of timber on lands which have been patented to individual Indians is not an offense punishable under the act of June 4, 1888 (25 Stat. 166), amendatory of section 5388, Revised Statutes. 19 Op. 183. 120. Timber cut on Fond du Lac Eeser vation — Title to. — The Attorney-General is unable to ex- press an opinion upon the question as to whether the Indian agent at the La Poinie Agency, Wis. , acting under instructions from the Indian Of- fice or Department of the Interior, can dispose of and give valid title to pine timber cut on the Fond du Lac Reservation, Minn., the request therefor being unaccompanied by a statement of the facts involved. 19 Op. 465. 121. Timber unlawfully cut by trespassers on Fond du Lac Indian Beservation. — The United States have the absolute ownership of certain timber, originally standingtimber, unlawfully cut by trespassers on the Fond du Lac Indian Reservation, in Minnesota, and left lying thereon, notwithstanding theland from which the timber was cut is held in common by the Indian bands, for whom it was reserved, by the ordinary Indian title, 19 Op. 710. 122. Same. — The Indians have no interest whatever in said timber, and it in no way appertains to the Indian Bureau or its agents to assume charge thereof. 76. 123. Same. — Such timber may be sold for and on account of the United States, but that the sale should be made by the Commissioner of the General Land Office, under the supervision of the Secretary of the Interior, lb. Opinion of August 23, 1886 (18 Opin. 434), relating to timber cut on public lands, con- curred in. lb. See Public Lands, XIII. 250 INDIANS, IV; V, a. 124. Sight of railroad to take timber be- yond the limits of right of way. — The Kansas and Arkansas Valley Bail way Co. has no right under the act of June 1, 1886 (24 Stat. 73), authorizing its construction through the In- dian Territory, to go beyond the limits of the right of way therein prescribed for the pur- pose of taking timber or other materials for the construction of such railroad. 19 Op. 42. V. Claims, Trnst Funds. a. Attorneys' Fees. 125. Charles Ewing — Osage Nation. — Upon the facts stated: Advised that Charles Ewing, esq., is entitled to the compensation charged in his account for services rendered the Osage Nation of Indians under a contract therewith , dated February 14, 1877, executed in com- pliance with the law respecting contracts with Indians. 17 Op. 445. 126. Vann and Adair — For services to Osage Indians. — Upon the facts presented in the matter of the claim of Vann and Adair for compensation for their services rendered the Osage Indians in 1869 and 1870 respecting the disposal of the lands of the latter: Advised, that the payment of the 150,000 awarded by the Commissioner of Indian Affairs and the Acting Secretary of the Interior in 1874 was a satisfaction: in full of any claims that the said Vann and Adair had for their services. 18 Op. 5. 127. Same. — An important quasi-judicial joint act in writing can be undone only by another joint act in writing, and that also indorsed upon the original paper itself, or upon one duly attached thereto. 26. 128. Ellis contract with Pottawatomie In- dians. — The Secretary of the Interior has no power to approve of a contract between E. John Ellis and three attorneys in fact of cer- tain Pottawotamie Indians, where the con- tract was executed by only two of the attor- neys, the signature of the third being added after the services contracted for had been performed. 18 Op. 518. Opinions of Sept. 9, 1886 (18 Op. 447), Nov. 3, 1886 (18 Op. 497), and Dec. 4, 1886 (18 Op. 517), reaffirmed. 129. Same — Attorneys in fact — Power to act.— Under the authority granted to the agents and attorneys named in the letter of attorney made by certain heads of families and individual members of the Pottawat- omie Indians, the powers and duties commit- ted to such agents and attorneys can not be performed by "any two of them in the absence or without the concurrence of the third. 18 Op. 447. 130. Same. — Opinion of September 9, 1886 (18 Op. p. 447), as to the validity of a certain contract with Pottawatomie Indians, cited and reaffirmed ; and advised that the approval of such contract by the " business committee of the Citizen Pottawatomies " does* not cure the defect therein or authorize the Secretary of the Interior to approve it. 18 Op. 497. 131. Same. — Where a contract made by three attorneys in fact of certain persons of the Pottawatomie tribe of Indians with E., an attorney at law, for services of the latter, was not executed by one of the attorneys in fact until some months after it had been ex- ecuted by the other two and by E., nor until after the services stipulated therefor had been performed by E. : Held that the Secretary of the Interior was not authorized to approve the contract or recognize the claim of E. for compensation thereunder. 18 Op. 517. 132. Same — Curative act of Congress. — Under the act of April 4, 1888 (25 Stat. 79), which is curative of the defect heretofore mentioned, the Secretary of the Interior is authorized to find that certain services rendered the Pot- tawatomie Indians were contracted for in good faith by persons empowered to repre- sent said Indians. 19 Op. 134. 133. Same.— The act of April 4, 1888 (25 Stat. 79), not only validated the contract for services that E. John Ellis had rendered to the Pottawatomie Indians, but also those he should perform in future under it. In other words, it validated the contract for all purposes. 19 Op. 242. 134. Same. — The Secretary of the Interior may therefore approve the contract of Mr. Ellis with the Pottawatomie Indians, as recommended by the Commissioner of Indian Affairs. lb. 135. Loyal Creek claims — Attorneys' fees. — The attorneys for the Creek Indians in the sp-called "loyal Creek claims" are not en- titled to the fees mentioned in the Indian appropriation act of March 3, 1903 (32 Stat. INDIANS, V, a, b. 251 994), until the amount therein appropriated, $600,000, has been accepted by the Creek Nation in full payment of these claims. 24 Op. 623. 136. Same. — This appropriation is in the nature of a compromise of all the loyal Creek claims, the payment of the $600,000 being conditioned upon its acceptance by said Indians; and if not accepted, there will be no fund available from which to pay said attorneys, lb. 137. Delaware Indian claims. — The attor- neys for the Delaware tribe of Indians men- tioned in the resolution passed by the Delaware Indians in council on October 13, 1904, are entitled to be paid, as therein di- rected, out of the $150,000 appropriated by the act of Congress of April 21, 1904 (33 Stat. 222), for services rendered by them in behalf of said Indians. 25 Op. 308. 138. Same. — The "writing "executed by the "business committee" of the tribe on October 13, 1904, declaring the $150,000 to be in full settlement of all claims and demands of the Delaware Indians against the United States, and authorizing the dismissal of all pending actions, conforms to the requirement of the act of Congress of April 21, 1904, and should re- ceive the approval of the President; and the Secretary of the Treasury may disburse the fund in accordance with the terms of the resolution of the Indian council, lb. 139. Same. — The proceedings of the Dela- ware Indian council held on October 13, 1904, were regular, and the motions were carried by a sufficient number of voters, though less than a majority of those present. lb. 140. Mansfield, McMurray and Cornish — Choctaw and Chickasaw Indian funds. — The Secretary of the Interior is without authority either to refuse to issue warrants to Messrs. Mansfield, McMurray, and Cornish for the amount fixed by the Choctaw and Chicka- saw citizenship court as compensation for services rendered by them to the Choctaw and Chickasaw nations in preventing allot- ment or disposition of their tribal property to "court claimants," or to delay the issuance of such warrants upon the ground that the amount is excessive, or that proposed legis- lation may give the right of appeal in some of the cases determined by that court. 25 Op. 320. b. Compensation for Sale of Lands. 141. Ely Moore claim — Additional compen- sation for sale of Indian trust lands — Reopen- ing of account. — Where a special receiver and superintendent, and two special registers and superintendents, appointed to dispose of the trust lands of the Delaware, Kaskaskia, Fianke- shaw, Peoria, and Wea Indians presented their claims for such services to the Interior Department, which claims were allowed and payment made to claimants without their protest: Held that they thereby acquiesced in the allowance as fair and reasonable and that such acquiescence as much precludes them as the United States from reopening the matter. 18 Op. 167. 142. Same. — The fact that the Supreme Court has decided in the case of V. S. v. Brindle (110 U. S. 693), that the treaties of 1854 with those Indians clearly authorize a reasonable compensation for similar services, and the jury in that case allowed a higher compensation than was paid claimants, is not a matter requiring special consideration by the Secretary of the Interior. lb. 143. Same — Opening of settled accounts. — The provisions of the act of August 7, 1882 (22 Stat. 345), entitled "An act to authorize, the auditing of certain unpaid claims against the Indian Bureau by the accounting officers of the Treasury," do not extend to the opening of settled accounts. 18 Op. 223. 144. Same. — Upon the facts stated: Ad- vised that no action whatever should be taken by the Executive Departments on the claim of Ely Moore and others for additional compensation for selling certain Indian trust lands, without legislation by Congress pro- viding therefor (See 18 Op. 167). lb. 145. Same. — Where an account has once been duly adjusted, settled, and closed by the proper officers, upon a full knowledge of all the facts, and no errors of calculation have been made, it can not be reopened in the absence of statutory authority. lb. 146. Same. — The mere circumstance that the finding of the jury differs from the previous determination of the Secretary of the Interior, upon the question of what was a fair com- pensation for the service of selling the Indian trust lands, is not sufficient ground to authorize the reopening of an account settled 252 INDIANS. V, c, d, e. in accordance with such determination, with a view to a readjustment of it in accordance with such finding. lb. c. Payment — Trust funds. 147. Payment of loyal Creek claims. — The money appropriated by the 'act of Congress of March 3, 1903 (32 Stat. 996), for the pay- ment of the so-called "loyal Creek claims" should be paid, in the case of a claimant dying before January 1, 1898, to the distribu- tees of such claimant determined according to the Creek laws ; and in the case of a claimant dying on or after that date, to his distributees according to the laws of Arkansas in force in Indian Territory. 25 Op. 163. 148. Payment. — Where bonds of the State of North Carolina, held by the Treasurer of the United States for the benefit of certain Indian tribes, were past due and payment thereof demanded and refused : Advised that the Secretary of the. Interior may authorize the acceptance of a proposition of a third party (a citizen of the State) to pay the prin- cipal and accrued interest of the bonds, pro- vided their market value does not exceed their face value with the accrued interest, and provided the acceptance will best sub- serve the trust. 18 Op. 581 149. Retention of interest dne United States. — If the United States has advanced for the State any money on account of interest due on said bonds, and there is "any moneys due on any account from the United States to such State," it is the duty of the Treasurer to retain the interest upon such advances from such moneys. Act of March 25, 1876 (16 Stat. 77). lb. 150. Crow Indians — Annuity fund, interest on balance due. — The fourth paragraph of the agreement Concluded August 27, 1892, with the Crow Indians, pursuant to the act of July 13, 1892 (27 Stat. 137), is valid and of bind- ing force, and modifies the preexisting agree- ment of December 8, 1890, so as to authorize an allowance of interest in behalf of said Indians upon the balance of the annuity fund provided for in section 8 of said agreement of 1890. 20 Op. 517. 151 . Sale of 5 per cent bonds held in trust. — The Secretary of the Interior, as trustee for certain Indian tribes, has authority, under the act of April 1, 1880 (21 Stat. 70), to sell United States 5 per cent called bonds, held in trust for such tribes, in order, that the fund may receive the benefitof the premium. 17 Op. 104. d. Assignment. 152. The assignability of the indebtedness of the United States to the Cherokee Nation is justified under the general law and under the proviso contained in section 10 of the act of March 3, 1893 (27 Stat. 640). 20 Op. 749. e. Certificates of Indebtedness. 153. Authority to issue certificates of in- debtedness under the treaty with the Kansas Indians is to be considered as conferred upon the date of the proclamation of the treaty, March 16, 1863, and not before. 17 Op. 200. 154. Same. — Such certificates were of two classes, viz: First, those issued to persons who had settled and improved lands within the reservation to an amount not exceeding $29,421 in the aggregate; second, those issued to persons having claims against the Indians to an amount not exceeding in the aggregate $36,394.47. lb. . 155. Same. — Certificates of the second class, issued before the proclamation of the treaty, or before the Senate amendment had received the assent of the Indians, the entire sum of which exceeded the amount allowed by the treaty, are absolutely null and void. lb. 156. Same. — Certificates lawfullyissuedmay be distinguished from those unlawfully issued by their respective dates, only those issued after the date of the treaty being recognized, and those only until the amounts limited by the treaty have been reached, lb. 157. Same. — Where certificates of the first class which have already been redeemed were issued after the limit prescribed by the treaty had been reached, and a portion of those outstanding were issued before that limit was reached, it is the duty of the Secretary of the Treasury to recognize as law- ful such as had been issued within the limit referred to. lb. 158. Same. — The Secretary of the Interior is not at liberty to accept in payment of reser- vation lands any certificates of the first class issued after the limitation upon the amount of such certificates prescribed, in the treaty had been reached, nor any certificates of the INDIANS, VI, VII, VIII. 253 second class issued in advance of the ratifica- tion and proclamation of trie treaty. lb. Langfobd's Claim. See 77-83. VI. Laws. 159. Power to enact laws with regard to licenses or taxes. — The provisions of the act of June 28, 1898 (30 Stat. 495), for the organi- zation 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 oi' such legislation. 23 . Op. 214. 160. Same. — 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 pur- chasers will comply with the local laws. 26. 161. Export tax onhay — Cherokee Indians — Secretary of the Interior. — 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 ex- portation of prairie hay from that nation. 23 Op. 528. 162. Same. — But while that section forbids the payment to, or the reception by, any other person than the authorized officers or agents of the Indian Department of the rents or royalties arising from the unappropriated common public lands of that nation, it per- mits 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. lb. 163. The question whether or not a Sioux half-breed or quarter blood is an Indian within the meaning of the act of March 2, 1889 (25 Stat. 888), is to be determined not by the common law, but by the laws and usages of the tribe. 20 Op. 711. 164. Same. — The laws or usages of a tribe of Indians are not matters of which judicial notice can be taken, but present questions of fact upon which the Attorney-General can not advise. lb. 165. In the absence of treaty or statutory provision to the contrary, the Choctaw and Chickasaw nations have power to require that citizens of the United States desiring to reside in their territory shall secure permits, and may lay a pecuniary exaction therefor. This power is not subject to revision by any officer or Department of the United States. 18 op. 34. Intermareiage. See Indians, I, c. Laws Applicable to Indian Reservations. See Indians, II, a. VII. Courts. 166. Choctaw and Chickasaw citizenship court— Annulment of judgment of citizenship.— The annulment by the Choctaw and Chicka- saw citizenship court of a judgment of the United States court for Indian Territory affirming a favorable decision of the Com- mission to the Five Civilized Tribes, upon an application for enrollment as a citizen, as provided in the act of June 10, 1896 (29 Stat. 339), so far deprived the applicant of a favorable judgment as to devolve upon him the duty of transferring his cause to the citi- zenship court for hearing therein, as provided in section 31 of the act of July 1, 1902 (32 Stat. 641), in order to protect and to preserve his claimed rights. 25 Op. 152. 167. Same. — The annulment of such a judgment of the United States court did not revive and put into force and effect the judg- ment of the Commission admitting an appli- cant to citizenship, and an enrollment by the Commission based upon such a theory would be a clear violation of the rights of the In- dian nations. lb. 168. An order of a State court attempting to restrain an Indian agent in the removal of trespassers from an Indian reservation is be- yond its jurisdiction and void and should be disregarded. 20 Op. 245. See also Indians, 46. VIII. Trade, Intercourse, and Residence among. 169. Section 5 of the act of August 15,1876, ( 19 Stat. 200), and the act of July 31, 1882 (22 Stat. 179), in regard to trade regulations and 254 INDIANS, VIII, IX. residence among the Indians, are not applicable to the Pueblo Indians of New Mexico. 20Op. 215. 170. Intoxicating liquors. — The introduc- tion of intoxicating liquors within the former Cass Lake Indian Beservation, though sold by a white man upon lands purchased from the heirs of a deceased allottee, is a violation of Article VII of the treaty of February 22, 1855 (10 Stat. 1165), with the Chippewa Indians, and of section 2139, Revised Statutes, as amended (27 Stat. 260; 29 Stat. 506). 25 Op. 416. 171. Same. — In case of a violation of those aws, proceedings may be taken under section 2139, Revised Statutes, as amended, and under section 2140, Revised Statutes. lb. 172. In the absence of treaty or statutory provision to the contrary, the Choctaw and Chickasaw nations have power to require that citizens of the United States desiring to reside in their territory shall secure permits, and may lay a pecuniary exaction therefor. This power is not subject to revision by any officer or Department of the United States. 18 Op. 3.4. 173. Trespassers on Indian lands. — 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 coun- try occupied by these tribes without their permission, and they have the right to impose the terms upon which such permission will be granted. 23 Op. 214. 174. Same — Indian licenses or taxes. — The provisionsof the act of June 28, 1898 (30 Stat. 495), for the organization of cities and towns in said Indian country and the extinguish- ment 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. lb. 175. Same — Notice. — 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. lb. Ejectment of Trespassers. See Indians, 63-73. IX. Contracts. 176. For Indian supplies. — Where a con- tract for the delivery of certain supplies at an Indian agency provided, in case an emer- gency demanded it, for the acceptance of goods inferior in quality to the sample, held, (17 Op. 384): 177. That the question whether the neces- sities of the service compelled acceptance of the aritcles offered was a question determin- able only by the Commissioner of Indian Affairs or his agents, under the direction of the Sec- retary of the Interior. lb. 178. That while the inspectors were not ap- pointed or designated in the manner indicated by the statutes, the approval by the proper officials of their recommendations was an ample ratification of their appointment, lb. 179. That the time and place of delivery before the goods were distributed were emi- nently the time and place to determine their relative value. lb. 180. Indian supplies. — The third section of the act of March 2, 1887 (24 Stat. 466), making appropriation for Indian supplies, permits purchases not exceeding $3,000 in amount to be made in open market without advertisement, in the discretion of the Secre- tary of the Interior, as often as a "case of exigency" exists, so that the gross purchases keep within the sum appropriated. 19 Op. 95. 181. Transportation of goods for Indian tribes. — The provision in the act of March 3, 1877 (19 Stat. 291), requiring certain con- tracts for the transportation of goods for Indian tribes, etc., to be let to the lowest bidder after advertisement, does not super- sede or repeal the act of March 3, 1875 (18 Stat. 453), and section 5260, Revised Stat- utes, touching payments to land-grant rail- roads for services to the Government. 18 Op. 41. 182. Same.— Wherever it is practicable to obtain for the Government the benefit of the act of 1877, without yielding the benefits securedto it by the other legislation referred to, this should be done. lb. Attorneys' Fees. See Indians, V, a. Coal Mines. See Indians, III, f, 105. Ellis Contract. See. Indians, V, 128-134. INDIANS, X-XIV. 255 X. Suits. 183. District attorneys are not required un- der the Indian appropriation act of March 3, 1893 (27 Stat. 612, 613), to represent Indians in snits brought by them in States where they do not reside, founded on claims of inher- itance from -white persons not members of their tribes. 20 Op. 620. XI. Indian Inspectors and Felice. 184. Indian Inspectors — Duties — Bond. — Although the general functions and duties of Indian inspectors do not include specifically the disbursement of public money, and these officers are not required by statute to give bond, yet the Secretary of the Interior may lawfully assign to them duties relating to business concerning the Indians other than and in addition to those prescribed whenever the exigencies of the public service require it. 17 Op. 391. 185. Same. — Where the particular duty thus assigned to an inspector involves the receipt or disbursement of public money, it is compe- tent to the Secretary to take a bond for the protection of the Government against loss, although such bond may not be required by statute; and the bond would be valid and binding upon both principal and sureties if voluntarily given by the officer. lb. 186. Indian police. — The powers and duties of the Indian police authorized by the act of May 15; 1886 (24 Stat. 43), can not be exer- cised outside of the reservation to which they may be assigned. 18 Op. 440. XII. Crimes and Offenses. 187. Murder of one Indian by another on reservation in Oregon. — The State of Oregon has jurisdiction over the case of a murder of one Indian by another, committed upon an In- dian reservation within the limits of the State, unless the reservation was excepted out of the State at the time of its admission, or unless its jurisdiction is restricted by the provisions of some treaty with the Indians still in force. 17 Op. 460. 188. Murder of an Indian by one of another tribe upon the reservation of a third tribe. — The courts of the United States have no jurisdiction of a crime of murder committed by sin Indian belonging to one tribe against an Indian be- longing to another tribe within the reserva- tion of a third tribe which has no law cover- ing the case. The "bad men" clause in a treaty with the tribe to which the murdered Indian belonged does not bring the case within section 2145, Eevised Statutes, giving the United States courts jurisdiction over such offense. 17 Op. 566. 189. Murder — Jurisdiction — Trial. — An Apache Indian, charged with murdering an- other Indian of the same tribe on an Indian reservation in Arizona, and in the custody of the territorial authorities, should be delivered up to the authorities of his tribe for trial and punishment. 18 Op. 138. 190. In the case of a seizure of cattle by Indians in Indian Territory, alleged to be in violation of the treaties between the Cherokee Nation and the United States: Advised that the complainant should seek redress not by application to the executive but to the judi- cial department of the Government, the courts of the United States for the western district of Arkansas having full jurisdiction of the subject-matter. 19 Op. 173. XIII. Immigration. 191. Half-breed Indians emigrating to the United States from Canada are not precluded by existing legislation from retaining the bounty of the United States in addition to that of the Dominion of Canada. 18 Op. 423. 192. A body of Indians born and dwelling outside of the territorial limits of the United States, and still maintaining their tribal re- lations-, can not, without authority of Con- gress, enter upon and occupy our public domain as emigrants. 18 Op. 557. 193. The power of the President to set apart a portion of the public domain for the exclu- sive occupancy of Indians does not include the case of a reservation for Indians not born or commorant in the United States, lb. XIV. Indian Treaties. Chippewa: 1855, February 22, Article 7 (10 Stat. 1169). See Indians, 168 (25 Op. 416). 256 INDIANS, XIV— INJUNCTION. Choctaw: 1830, September 27 (7 Stat. 333). See Indians, 11 (24 Op. 689). Choctaw and Chickasaw: 1855, June 22, Article 7 (11 Stat. 612). See Indians, 63, 64 (17 Op. 134). 1866, April 28, Article 38 (14 Stat. 769- 779). See Indians, 17 (19 Op. 389). Article 43 (14 Stat. 779). See Indians, 64 (17 Op. 134). Choctaw and Chickasaw (agreement): 1902, March 21, Paragraph 41 (32 Stat. 641).' See Indians, 11 (24 Op. 689). Kickapoo : 1862, June 28 (13 Stat. 623). See In- dians, 57 (19 Op. 255). Prairie du Chien : See Sacs and Foxes, treaty of July 15, 1830 (7 Stat. 328). Sacs and Foxes, etc.: 1830, July 15 ( 7 Stat. 328) . See Indians, 10 (20 Op. 742). Shoshone (Agreement): 1904, April 21, Article II (33 Stat. 1016, 1020). See Indians, 84 (25 Op. 524). Sioux : 1868, April 29 (15 Stat. 635). See Indians, 36 (18 Op. 230). Boysen's Eight op Selection — Shoshone Indian Lands. See Indians, III, 84-87. Removal of. See Indians, 24. Power of Attorney. See Indians, V, 129- 131. Intermarriage. See Indians, 12-15, 17. Fishery Rights. See Indians, 43, 44. Loyal Creek Claims. See Indians, V, 135, 136, 147. National Banks, See Indian Territory, 14, 15; Oklahoma, 1, 2. Taxation of Indian Lands. i See Indians, 106-109. See also Commission to the Five Civilized Tribes. INDORSEMENT. See Negotiable Instruments. INDUSTRIAL PROPERTY. iS'ee Spanish Laws. INFORMERS. The Secretary of the Navy is authorized, by implication, from statutes authorizing him to enter into" contracts for certain equipment, to contract with persons for their compensation in furnishing information of frauds practiced upon the Government in the supply of equip- ment which was not according to contract, the compensation to be regarded as money paid for inspectors' wages, or for detective work. 21 Op.' 1. See also Customs Law, IX, h; and Public Lands, XIII, 56. INFRINGEMENT. See Patents, 6, 7, 11-13. INDIRECT DISMISSAL. See Army, II, c, 125. INJUNCTION. 1. The United States may avail itself of the remedy by injunction to protect from in- jury improvements in navigable waters made under authority of Congress. 17 Op. 279. 2. An order of a State court restraining an Indian agent from ousting trespassers from an Indian reservation should be disregarded as without jurisdiction. 20 Op. 245. 3. To restrain trolley railroad from being built over portion of Gettysburg battlefield. — The Secretary of War is authorized by the act of March 3, 1893 (27 Stat. 600), and by the laws of Pennsylvania of 1889, pp. 106-108, to take condemnation proceedings to acquire certain land, being a portion of the battlefield of Gettysburg, over which a trolley railroad is being constructed, and may apply to the court for an injunction to restrain the opera- tion and construction of said railroad. 20 Op. 628. 4. Unauthorized dams. — The remedy of the United States in case of an unauthorized erec- tion of a dam across navigable waters is by in- junction, under section 10 of the act of Sep- INJUNCTION— INTEREST. 257 tember 19, 1890 (26 Stat. 454), and if the dam has been constructed, also by criminal prosecution. 21 Op. 518. 5. No injunction or action for damages for the infringement of a patent will lie against the Government. 21 Op. 96. 6. Infringing patent. — A contractor manu- facturing certain supplies for the United States under an alleged infringing patent may be restrained by injunction from manufacturing or using such articles prior to a determination of the question of infringement by the courts. 21 Op. 96. See also California Debris Commission, 5, 6; Contracts, 145. INSANE ALIEN IMMIGRANTS. See Immigration, IV, 49-50. INSPECTION. Op Meat. See Department of Agriculture, VIII. Of Steam Vessels. See Steamboat-Inspec- tion Service. Inspection Cards. See Diplomatic and Con- sular Service, 19, 20. Inspection Certificates. (See Diplomatic and Consular Service, 4. INSPECTORS. Of Customs. See Customs Law, II, f. Of Steam Vessels. See Steamboat-Inspec- tion Service. INSPECTOR-GENERAL'S DEPARTMENT. ee Army, 48; War Department, 109-113. INTEREST. 1. Interest can not lawfully be paid on a judgment of the Court of Claims against the United States where no appropriation is made for the payment of interest. 20 Op. 423. 2. Where an appeal of the Government in a customs case is dismissed and the order and mandate is silent upon the subject of interest, no interest can be paid or allowed. 20 Op. 408. 3. Where a judgment by the Court of Claims in favor of a claimant was appealed by th«. United States to the Supreme Court, which court reversed the judgment, and directed the Court of Claims to enter judgment for a larger amount in favor of claimant, interest is not allowable on the latter sum under the provi- sions of section 1090, Revised Statutes. 18 Op. 548. 4. Same. — Only such judgments of the Court of Claims as have been appealed from to the Supreme Court and affirmed by the latter are interest-bearing under that section, and they become interest-bearing from the date of their presentation in good faith for payment, lb. 5 . Same . — Semble that a presentation made by a claimant who afterwards takes an appeal from the judgment is of no avail. lb. 6. The United States are under no obli- gation to allow interest on the awards made by the Florida judges in cases of claims of Spanish subjects under the ninth article of the treaty with Spain in 1819. 17 Op. 644. 7. No authority exists for the payment of interest upon refunds made in conformity with judgments contained in cases of appeal under section 15 of the customs administra- tive act of June 10, 1890 (26 Stat. 131). 20 Op. 238. 8. Due the United States. — The North Amer- ican Commercial Company is liable to the United States for interest upon the several sums overdue for the years 1894-1897, inclusive, on account of taxes, rental, and bonus under its lease of the Pribilof Islands from the United States. 22 Op. 172. 9. Same. — Where money is due and payable on a contract at a specific time and is withheld, the creditor is entitled to demand and receive interest at the rate prevailing in the forum where suit is brought, except as against the Government of the United States and sover- eign States. lb. 10. Same. — In an action for use and occu- pation or for mesne profits, where the recovery is of a sum in the nature of rent, interest is allowed on each annual sum from the end of the year. lb. 18456—08 17 258 INTEREST— INTERNAL REVENUE, I. 11. The claim of the State of New York for reimbursement of the interest paid by that State on money borrowed and expended in en- rolling, subsisting, clothing, etc., its troops employed to aid in the suppression of the rebellion is not allowable under the pro- visions of the act of July 27, 1861 (12 Stat. 276). 17 Op. 595. 12. Same. — To construe the provisions of that act so as to include a claim for interest thus paid would be giving them a meaning much broader than that which has in prac- tice been given other legislation of like char- acter, or than seems to be warranted by any sound rule of interpretation. lb. 13. Direct taxes.— Interest and penalties are collections within the meaning of the act of March 2, 1891 (26 Stat. 820), and shonld be repaid the same as the direct taxes authorized by that act; but costs attending the collec- tion should not be repaid, as such funds never came into the Treasury of the United States. 20 Op. 412. 14. Same. — Where, under the act of June 7, 1862 (12 Stat. 422), redemptions of lands held for direct taxes were made, the party in interest should be refunded the tax, penalties, and interest paid by him for such redemp- tion, lb. 15. Same. — The act of 1891 supersedes the provisions in the act of March 3, 1883 (26 Stat. 595) , in regard to the surplus proceeds of lands Bold for direct taxes, and it is now the duty of the Secretary of the Treasury to re- pay not merely the surplus but the entire amount collected under that law and brought into the Treasury. lb. INTERMARRIAGE. See Indians, 12-15, 17. INSURANCE POLICY. See Internal Revenue, 95-98. INTERPRETATION OF STATUTES. See Statutory Construction; and Table of Statutes cited, p. 531. INTERPRETER TO LEGATION TO CHINA. See Chinese Secretary. INTERNAL REVENUE. I. Officers, 1-7. II. Taxes and Regulations. a. In General, 8-13. b. Exemptions, 14-25. c. Special Taxes — Banks and Bankers, 26-51. d. Tobacco,'' Cigars, etc., 52-54. e. Fermented and Spirituous Liquors — Liquor Dealers, 55-71. f. Stamp Tax on Specific Articles. 1. Bills of Lading — Manifests, 72- 77. 2. Bills and Notes, 78-86. 3. Bonds, 87-90. 4. Charter Party, 91-93. 5. Excess Baggage Receipt, 94. 6. Insurance, 95-98. 7. Medicines and Drugs, 99-103. 8. Money, 104. 9. Mortgage and Pledge, 105-114. 10. Warehouse Receipts, 115. g. Legacy Taxes, 116-119. h. Corporations, 120-121. i. Income Tax, 122-123. Direct Taxes. See Direct Taxes. III. Abatement, Allowance, Redemption, Re- fund — Compromise. a. Abatement, Refund, etc., 124-129. b. Compromise, 130-133. IV. Enforcement— Penalties, 134-143. V. Warehouses — Withdrawal from Bond, 144- 155. I. Officers. 1. The Commissioner of Internal Revenue is not authorized to issue, prior to April 1, 1891, the licenses to produce sugar provided for by paragraph 233 of that act, to persons desiring to avail themselves of the bounty provisions of that statute. 20 Op. 2. 2. The Commissioner of Internal Revenue has authority, with the approval of the Sec- retary of the Treasury, to make regulations looking to the redemption of unused documen- INTERNAL REVENUE, I, II, a, b. 259 tary stamps issued under the war-revenue act of June 13, 1898. 22 Op. 568. 3. Same. — In the absence of such rales, the Commissioner of Internal Revenue may cause such unused stamps to be redeemed. lb. 4. Reconsideration of claim for taxes after judgment. — The Commissioner of Internal Reve- nue has no power, under section 3220, Revised Statutes, to reopen and allow the claim of the New York and Cuba Mail Steamship Com- pany for taxes voluntarily paid under a mutual mistake of law, as the judgment of the Supreme Court (200 U. S. 488), in sustaining the ruling of the Commissioner that the company had no legal claim against the Government, deprived the Commissioner of jurisdiction to again entertain the claim. 25 Op. 605. 5. Same. — The Commissioner may, how- ever, allow similar claims where no legal pro- test has been made ; but such cases must arise under a misapprehension of fact and not of law. lb. Adoption of the Hunter Brooks Cigar Stamp. See 11, 12. 6. jCollector of internal revenue — Suspen- sion. — The President has the undoubted right during a recess of the Senate, to suspend from office a collector of internal revenue, with or without cause, and to designate some one else to perform the duties of that office. (Sec. 1768 Revised Statutes.) 18 Op. 318. 7. Storekeeper — Compensation. — Under the act of August 15, 1876 (19 Stat. 143, 152), an internal-revenue storekeeper is entitled to receive a per diem compensation only while "rendering actual service." Hence during such time as he is not assigned to duty and does not perform duty no compensation can be allowed him. 18 Op. 398. n. Taxes and Regulations, a. In General. 8. The free importation of articles of Porto Rican origin which have been exported to for- eign countries and thence imported into the United States does not affect the question of the payment of the internal-revenue tax provided for in section 3 of the Foraker act of April 12, 1900 (31 Stat. 77). 24 Op. 55. 9. Tobacco grown in Porto Rico after the cession of that island to the United States and brought into this country for warehousing, and afterwards exported to Canada and thence returned to the United States, is subject to the internal-revenue tax provisions of sec- tion 3 of the act of April 12, 1900 (31 Stat. 77). 24 Op. 612. 10. Internal-revenue stamps should be affixed under the war-revenue act of 1898 to certificates or other instruments issued by any Department or officer of the Federal Govern- ment at the request of private persons and for private use, such stamps to be furnished by the party applying therefor, and should be affixed before delivery of the document. 22 Op. 134. 11. Form, use, and cancellation of stamps. — The Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may adopt the device known as the Hamilton-Brooks cigar stamp, and pre- scribe regulations for its use, cancellation, and destruction, in accordance with the de- sign of its inventor, if deemed expedient. 17 Op. 111. 12. Same. — Any failure to use, cancel, and destroy such stamp, as directed by such regulations^would make the party chargeable with the failure amenable to the penalties existing March 1, 1879 (20 Stat. 351), as to the stamps then in use. lb. 13. Same. — Refusal or neglect to detach coupons. — A dealer in cigars would not be lia- ble to any penalty under existing laws (see sees. 3397 and 3406 R. S. ) for refusal or neg- lect to detach the coupons from the stamp known as the Hamilton-Brooks stamp, at the time contemplated by that device, should such stamp be adopted in pursuance of the provisions of section 3446 Revised Statutes, as amended by section 18 of the act of March 1, 1879 (20 Stat. 351). He would under ex- isting laws incur liability for not destroying the stamp when the box is emptied, but not for refusal or neglect to do so previously thereto. 16 Op. 443. b. Exemptions. 14. An excess-baggage receipt issued by a railroad campany to a passenger for excess weight of baggage does not require a stamp under Schedule A, "Express and Freight," of the war-revenue act of June 13, 1898 (30 Stat. 459) . 22 Op. 246. 260 INTEENAL REVENUE, II, b, c: 15. Rebate checks which are given by a railroad company to passengers who purchase their tickets from the conductor aboard the train do not require a stamp under the pro- visions of the war-revenue law (30 Stat. 448). 22 Op. 248. 16. 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). 23 Op. 139. 17. Honey and Merchandise carried by the Adams Express Company for the Pennsylvania Railroad Company over the lines of the latter, free of charge, under a contract between the two companies, do not require a bill of lading or manifest under the provisions of the war- revenue law, and, if given, it is not liable to the stamp tax provided for under the head of "Express and Freight" in the war-revenue act (30 Stat. 459 ) . 22 Op. 252. 18. Uncompounded medicinal drugs or chem- icals, no matter how put up, or what is claimed for them, are exempt from tax by section 20 of the act of June 13, 1898 (30 Stat. 456). 22 Op. 272. 19. The act does not apply to such medici- nal articles or preparations as are nut up under pharmaceutical or classifying names for use of physicians in their practice, or pharmacists or druggists in their trade. lb. 20. A paper or instrument stipulating that certain securities or other property shall be held as indemnity or as a basis of credit, or a guaranty generally, without specifying par- ticular property as security for the payment of a definite and certain sum, is not liable to tax under the provisions of the war-revenue act (30 Stat. 459). ' 22 Op. 218. 21. Such a paper, being a pledge of prop- erty for the payment of a debt, is not to be construed as a power of attorney and stamped as such, as it only authorizes the holder, in case of default, to make the securities avail- able for the purposes for which they were deposited. lb. 22. Official papers, instruments, and certifi- cates made or issued by officers of the United States in the discharge of their official functions and for the use and benefit of the Govern- ment are exempt from tax under the war- revenue act of 1898 (30 Stat. 448). 22 Op. 134. 23. Same. — Checks or drafts issued by the disbursing officers of the United States upon Government funds on deposit, in payment of its obligations or dues, are exempt from this tax. lb. 24. Cigars shipped from the Fhilippine Is- lands to the United States are not subject to internal-revenue tax under section 3402, Re- vised Statutes. 24 Op. 120. 25. Same. — 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 pro- visions of that section have been inoperative in those islands, section 1 of that act provid- ing 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. lb. c. Special Taxes — Banks and Bankers. 26. Tax on capital and deposits of banks and bankers. — By operation of the repeal provision in the act of March 3, 1883 (22 Stat. 488*, 526), the taxes on capital and deposits of banks, bankers, and national banking associations, imposed by the internal-revenue law in force at the time of the passage of that act, are not assessable and collectible on the capital and deposits of banks and bankers for the interval between December 1, 1882, and March 3, 1883, nor on the capital and deposits of national banking associations for the interval between January 1 and March 3, 1883. 17 Op. 539. \ 27. Same. — The words "any right accru- ing," etc., used in section 13 of the said act, do not include such taxes accruing at the date of the repeal, there being, as to them, no right in esse. It is the accruing right, not the accruing tax, that is saved, lb. 28. Same. — The provisions of section 13, Re- vised Statutes, saving ' ' any penalty, forfeiture, or liability incurred" under the statute re- pealed, do not extend to the taxes referred to; since, as to them, there are no "liabilities incurred" at the date of the act of March 3, 1883. 26. 29. The tax on State banks imposed by section 19 of the act of February 8, 1875 (18 Stat. 311), applies only to promissory notes and not to other negotiable or quasi-negotiable paper. 20 Op. 681. INTERNAL REVENUE, II, c. 261 30. If there is any doubt as to the meaning of a statute imposing this tax, the doubt mast be resolved in favor of exemption, lb. 81. A clearing house certificate upon which neither the clearing house nor the bank could be sued in an action at common law and a money judgment recovered by proving and introducing the paper alone without further evidence, is not a note within the meaning of the statute. lb. 32. Notes in circulation. — Notes of a national banking association, signed by the proper officers, are not "notes in circulation" within sections 5214 and 5215, Revised Statutes, so long as the bank has never parted with any interest in or control over them, and may either issue them or cause them to be canceled or destroyed at its option. 20 Op. 695. 33. Tax on circulation. — A national bank paying out on checks and otherwise the notes of a bank chartered in a foreign country is subject to tax of 10 per cent under sections 19 and 20 of the act of February 8, 1875 (18 Stat. 311), upon the total amount of all notes which it has received and used as a circulat- ing medium. 20 Op. 530. 34. Circulation. — Section 5214, Revised Statutes, providing a tax upon national banks based upon the average amounts of its "notes in circulation" means instruments binding the banks to the holder or holders as promises to pay. 20 Op. 704. 35. Same. — Bank notes signed and actually paid out over the counter, or otherwise so dealt with as to become liabilities of the bank, are notes in circulation, lb. 36. Same. — Notes merely held in the vault of the bank, whether signed or unsigned, and notes so signed and held, and carried on the books of the bank, are not notes in circula- tion, lb. 37. Same. — Notes that have been obliga- tions of the bank, but cease to be so, returned and remaining in the bank for whatever pe- riod, are not during such period its notes in circulation. lb. 38. Circulation. — Banks of the United States are liable for the tax of 10 per cent on the circulating notes issued by banks in Canada, for circulation in Canada, which have passed over the line and been received by such United States banks and paid out by them within the United States. 21 Op. 557. 39. Same. — The intent and meaning of sec- tion 20 of the act of February 8, 1875, was to apply the tax to the amount of the circulating notes issued by any of the persons or corpor- ations named in the statute, and used by the banks and other persons therein named. lb. 40. Same.— What effect section 20 could possibly have except to impose a tax on the amount of other notes than its own, paid out by a bank as circulation, is difficult to see. lb. (563.) 41. Same. — In commenting upon the case of National Sank v. United States (101 U. S. 1), holding section 3413, Revised Statutes, to be unconstitutional, Solicitor - General Conrad said: "Had this decision been made before the passage of the act of February 8, 1875,- Congress might have deemed it unnecessary to amend section 3413, Revised Statutes, by adding the words 'used for circulation, ' for the Supreme Court, in that opinion, very clearly indicated that the banker who pays out notes thereby helps to keep up their use as a circulating medium. '' lb. (561.) 42. An order on » State bank payable in merchandise silver bullion, which can not be used as money without danger of total loss to whoever may take it, is not subject to the tax imposed by sections 19 and 20 of the act of February 8, 1875 (18 Stat. 311). 21 Op. 336. 43. A proposed issue of interest-bearing bonds by the county commissioners of Floyd County, Ga. , will not conflict with the bank- ing laws of the United States. 21 Op. 70. 44. Undivided profits — Surplus. — The undi- vided profits of a bank are not surplus, and can not be estimated under the war-revenue act of 1898 (30 Stat. 448) as a part of the bank surplus. 22 Op. 320. 45. Capital — Subject of taxation. — The capi- tal of a bank and other funds belonging to it which, by law or the action of the bank au- thorities, assume the character of capital, and which the bank uses in carrying on its busi- ness, is what the law has in view as the sub- ject of taxation. lb. 46. Surplus. — The term " surplus," as ap- plied to banks, includes not only the amount set apart as a minimum surplus, under the national banking act, but also such amount as has been set apart by a vote of the direc- tors or other authorized action of the bank 262 INTERNAL REVENUE, II, c, d, e. to strengthen the capital, and is thus held out to the public as a part of its banking capi- tal, lb. 47 . State banks are taxable upon the amount of their capital, together with such additional surplus or funds belonging to them as may be set apart either by law or by the action of the bank authorities and used in carrying on the general business of the bank. lb. 48. Tax, how computed. — The tax referred to in section 2 of the act (30 Stat. 448) should be computed on the basis of the capital and surplus for the fiscal year preceding the time at which the assessment is made. lb. 49. Profit is the gain made upon any busi- ness or investment when both the receipts and payments are taken into account. lb. 50. Bankers' surplus. — The "undivided prof- its" 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). 23 Op. 341. 51. Same. — 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 for- mally set apart by the authorized officers of the bank as surplus, and not the undivided profits of the institution. lb. d. Tobacco, Cigars, etc. 52. Refuse scraps and scrapings of tobacco. —By section 61 of the act 20th of July, 1868 (15 Stat. 125), entitled "An act imposing taxes on distilled spirits and tobacco, and for other purposes," refuse scraps and scrapings of tobacco are classed as manufactured tobacco. 17 Op. 646. 53. Cigars shipped from the Philippine Is- lands to the United States are not subject to internal-revenue tax under section 3402, Re- vised Statutes. 24 Op. 120. 54. A doubt existing as to the right of the Government to enforce section 10 of the act of July 24, 1897 (30 Stat. 206), which excludes from packages of manufactured tobacco, cigars, cigarettes, etc., everything except the wrapper, label, internal-revenue stamps, and the tobacco or cigarettes, etc., inclosed therein, a test case should be presented to the courts for judicial determination of the question involved. 22 Op. 181. e. Spirituous and Fermented Liquors — Liquor Dealers. 55. The word "liquors" in paragraph 10 of the tariff act of October 1, 1890 (26 Stat. 614), relating to warehouses for the manufacture of "medicines, preparations, * * * an d other liquors manufactured wholly or in part of domestic spirits, intended for exportation," does not include whisky. 20 Op. 699. 56. Fermented liquors— Stamp tax. — 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, por- ter, and 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. 23 Op. 170. 57. Same. — In all cases where more than 85 cents per barrel has been collected in ad- dition to the $1 tax which had theretofore been paid, such collection was erroneous. 76." 58. Additional taxof 91. — Eetail liquor deal- ers are not required to pay the additional tax of f 1 imposed by the war-revenue law (30 Stat. 448) on fermented liquors purchased by them prior to June 14, 1898, and held in stock by them on that day. 22 Op. 279. 59. Same. — The place of business of a retail dealer in any commodity can not properly be termed a warehouse. lb. 60. Same. — A warehouse is a place for stor- ing goods, not for selling them at retail, lb. . 61. Beer stored in warehouse upon which both the brewer's tax and the dealer's tax has been paid. — 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 thereto- fore 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. 23 Op. 227. 62. Same. — This tax is on beer stored or re- moved by the brewer and not by the wholesale or retail dealer. lb. 63. Same. — The warehouse is that of the brewer and not the place where the dealer has it stored. lb. INTERNAL REVENUE, II, e, f. 263 64. No allowance is made by the act of June 30, 1864 (13 Stat. 223), for leakage of spirituous liquors while stored in bonded warehouses. 17 Op. 500. 65. Spirituous and fermented liquors pro- duced in the Indian Territory. — Internal-revenue taxes on distilled spirits, fermented liquors, tobacco, etc., produced in the Indian Terri- tory, and special taxes on the manufacture and sale of those articles in that Territory, may lawfully be collected within the same. 18 Op. 66. 66. Sale of spirituous liquors in the Indian Territory not forbidden. — The Indian title to the lands within the Territory known as Ok- lahoma having become extinguished, and the lands thrown open to settlement, that Terri- tory has ceased to be "Indian country," and sections 2139 and 2140, Revised Statutes, are accordingly no longer applicable thereto; nor is the sale of spirituous liquors and beer in such Territory forbidden thereby. 19 Op. 306. 67. Same. — Yet, for reasons stated, the Internal Revenue Department may decline to furnish special revenue stamps for the sale of intoxicating liquors within that Territory until • Congress shall have time to consider the subject. lb. 68. Same. — Such refusal may be based upon the fact that there are no counties nor legally organized towns whose limits are capable of definition, and therefore such license can not specifically define and describe known places of doing business as contemplated by sections 3240 and 3241, Revised Statutes. lb. 69. Same.— The opinion of May 15, i889 (19 Opin. 306), does not conflict with the collec- tion of the special tax on retail liquor dealers in the Indian country and Alaska under section 3244, Revised Statutes. 21 Op. 25. 70. The establishment of a distillery in the Indian Territory on lands wherein the Indian title is said to be extinct would be in contra- vention of the laws relating generally to the Indian country (sec. 2141, Rev. Stat.), and also of section 8 of the act of March 1, 1895 (28 Stat. 697), which applies specially to the Indian Territory. 22 Op. 232. 71. Same. — There is no portion of the Indian Territory wherein the Indian title has become extinct to the extent that it has ceased to be Indian country, or where the prohibition above referred to does not apply. lb. i. Stamp Taxes on Specific Articles. 1. Bills of Lading, Mani- fest, etc. 72. Transportation of money, securities, etc. — The United States Express Company is not, by reason of its contract with the United States for the transportation of money, secu- rities, etc., relieved of its duty under the war- revenue act of June 13, 1898 (30 Stat. 459), of issuing a bill of lading, manifest, or other receipt with a 1-cent stamp duly attached and canceled, for each such transportation for the Government. 22 Op. 192. 73. Same. — So long as a contractor is taxed uniformly with all others in the same line of business, upon the same transactions, and the tax is levied for proper objects of taxation, he can not complain merely because his compensa- tion or profits under his contract with the Gov- ernment are thereby indirectly reduced. lb. 74. Money and merchandise carried by the Adams Express Company for the Pennsylvania Railroad Company over the lines of the latter, free of charge, under a contract between the two companies, do not require a bill of lading or manifest under the provisions of the war- revenue law, and, if given, it is not liable to the stamp tax provided for under the head of "Express and freight" in the war-revenue act of 1898 (30 Stat. 459). 22 Op. 252. 75". Same. — The term "accepted for trans- portation" as used in the paragraph entitled "Express and freight," in the war-revenue act (30 Stat. 459), means goods received from a shipper or consignee other than the carrier itself, and is intended to apply to goods received for transportation in the usual manner by com- mon carriers. lb. 76. ;Goods transported from United States to Canada or Mexico — Export bills of lading — Stamp tax. — The war-revenue act of June 13, 1898 (30 Stat. 459), requires the pay- ment 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 com- panies for the receipt of goods to be trans- ported by rail from any place within the United States to Canada or Mexico; but no tax is payable thereon under the clause re- lating to goods exported from a port or place in the United States to any foreign port or place. 23 Op. 3. 264 INTERNAL REVENUE, II, f, 2, 3, 4. 77; Same. — 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 trans- portation within the United States as well as for export, may be taxed upon the domestic part regardless of the ultimate destination of the goods. 24 Op. 44. 2. Bills and Notes. 78. Promissory notes.— The war-revenue act of June 13, 1898 (30 Stat. 459), requires a stamp of the value of 2 cents upon promissory notes for a, sum not exceeding $100, and of 2 cents additional for each $100 or fractional part thereof in excess of $100. 22 Op. 218. 79. The tax required upon a mortgage or pledge of stock or property given to secure the payment of a promissory note is governed by the sum secured to be paid, and not by the actual value of the property included in the mortgage or pledge. lb. 80. Money orders, travelers' checks — Bro- kers' tax. — 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). 23 Op. 13"9. 81. Same. — Money orders and travelers' checks as at present issued by certain express companies do not come within the legal defini- tion of bills of exchange or checks, but possess more of the characteristics of promissory notes, lb. 82. Same. — The issuing of 'these orders by express companies upon themselves is not a sale of promissory notes. It is merely an in- cident to their business as carriers, and does not constitute them brokers, lb. 83. The tickets issued by certain ice com- panies ( copies of which are given in the opin- ion) are not "notes" within the meaning of that term as used in section 19 of the act of February 8, 1875 (18 Stat. 311), and therefore are not subject to the 10 per centum tax im- posed by that section. 19 Op. 98. 84. Same. — Where" a company or corpora- tion made and paid out its own notes in the or- dinary course of its business, not intending them to be used for circulation as money or currency, their use as such by other persons after they were paid out, without approval by the maker of such use, would not subject the maker to the tax. lb. 85. Same. — No tax, as such, is imposed on those notes which are prohibited by section 3583, Revised Statutes. The violation of this sec- tion is vindicated by fine or imprisonment, or both. lb. 86. The liability of an instrument to a stamp tax, as well as the amount of such tax, is de- termined by the form and face of the instrument, and can not be affected by proof of facts out- side of the instrument itself. 22 Op. 369. See also 89. 3. Bonds. 87. Bonds provided for in a mortgage, to be issued or not, as the future action .of the mort- gagor may determine, are not, under schedule A of the war-revenue act of 1898 (30 Stat. 458), until issued, the subject of taxation or an ele- ment in estimating the amount of stamps re- quired for the mortgage. 22 Op. 531. 88. Same. — A bond, though prepared and signed, which is still in the possession of the obligor unissued, and which may never be issued, is not a debt or obligation which is liable to taxation under that law. lb. 89. Same — Bonds and notes secured by mort- gage. — The resolution of February 28, 1899 (30 Stat. 1390), amending the war-revenue act in respect to mortgages, and bonds and notes secured thereby, requires but one stamp upon the two separate papers which constitute the one transaction, and the stamp, in proper amount, may be affixed to either and canceled, such stamp being for the highest rate required by said papers or either of them. 76. 90. A bond is an obligation in writing and under seal, binding the obligor to pay a sum of money to the obligee. It is sometimes denom- inated a specialty, being under seal, as dis- tinguished from a simple promise to pay not sealed. 22 Op. 369. 4. Charter party. 91. The paragraph of Schedule A under the head of "Charter Party" in the war-rev- enue law of June 13, 1898 (30 Stat. 460), ap- plies to all vessels registered under the provi- sions of Title XLVin, Revised Statutes, and does not apply to vessels enrolled or licensed under Title I. 22 Op. 270. INTERNAL REVENUE, II, f, 5, 6, 7, 8, 9. 265 92. Same. — The charter parties of regis- tered vessels sailing between the Atlantic and Pacific coasts of the United States in the coast- ing trade are, therefore, to be stamped, as provided in Schedule A. lb. 93. The paragraph of the war-revenue act of June 13, 1898 (30 Stat. 460), relating to charter parties, does not apply to vessels en- gaged in domestic commerce, as the law does not require that their tonnage should be reg- istered. 22 Op. 168. 5. Excess baggage receipts. 94. An excess-baggage receipt issued by a railroad company to a passenger for excess weight of baggage does not require a stamp under Schedule A, paragraph "Express and freight" of the war-revenue act of June 13, 1898 (30 Stat. 459). 22 Op. 246. 6. Insurance. 95. Insurance policies — Preliminary applica- tion.— 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 ap- plication, although such application is ex- pressly made a part of the contract of insur- ance. 23 Op. 210. 96. Same — Separate contracts covering con- secutive periods. — 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 insur- ance period only as continued by further pay- ments 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 deliv- ered is to be determined by the aggregate of the premiums for the entire year. lb. 97. Reinsurance policies need not be stamped under the war-revenue law of June 13, 1898 (30 Stat. 460). 22 Op. 318. 98. Same.— The purpose of Schedule A of the war-revenue law (30 Stat. 460), is to tax the policy by which an insurance is made, either life, fire, or marine, and not the rein- surance of such policy. 22 Op. 376. 7. Medicines — Medicinal propri- etary articles. 99. T/ncompounded medicinal drugs or chemicals, no matter how put up or what is claimed for them, are exempt from tax by sec- tion 20 of the act of June 13, 1898 (30 Stat. 456). 22 Op. 272. , 100. Same. — The act does not apply to such medicinal articles or preparations as are put up under pharmaceutical or classifying names for use of physicians in their practice, or pharma- cists or druggists in their trade. lb. 101. Same. — The class of medicines taxable under the provisions of the law are such as go to the consumer in the unbroken packages in which they are put up by the proprietor, manufacturer, or compounder, with name and disease and the directions for use with- out the intervention of a prescription of a physician or pharmacist. 22 Op. 272. 102. Same. — By the last clause of section 20, above referred to, Congress intended to levy tax upon proprietary medicinal articles, or such as assume the character before the public of proprietary, patent, or trade-mark articles, and such medicinal articles as go from the hands of the proprietor, compounder, or manufacturer so put up in packages as to comport with the manner and style of patent, trade-mark, or proprietary medicines in general, lb. 103. Same. — The question as to what is an uncompounded medicinal drug, or an uncom- pounded chemical, being one of fact and not of law, is to be determined according to the technical meaning that has become attached to it. lb. 8. Money. 104. The term "goods" as used in the paragraph entitled "Express and freight," Schedule A of the war-revenue act of June 13, 1898 (30 Stat. 459), includes money. 22 Op. 178. 9. Mortgage and pledge. 105. The tax required upon a mortgage or pledge of stock or property given to secure the payment of a promissory note is governed by the sum seemed to be paid, and not by the actual value of the property included in the mortgage or pledge. 22 Op. 218. 106. Same. — A paper or instrument stipulat- ing that certain securities or other property shall be held as indemnity or as a basis of credit, or a guaranty generally, without speci- fying particular property as security for the payment of a definite and certain sum, is not 266 INTERNAL REVENUE, II, £, 9, 10, g. liable to tax under the provisions of the war- revenue act. lb. 107. Same. — Such a paper being a pledge of property for the payment of a debt, is not to be construed as a power of attorney and stamped as such, as it only authorizes the holder, in case of default, to make the securities avail- able for the purposes for which they were deposited. lb. 108. Pledge of stock— Stamp tax. — The de- positing with the Girard Trust Company by the Pennsylvania Company, under a written agreement, of certificates of stock of other cor- porations as a pledge for the performance of its covenant to pay, when due, the interest and principal of certain certificates of indebted- ness 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 de- fault the pledgor was to retain and exercise all the rights, powers, aud privileges belong- ing or incident to such ownership. 23 Op. 615. 109. Stock — Puts. — The written evidence of a transaction called in brokers' parlance a ' ' put, ' ' being an agreement on the part of the signer to buy stock, the opportunity to pur- chase being entirely dependent upon the dis- position of the bearer, or the party to whom the paper is given, is not taxable under the war-revenue law. 22 Op. 447. 110. Same. — A writing termed a "call," in which the signer agrees to sell the stock de- scribed in the paper at the price named, pro- vided the holder of the paper calls upon him within the time specified, is taxable under the first paragraph of Schedule A of the war- revenue law (30 Stat. 458) . lb. 111. Call loans. — Written or printed agree- ments between a borrower and a bank where- by 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 ex- isting or thereafter contracted, are not tax- able under the head "Mortgage and pledge," in Schedule A of the war- revenue act of 1898 (30 Stat. 461). 23 Op. 53. 112. Same — To be taxable, must describe property pledged and state amount of loan. — In order to render such an agreement tax- able, the property pledged must be so def- initely described therein as to be capable of identification, and the amount for which it is pledged definitely set forth in the instru- ment itself, or made certain by reference to some other paper, lb. 113. Same — Stock hypothecated by delivery only. — If stock is hypothecated simply by the delivery of the certificates, or is depos- ited as the basis of credit without a mortgage or other instrument being executed, no tax thereon, collectible by the affixing and can- cellation of an adhesive documentary stamp, can be imposed. The provision named does not impose a tax upon anything which is not written or printed. lb. 114. Same — Taxable if accompanied by any paper or memorandum.— Stock pledged as se- curity 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 con- templated by the statutes, lb. 10. Warehouse receipts. 115. All receipts given for goods, mer- chandise, or property held on storage in any public or private warehouse or yard are "warehouse receipts" within the meaning of the war-revenue act of June 13, 1898 (30 Stat. 462), and are subject to a stamp duty of 25 cents. 22 Op. 283. g. Legacy Taxes. 116. The tax provided for in section 29 of the war-revenue law (30 Stat. 464) is upon such legacies and distributive shares arising from personal property as exceed $10,000 in actual value, and not upon the gross amount of the estate in the hands of the executor or administrator. 22 Op. 298. 117. Estates of persons not domiciled in the United States at time of death. — The question as to whether section 29, act of June 13, 1898 (30 Stat. 448, 464), imposes a legacy tax upon the estates of persons who were not domiciled in the United States at the time of death, is not free from doubt. 23 Op. 221. 118. Refunding of legacy taxes. — There is no distinction in the meaning of the terms INTERNAL REVENUE, II, g, h, i; III, a, b. 267 "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 be- quests for religious uses, etc., under the act of June 13, 1898 (30 Stat. 464). 24 Op. 98. 119. Same — "Vested" — "Vested in posses- sion or enjoyment." — The two expressions should be given their technical legal signifi- cance 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. lb. h. Corporations. 120. Railroads. — The net profits' of a rail- road company earned in 1871, and which dur- ing that year were used for construction, or were appropriated to the payment of money bor- rowedfor construction and actually used there- for during that year, or in a subsequent year were appropriated to the payment of money so borrowed and used, are liable to taxation under section 15 of the act of July 14, 1870 (16 Stat. 260). 17 Op. 469. 121. Corporations engaged in refining pe- troleum. — It is impossible for the Attorney- General to say, merely from the facts stated in a letter from the Commissioner of Internal Revenue to the Secretary of the Treasury, whether the Standard Oil Company is taxable under section 27 of the act of June 13, 1898 (30 Stat. 464), on account of its receipts from certain pipe-line companies. 23 Op. 178. i. Income Tax. 122. Under the income-tax law of August 27, 1894 (28 Stat. 553), mileage and commuta- tion of quarters paid to officers of the United States Army are to be considered as parts of the incomes of such officers, and are to be added to other income in order to ascertain the total income. 21 Op. 112. 123. Same. — The amount of the tax on the excess over $4,000 of salary or compensation payable for the calendar year should be de- ducted by the paymaster or other disbursing officer of the Government from the first in- stallment of salary or pay after the aggregate amount paid such officer in any calendar year has reached the sum of $4,000. lb. Direct Taxes. See Dikect Taxes. III. Abatement, refund, etc. — Compromise. a. Abatement, etc. 124. Abatement of tax on whisky accident- ally destroyed by fire in distillery warehouse. — The Secretary of the Treasury has the au- thority under section 3221, Revised Statutes, to abate the tax on whisky which was acci- dentally destroyed by fire in a distillery ware- house without any fraud, collusion, or neg- ligence of the distillers, and while the same remained under the custody of an internal- revenue officer, a portion of which whisky had been in warehouse beyond the bonded period of three years. 18 Op. 379. 125. No allowance is made by the act of June 30, 1864 (13 Stat. 223), for leakage of spirituous liquors while stored in bonded warehouses. 17 Op. 500. 126. Redemption of documentary stamps. — The Commissioner of internal Revenue has au- thority, with the approval of the Secretary of the Treasury, to make regulations looking to the redemption of unused documentary stamps issued under the war-revenue act of June 13, 1898. 22 Op. 568. 127. Same. — In the absence of such rules, the Commissioner of Internal Revenue may cause such unused stamps to be redeemed. lb. 128. Refunding of legacy taxes. — 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 be- quests for religious uses, etc., under the act of June 13, 1898 (30 Stat. 464). 24 Op. 98. 129. Same — "Vested" — "Vested in posses- sion or enjoyment." — The two expressions should be given their technical legal signifi- cance 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. lb. b. Compromise. 130. Compromise — What the secretary should consider. — In passing upon cases sub- mitted to him for compromise, under sections 3229 and 3469, Revised Statutes, the Secre- tary of the Treasury, while he is not at liberty 268 INTERNAL REVENUE, III, b; IV. to act from motives merely of compassion or charity, may consider not only the pecuniary interests of the Government, but take into view general considerations of justice and equity and of public policy. 1 7 Op. 213. 131. The penalty incurred under sections 20 and 21 of the act of February 8, 1875 (18 Stat. 311), for nonpayment of taxes due on the circulating notes issued by banks in Canada for circulation in Canada, but which have passed over the line and been received by banks in the United States and paid out by them within the United States, may be com- promised under section 3229, Revised Statutes, by the Commissioner of Internal Revenue, with the advise and consent of the Secretary of the Treasury. 21 Op. 558. 132. Suit for internal-revenue taxes claimed to have been illegally collected. — The Secre- tary of the Treasury has no power to compro- mise a suit brought against a collector of internal revenue for the recovery of taxes claimed to have been illegally collected. 23 Op. 507. 133. Power of the Secretary of the Treas- ury. — The power given the Secretary of the Treasury by section 3229, Revised Statutes, to compromise cases arising under the inter- nal-revenue laws, extends only to suits com- menced 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. 26. IV. Enforcement — Penalties. 134. Test case.— A doubt existing as to the right of the Government to enforce section 10 of the act of July 24, 1897 (30 Stat. 206), which excludes from packages of manufactured tobacco, cigars, cigarettes, etc., everything, except the wrapper, label, internal-revenue stamps, and the tobacco or cigarettes, etc., inclosed therein, a test case should be pre- sented to the courts for judicial determina- tion of the questions involved. 22 Op. 181. 135. Search warrants, issuance of — Com- pensation. — Although no compensation is provided therefor, it is the duty of United States commissioners to issue search warrants in internal-revenue cases when properly ap- plied for. 24 Op. 685. 136. Same. — Section 3462, Revised Statutes, providing for the issue of these warrants, does not state all that must be included in the application therefor. The fourth amendment to the Constitution provides that "no war- rant shall issue but upon probable cause supported by oath or affirmation, and par- ticularly describing the place to be searched and the person or thing to be seized." 76. 137. Same. — If a United States commissioner refuses, on proper application, to issue a search warrant, the facts may be brought by peti- tion or otherwise to the attention of the court -appointing such recusant officer for such action as it deems proper. lb. 138. Failure to make return of property — Statute imposes a penalty, not a tax. — The 50 per centum required by section 3176, Revised Statutes, to be added to the tax upon taxa- ble property owned by any person who neglects or refuses to make a list or return of such property, and to verify the same as provided by law, is a penalty, not a tax. 17 Op. 433. i39. Same. — Section 3120, Revised Statutes, affords no relief to the party, the addition to his tax having been legally made. lb. 140. Same. — Failure through ignorance of the law — Remission by Secretary of the Treas- ury. — In the case presented, where the delin- quent, a private banker, was not guilty of fraud or willful negligencs, but in ignorance of the statute failed to make his semi-annual return, and obeyed the law as soon as he knew its requirements: Held that the facts bring it within the discretion of the Secretary of the Treasury, given by section 5293, Re- vised Statutes, to remit fines, penalties, etc. lb. 141. Remission of penalties. — The Secretary of the Treasury has authority, under section 5293, Revised Statutes, 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). 23 Op. 398. 142. Same. — Thewords "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. lb. 143. Same. — The additional tax imposed by section 5293, Revised Statutes, is a penalty. INTERNAL REVENUE, V. 269 Where an additional duty is clearly intended not to operate as a penalty, Congress is careful to say so. lb. V. Warehouses — Withdrawal from Bond. 144. Leakage of spirituous liquors while stored in bonded warehouses. — No allowance is made by the act of June 30, 1864 (13 Stat. 223), for leakage of spirituous liquors while stored in bonded warehouses. 17 Op. 500. 145. Whisky destroyed by fire in a distil- lery warehouse.— The Secretary of the Treas- ury has the authority under section 3221, Revised Statutes, to abate the tax on whisky which was accidentally destroyed by fire in a distillery warehouse without any fraud, col- lusion or negligence of the distillers, and while the same remained under the custody of an internal-revenue officer, a portion of which whisky had been in warehouse be- yond the bonded period of three years. 18 Op. 379. 146. Bonded warehouses for the manufacture of medicines and other liquors intended for ex- portation. — The word "liquors" in section 10 of the tariff act of October 1, 1890 (26 Stat. 614) , which relates to bonded, warehouses for the manufacture of medicines and other liquors intended for exportation, does not include whisky. 20 Op. 999. 147. The Secretary of the Treasury has power to make a regulation under which dis- tilled spirits may be permitted to remain in warehouse after the expiration of three years, upon the distiller or owner of the spirits filing a declaration of his purpose to export the same in good faith, and giving a bond to do so within a given period. 18 Op. 92. 148. Liquor in bonded warehouse unaffected by the dispensary law of South Carolina. — The dispensary law of South Carolina of 1893 is ineffective and inoperative as against distilled liquors held in a United States bonded ware- house under the control of the collector of internal revenue. 21 Op. 73. 149. Free withdrawal of spirituous liquors from bond. — Spirits purchased for the National Soldiers' Home at Washington, D. C, are pur- chased "for the use of the United States" within the meaning of section 3464, Revised Statutes, and may be withdrawn from bonded warehouses without payment of internal- revenue tax. 25 Op. 449. 150. Withdrawal of spirits from bond for exportation to Panama and Colon for Canal Zone. — The effect of the order of the President of December 3, 1904, is to prevent the direct shipment of goods, wares, and merchandise into the Canal Zone of Panama; and distilled spirits withdrawn for shipment to Panama or Colon, although ultimately to go to the Canal Zone, are withdrawn for shipment to a foreign country within the letter and spirit of the statutes. 25 Op. 324. 151. Failure to withdraw from bond. — Where the holders of distilled spirits, bonded for exportation, shall have failed within the seven months specified in the bond (given under the regulations of internal revenue cir- cular No. 282) to withdraw such spirits in fact from the distillery warehouse, a forfeiture of the bond follows, and the spirits are not pro- tected from the domestic tax. 18. Op. 246. 153. Extension of time. — Upon application of the principal and sureties on such bond, and for good cause shown, the Commissioner of Internal Revenue may, under existing regu- lations, extend the time named in the bond beyond seven months. lb. 153. Distraint. — The spirits covered by an exportation bond, after the failure to with- draw them and after the forfeiture of the bond, are liable to distraint under the act of May 28, 1880 (21 Stat. 145). lb. 154. The condition of the bond having been broken by the failure to withdraw the spirits, the Government may also proceed upon the bond. lb. 155. Exportation, reimportation, and reentry into bonded warehouses. — Where it was pro- posed to withdraw a quantity of whisky from bonded warehouse, under section 3330, Revised Statutes, and acts of June 9, 1874 (18 Stat. 64), and March 1, 1879 (20 Stat. 337), in order to ship it to Bermuda, with the purpose, after landing it there, of transporting it back to this country and entering it either for warehousing or for consumption under section 2500, Revised Statutes: Advised that such shipment, with the purpose mentioned, would not be an exportation within the mean- ing of section 3330, Revised Statutes, and the act of 1874; nor would such shipment and the landing abroad fulfil the condition of the ex- portation bond, and discharge the whisky 270 INTERNAL REVENUE, V— INTERNATIONAL LAW. from the internal-revenue tax thereon; nor would such whisky, upon return to this country, be entitled to the rights and privileges of imported merchandise underthe warehouse laws. 17 Op. 579. Dispensary Law of South Carolina. See 148. Sale of Intoxicating Liquors. See Indian Territory; Oklahoma. Tax on Liquors. See Internal-Revenue II, e. Internal-Revenue Stamps, Printing of. See Public Printing, IV, 21. INTERNATIONAL BANKING CORPORATION. See Panama Canal, 7, 8. INTERNATIONAL COPYRIGHT. See Copyright, 1. INTERNATIONAL LAW. 1 . Use of water of the Rio Grande lying en- tirely within the United States. — The rules, principles, and precedents of international law impose no duty or obligation npon the United States of denying to its inhabitants the use of the water of that part of the Rio Grande lying entirely within the United States, al- though such use results in reducing the vol- ume of water in the river below the point where it ceases to be entirely within the United States. 21 Op. 274. 2. Same. — The doctrine of international serv- itudes is inapplicable to the situation pre- sented and has never been held to interfere with the enjoyment by a. nation within its own territory of whatever was necessary for the development of its own resources or the comfort of its people, lb. (282.) 3. The fundamental principle of international law is the absolute sovereignty of every nation as against all others within its own territory. lb. (281). 4. The right asserted by Mexico is entirely inconsistent with thesovereignty of the United States over its national domain. lb. (281. ) 5. Cuban insurrection. — The rules of inter- national law with respect to belligerent and neutral rights and duties do not apply to the present Cuban insurrection. 21 Op. 267. 6. Same. — Neither our Government nor our citizens have means of knowledge, and therefore are not bound to take notice as to who are and who are not loyal subjects of Spain so long as their actions are confined to her own territory. lb. 7. Same. — Passage of neutrality laws does not increase obligation. — A failure by the United States to pass neutrality laws would not diminish its international obligations; so passing them does not increase such obli- gations, lb. 8 . Same. — The mere sale or shipment of arms and munitions of war by persons in the United States to persons in Cuba is not a violation of international law, however strong a suspicion there may be that they are to be used in an insurrection against the Spanish Government. Individuals in the United States have a right to sell such articles and ship them to whoever may choose to buy. lb. 9. Same. — The goods, and sometimes the ship carrying them, are subject to seizure by the government within whose jurisdiction they may come, if its domestic laws or regulations are violated, but international law imposes no duty upon our Government with respect to such transactions. lb. 10. Same". — The sale and shipment or carriage of such articles to Cuba does not become a vio- lation of international law merely because they are not destined to a port thereof which is recognized by the Spanish Government as open to commerce, nor because they are to be, or are, landed by stealth. lb. 11. Same. — If, however, the persons supply- ing or carrying arms and munitions from a place in the United States are in anywise parties to a design that force shall be employed against the authorities of Spain, or that, either in the United States or elsewhere before final deliv- ery of such arms and munitions, men with hostile purpose toward the Spanish Govern- ment shall also be taken on board and trans- ported in furtherance of such purpose, the enterprise is not commercial but military, and is in violation of international law and of the United States statutes. lb. 12. Same. — International law takes no ac- count of a mere insurrection confined within the INTERNATIONAL LAW. 271 limits of a country which haa not been pro- tracted or successful enough to secure for those engaged in it recognition as belligerents by their own government or by foreign govern- ments. 21 Op. 267. 13. Same. — The duty of the United States, when a state of war is declared or recognized by another country, is of its own motion to use diligence to discover and prevent within its borders the formation or departure of any military expedition intended to carry on or take part in such war. 21 Op. 267. 14. The imprisonment of a citizen of the United States by an officer of a foreign govern- ment without judicial process, or allegation of a violation of law, but because of an alleged disrespect of such official's authority, is such an injury as will render such government liable in damages. 22 Op. 32. 15. loss of time, absence from business, per- sonal humiliation, and bodily and mental suffer- ing resulting from a wrongful arrest and im- prisonment are, under the laws of civilized countries, grpunds for compensatory damages, the amount being determined in cases of this character through negotiations. lb. 16. When territory is acquired by treaty or conquest, or otherwise, its relation to the nation acquiring it depends upon the laws of that nation, unless controlled by the instrument of cession. 22 Op. 150. 17. The resolution annexing the Hawaiian Islands is intended to have the effect of a treaty of cession merely, whereby those islands become, in a broad sense, subject to Ameri- can sovereignty. How that sovereignty will regulate their status with regard to itself and its laws, is not thereby intended to be deter- mined, lb. 18. The suspension of hostilities provided for by the protocol of agreement between the United States and Spain, signed August 12, 1898, is not tantamount to the termination of the war, but creates only an interval in the war and supposes a return to it. 22 Op. 258. 19. Hostilities between nations suspend in- tercourse and deprive citizens of the hostile nations of rights of an international character previously enjoyed. 22 Op. 268. 20. Property of a neutral, permanently situ- ated within the territory of an enemy, is, from its situation, liable to damage from the law- ful operations of war, and no compensation is due for such damage. 22 Op. 315. 21. 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. 22 Op. 546. 22. If in the grant of a right or privilege the sovereign has retained any authority which may affect its untrammeled exercise and en- joyment, such right is inchoate and can be exercised only by the grace of the succeeding sovereign. lb. 23. On the cession of territory by one nation to another those internal laws and regulations of the former designated as municipal, con- tinue in force and operation until the new sovereign imposes different laws and regula- tions. 22 Op. 526. 24. The laws which are political in their nature and pertain to the prerogatives of the former government, immediately cease upon the transfer of sovereignty. lb. 25. In territory held by conquest, the mili- tary 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 con- quered territory as they may deem wise and prudent. 22 Op. 560. 26. 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 fran- chises, rights, and privileges to private indi- viduals or corporations, cease to have any force or effect after the sovereignty of such government ceases. 22 Op. 574. 27. The issuance of registry to a vessel, en- titling 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. 22 Op. 578. 28. In case of the annexation of a State or cession of territory, the substituted sovereignty assumes the debts and obligations of the ab- sorbed State or territory, taking the burdens with the benefits. 22 Op. 583. 29. " Same. — The exception to this rule occurs where it is otherwise expressly provided by treaty stipulation, or the instrument of ces- sion, 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 mon- archy, lb. 272 INTERNATIONAL LAW— INTERSTATE COMMERCE. 30. Same. — 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 govern- ment should respond out of its separate assets to any valid claims upon it. lb. 31. 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 other- wise affected, internationally speaking, by the circumstances that the Army has been used as the agency. 22 Op. 654. See also Cables. INTERSTATE COMMERCE. 1 . The terms of the five Interstate Commerce Commissioners first appointed under the act of February 4, 1887 (24 Stat. 379) , must be com- puted from January 1, 1887, although their appointments were made March 22, 1887. They are entitled to draw pay only from the time they entered upon the discharge of their duties, respectively. 19 Op: 47. 2. Term of office of the Commissioners. — A member of the Interstate Commerce Com- mission whose term of office, as fixed by law, has expired, can not thereafter lawfully con- tinue to act as such Commissioner and per- form the duties of that office. 25 Op. 332. 3. Navigable waters. — The power to regu- late commerce is one of the instances in which the Constitution operates proprio vigore, and its effect as to the navigable waters of the Union was to establish them as highways, open to the free and unrestricted use of all per- sons engaged in foreign or interstate commerce. 18 Op. 405. 4. Whether Congress has spoken or not spoken, the duty of the United States toward commerce in its several departments of traffic, intercourse, and navigation is equally imper- ative, lb. 5 . The power of the United States to regulate commerce with foreign nations and among the several States, 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. 22 Op. 646. 6. The power of Congress to regulate com- merce, includes the power to regulate the use of all means and instrumentalities used in com- merce, whether on sea, navigable rivers, and lakes, in harbors, or on land, irrespective of whether a State has attempted to regulate the same matter or not. 22 Op. 501, 646. 7. Commerce is not restricted to the purchase and sale of commodities, but includes also navi- gation, intercourse, and the reception, transpor- tation, and delivery of passtengers and freight by land and water, and also the means and instrumentalities used in such commerce. lb. 8. Concessions in freight rates to the United States — Irrigation. — The act of February 4, 1887 (24 Stat. 379), to regulate commerce, is not violated by a reduction in freight rates, au- thorized by section 22 of that act, as amended by the act of March 2, 1889 (25 Stat. 862), on materials and machinery used by the United States, or by parties contracting with them, for work upon irrigation systems un- der construction in the arid regions of the West, provided the Government receives the whole benefit of the reduced rate or conces- sion; but it is violated if the contractor re- ceives any portion ofsuchbenefit. 25 Op. 408. 9. Governmental regulation of railway rates. — There is a governmental power to fix the maximum future charges of carriers by rail- road, vested in the legislatures of the States with regard to transportation exclusively with- in the States, and vested in Congress with re- gard to all other transportation. 25 Op. 422. 10. Same. — Although legislative power, properly speaking, can not be delegated, the law-making body, having enacted into law the standard of charges which shall control, may intrust to an administrative body, not ex- ercising in the true sense judicial power, the duty to fix rates in conformity with that stand- ard, lb. 11. Same. — The rate-making power is not a judicial function and can not be conferred con- stitutionally upon the courts of the United States, either by way of original or appellate jurisdiction. lb. 12. Same. — The courts, however, have the power to investigate any rate or rates fixed by legislative authority and to determine whether they are such as would be confisca- tory of the property of the carrier, and if they INTERSTATE COMMERCE— JEOPARDY. 273 are judicially round to be confiscatory in their effect, to restrain their enforcement. lb. 13. Same. — Any law which attempts to deprive the courts of this power is unconstitu- tional, lb. 14. Same. — Any regulation of land trans- portation, however exercised, would seem to he so indirect in its effect upon the ports that it could not constitute a preference between the ports of different States within the meaning of Article 1, section 9, paragraph 6 of the Constitution. lb. 15. Same. — Seasonable, just, and impartial rates, determined by legislative authority, are not within the prohibition of Article 1, sec- tion 9, paragraph 6 of the Constitution, even though they result in a varying charge per ton per mile to and from the ports of the different States. lb. 16. Transportation of Government employees free of charge. — The provisions of the inter- state commerce act of February 4, 1887 (24 Stat. 379), do not extend to the postal serv- ice of the United States, nor prohibit the transportation by railroad companies, free of charge, of such officers or agents of the Gov- ernment as are employed in that service. 18 Op. 587. 17. Wharfage charges on property of the United States. — The imposition of a toll or charge by the State harbor commissioners of California on merchandise, 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 ren- dered, the Government is not entitled to such service free of toll. 23 Op. 299. 18. Same. — 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. 76. INTOXICATING LIQUORS. See Internal Revenue, II, e; Indians, VIII; Aemy, I, e; Alaska; Indian Territory; Oklahoma. INVASION. The invasion of the State of Vermont in 1864 was really an invasion of the United States. 20 Op. 134. INVENTIONS INTERNATIONAL EXPOSITION. See Expositions and Fairs, II. INVOLUNTARY SERVITUDE. See Panama, 13, 14. IRRIGATION. See Treaties and Conventions, II, h; Navi- gable Waters, 165; Public Lands, 41; Reservations and Parks, 15; Interstate Commebce, 8. ISTHMIAN CANAL COMMISSION. Sale of materials, supplies, and equipments. — The president of the Isthmian Canal Commis- sion has authority, upon the completion of investigations by that body, under the direc- tion or with the approval of the President, to sell, in such manner as will produce the best results, various materials, supplies, and equip- ments purchased and used by the Commis- sion, which can not profitably be brought to the United States. 23 Op. 163. See also Panama, 10. JAMES RIVER, VIRGINIA. Wing Dam. ^Navigable W'aters, 76. JEOPARDY. See Navy, .111. 18456—08 18 274 "JOSEPH PIERCE," STEAMBOAT— JUDGMENTS. "JOSEPH PIEBCE," Steamboat. See Claims, 11. JUDGE-ADVOCATE. Of the Akmy. See Army, 40, 42. JUDGE-ADVOCATE-GENERAL. Of the Navy. See Navy, 95. JUDGMENTS. 1. The salary of a Federal judge should not be withheld as falling within the act of March 3, 1875 (.18 Stat. 481), to meet a judgment re- covered against him as surety for a former Government employee. 20 Op. 626. 2. One final judgment on the merits ren- dered in one action can be pleaded in bar in all the others upon the same cause of action. 21 Op. 447. 3. The Secretary of the Treasury has power under section 3469, Revised Statutes, to com- promise a judgment rendered in the name of the United States for damages and penalties incurred under sections 3490-3493, Revised Statutes, notwithstanding the fact that the prosecution was instituted and prosecuted to final judgment by an individual who thereby acquired an interest in the judgment (see United Slates v. Morris, 10 Wheat., 246). 18 Op. 72. 4. Claims in favor of the Government, founded on judgments entered upon forfeited recognizances taken in the prosecution of offenses against the postal laws, may be com- promised by the Secretary of the Treasury under the provisions and upon the considera- tions imposed by section 3496, Revised Statutes. 18 Op. 277. 5. 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 judg- ment, 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. 18 Op. 631. 6. It is doubtful if the power given to the Secretary of the Treasury by section 3469 Re- vised Statutes to compromise "any claim," extends to a judgment recovered by the United States against a corporation in a suit for a penalty for violation of the contract-labor law of February 26, 1885 (23 Stat. 332). 19 Op. 344. 7. Neither section 2 of the act of March 3, 1891 (26 Stat. 1084), nor any other previous law referred to in that section, gives authority to anyone to settle or compromise judgments entered under section 3 of the contract-labor act of February 26, 1885 (23 Stat. 333). 20 Op. 530. 19 Op. 344, adhered to. lb. 8. Section 3469, Revised Statutes, does not confer upon the Secretary of the Treasury power to remit or release any portion of a judg- ment indebtedness on considerations of hardship to particular individuals. The authority to ' ' compromise ' ' relates to claims of doubtful recovery or enforcement. 21 Op. 50. 13 Op. 479, and 18 Op. 72, distinguished. lb. 9. The Secretary of the Treasury has no authority to remit or release judgments in favor of the Government from which there is no appeal and which are clearly recoverable. 21 Op. 264. 10. 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. 23-18. 11. Where a judgment against the United States was recovered in the Court of Claims, and a stipulation was made, which is of record in the case, that neither the plaintiff nor the defendant would take an appeal from such judgment: Advised that there is no legal ob- jection to payment of the judgment before the expiration of the ninety days allowed by statute for taking an appeal. 19 Op. 281. See also Fokeign Judgments. JURISDICTION— KANSAS. 275 JURISDICTION. Administration of Estate. See Admin- istration; Cuba 24; United States Naval Asylum at Philadelphia, Pa. Chancery Court of Virginia over United • States Cruiser Galveston. See United States, 23-26. Civil and Military Courts in the Philip- pine Islands. See Philippine Islands, 50, 51. Coastal and Navigable Waters op Porto Rico. See Porto Rico, 38-43, 47. Crimes. See Courts II, b; Consular Courts, 1; Indians, XII; Arenas Key Island; No Man's Land. Federal Courts. See Courts, II, b. Fisheries in Navigable Waters Within States. See Fisheries. Land Acquired by the United States for Public Building Sites, Reservations, and Other Public Purposes. See Public Buildings, United States, V. Norfolk Harbor Powder Officer. See United States, 5. Offenses Committed Upon the High Seas. See Treaties, 31. Over Holston Street, Knoxville, Tenn. See United States, 64. State Court, Power to Compel Federal Employee to Perform Jury Duty. See United States, II, 42. State Harbor Commissioners at Norfolk:, Va. See United States, 22. In General. See Appropriate headings for particular subjects desired. JURY DUTY. See United States, II, 42. KAHAUIKI MILITARY RESERVATION. See Reservations and Parks, II, 32. KAISER WILHELM II (Steamer). See Customs Laws, 240. KANSAS. 1 . Authority to issue certificates of indebted- ness under the treaty with the Kansas Indians is to be considered as conferred upon the date of the proclamation of the treaty, March 16, 1863, and not before. 17 Op. 200. 2. Such certificates were of two classes, viz: First, those issued to persons who had settled and improved lands within the reservation to an amount not exceeding $29,421 in the aggregate; second, those issued to persons having claims against the Indians to an amount not exceeding in the aggregate $36,394.47. lb. 3. Certificates issued before the proclamation of the treaty, or before the Senate amendment had received the assent of the Indians, the entire sum of which exceeded the amount allowed by the treaty, are absolutely null and void. lb. 4. Certificates lawfully issued may be dis- tinguished from those unlawfully issued by their respective dates, only those issued after the date of the treaty being recognized, and those only until the amounts limited by the treaty have been reached. lb. 5. Where certificates of the first class al- ready redeemed were issued after the limit pre- scribed by the treaty had been reached, and a portion of those outstanding were issued be- fore that limit was reached, it is the duty of the Secretary of the Treasury to recognize as lawful such as had been issued within the limit referred to. lb. 6. The Secretary of the Interior is not at liberty to accept in payment of lands any cer- tificates of the first class issued after the limi- tation upon the amount of such certificates prescribed in the treaty had been reached, nor any certificates of the second class issued in advance of the ratification and proclamation of the treaty. lb. 7. In construing the act of August 15, 1876 (19 Stat. 206), entitled, "An act reliev- ing the State of Kansas from charges on account of ordnance stores furnished to Kansas Terri- tory," the preamble thereto may be resorted to for the purpose of ascertaining the mean- ing of the enacting clause. 18 Op. 316. 8. Same. — In compliance with the provi- sions of that act, the State is entitled to a credit of $11,425 thereunder, and no more. lb. 276 KANSAS— LAKE HURON, MICHIGAN. 9. The State of Kansas is not entitled, un- der the third section of the act of January 29, 1861 (12 Stat. 127) , to 5 per centum of the pro- ceeds of the sales of the Indian lands in that State, which proceeds the United States, as a consideration for the extinguishment of the Indian title, agreed to receive, hold in trust, and pay over to the Indians. 19 Op. 117. 10. Same. — The intent of the compact was that the United States should pay to the State 5 per cent of the net moneys Which the Gov- ernment, in its own right, received from the sale of public lands. lb. 11. Same. — Legislative contracts or grants are to be construed strictly against the grantees, and nothing passes but what is conveyed in clear and explicit language. lb. 12. The provision in the act of March 2, 1889 (25 Stat. 921), for payment to the State of Kansas of $43,790.32, on account of 5 per centum fund arising from the sale of pnblic lands in said State, precludes all inquiry on the part of the accounting officers of the Treas- ury as to the legality and justness of the claim. It is their duty to allow and certify the claim for that amount, "as per decision of the First Comptroller of the Treasury of date May 6, 1880, and as stated by the Com- missioner of the General Land Office." 19 Op. 362. 13. A statute of Kansas, providing that the United States "shall have the right of exclusive legislation and concurrent jurisdiction," etc., is not a compliance with an act of Congress for the erection of a building, at Atchison, which provides for exclusive jurisdiction save as to the ' ' administration of the criminal laws of said State and the service of civil process therein." 20 Op. 242. See also Direct Taxes. 2 ; Public Lands, 18. KANSAS PACIFIC RAILWAY COMPANY. See Railroads, 36. KANSAS AND ARKANSAS VALLEY BAIL- WAY COMPANY. See Indians, 45. KICKAPOO INDIANS. See Indians, 57-59. KLAMATH RIVER. See Indians, 43, 44. KNOXVILLE, TENN. Jurisdiction over Holston Street. See United States, 64. LACHES. See Actions, 3; United States, 60. LAKE CHAMPLAIN. The waters of Lake Champlain, within the limits of the United States, being partly in New York and partly in Vermont, the right to take fish therefrom depends solely upon the laws of the one or of the other of those States, according as the locus is within the bounda- ries of the one or of the other. The General Government can afford no relief where indi- vidual rights are interfered with. 17 Op. 74. LAKE HURON, MICHIGAN. Ownership of stone taken from bed of the lake in front of private property. — Semble that the proprietors of land adjacent to Lake Huron, Michigan, have no legal right to stone taken from the bed of that lake, in front of their property, by other persons, and delivered by the latter on the Government works — the ownership of such bed being apparently in the State. Under the circumstances pre- sented, the claim of such proprietors for the stone so taken and delivered may properly be resisted by the United States officer in charge of the works. 17 Op. 59. LAKE SUPERIOR AND MISS. R. R. CO.— LEAVES OF ABSENCE. 277 LAKE SUPERIOR AND MISSISSIPPI RAIL- ROAD COMPANY. Audit of Account for Mail Transporta- tions. See Postal Service, 100. LAND CLAIMS. See Public Lands, XII. s LAND FOR PUBLIC BUILDINGS. See Public Buildings; United States, V. LAND GRANTS. 'ee Mexican Land Grants; Railroads, III; Public Lands, VI-IX. LAND PATENTS. Signing of. See President, 98. LANGFORD, WILLIAM 0. Claim to Indian Lands. See Indians, II, 77-83. LAWTON'S CASE. See Pardon, 12. LEAD. See Customs Law, 150, 151, 166-169, 361-364, 370-373. LEAKAGE. See Customs Law, 105, 106. See LEASE. Indian Lands. See Indians, III, e. Sites Upon Hot Springs Reservation. Reservations and Parks, 2-4. Post-Offices. See Public Buildings, 24, 25. Privileges at Ellis Island. See Immigra- tion, 94-103. See also Seal Fisheries, II; and Alaska, 8-11. LEAVES OF ABSENCE. 1. The meaning of section 4 of the act of March 3, 1883 (22 Stat. 563), is that an absence from the Executive Departments in excess of thirty days shall be without pay except in cases of sickness ; that in a case of sickness an ab- sence in excess of thirty days shall be with pay, so long as the Department shall retain upon its roll the sick employee; that after thirty days of absence in a case of sickness no leave of absence for a different cause can be granted with pay; that when thirty days' ab- sence in any one year has been granted with pay, additional absence can be granted to the same party with pay in case of sickness. 18 Op. 352. 2. Section 4 of the act of March 3, 1883 (22 Stat. 564), inhibits heads of Departments and the Executive from granting leave of ab- sence to Department clerks with pay and without charging the time against the period of absence allowed annually by law in every case except that of the sickness of the clerk con- cerned. 20 Op. 303. 3. Leave of absence with pay after an absence of ninety days prohibited, — Section 5 of the act of March 3, 1893 (27 Stat. 715), prohibits any further leave of absence on pay where an employee has, before July 1, 1893, been absent for a longer period than ninety days during the calendar year 1893. 20 Op. 607. 4. Clerks and employees — Leaves of ab- sence. — Heads of Departments have no author- ity, in view of section 5 of the act of March 3, 1893 (27 Stat. 675), to grant to clerks and em- ployees sick leave with pay for more than sixty days in any one calendar year. 20 Op. 670. 5. Same. — The act applies tojthe current year, and absences prior to July 1, 1893, must be taken into account in computing the total leave to which an employee may be entitled 278 LEAVES OF ABSENCE. during the calendaryear ending December 31, 1893. lb. 6. Leave prorated. — Where an employee is not connected with the Department during the entire calendar year he is not entitled to full annual or sick leave, which should be pro- rated. 20 Op. 728. 7. Sixty days' leave of absence, with pay, may be granted employees in the Executive Departments, provided that as much as thirty days of it was made necessary by personal illness. 22 Op. 255. 8. Same.— The act of July 7, 1898 (30 Stat. 653), nullifies so much'of the act of March 15, 1898 (30 Stat. 316), as.provides that the thirty days' sick leave shall only be granted with pay in exceptionally meritorious cases, and reestablishes the law authorizing thirty days' annual leave with pay without any cause be- ing given, and thirty days' additional leave on account of sickness. lb. 9. In computing the annual leave and sick leave under section 5 of the act of March 3, 1893 (27 Stat. 715), Sundays and holidays occurring during such absence should be charged against the absentee. 20 Op. 716. 10. Same. — The word "meritorious" in the above-named section is surplusage. lb. 11. Same. — The word "exceptional" in the same act raises a question of fact upon which the Attorney-General can not advise. lb. 12. Sundays and days declared to be legal holidays by law or Executive order should be included in the annual leave to be granted under the provisions of section 7 of the act of March 15, 1898 (30 Stat. 316). 22 Op. 77. 13. Same. — A clerk or other employee of an Executive Department of the Government whose duties are performed at a place other than the seat of Government is as much entitled to the benefits of the act of March 15, 1898, with reference to leaves of absence, as one whose duties are performed in the city of Washington. lb. 14. Same. — The subordinate officers and em- ployees of the customs service, wherever em- ployed, and whether they receive an annual or per diem compensation, are entitled to the same privileges of the statue with reference to leaves of absence as clerks and employees in the Executive Departments at Washington. lb. 15. Employees of the United States who are members of the National Guard are not en- titled to leave of absence from their respec- tive duties without loss of pay or time in order to engage in rifle practice, even although in the general orders of the commanding genera} of the militia such rifle practice may be called a parade. 20 Op. 669. 16. Same. — Rifle practice is not a parade within the meaning of section 49 of the act of March 1, 1889 (25 Stat, 779). lb. 17. Leaves of absence of employees of the Government in the discharge of military duties are not to be charged to the thirty days al- lowed them annually for rest and recreation. 21 Op- 353. 18. Same. — Section 49 of the act of March 1, 1889 (25 Stat. 779), in regard to leaves of absence of officers and employees of the United States who are members of the District of Columbia National Guard, was not repealed or modified by section 5 of the act of March 3, 1893 <27 Stat. 715). The object of the former was to provide for the public defense and that of the latter to regulate leaves of absence for private reasons or purposes. lb. 19. The act of July 6, 1892 (27 Stat. 87), relating to leave of absence of employees of the Bureau of Engraving and Printing, con- templates a maximum leave of absence to pieceworkers of thirty days, with a continu- ance of average compensation; and a leave of absence with pay during the same to a piece- worker whose service and consequent earn- ings are less than the maximum, determined by the average amount of his work and of his pay therefor. 20 Op. 429. 20. Employees of the Bureau of Engraving and Printing are entitled to leave of absence under the act of July 6, 1892 (27 Stat. 87), notwithstanding the provisions of section 5 of the act of March 3, 1893 (27 Stat. 715). 21 Op. 338. 21. Same. — The provisions of the act of 1893 apply only to clerks and employees in the city of Washington. lb. 22. Same. — The provisions of the legisla- tive appropriation act of March 3, 1893 (27 Stat. 715), concerning annual and sick leaves of absence do not apply to employees of the De- partment of Agriculture employed outside of the city of Washington. (21 Op. 338 followed.) 21 Op. 427. 23. Employees of the powder and ordnance depots, the national armory, and civilian em- ployees of the Ordnance Department, — The act LEAVES OF ABSENCE— LICENSES. 279 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 arse- nals of the United States, includes all em- ployees 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 Gov- ernment contracts. 23 Op. 443. 24. Test of their inclusion. — It is the nature of the duties performed by the employee, and not the place where performed, that consti- tutes the test as to their inclusion. lb. Houks of Labor, see Executive Depart- ments, 5-7; Panama, 9-11, 15, 16. See also Holidays; Army, 191. LEGACIES. A legacy or distributive share, in contem- plation of law, does not pass to an executor or administrator, but passes through them to such person as is entitled. 22 Op. 298. LEGACY TAX. See Internal Eevenue, II, g. LEGISLATIVE GRANTS. See Statutory Construction, 41. LEHIGH VALLEY RAILROAD COMPANY. See Navigable Waters, 162. LETTERS ROGATORY. IT Porto Rico. — There is no law, Federal or State, which requires or authorizes any court of New York to comply with an exhorto pr letter rogatory issued by the tribunal of the district of San Juan, Porto Eico, 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. 23 Op. 112. 2. Execution of German letters rogatory by United States courts. — 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. 24 Op. 69. 3. Same. — Congressional legislation recom- mended which shall explicity 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 recog- nized powers which possess and exercise well defined judicial functions. lb. LEVEES. See Navigable Waters, 78. LIBEL. Any publication in an official circular of the ground upon which an employee of the Government has been suspended or dis- charged from the public service will not sup- port a cause of action for libel against the officers making such publication, provided it was made in good faith, without malice, in the performance of official duty, and with the design only of promoting the public in- terests. 21 Op. 320. LIBRARY OF CONGRESS. Building. See Contracts, 1, 2. LICENSES. 1. The Secretary of War is not authorized by the joint resolution of March 3, 1891 (26 Stat. 1116), to construct a portage railway at 280 LICENSES. the Cascades, Oregon, and turn the same over after completion to the State of Oregon for operation on certain conditions. 20 Op. 93. 2. Such an act would give the State of Oregon not merely a revocable license, but a vestage right to operate the railway and de- rive revenue therefrom, and consequently is beyond the power of the Secretary of War, not having been authorized lay the resolution in question. lb. 3. Arrangements made by the Secretary of War and the President, allowing private in-, dividuals to enter military reservations and prosecute undertakings for the common benefit of themselves and the United States have had no contractual feature and have always been revocable at the pleasure of the Government. lb. 4. The Secretary of the Treasury has no authority to grant or lease a right of way through the light-house reservation at Cape May, N. J., to the Delaware Bay and Cape May Railroad Company, for the consideration of free passage on such road to all officers and employees of the light-house establishment. 20 Op. 527, 537. . 5. Same. — The "lease," as it is termed, op- erated only as a revocable license, and did not carry any estate in the land in question, lb. 6. Same. — The Secretary of the Treasury has power to revoke the license at pleasure, and to remove the property of the company from the reservation upon its failure to do so after reasonable notice, lb. 7. Licenses are not required for vessels en- gaged in fnr-seal fishing in waters other than those covered by the award of the Paris Tri- bunal and the act of Congress of April 6, 1894 (28 Stat. 52). 21 Op. 239. 8. When the license of a custom-house broker has been revoked, he can not thereafter deal directly with the customs officials, except when acting for himself as principal. 21 Op. 255. 9. The Secretary of the Treasury may grant a license, revocable at his will, to use a portion of Ellis Island, an immigrant station, for the purpose of erecting and maintaining an exhibiting hall and conducting a land and labor bureau. 21 Op. 473. 10. The Secretary of the Treasury has power under section 9 of the act of March 3, 1893 (27 Stat. 569), to grant exclusive privi- leges in connection with Ellis Island Immigrant Station, after public competition, under such limitations and conditions as he may pre- scribe. 21 Op. 476. 11. Same. — He has no authority to lease any part of Ellis Island. lb. 12. The act of July 28, 1892 (27 Stat. 321), authorizing the Secretary of War to lease such property of the United States under his control as may not for the time be required for the public use, forbids an occupation which con- templates permanency or duration longer than five years. 21 Op. 537. 13. A revocable license, without limitation as to time, by the Secretary of War to a Boman Catholic archbishop, to erect and main- tain a chapel on the military reservation at West Point, transcends the statute. lb. 14. Sections 161 and 217 of the Revised Statutes do not authorize the granting of licenses for the occupation of parts of mili- tary reservations for the erection of hotels, church edifices, etc. 76. 15. Section 1331 has a special and partial purpose and gives no authority to dispose of the use of property. lb. 16. From section 6, act of July 5, 1884 (23 Stat. 104), it may be regarded as certain that it was the view of Congress that an explicit authority was necessary for even a transient occupation of a military reservation for other than its special purpose. lb. 17. The Secretary of War has no authority to grant permission for the erection of a bethel, reading room, and library within the army reservation on Ship Island. (21 Opin. 537 followed.) 21 Op. 565. 18. The granting of a revocable license to the Washington and Glen Echo Railway Com- pany to lay a single track on the Aqueduct Reservation near Cabin John Bridge does not conflict with the acts of July 29, 1892 (2'i Stat. 326), and June 3, 1896 (29 Stat. 246), authorizing the construction of the Washing- ton and Great Falls Railway and providing that there shall be but one railway parallel to and near the Conduit road, that provision being merely a restriction upon the latter company. 22 Op. 240. 19. Long-continued exercise of a power of this kind by the Secretary of War, and the open and notorious use of Government reservations by such licensees without legislative objec- tion from Congress or the„adoption of any LICENSES— LIENS. 281 legislative rule on the subject, implies the tacit assent of Congress to this custom. II i. 20. Same. —The right to issue such a license can not be maintained upon any ground except the benefit to the public interests, and can not be used as a basis for granting, under the guise of a temporary license, a permanent right to maintain a railroad. It confers no contractual right upon the licensee, lb. 21. Same. — The license granting the right to construct the road should contain such re- strictions or regulations as may be necessary to fix its location and protect Government property. lb. 22. Such portion of the Fort Sill Military Beservation can be set apart as may be re- quired for the erection of the necessary buildings to be used as a mission and school for the Apache prisoners of war. 22 Op. 303. 23. Same. — The Secretary of War may make such rules and regulations as shall be deemed suitable and necessary to control the methods and operations of the persons en- gaged in this work. lb. 24. During the military control of Porto Rico, leave or license may be granted an in- dividual to make temporary use of portions of the public domain. 22 Op. 544. 25. Same. — The grant of such 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 to be made. lb. 26. A patent or license granted by the Spanish Government 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 (30 Stat. 1760), if on that date it would, in ordinary times, have been good under Spanish law, not- withstanding American law gives no identi- cal rights. 22 Op. 617. 27. Secretary of War — Construction of a wharf at San Juan, P. B. — Prior to the passage of the Porto Eican 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 I Council of that island do not extend to an antecedent license granted by him. 23 Op. 552. 28. Same — Operative until revoked.— 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, un- der such license, is subject to his control and supervision, and not to that of the Executive Council. 26. Steam Engineers. See District op Colum- bia, 6. Officers of Steam Vessels. See Steamboat Inspection Service. Tax for Hunting. See Hunting. Patents. See Patents, 14. To Construct Irrigating Ditch Through Military Reservation. See Reservations and Pabks, 15. See also Concessions. LIENS. 1. Assuming that the title to the land on which the dry dock at Port Boyal is built and the exclusive jurisdiction over it are in the United States, the mechanics' lien laws of South Carolina do not operate thereon and claims under such laws may be ignored in the settlement with contractors. 21 Op. 18. 2. Same. — On the grounds of public policy, the mechanics' lien laws do not generally, in the absence of expressed provisions, apply to public buildings erected by States for public use. lb. 3. Amechanic'slien willnot lie against prop- erty of the United States. 21 Op. 18, 78. 4. The owner or consignee of a vessel ar- riving from a foreign port is entitled under sec- tion 2981, Revised Statutes, to a lien for freight on merchandise imported on such vessel, even though the merchandise is in- tended for exportation. 21 Op. 38. 5. The Treasury Department may legally accept the revenue cutter Calumet, subject to a creditor's lien, and after satisfying the lien, proceed against the contractor's bondsmen to recover a payment in excess of the require- ments of the contract. 21 Op. 70. 282 LIEU LANDS— LIGHT-HOUSES. LIEU LANDS. See Railhoads, III, 64. LIFE PRESERVERS. See Steamboat-Inspection Service, 9. LIFE SAVING. 1. Life-saving medals. — Section 12 of act of June 18, 1878 (20 Stat. 163), does not confer authority upon the Secretary of the Treasury to bestow life-saving medals for signal exer- tions made in saving persons from drowning in small inland streams, ponds, and pools. 21 Op. 65. 2. Same. — The waters contemplated by that section are either the high seas or what might be described as waters of the United States. lb. 3. Perils of the sea. — The expressions "suc- coring the shipwrecked" and "saving persons from drowning," for which, by section 12 of the act to organize the Life-Saving Service, approved June 18, 1878 (20 Stat. 165), the Secretary of the Treasury is authorized to be- stow the life-saving medal of the second class, has reference to the rescue of persons who are subjected to the perils of the sea in any of the waters of the United States and in the vicinity of any life-saving station, lifeboat station, or house of refuge, either by shipwreck or from being upon or connected with any vessel in distress. 21 Op. 124. 4. Same.— Such medals of honor cannot be awarded to any other persons than those who are members of the regular or volunteer life-saving crew. lb. 5. Medals af honor — Perils of the sea — Ship- wreck.— 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 sev- eral 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 drown- ing in the waters pver which the United States has jurisdiction, whether the said per- sons 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. 23. Op. 78. 6. Same. — The act of 1897 empowers the Secretary of the Treasury to bestow medals of honor upon all persons who, in his opin- ion, 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. lb. LIGHT-HOUSES. 1. Light-house keepers. — Legislation of Congress in regard to the appointment of light-house keepers considered. 18 Op. 344. 2. Light-House Board — Regulations. — Sec- tion 4669, Revised Statutes, confines the power of the Light-House Board to the adop- tion and enforcement of such regulations as concern the management and control of light- house keepers, inspectors, and employees for the purpose of properly administering the Light-House Establishment. 76. 3. Same. — The statute does not authorize the Board to adopt and enforce regulations controlling in any manner the appointment of light-house keepers or other inferior offi- cers, or to designate the appointees, lb. 4. Assistant light-house keeper — Nomina- tion of. — Neither the Light-House Board nor the collector of customs has a legal right to nominate assistant light-house keepers. 18 Op. 528. 5. Same. — The Secretary of the Treasury is not restricted to such appointments as the Board recommends, but may appoint any one who, in his judgment, will best discharge the duties of the office. lb. 6. Same. — Where a regulation, made under and within the power granted by -section 4669, Revised Statutes, is regularly approved, neither the Board without the approval of the Secretary nor the Secretary without the ap- proval of the Board can change it. But such regulation can not abridge or control in any manner the power of appointment conferred by law upon the Secretary. lb. LIGHT-HOUSES— LOTTERY. 283 Diamond Shoal Light-House — Approval of . — The approval by the Secretary of Commerce and Labor of the plans and specifi- cations submitted for the construction of a light-house and fog signal at Diamond Shoal, upon the condition that they are to be changed to meet the objections raised by the Light-House Board, will constitute an accept- ance within the provisions of the act of March 3, 1905 (33 Stat. 1266), providing for the construction of such light-house and fog signal. 25 Op. 548. 8, Same. — The conditions upon which the approval of the plans and specifications for such light-house and fog signal is given should be recited in the approval itself. lb. LIGHT-MONEY TAX. See Shipping, 68. LIMITATIONS. Of Claims. See Couhts, 23. LINE OF DUTY. See Pensions, 57, 59. LINE OFFICERS OF THE NAVY. See Navy, 89-92. LIQUIDATED DAMAGES. See Contracts, 126. LIQUIDATION OF DUTIES. Customs Law, V, c. LIQUORS. See Internal Revenue, II, e. LONGEVITY PAY. See Army, 153, 154; Navy, 102. LOS BANOS MILITARY POST. See Reservations and Parks, 33, 34. LOSS OF MONEY-ORDER FUNDS. See Postal Service, 37. LOTTERY. 1. Fraudulent lottery — Refusal to deliver registered letters and pay money orders. — Where the Postmaster-General finds, upon evidence satisfactory to himself, that a per- son is engaged in conducting a fraudulent lottery, he may and should forbid the deliv- ery of registered letters and the payment of money orders to such person. 17 Op. 77. 2. Same. — It is not in terms all fraudulent lotteries, etc., that are excluded from the use of the registry and money-order systems; those only are denied such use which are found to be fraudulent by the Postmaster- General, lb. 3. A circular of the World's Dispensary Medical Association, contemplating the sale of 100,000 copies of a certain book at $1.50 per copy, and proposing to distribute among the purchasers a large amount out of the proceeds of such sale in sums ranging from 25 cents to $6,000 per each purchaser: Held to be unmail- able matter,' it being manifestly a device to deceive and defraud the public. 17 Op. 624. 4. Letters and circulars known (not merely supposed or suspected) to concern lotteries are nonmailable, and may properly be excluded from the mails. 18 Op. 306. 5. . Can not be excluded simply because ad- dressed to such lottery associations. — Letters addressed to lottery associations or lottery agents can not, simply because they are thus addressed, be deemed to be letters concern- ing lotteries and as such excluded. lb. 6. Newspapers or periodicals containing lot- tery advertisements are not thereby rendered nonmailable. lb. (But see 20 Op. 203.) 7. A postmaster can not lawfully refuse to receive and forward registered packages ad- dressed to lottery companies or persons de- scribed as agents, officers, or managers there- of; nor can he lawfully -refuse to issue money orders payable to such companies or to persons 2-84 LOTTERY. described in the orders as agents, officers, or managers thereof. 18 Op. 307. 8. Pamphlet containing advertisement of a lottery. — A pamphlet and papers accompany- ing it considered, and determined to be matter that should be excluded from the mails, as containing an advertisement of a lottery, in violation of section 3894, Revised Statutes. 20 Op. 203. 9. An advertisement in a French publica- tion styled Le Petite Journal, considered, and held to fall within the prohibited class defined in section 3894 of the Revised Statutes as amended by the act of September 19, 1890 (26 Stat. 465). 21 Op. 171. 10. An advertisement containing a picture and description of a slot machine with a hand which revolves and indicates by chance the quantity of articles purchased, is not a circular containing; any lottery or enterprise offering prizes dependent upon lot or chance within the meaning of the act of September 19, 1890 (26 Stat. 465). 22 Op. 198. 11. Until the Postmaster -fieneral has found, upon evidence satisfactory to himself, that any lottery, gift enterprise, or scheme is a means of fraudulently obtaining money through the mails, he is not authorized to instruct post- roasters to return registered letters or to for- bid them to pay money orders because the same are addressed or made payable to an individual conducting such lottery, gift enter- prise, or scheme. 18 Op. 325. 12. Congress intended in section 3929, Re- vised Statutes, to draw « distinction between lotteries, etc., fairly, and lotteries, etc., dis- honestly conducted. lb. 13. Newspapers— Prizes for guesses. — Where a newspaper contained an advertise- ment offering in good faith a certain sum of money to the sender of the first "guess" gi ving the correct or nearest number of votes which each of two opposing candidates, of different political parties, for a designated State office, shall receive at the next ensuing election, the guessing period to end with the day on which the election takes place: Held that the scheme thus advertised is not one offering a prize "de- pendent upon lot or chance," within the mean- ing of section 3894, Revised Statutes, as amended by the act of September 19, 1890 (26 Stat. 465), and that the newspaper con- taining the advertisement is not, by the pro- visions of said section, excluded from the mail. 19 Op. 679. 14. Guesses as to presidential majority. — 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 cor- poration 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 purchas- ers of the stock whose guesses as to the ma- jority that will be received by either presi- dential nominee shall be nearest correct. 23 Op. 207. 15. Guesses — Number of paid admissions to Pan-American Exposition at Buffalo. — The offering of prizes by a newspaper to those who make the nearest estimates of the num- ber of paid admissions to the Pan-American Exposition at Buffalo, from the day of open- ing to the day of closing, is not in violation of section 3894, Revised Statutes, as amended by the act of September 19, 1890 (26 Stat. 465). 23 Op. 492. 16. Same. — The words "dependent upon lot or chance, ' ' as used in the above-named sec- tion, exclude estimates which are based upon mental calculation, even though the factors which enter into such calculation may be un- certain and matter of conjecture, lb. Opinions of October 31, 1890 (19 Op. 679), and of September 4, 1900 (23 Op. 207), reaf- firmed, lb. 17. Guessing contest. — The scheme of the World's Fair Contest Company, under which a large number of cash prizes ar.e offered to the persons submitting the nearest estimates of the total number of paid admissions to the World's Fair at St. Louis, Mo., from its open- ing to its close, a charge being made for the privilege of submitting each estimate ; and the scheme of the National Contest Company, which proposes to distribute a large number of cash prizes to the persons who can estimate nearest to the.popular vote cast for the winning candidate for the presidency of the United States in 1904, a charge being made for each guess, are in effect lotteries under the guise of ' ' guessing contests, " and the Postmaster-Gen- eral is authorized, under sections 3929 and 4041, Revised Statutes, to deny the use of the mails in furtherance of those schemes. 25 Op. 286. LOTTERY. 285 18. Same. — To bring such schemes within the inhibition of the statutes it is not necessary that the distribution of the prizes should be dependent wholly upon chance, but it is suffi- cient if the scheme is not a "legitimate busi- ness enterprise ' ' and the distribution is de- pendent largely upon chance. lb. Opinions of October 31, 1890 (19 Op. 679); of September 4, 1900 (23 Op. 207), and of Au- gust 19, 1901 (23 Op. 492), disregarded, lb. 19. Whether various schemes are "dependent on lot or chance" within the meaning of the lottery law, is a mere question of fact upon which the Attorney-General is not authorized to give an opinion. 20 Op. 530. 20. The Tontine Savings Association of Min- neapolis, Minn., issued bonds in numerical or- der agreeing to pay the holder of each bond $1,500 forty years after date, unless redeemed at an earlier period according to the condi- tions on the back of the bond. An initiation fee of $15 was charged, all of which went to the expense fund. Monthly dues were $3, 1 2 J per cent of which was set apart to the ex- pense fund, 50 per cent as a maturity fund, and 37J per cent as a reserve fund. Attached to each bond were three coupons for $500 each, redeemable out of the maturity fund. The coupons on all the bonds were numbered from 1 up, in numerical order. The coupons were redeemable out of the maturity fund in the order of 1, 3; 2, 6; 9; 4, 12; 5, 15; 18; 7, 21, etc. Held that such business was a lot- tery within the meaning of sections 3894 and 4041, Revised Statutes, as amended by the act of September 19, 1890 (26 Stat. 465). 21 Op. 4. 21. . The business of the Pettis County Bond and Investment Company, of Sedalia, Mo., in essential respects, similar to that of the Ton- tine Savings Association, of Minneapolis, Minn., considered and determined to be in the nature of a lottery within the meaning of the United States statutes. 21 Op. 313. 22. The name "lottery" covers any deter- mination of gain or loss by the issue of an event which is merely contrived for the occa- sion, lb. 23. Denial of use of mail. — The acts of Sep- tember 29, 1890 (26 Stat. 466), and March 2, 1895 (28 Stat. 964), for the suppression of lot- teries, are constitutional and empower the Postmaster-General to deny all mail facilities to those engaged in any of the classes of busi- ness described therein. lb. (314. ) 24. 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 in- stance by like sums of money, he will send to B a magazine for one year free, and will pre- sent him with books or other articles equal in value to fifty times the amount of money originally sent by B, comes within the prohi- bition of section 3894, Revised Statutes, as amended by the act of September 19, 1890 (26 Stat. 465), which provides that "Noletter, postal card, or circular concerning any lottery, so-called gift concert, or other similar enter- prise 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. 23 Op. 200. 25. Same — Eule of construction. — Any en- terprise of 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. lb. 26. Same — Defender Shoe Store et al. — 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 contain- ing 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 con- taining 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 soon indefinitely. The schemes adopted by the Parisian Skirt Company, the Peerless Shoe Company, and by Henry Mur- ray 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 286 LOTTERY. whom he sells the coupons who are to send in the money, and also in containing a pro- vision that in case two coupons are sold, and the cash therefor turned in, the seller is en- titled 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. ' ' 23 Op. 260. 27. Same. — The only element of uncertainty as to getting the article offered in each par- ticular case above named is whether the per- son will succeed in selling the four tickets, and this depends upon his own ability and exer- tion as much as ordinarily does the question whether one can sell that which he has for sale. lb. 28. Same — Rule of construction. — If the condition upon which a prize may be received depends solely upon the ability of the bene- ficiary to perform that condition, then it does not depend upon ' ' lot or chance, ' ' in any legal sense. lb. 29. Same.— 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. lb. Opinion of August 31, 1900 (23 Op. 200), commented on and distinguished. 26. 30. The plan of business of the Provident Bond and Investment Company considered and declared a lottery within section 3894, Revised Statutes, as amended by the act of September 19, 1890, chapter 908. [The details of the business are not set out in the opinion.] 20 Op. 748. 31. Bond investment schemes. — Where a scheme proposes, on account of certain in- vestments by many persons, to return to each something which, as to its certainty, amount, or value, is dependent, not upon the earning or producing powerof the investment, nor upon business probabilities or expecta- tions, 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, as amended by the act of September 19, 1890 (26 Stat. 466). 23 Op. 512. 32. Same — Rule of construction. — Where the operators of a scheme or plan induce others to invest therein upon the promise that upon their doing so and making ciertain 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 for- mer 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 per- formance and the ability of the company to perform are known to depend to a consider- able extent upon the broken promises and consequent forfeitures of other investors, such schemes are fraudulent within the meaning of thsse statutes. lb. 33. Same. — Nor is it material in this re- spect that in any of said supposed schemes the business is so successful that the time when the fraud in the scheme will find its vic- tims is delayed indefinitely, so long as it is cer- tain that the time will come sooner or later. lb. 34. Same. — These cases distinguished from guessing contests, lb. 35. Same. — The principles which govern the Southern Mutual Investment Company and "Claude Buckley's Perfect System," their work- ings and results, differing essentially from those of the companies passed upon in the opinion of September 7, 1901 (23 Op. 512), their contracts, taken in connection with the additional terms and requirements imposed upon the companies by the Post-Office De- partment, do not so depend upon chance as to LOTTERY— LOYAL CREEK CLAIMS. 287 bring them within the operation of the antilot- tery statutes. 23 Op. 531. 36. Gift enterprise — Scheme of chance. — The contracts issued by the Home Cooperative Com- pany of Kansas City, Mo., provide for the pay- ment of a membership fee of $3, and succeed- ing monthly payments of $1.35, $1 of which is to be credited to the party paying the same and applied on the installment purchase of a home, the company agreeing that whenever the sum of $50 shall have accumulated from these monthly payments, and from such pay- ments on each like contract subsequently issued, the contract having the lowest num- ber not then matured shall be deemed to have matured, and the owner thereof shall be entitled to an installment of $50 per month . to be applied on the payment of a home for such owner, until $1,000 has been paid, when the contract shall be deemed to be fully per- formed. After the maturity of a contract, the monthly payments are increased to $5.35, $5 of which is to be placed to the credit of the party purchasing the home; and when the amounts so paid aggregate $1,000, less the amount such owner has to his credit at the maturity thereof, then the lien of the com- pany on the property is discharged and the title thereto vests in the owner of the con- tract. Each contract is to be numbered in the order of its acceptance and given the number next higher than the contract last made, the benefits of each contract begin- ning in numerical order after the fulfillment of the contracts of lower number: Held, that the plan is a "gift enterprise or scheme for the distribution of money by chance," within the meaning of section 3894, Revised Statutes, as amended September 19, 1890 (26 Stat. 465), and, as such, the Postmaster- General is authorized, under sections 3929 and 4041, Revised Statutes, to exclude from the mails all mail matter connected with such busi- ness. 24 Op. 563. 37. Same. — As the number given a con- tract when issued, and not the date of receipt, determines its value, a contract bearing a low number will be much more valuable than one bearing a high number; and it being largely a matter of chance which contract will receive the lowest number, and consequently be of greater value, the elements of a lottery are clearly discernible in the scheme, lb. 38. Cigarette coupons — Plug tobacco tags. — The scheme of the American Tobacco Company to inclose in each package of their cigarettes a coupon or certificate upon which the com- pany agrees to pay a premium for the return of each complete set of coupons, numbered from 1 to 10, there being but one complete set in each thousand coupons issued, is a violation of section 2 of the act of July 1, 1902 (32 Stat. 714), such coupon beinga "certificate, or in- strument purporting to be or represent a ticket, chance, share, or interest in, or de- pendent upon, the event of a lottery." 25 Op. 266. 39. Same. — The phrase "event of a lottery," above quoted, was not intended by Congress to refer to a drawing alone, but to any scheme or plan whereby the value of the certificate is made to depend upon lot or chance. lb. 40. Same. — The question as to whether or not a scheme to conceal in one of a large number of plugs of tobacco a tin tag entitling the finder to a prize is a violation of section 2 of the act of July 1, 1902 (32 Stat. 714), admits of considerable doubt and should be judicially determined. lb. Fraud Orders. See also Postal Service, 12-15. LOUISIANA. A State statute that the United States shall have over land to betaken for a public build- ing "the right of exclusive legislation and concurrent jurisdiction together with the State of Louisiana" is not a compliance with the act of April 26, 1890 (26 Stat. 67), requir- ing a cession to the United States of juris- diction over the site selected for all purposes except the administration of the criminal laws of said State. 20 Op. 298. Swamp Land Indemnity. See Public Lands, 22. Levees. See Navigable Waters, 78. LOYAL CREEK CLAIMS. See Indians, 135, 136, 147. 288 LYDECKEK TUNNEL— MARINE-HOSPITAL SERVICE. LYDECKER TUNNEL. See District of Columbia, VI. MACHEN BKOTHERS. Coal Contract. ment, 4-6. See Post-Office Depart- M'KEE, KEDICK. See Claims, I, h. M'KINLEY ACT. (Act of October 1, 1890, 26 Stat. 667.) MAILS. 1. Any willful obstruction or retarding of passage of a train carrying the mail in the usual and ordinary way is a violation of sec- tion 3995, Revised Statutes. It is no excuse that such person is willing to have the mail car detached and run separately. 21 Op. 9. 2. Same. — When two or more persons com- bine for the purpose of interfering with the passage of a train carrying the mail, and one or more of the parties does any act to effect such object, all of the parties are liable to a criminal prosecution for conspiracy under sec- tion 5440, Revised Statutes. lb. 3. Printed matter, other than books, received by mail from foreign countries, under the pro- visions of postal treaties or conventions, is declared free of duty by section 17 of the act of March 3, 1879 (20 Stat. 360) ; and no dis- tinction is there made between such as is mailed to subscribers for their own use and such as is mailed to dealers for sale. 17 Op. 187. 4. Same. — There is no warrant of law for inquiry by the Treasury Department as to whether such printed matter is received as merchandise, nor for the imposition of duty thereon. lb. 5. Same. — Books which are admitted to the international mails, exchanged under the provisions of the Universal Postal Union Con- vention, may be delivered to addresses upon the payment of the duty thereon. 76. See Postal Service; Philippine Islands, 40-43; Lottery; Ocean Mail Service. MAKAH INDIANS. See Seal Fisheries, 8. MANIFEST. See Shipping,- I, f ; Internal Revenue, II, f. MAPS. See Public Printing, 18. MARINE CORPS. See Navy, III. MARINE-HOSPITAL SERVICE. 1. Assistant surgeons — Promotion. — The provision in section 2 of the act of January 4, 1889 (25 Stat. 639), that "no officer shall be promoted to the rank of passed assistant surgeon until after four years' service," ap- plies to all assistant surgeons in the Marine- Hospital Service without any exception. 19 Op. 296. 2. The Surgeon-General of the Marine- Hospital Service and the Secretary of the Treasury may, with the approval of the Presi- dent, make needful and proper quarantine regulations not inconsistent with State laws and regulations. 20 Op. 466. 3. The only limitation on the powers con- ferred upon the Surgeon-General of the Marine- Hospital Service and the Secretary of the Treasury, subject to the approval of the President, to make quarantine regulations with reference to immigration from infected ports is that Federal regulations must not in- MARINE-HOSPITAL SERVICE— MEDALS. 289 terfere with State laws. It is. competent for those officials to prescribe a longer quaran- tine period, both for persons and cargo, than the State law requires, the regulations care- fully providing that the Federal jurisdiction should attach upon the expiration of State action. 20 Op. 469. 4. Sick and disabled officers and seamen of the Revenue-Cutter Service are entitled to the benefit of the Marine-Hospital funds provided for sick and disabled seamen. 21 Op. 340. 6. Same.— The Treasury Department iB obliged, under existing laws, to extend the benefits of the Marine-Hospital fund to the sick and disabled officers and seamen of the Rev- enue-Cutter Service. 21 Op. 365. 6. The tonnage tax collected in Forto 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 mainte- nance in part of the Marine-Hospital Service. 24 Op. 122. 7. The question as to whether or not a citi- zen of Forto Rico, legally a, resident of New York, is eligible for appointment in the Marine- Hospital Service under a departmental regula- tion which requires the applicant to be a citi- zen of the United States, or, if of foreign birth, to furnish proof of American citizen- ship, does not involve any question of law within the meaning of section 356, Revised Statutes, and is not, therefore, one properly calling for an opinion of the Attorney-Gen- eral. The requirement not being demanded by law, its interpretation may properly be left to the department or bureau responsible for its existence and execution. 25 Op. 183. 18 Op. 521; 20 Op. 649; 21 Op. 255, fol- lowed, lb. MARINE PROTESTS. Authentication, etc. See Diplomatic and Consular Service, 9. MARSHAL. The marshal in whose hands a writ of exe- cution against a foreign minister is placed for execution is not an "officer concerned in 18456—08 19 executing it" under the statute, where he merely serves notice upon the minister, but does not m fact execute the writ. 17 Op. 563. See also United States Marshals; Consu- lar Courts. MASSACHUSETTS. Claim of. See Claims, I, e. MASTER. Of Steam Vessels. See Steamboat-Inspec- tion Service. Of Foreign Vessels. See Shipping, 40. MAXIM-NORDENFELT COMPANT. See Navy, I, f. MEAT. Inspection. . See Department of Agricul- ture, VIII. Importation. See Food Products. MECHANICS' LIENS. See Liens. MEDALS. 1. Medals of .. award at the World's Fair. — The law authorizing the Secretary of the Treas- ury to furnish electrotypes and photographs of the medals of award to exhibitors at the World's Fair to whom medals have been awarded, and to newspapers and periodicals for publication, carries with it the authority to those to whom such electrotypes and photographs may be furnished to have prints made therefrom without further or more specific authority. 21 Op. 330. 2. The exhibitors, printers, or publishers have not the right to insert the name of the ex- 290 MEDALS— MEXICAN LAND GBANTS. hibitor in the blank space which will be used for that purpose on the medal. lb. 3. After the exhibitors shall have received, the medals and diplomas awarded them, the Treasury Department has no further authority over them, and is not authorized to say what use shall or shall not be made of them, or to restrict the making or using of facsimiles of them by exhibitors to whom they have been awarded, beyond what is prescribed by the express provisions of the statutes referred to in this opinion. lb. 4. So much of section 3 of the act of August 5, 1892 (27 Stat. 389), as provides for the duplication in gold, silver, or brass,, of medals awarded at the World's Fair, at the mints of the United States, was repealed by the act of March 3, 1893 (27 Op. 587). 21 Op. 253. 5. Same. — The object of a later act being expressly to amend an earlier act, a feature of the former act which was omitted from the later act was necessarily repealed. lb. - 6. A claim for a medal of honor under the act of March 3, 1861 (12 Stat. 751), should not be entertained where there is an unex- plained delay of twenty-eight years in present- ing the claim and it is unaccompanied by any official evidence of the statements made. 20 Op. 421. 7. Medal of honor. — Under section 6 of the act of March 3, 1863 (12 Stat. 751), the Pres- ident may present a medal of honor to an officer or private in the military service of the United States who has distinguished himself in action, notwithstanding he is not in the mili- tary service at the time the case reaches the President for consideration, provided the ap- . plication or recommendation therefor was made while he was in the military service. 24 Op. 580. 8. Same. — A medal of honor can not be awarded where the application or recommen- dation therefor is made after the officer or pri- vate has been discharged from the military service. lb. 9. Surrender of old medals of honor in ex- change for new. — It is not within the authority of the Secretary of War, in replacing the medals issued to officers and privates for gal- lantry in action, under the joint resolution of July 12, 1863 (12 Stat. 623), and section 6 of the act of March 3, 1863 (12 Stat. 751), as provided in the act of April 23, 1904 (33 Stat. 274), to allow a particular grantee, who is entitled to a new medal, to receive it and at the same time retain the old medal in his possession. 25 Op. 529. 10. Same. — The word "replace," as used in the act of 1904, implies the loss, destruction, or surrender of the old medal, lb. 11. Same. — It is optional with the holder of a medal whether he shall, surrender his old medal for the new. lb. See also Certificate op Merit; and Life Saving. MEDICAL AND FAY DIBECTOBS, NAVY. See Navy, 78-80, 98. MEDICAL COBFS OF THE NAVY. Grade of Passed Assistant Surgeon. See Navy, 86, 87. Promotion. See Navy, 29. MEDICINAL DRUGS. See Internal Eevenue, 99-103. MEMBEBS OF CONGBESS. See Congress, IV; Surety. MERCHANT MABINE. See Shipping, I, g. MEXICAN CLAIMS COMMISSION. See Claims, II. MEXICAN LAND GBANTS. 1. Patents to Mexican land grants in Cal- ifornia under the act of March 3, 1851 (9 Stat. 631), were conclusive only as between MEXICAN LAND GRANTS— MILE. 291 the United States and the patentees. They did not affect the interests of third persons. 21 Op. 13. 2. The surveys confirmed by such patents do not preclude a legal investigation and decision by the proper tribunals between conflicting claimants. lb. 3. Third persons claiming title to the land thus patented may bring a suit to declare a trust in said land. Such a suit may be brought without the aid of the Attorney- General, and in the State courts. The de- cision of a State court upon such a suit, unappealed from, binds the parties thereto, whether righteous or erroneous. lb. 4. .When such third persons fail to sue until the period of the statute of limitations of the State has expired, they are barred by their laches from suing thereafter. It is immaterial that they, had meanwhile been applying to Congress for relief. lb. MEXICO. 1. Article VII of the treaty of February 2, 1848, between Mexico and the United States, known as the treaty of Guadalupe Hidalgo, is still in force, so far as it affects the Bio Grande. 21 Op. 274. 2. The taking of water for irrigation from the Rio Grande above the point where it becomes the boundary between the United States and Mexico is not prohibited by said treaty. lb. 3. Article VII is limited in terms to that part of the Rio Grande lying below the south- ern boundary of New Mexico, and applies to such works alone as either party might construct on its own side. lb. 4. The only right the treaty professed to create or protect with respect to the Bio Grande was that of navigation. lb. 5. Claims against the United States by Mex- ico for indemnity for injuries to agriculture alone, caused by scarcity of water resulting from irrigation ditches wholly within the United States at places far above the head of navigation, find no support in the treaty. lb. 6. The rules, principles, and precedents of international law impose no duty or obligation upon the United States of denying to its inhab- itants the use of the water of that part of the Rio Grande lying entirely within the United States, although such use results in reducing the volume of water in the river below the point where it ceases to be entirely within the United States. lb. 7. The right asserted by Mexico is entirely inconsistent with the sovereignty of the United States over its national domain. lb. (282.) 8. Extradition from Mexico — Rearrest and trial on another charge.— Acosta, having been" returned from Mexico to the State of Florida under extradition proceedings, to be pun- ished for a crime committed within that State, was convicted and sentenced to impris- onment. Upon his release he was arrested for another crime without having an oppor- tunity 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 De- partment of State at this time to secure his release would be premature. 23 Op. 604. 9. Same.— The primary resort of the de- fendant is to the courts. He may either apply to the Federal courts for a writ of habeas corpus, or interpose the alleged irregu- larity of his arrest as a matter of defense on the trial of his case in the State court. lb. 10. Same — Authority of the Federal Govern- ment. — 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 inter- national obligation, is not decided, lb. Opinion of March 27, 1901 (23 Op. 432), reaffirmed. lb. MIAMI'S FUND. See Indians, III, d. MIDSHIPMEN. See Naval Academy. MILE. See Words and Phrases. 292 MILEAGE— MILITARY POSTS. MILEAGE. See Revenue Marine, 19. MILITARY ACADEMY. 1. President — Power to revoke order of Secre- tary of War and restore cadet against recom- mendation of the Academic Board. — It is not within the authority of the President, in op- position to an adverse recommendation of the Academic Board of the Military Academy, to revoke an order of the Secretary of War for the discharge of a cadet and to restore him to the Academy, to take his place in the next succeeding first class. 17 Op. 67. 2. Same. — That order, having been com- pletely executed, is beyond the power of revo- cation, lb. 3. Same. — Congress may thus limit or re- strict the authority of the President to ap- point cadets. lb. 4. Same. — Section 1325, Revised Statutes, prohibits the returning or reappointing of a cadet to the Military Academy, except upon the recommendation of the Academic Board. lb. 5. Professors are army officers — Entitled to pension. — The professors of the Military Acad- emy at West Point are commissioned offi- cers of the Army, whose pay and allowances are assimilated to those of a lieutenant- colonel and a colonel; and in case of such disability, as is described in section 4693, Re- vised Statutes, they are entitled to pensions at the same rate with officers of the rank of lieutenant-colonel. 17 Op. 359. 6. The term of the new professor at the Mili- tary Academy created by the act of March 11, 1893 (27 Stat.' 515), did not commence until July 1,1893, until which time he still retained his position as a first lieutenant in the Army. 20 Op. 593. 7. Assignment of graduates to the cavalry or infantry. — The Secretary of War is author- ized to assign to the cavalry or infantry recent graduates of the United States Military Acad- emy, noncommissioned officers, and civilians, although "additional" second lieutenants re- main in the engineers and artillery, and no vacancies exist in the last-named branches. 20 Op. 149. 8. Same. — The- words " such arm or corps " in the act of May 17, 1886 (24 Stat. 50), refer to the arm the duties of which the graduate has been adjudged competent to perform. lb. 9. Same. — The word "vacancy" used in the act contemplates a vacancy in the arm of the service in which the additional second lieu- tenant is then commissioned, lb. ■ 10. The Secretary of War has no power to accept for the Government a donation of a Soman Catholic chapel to be erected on the mili- tary reservation at West Point, where the ac- ceptance is accompanied by a limitation for its use in perpetuity by Roman Cathofics. 21 Op. 537. 11. Memorial hall at West Point.— State- ment made of the method to be followed under the act of July 23, 1892 (27 Stat- 262), in adopting plans and specifications, and in select- ing granite and marble for building a memo- rial hall at West Point. 21 Op. 240. 12. A soldier who passes a successful exami- nation and becomes the holder of a certificate under the provisions of the act of July 30, 1892 (27 Stat. 336), is entitled, under that act, to promotion as second lieutenant after the graduates of the Military Academy shall have been provided for and assigned. 22 Op. 57. 13. Appointments of engineer and assistant engineer — Civil service. — The Superintendent of the United States Military Academy, in making the appointments of engineer and assistant engineer authorized by the act of April 28, 1904 (33 Stat. 445) , is limited in his selection to those who have qualified under the civil-service law and rules. 25 Op. 341. 14. Same, — The words "to be selected and appointed by the Superintendent of the United States Military Academy," used in the appro- priation act of March 3, 1905 (33 Stat. 854), providing for the appointment of an engineer and an assistant engineer of steam, electric, and refrigerating apparatus for the cadets' mess at the Academy, authorize that officer to make such appointments without refer- ence to the civil-service law. 25 Op. 413. Longevity Pay, Credit for Cadet Service^ See Army, II, d, 154. MILITARY POSTS. See Army, I, e. MILITARY RESERVATIONS— MISSISSIPPI RIVER COMMISSION. 293 MILITARY RESERVATIONS. See Reservations and Parks, II. MILITARY ROADS. 1. Withdrawal from sale. — The appropria- tion 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. 23 Op. 283. 2. Same — Effect of land patents. — 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. lb. 3. Same — Authority to abandon, vacate, or alienate such 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 in- operative and void. lb. 4. Same — Not subject to State or private control. — Such a road, though within a State, is not subject to either State, municipal, or private control, or interference in anyway. lb. MILITARY SUPPLIES. * See Neutrality. MILITIA. See Army, III. MINERAL LANDS. See Public Lands, X; Indians, III, e MINNEAPOLIS, MINN. Public Building at. See Public Buildings, 2, 13. MINNESOTA. State Process. See Courts, 32. Swamp-Land Grants. See Public Lands, 25-30. MINING LAWS. Spanish. See Cuba, 28-30. MINORS. See Navy, I, a. MIRAFLORES ISLAND. Title to. — The United States possesses a valid and complete title to the whole of Miraflores Island. That island did not be- long to Porto Rico before the cession, and by the treaty of peace title to it was trans- ferred by Spain to the United States. 25 Op. 193. MISSISSIPPI. See Direct Taxes, 3. MISSISSIPPI CHOCTAW INDIANS. See Indians, 11. MISSISSIPPI RIVER. See Navigable Waters, II, b. MISSISSIPPI RIVER COMMISSION. 1. The salaries and traveling expenses of the members of the Mississippi River Commission 294 MISSISSIPPI KIVER COMMISSION— MUNICIPAL ORDINANCES. appointed from civil life (Congress having failed to make a specific appropriation there- for) can not lawfully be defrayed out of the fund provided for the Mississippi River im- provement. The application of such fund to that object would be inconsistent with section 3678, Revised Statutes. 18 Op. 463. 2. Eight-hour law. — The Attorney-Gen- eral declines to express an opinion as to whether certain employees of the Mississippi Commission are "laborers" or "mechanics" within the meaning of the act of August 1, 1892 (27 Stat. 340), for the reason that those words are used in the statute in their ordinary sense, and the determination of that question is, therefore, a matter of administration only, involving the ascertainment of a question of fact, upon which the Attorney-General is not authorized to express an opinion. 20 Op. 487. MISSOURI, KANSAS AND TEXAS KAILWAY. Compensation foe Indian Lands Taken. See Indians, II, 94. MISTAKE. In Bidding, see Contracts,!, b. Of Fact, see Customs Law, 311, 312, 316, 317. Of Law, see Army, 16; Customs Caw, 315, 318, 319; Internal-Revenue, 4. MONET. See Banks and Banking, 39; Treasury De- partment, V; Customs Law, 180; Internal Revenue. 104. MONEY BENEFITS. See Naval Pension Fund. MONEY ORDERS. Postal Service, VII; Internal Revenue, 81, 82. MONONGAHELA RIVEB. Improvement of. See Navigable Waters, 75. MORTGAGE. » See Internal Revenue, II,. f, (9). MOST-FAVOBED-NATION CLAUSE. See Treaties and Conventions, 46, 47. MOUNT VEBNON RELICS. 1. Are the property of George Washington Cuatis Lee. — The Mount Vernon relics (so called) which were removed from Arlington by the military authorities of the United States in 1862 for safe keeping, 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 Washing- ton Parke Custis, upon the death of his mother, Mary Ann Randolph Lee. 23 Op. 437. 2. Bestoration. — 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 t& return them to their rightful owner. Their restoration now is quite as much within the scope of Executive authority as has been their preservation. lb. MUNICIPAL ORDINANCES. A city ordinance is within the expression ' ' laws of the land, ' ' as used in the fifty-ninth article of war, and a soldier violating such an ordinance and escaping to a military reserva- tion Bhould be delivered on demand to the civil authorities for trial. 21 Op. 88. MUSTER— NAVAL ACADEMY. 295 MUSTER. ! Army II, 78; III— Militia. NATIONAL BANES. See Banks, II. NATIONAL BUREAU OF STANDARDS. See Treasury Department, III. NATIONAL FOREST RESERVES. See Kesebvations and Parks, IV. NATIONAL GUARD. See District of Columbia, VIII. NATIONALS. See Words and Phrases. NATURALIZATION. See Citizenship. NAVAL ACADEMY. 1. Professors of mathematics. — The heads of the departments of - ethics and English studies, of Spanish and other modern lan- guages, and of drawing at the Naval Academy should be commissioned as "professors of mathematics," under section 1528, Revised Statutes, after passing the examinations re- quired by the act of January 20, 1881 (-21 Stat. 317). 17 Op. 103. 2. Graduates — Relative rank. — Opinions of August 7, 1877 (15 Op. 637), and March 31, 1879 (16 Op. 296), referred to, and suggested that copies thereof be sent by the Secretary of the Navy to the Senate in response to a resolution of that body in regard to the sub- ject of relative rank of graduates of the Naval Academy. 17 Op. 193. 3. Hazing. — To constitute the offense of "hazing" at the Naval Academy, under the act of June 23, 1874 (18 Stat. 203), it is essen- tial that the victim should be a new cadet of the fourth class. Hence, unless the charge against the accused alleges that the victim was a new cadet of the fourth class, a court- martial organized under the statute would have no jurisdiction over it. An allegation that the victim was a candidate for appoint- ment or admission to the Academy is insuffi- cient. 18 Op. 292. 4. Same. — Where the record of the pro- ceedings of a court-martial in the case of a naval cadet of the second class, who was tried under the act of June 23, 1874 (18 Stat. 203), for the offense of hazing showed that the acts complained of were pulling the nose, striking at, striking, and otherwise maltreating a naval cadet of the fourth class : Held that these facts, in conjunction with other circumstances, pre- sent a case containing all that is essential to constitute the offense of hazing within the meaningof the statute, and that the court had jurisdiction of the complaint. 18 Op. 376. 5. Same. — Where a cadet entered theNaval Academy and became a member of the fourth class in 1885, and also remained a member of the same class in 1886, he is at the latter period as much an "older cadet" within the definition of the offense of "hazing" as a cadet who, having entered the Academy at the same time (1885), has since been ad- vanced to a higher class, and (equally with the latter) is capable of committing that offense. 18 Op. 507. 6. Hazing — Summary dismissal of cadet. — The statutes on the subject of hazing do not confer upon the Superintendent of the Naval Academy, or the Secretary of the Navy, or upon both conjointly, the power summa- rily to dismiss from the Academy without trial by court-martial, a midshipman guilty of that offense. 25 Op. 543. 7. Same. — The Attorney-General declines to express an opinion' upon the question whether proceedings by court-martial would bar pro- ceedings in the civil courts for an assault or other crime involved in the ojfense of hazing, for the reason that it would be of no assist- ance to those officers in the proper discharge 296 NAVAL ACADEMY. of their duties, and should such action be taken the matter would peculiarly be one for the consideration of his Department. lb. 8. Hazing, Naval Academy — Summary dis- missal. — The statutes on the subject of hazing do not confer upon the Superintendent of the Naval Academy, or the Secretary of the Navy, or upon both conjointly, the power summarily to dismiss from the Academy, without trial by court-martial, a midshipman guilty of that offense. 25 Op. 543. 9. Reinstatement of midshipman dismissed for misconduct. — The Secretary of the Navy has no authority to reinstate to the Naval Academy a midshipman whose appointment has been revoked because of accumulated demerits and the revocation thereof duly promulgated. 25 Op. 579. 10. Same. — A midshipman is an officer. 16. 11. Same. — An officer who has resigned or been dismissed can not be restored to the office formerly held by him except by reappoint- ment, lb. 12. Same. — Opinion of Attorney-Genera*. Miller of July 8, 1889 (19 Op. 351), holding that the resignation of a naval cadet could not be recalled except by reappointment, confirmed and extended to the case of a dis- missal for misconduct. lb. 13. Reinstatement to Naval Academy of mid- shipman dismissed for misconduct. — The Secre- tary of the Navy has no authority to reinstate to the Naval Academy a midshipman whose appointment has been revoked because of accumulated demerits and the revocation thereof duly promulgated. 25 Op. 579. 14. Resignation of a midshipman — Reap- pointment. — A midshipman at the Naval Academy who, being found deficient in studies, presented his resignation, which was accepted, can not be reappointed to fill the vacancy thus created if he is more than 20 years of age. 25 Op. 585. 15. The resignation of a naval cadet, and its acceptance by the Secretary of the Navy, completely severs the relations of the cadet with the Naval Academy, who can not be reinstated except by an appointment in con- formity to sections 1514 and 1515, Eevised Statutes. 19 Op. 350. 16. Same. — The action of the Secretary of the Navy in permitting the withdrawal of such a resignation after its acceptance, has no legal effect whatever, lb. 17. The Secretary of the Navy had no authority, without the recommendation of the Academic Board, to grant leaves of absence to certain cadets in the Naval Academy, with permission to report to the Superintendent of the Academy to join the next fourth-year class, where' they had been found deficient at the semiannual examination held in January, 1889 (sees. 1519, 1523, Eevised Statutes). 19 Op. 302. 18. A person who took the regular four years' course at the Naval Academy, and received a certificate of graduation, issued pursuant to the act of August 5, 1882 (22 Stat. 284), is a graduate of the Academy within the meaning of section 20 of the navy personnel act of March 3, 1899 (30 Stat. 1009). 22 Op. 485. 19. The exemption as to age limit with reference to the eligibility to appointment in the Marine Corps is not restricted to those who served in such corps, but extends to all graduates of the Naval Academy who served in the war with Spain. lb. 20. Members of the graduating class at the Naval Academy who were physically disquali- fied for naval service and placed among the "surplus graduates," are each entitled under the acts of August 5, 1882 (22 Stat. 285), and March 2, 1889 (25 Stat. 878), to a certificate of graduation, an honorable discharge, and one year's pay, and there is no authority for stat- ing in such certificate the physical disqualifi- cation of the graduate. 19 Op. 358. 21. Vacancies in the Engineer Corps can not be filled by graduates of the line and Marine Corps division at Annapolis, or vice versa. 20 Op. 615. 22. Same. — No appointments can be made under the act of March 2, 1889 (25 Stat. 878), either to the line or Marine Corps, or to the Engineer Corps, except from graduates of the cadet division whose studies- are directed to such appointments, respectively. lb. 23. Same. — In case of more vacancies than can be filled in this manner, no appointment can be made during the year in which the deficiency occurs. The act of March 2, 1889 (25 Stat. 878), authorizes appointments from final graduates only. lb. NAVAL ACADEMY— NAVAL VESSELS. 297 24. The proviso to the naval appropriation act of March 2, 1895 (28 Stat. 838), authorizing every Representative or Delegate in Congress "whose district or Territory is not now rep" resented at the Naval Academy" to make recommendation on or before March 4, 1895, of a candidate for appointment as a cadet at the Naval Academy was intended to apply-to Members of the then existing Fifty-third Con- gress. 21 Op. 164. 25. Same. — In order to be valid, such a recommendation must be made before 12 o'clock noon of March 4, 1895; and, in consequence, three recommendations considered in the opinion are held to be ineffective. 76. 26. A cadet, nominated to the Naval Acad- emy upon the recommendation of a Member of the House of Representatives who, since the recommendation and nomination, has been unseated by contest of election, can not be lawfully deprived of his place if he passes his examination. 21 Op. 342. 27. Same. — The Secretary of the Navy is not authorized to revoke such a nomination and notify the newly seated member that a va- cancy occurs. He has no right to call for a new recommendation, except under section 1516, Revised Statutes, when the candidate fails to pass his examination, lb. 28. Congressman — Number of midshipmen allowed. — A Congressional district is not enti- tled to have more than two midshipmen at the Naval Academy at any one time; and a Representative in Congress can nominate a midshipman for appointment to that Acad- emy only when there is none or but one from his district. 25 Op. 333. Sea Wall at Annapolis. See Contract, 83. NAVAL COURTS-MARTIAL. :.Navy, V. NAVAL MILITIA. See District of Columbia, 70. NAVAL OFFICEES. See Navy, II. NAVAL PENSION FUND. Money benefits due deceased beneficiary. — There is no authority of law for the payment to the personal representatives of a deceased beneficiary of money benefits which may have accrued under sections 4756 and 4757, Revised Statutes, between the date of the last, quarterly payment and the date of death; nor may such money be paid to the Naval Home in cases where the beneficiary has been cared for and subsisted by that institu- tion between the date of the last quarterly payment and the date of death. 25 Op. 85. NAVAL REGULATIONS. j Navy, VI. NAVAL RESERVATION. See Reservations and Parks, III. NAVAL STATIONS. See Porto Rico, 42; also under the name of the particular station in regard to which information is sought. NAVAL SUPPLIES. See Navy, I, f. NAVAL VESSELS. See Navy, VII. 298 NAVIGABLE WATERS, I, a, b. NAVIGABLE WATERS. I. Generally. a. What are Navigable Waters of the United States, 1-6. b. Power of the United States and of the States over, 7-31. c. Canals, 32-37. d. Lakes, 38-39. e. Harbor and Dock lines, etc. , 40-46. f. Boat Railway, 47-48. II. River and Harbor Improvement. a. Laws, Appropriations, 49-64. b. Rivers, 65-84. c. Harbors, Wharves, and Docks, 85- 109. HI Obstructions to Navigation. a. Bridges, 110-164. b. Dams, 165-169. c. Deposits in Rivers and Harbors, 170-176. d. Miscellaneous, 177-182. I. Generally. a. What are Navigable Waters of the United Slates. 1. All waters in the United States are navi- gable waters of the United States within the meaning of the acts of Congress, in contra- distinction from the navigable waters of the States where they form in their ordinary con- dition by themselves, or by uniting with other waters, a continuous highway, over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water. 20 Op. 101. 2. The Chicago River and its branches must, therefore, be deemed navigable waters of the United States, over which the commercial power of Congress may be exercised to the extent necessary to protect their free navi- gation, and it is immaterial that the stream was originally nonnavigable, or artificially constructed, or wholly within one State, or practically controlled by one State or city. lb. 8. The waters of the East River comprise navigable waters of the United States lying wholly within thelimits of a State. 20 Op. 479. 4. The St. Louis and Cioquet rivers, being navigable waters of the United States, can be obstructed by dams only by permission of the Secretary of War, to whom Congress has by express statute given exclusive juris- diction of the subject. 20 Op. 713; 21 Op. 42. 5. Coastal waters of Cuba. — The actsof 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 rea- son of the temporary jurisdiction of the United States over that island. 23 Op. 76. 6. 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. 23 Op. 551. b. Power of the United States and of the States over. 7. Effect of the power to regulate com- merce. — The power to regulate commerce is one of the instances in which the Constitution operates propria vigore, and its effect as to the navigable waters of the Union was to estab- lish them as highways, open to the free and unrestricted use of all persons engaged in foreign or interstate commerce. 18 Op. 405. 8 . Whether Congress has spoken or not, the duty of the United States toward commerce in its several departments of traffic, intercourse, and navigation is equally imperative. 26. 9. The power of Congress to regulate bridges over navigable waters is paramount, and where it comes in conflict with that of a State the latter necessarily becomes ineffective. 18 Op. 164. 10. Yet, until Congress acts, and by appro- priate legislation assumes control of the sub- ject, the power of a State over bridges across navigable streams within its limits is plenary. lb. 11. A State may authorize a navigable stream within its limits to be obstructed by a bridge in the absence of any legislation by Congress on the subject. 18 Op. 425. 12. The power of the State to legislate in regard to navigable waters is subject to the paramount power in Congress to regulate com- NAVIGABLE. WATEES, I, b. 299 merce among the several States. Until Con- gress acts directly in the matter the power of the State is plenary, but when Congress has acted with reference to bridges in the State its will must control so far as may be neces- sary to secure free navigation. 20 Op. 101. 13. Prior to 1884, no national legislation existed which interfered with the general authority of the States, acting within the limits of law as administered by the courts, to con- trol within their respective boundaries the navigable waters of the United States. lb. 14. The cases illustrating the extension of the doctrine of navigable waters of the United States and the extension of the authority of the United States over said waters reviewed and discussed. lb. 1 5 . The intent of Congress in the first clause of section 7 of the act of September 19, 1890 (26 Stat. 454), as amended by section 3 of the act of July 13, 1892 (27 Stat. 110), was that the navigable waters of the United States should thereafter be under the exclusive control of the United States ; that for the future their navi- gability should be interfered with by bridges, dams, or other obstructions only by express permission of the United States, granted through its agent, the Secretary of. War. 21 Op. 42. 22 Op. 52, 54. Approved. lb. 16. The power of Congress over navigable streams is supreme and grows out of the power to regulate commerce. 21 Op. 431. 17. The power of Congress to declare what is an obstruction and to remove it from a navigable stream is well settled. lb. 18. Congress is not required to consider each case of alleged obstruction to navigation and determine the facts and declare that an ob- struction exists, but it may generally define the offense and leave the facts to be deter- mined by a court or special tribunal, lb. 19. It is not an unconstitutional delegation of the legislative function for Congress to in- trust to the Secretary of War the power to declare what is an unreasonable obstruction to navigation. lb. 20. The absolute power of Congress to regu- late commerce, being without limit or extent, includes the power to regulate the use of all means and instrumentalities used in commerce, whether on sea, navigable rivers and lakes, in harbors or on land, irrespective of whether a State has attempted to regulate the same matter or not. 22 Op. 501. 21. Same. — Commerce is not restricted to the purchase and sale of commodities, but includes also navigation, intercourse, and the reception, transportation, and delivery of passengers and freight by land and water, and also the means and instrumentalities used in such commerce. lb. 22. The power of the United States to regu- late 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 angle State. 22 Op. 646. 23. This power includes the right to regu- late the use of all the means and instrumentali- ties 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. lb. 24. Congress has power to improve the navi- gation of the Ohio Biver, and for that purpose may actually take such property as is requisite, and may cause the abatement and prostra- tion of all structures which, in its judgment, interfere with its plan of improvement. 22 Op. 343. 25. Congress has the power to establish har- bor lines or modify existing ones in navigable waters within the limits of a State, although such State has already established such har- bor lines. 22 Op. 501. 26. Whenever Congress in the exercise of its power to regulate commerce makes any rule or regulation in harbors or elsewhere, such regulations necessarily supersede any that the State may have made on the same subject within its limits. lb. 27. 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. 22 Op. 646. 28. A State or a municipality has and may exercise jurisdiction over the improvement of harbors until the Federal Government indicates its intention to do so, or exercises its jurisdic- tion; but whenever the latter is done it is ex- clusive of every other jurisdiction, control, or interference. lb. 29. The right of the United States to occupy and use soil within the bed of a river for the improvement of its navigation affirmed. 18 Op. 64. 300 NAVIGABLE WATERS, I, b, c, d, e. 30." Same. — The fact that a piece of land within the course of a river becomes dry in con- sequence of its improvement does not impair the original right of the United States to deal therewith or raise any question of eminent domain, such lands being held by the owners subject to the higher rights and duties of the United States in regard to navigation. lb. 31. Porto Eico. — The United States may es- tablish aids to navigation on submarine sites under navigable waters of Porto Eico without cession of jurisdiction having first been made by Porto Rico to the United States. 25 Op. 166. c. Canals. 32. If the proposed canal between Port Ar- thur, Tex., and the Sabine Pass is one of the works provided for in section 3 [7] of the act of July 13, 1892 (27 Stat. 110), making it un- lawful, without the authority and permission of the Secretary of War, for anyone to build or construct any of the works therein men- tioned in or over any of the navigable waters of the United States that would obstruct or impair the navigation of said waters, the Sec- retary of War has authority to authorize and permit its construction. 21 Op. 531. 33. Ship Canal — Sabine Lake and Sabine Pass. — Clause 2 of the proviso to section 3 [7] of the act of July 13, 1892 (27 Stat. 110), does not limit the authority of the Secretary of War to grant permission for the construction of a ship canal and works of like character in navi- gable waters which lie wholly within the lim- its of one State. 22 Op. 332. 34. Same. — Under the power conferred upon Congress by tb.e Constitution to regulate commerce, the United States has the right to control all structures and works which interfere in any manner with the navigable capacity of the navigable waters of the United States which, either by themselves or in connection with other waters, form channels for interstate commerce. lb. 33. Same principles apply to canals as apply to bridges, railroads, etc. — Canals being artificial waterways or means of commercial transpor- tation, as well as natural lakes and rivers, the same principles may be applied to them that are applied to bridges, turnpikes, streets, and railroads. lb. See also Canals. 36. The contract between the United States and James B. Eads and his associates for the construction of a ship canal between the South Pass of the Mississippi River and the Gulf of Mexico, construed; and opinions of Attorney-General Devens (16 Op. 335) and Acting Attorney-General Phillips ( 17 Op. 137) as to the width and characteristics of channel required to be maintained concurred in. 21 Op. 29. See also II, b. 37. Tolls abolished. — The effect af the pro- vision in the river and harbor act of August 2, 1882 (22 Stat. 209), which declared "that no tolls or operating charges whatsoever shall be levied or collected upon any vessels, boats, dredges, craft, or other water craft passing through • any canal or other work for the improvement of navigation belonging to the United States" was to abolish the tolls there- tofore levied by the Government upon vessels passing through the works of the Fox and Wisconsin rivers. 18 Op. 191. d. Lakes. 38. The Great Lakes are high seas within the meaning of the act of August 19, 1890 (26 Stat. 320). 21 Op. 106. 39. Ownership of land in bed of Lake Huron, Mich. — Semble that the proprietors of land adjacent to Lake Huron, Michigan, have no legal right to stone taken from the bed of that lake, in front of their property, by other persons, and delivered by the latter on the Government works — the ownership of such bed being apparently in the State. Under the circumstances presented, the claim of such proprietors for the stone so taken and delivered may properly be resisted by the United States officer in charge of the works. 17 Op. 59. e. Harbor and Dock Lines, etc. 40. Harbor lines. — The determination of the question whether the establishment of a cer- tain harbor line is essential to the preserva- tion and protection of a harbor rests, under section 12of the act of September 19, 1890 (26 Stat. 453), in the discretion of the Secretary of War alone, and his judgment in the mat- ter is final and conclusive until subsequently modified by himself. 20 Op. 740. 41. The Secretary of War has the power to establish a harbor line for the Tacoma Harbor or modify the existing one in the harbor of Seattle, as he shall determine, if in his opin- NAVIGABLE WATERS, I, e, f ; II, a. 301 ion the interests of commerce and navigation so require. 22 Op. 501. 42. Congress has the power to establish har- bor lines or modify existing ones in navigable waters within the limits of a State, although such State has already established such har- bor lines. lb. 43. Whenever Congress in the exercise of its power to regulate commerce makes any rule or regulation in harbors or elsewhere, whether in establishing harbor lines or otherwise, such regulations necessarily super- sede any that the State may have made on the same subject within its limits. lb. 44. The fact that harbor lines have once been established is no bar to the exercise of the same power as often as the needs of com- merce require. 7ft. 45. Dock lines interfering with harbor im. provements. — It is the duty of the War Depart- ment to direct proceedings to be taken to en- join the construction of a "dock line" which will obstruct, encroach upon, or interfere with harbor improvement. 17 Op. 279. 46. Dividing.lines. — The power and author- ity to designate lines dividing the high seas from rivers, harbors, and inland waters, con- ferred upon the Secretary of the Treasury by section 2 of the act of February 19, 1895 (28 Stat. 672), was, by section 10 of the act of February 14, 1903 (32 Stat. 829), transferred to the Secretary of Commerce and Labor. 25 Op. 149. f. Boat Railway. 47. The Secretary of War has full authority, under the river and harbor act of August 18, 1894 (28 Stat. 359), and" the act of April 24, 1888 (25 Stat. 94), to condemn whatever land may be needed for the construction of the boat railway provided for in the former act. 21 Op. 225. 48. If a change in the location of an exist- ing railway is a necessity in the building of said boat railway, the acquisition by the Sec- retary of War of the necessary land to make such change is merely an incident to the en- terprise intrusted to him. lb. Regulation or Commerce over Naviga- ble Waters. See I, b. Coastal Waters op Cuba. See 5. ' Coastal Waters of Porto Rico. See 6. II. River and Harbor Improvement, a. Laws, Appropriations. 49. Appropriation for improvement of a river does not include authority to purchase of land for such improvement. — The provision in the act of August 5, 1886 (24 Stat. 310, 319), namely: "Improving Great Kanawha River, West Vir- ginia. Continuing improvement, one hun- dred and eighty-seven thousand five hundred dollars," does not, by implication, authorize the purchase of land for said improvement. 19 Op. 34. 50. Savannah River — Expenditure for widen- ing, without transfer of title.— The $1,000, authorized by the act of March 3, 1881 (21 Stat. 470) , to be expended from the appro- priation for improving Savannah River, in the payment of damages for- land taken for widening the channel opposite Savannah, Ga., may be expended for that purpose with- out a transfer of the title to the land, the purpose of the provision being to indemnify for the loss of the land, not to acquire owner- ship thereof. 17 Op. 455. 5 1 . Performance of work in excess of amount appropriated. — Under section 5 of the river and harbor act of June 3, lS9f ?£ Stat. 235), which limits the amount that the Secretary of War can obligate the Government for in any fiscal year to $400,000, the contractor may perform in one year the work which the contract allows him three years to perform and, although he may thus earn a larger sum than the amount stated, he may not receive full payment therefor under three years. 21 Op. 379. 52. Same. — Where the total amount au- thorized to be expended is less than $400,000, contractors may be allowed to earn the amounts authorized to be expended in advance of the ap- propriation by Congress for such work. lb. 53. Same. — Said section 5 is not limited in its application to cases in which the total amount authorized to be expended is more than $400,000. lb. 54. Secretary of War not required to enter into contracts for completion of improvements where the statute provides that he may do so. — The Secretary of War is not required by the act of March 3, 1896, providing that contracts may be entered into byhim for the comple- tion of improvements named, to make such contracts, but he may decline to do so in- all 302 NAVIGABLE WATERS, II, a, b. cases where he is convinced the public interest would not be subserved by making them. 21 Op. 420. 55. Lump appropriation designating certain amounts for particular improvements. — The river and harbor act of June 3, 1896 (29 Stat. 230), made a lump appropriation for certain improvements on the Mississippi River, with a provision that of the amount appropriated certain designated amounts should be ex- pended for particular improvements therein named: Held that the sums named in the proviso are chargeable to the main specific appropriation. 21 Op. 414. 56. Same. — If, however, the appropriation should not be expended the work could at a subsequent time be contracted for by the Secre- tary of War under a provision in the above- named act for such additional contracts as might be necessary to carry on continuously the plans of the work. lb. 57. Same. — If the specific appropriations in the above act are not used for the par- ticular work designated by, Congress they can not be used for any other purpose. lb. 58. Same. — The direction to expend the sums mentioned in the proviso is not mandatory to the extent that the full amount must be ex- pended if the work can be done for less, or to proceed with it at all contrary to the recom- mendations of the Mississippi River Commis- sion mentioned in the act. lb. 59. The provision of the river and harbor act of June 3, 1896 (29 Stat. 202, 229), making an appropriation for the protection of the east bank of the Mississippi River opposite the mouth of the Missouri River, leaves it to the discretion of the Secretary of War whether he shall make such expenditure or not. 21 Op. 391. 60. The indefinite appropriation made by section 4 of the act of July 5, 1884 (23 Stat. 147), for the purpose of preserving and con- tinuing the use and navigation of certain canals, rivers, and other public works named in said act, without interruption, is not appli- cable to river and harbor improvements gener- ally, but only to a particular class of public works, such as canals, locks, etc., in the use of which both operating expenses and ex- penses for repairs are necessarily incurred. 18 Op. 188. 61. Appropriation for improvement of a river above a city can not be used for improvement at or in front of that city. — The Secretary of War has no authority to use any portion of the $170,000 appropriated by the river and harbor act of March 3, 1899 (30 Stat. 1147) for the improvement of the Missouri River above Sioux City, for improvements at or in front of that city. 22 Op. 519. 62. Authority to construct dredge — Secre- tary of War.— The authority conferred upon the Secretary of War by the river and harbor act of June 13, 1902 (32 Stat. 371), to prose- cute or complete, "by contract or other- wise," all river and harbor improvements which theretofore or therein were authorized to be constructed or completed under con- tract, vested in that officer the power to con- struct the dredge now nearing completion, for use on Lake Michigan, and to pay the cost of the same by allotment from the sums appropriated for the improvement of the various harbors of that lake. 25 Op. 145. 63. Same. — The fact that Congress has in other instances made specific appropriations for dredging plants, can not be held to limit the meaning of the words "by contract or otherwise," as used in the act of 1902, by restricting the Secretary to the hiring of a dredge as the only alternative of a contract, nor to forbid that officer from using such dredge upon improvements other than those authorized by appropriations from which the moneys for its construction have been taken. lb. 64. Appropriation for deepening the channel north of Pelican Island. — The act of March 3, 1899 (30 Stat. 1128), for deepening the chan- nel north of Pelican Island, from Galveston Harbor to Texas City, Tex., makes an appro- priation of $250,000 for the work. 65. There is no authority for paying out of this appropriation any expenses for making the contract, inspecting or superintending the work, unless it be indirectly through a provision in the contract that these expenses shall be paid by the contractors and charged against their compensation. 22 Op. 489. See also II, b — Rivers; and II, c — Harbors. b. Rivera. 66. Upon consideration of the statutes re- lating to the improvement of the South Pass of the Mississippi: Held (1) that a navigable depth of 26 feet is thereby required to be main- tained through the shoal at the head of the ' NAVIGABLE WALERS, II, b. 303 3; (2) that a navigable depth of 26 feet is required to be maintained through the Pass itself; (3) that, in view of the facts set forth by the engineer officer charged with the duty of ascertaining the depth of the channel at these points from time to time, Captain Eads is lawfully entitled to payment for maintenance of the required depth there during the quar- ter ending May 9, 1881. 17 Op. 137. 67. Same. — Payment of amount due the estate of James B. Eads, deceased, for services in connection with the improvement of the South Pass of the Mississippi River, may law- fully be made to James F. How and Estill McHenry, the executors and trustees under his will, if the certificate of the engineer offi- cer in charge shows satisfactorily the per- formance of the services. 18 Op. 604. 68 . Same. — The contract between the United States and James B. Eads and his associates for the construction of a ship canal between the South Pass of the Mississippi River and the Gulf of Mexico, construed; and opinions of Attorney-General Devens (16 Op. 335) and Acting Attorney-General Phillips (17 Op. 137) as to the width and characteristics of channel required to be maintained concurred in. 21 Op. 29. 69. Same — Expense of determining actual height of the average flood tide. — If in the judg- ment of the Secretary of War justice either to the Government or to the contractors on the works at the South Pass channel of the Missis- sippi River requires him to determine the actual height of average flood tide as a datum of measurement, he has the right to deter- mine such height, and to require the expenses incurred to be provided for by the represen- tatives of James B. Eads, the contractor. 21 Op. 308. 70. Same. — The remote possibility that in some way and at some time the crevasse in Pass a loutre may injuriously affect the chan- nel 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. 23 Op. 143. 71 . Same. — The contractor was under no ob- ligation to close the crevasse, unless it was nec- essary in order to maintain the channel and protect the works, and the question whether such necessity exists is one of fact, not of law. lb. 72. Potomac River — Title to land — Com- mencement of work. — The provision in the act of August 2, 1882 (22 Stat. 198), making it "the duty of the Attorney-General to examine all claims of the title to the premises to be improved under this appropriation;" i. e., the appropriation "for improving the Poto- mac River in the vicinity of Washington," etc., does not forbid the commencement of the work until the Attorney-General shall have performed the said duty. 17 Op. 453. 73. Same. — The existence of certain claims of title to the "Potomac flats" is not an obstacle to the expenditure of the appropriation made by the act of July 5, 1884 (23 Stat. 138). 18 Op. 66. 74. Same. — Title of the United States to cer- tain parts (Sections II and III, as indicated on map submitted) of the Potomac Flats Im- provement considered, and advised that the prohibition contained in the acts of August 5, 1886, chapters 929 and 930 (24 Stat. 335, 336) against the expenditure of money ap- propriated for the improvement, does not ap- ply to those parts. 18 Op. 437. 75. Monongahela River — Expenditure of ap- propriation.— The clause in the provision of the act of August 5, 1886 (24 Stat. 318), mak- ing an appropriation for the improvement of the Monongahela River, which declares that ' ' no charges or tolls shall be collected on any other part of the river on any commerce on said river which originates above the works herein appropriated for," does not impose any condition affecting the expenditure of the ap- propriation. There is nothing in its language which requires the assent thereto of any per- son, company, or corporation claiming a right to collect charges or tolls, or the relinquish- ment by any person, company, or corpora- tion of such right, before the money appro- priated can become available for expenditure. 18 Op. 481. 76. Wing dam,JamesRiver,Va.,erectionnot- withstanding protest of riparian owner. — The United States has the right, with a view to the improvement of the navigation of the James River, Va., as provided by the act of March 3, 1881 (21 Stat. 474), to place a wing dam in the river in front of the land of a riparian owner who forbids such construction above the line of low water, and such right 304 NAVIGABLE WATERS, II, b, c. extends to the limit of high water — i. e., the line of the water at ordinary high tide (16 Op. 479, 534). 17 Op. 109. 77. Galena Siver improvement. — The Secre- tary of War is authorized under the river and harbor act of September 19, 1890 (26 Stat. 426, 448), to draw his warrant in favor of the city of Galena, 111., in payment for the im- provement of the Galena River contemplated by that act, notwithstanding the fact that the certificate of such work is signed hy the surveyor of cnstoms for that port, instead of the collector of the port, as directed by that act, it appear- ing that there is no collector of the port at Galena, and that all the duties of that office are imposed upon the surveyor of customs. 20 Op. 700. 78. Liability of United States for erection of levees along Mississippi River. — The United States will not render itself liable in damages to persons owning property along the Missis- sippi River on whose land it proposes to build levees, for the reason that the State of Louisiana is the owner of a servitude or in- terest in the lands of all riparian owners along that river for the purpose of building levees to restrain its waters within definite limits during flood times, and has surrendered to the United States for that purpose its servi- tude in the lands in question. 20 Op. 625. 79. The Chicago River and its branches are navigable waters of the United States, over which the commercial power of Congress may be exercised to the extent necessary to pro- tect their free navigation, and it is immaterial that the stream was originally nonnavigable or artificially constructed, or wholly within one State, or practically controlled by one State or city. 20 Op. 101. 80. It is the duty of the Secretary of War under section 4 of the act of September 19, 1900 (26 Stat. 453), to ascertain whether in his judgment, the Canal street bridge across the south branch of the Chicago River is an un- reasonable obstruction to the free navigation of that river, and in case he decides that it is, to proceed as directed by that statute and re- quire such an alteration of the bridge as will render navigation through and under it safe, easy, and unobstructed. 16. 81. Same. — Inasmuch as the plans for the proposed excavation in said river have not as yet been submitted to the Secretary of War for his approval and authorization, he is not now required by law to give the proceedings consideration. lb. 82. Chicago River. — The act of June 3, 1896 (29 Stat. 202, 228), authorizing the Secretary of War to contract for the improvement of the Chicago River "as far as maybe per- mitted by existing docks and wharves," confines the improvements within existing docks and wharves. 21 Op. 471. 83. The right of the United States to occupy and use soil within the. bed of a river for the im- provement of its navigation, affirmed. 18 Op. 64. 84. Same. — The fact that a piece of land within the course of a river becomes dry in consequence of its improvement does not im- pair the original right of the United States to deal therewith or raise any question of emi- nent domain, such lands being held by the owners subject to the higher rights and duties of the United States in regard to navigation. lb. See also II, a — Appropriations. c. Harbors, Wharves, and Docks. 85. Galveston Harbor — Expense of con- struction of railway upon trestlework. — Under the contract for the improvement of Galves- ton Harbor, the railway to be built upon trestlework following the line of the jetty must be at the expense of the Government, Whether it is the case of original construction or extension. 21 Op. 607. 86. Same. — The Government must bear the expense of maintaining the railway upon the original work and upon the extension, after the suspension of operations upon these respectively. lb. 87. San Pedro Harbor location — Contract. — The decision of the board appointed under the river and harbor act of June 3, 1896 (29 Stat. 213), to determine the location, etc., of a deep- water harbor for commerce and refuge at either San Pedro Harbor or at Los Angeles, is final, and the contracts of the Secretary of War in relation thereto are to be in accordance with the project reported by that board. 21 Op. 587. 88. Same. — The report of the board consid- ered and the conclusion reached that the project reported by them is a breakwater, and that it fulfills the provision of the law and will make within its meaning a harbor for commerce and refuge. lb. NAVIGABLE WATERS, II, c. 305 89. San Pedro, Cal., breakwater. — The Sec- retary of War is authorized to award a contract for the construction of a breakwater at San Pedro, Cal. , in accordance with the "recommen- dation and the plans and specifications adopted by the board of engineers appointed under the provisions of that portion of the river and harbor act of June 3, 1896 (29 Stat. 213), which provides for a deep-water harbor for commerce and refuge at Port Los Angeles or San Pedro, Cal., the location of the harbor to be determined by the board. 22 Op. 138. 90. The project reported by the board is a breakwater which fulfills the provisions of the law and will make a harbor for com- merce and of refuge within the meaning of the statute. lb. 91. It was not the intention of Congress that out of the appropriation made the harbor should be equipped with piers, jetties, and channels necessary for the highest condition of useful- ness and efficiency. lb. 92. It was the purpose of Congress to con- struct a deep-water harbor in the sense of hav- ing a sufficient depth of water to accommodate vessels of large draft, but not necessarily ves- sels of the greatest draft now constructed, lb. 93. The Secretary of War is not called upon to make further plans, specifications, or estimates for other work not included within - the plans and specifications adopted by the court board. lb. 94. Harbor at Chicago — Dumping of material taken from. — The authorities of the city of Chicago have no legal power to prohibit the Government contractors from dumping ma- terial 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. 22 Op. 646. 95 . Same — Jurisdiction. — 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 ma- terial removed in making the improvements in any other part of the harbor or navigable waters or other place within its control. lb. 96. Same — State and Federal. — A State or a municipality has and may exercise juris- diction over the improvement of harbors until the Federal Government indicates its 18456—08 20 intention to do so, or exercises its jurisdic- tion; but whenever the latter is done it is exclusive of every other jurisdiction, control, or interference. 22 Op. 651. 97. Harbor line for Tacoma Harbor. — The Secretary of War has the power to establish a harbor line for the Tacoma Harbor or modify the existing one in the harbor of Seattle, as he shall determine, if in his opinion the interests of commerce and navigation so re- quire. 22 Op. 501. 98. Congress has the power to establish har- bor lines or modify existing ones in navigable waters within the limits of a State, although such State has already established such har- bor lines. 76. 99. The fact that harbor lines have once been established is no bar to the exercise of the same power as often as the needs of com- merce require, lb. 100. Oakland Harbor tidal canal — Suspen- sion of improvement. — 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 ulti- mate 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. 23 Op. 504. 101. Same — Suspension because of doubtful expediency. — 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 de- liberate and continuing, expression of the will of Congress, and respected as such. 102. Harbor improvement in Lake Erie — Pur- chase or construction of a dredge' — Duty of Sec- retary of War. — The words "is authorized" contained in that provision of the river and harbor act of June 13, 1902 (32 Stat. 342), which confers upon the Secretary of War the power to purchase or build a dredge for use in harbor improvement and maintenance in Lake Erie, while equivalent to the word "may," are used in a mandatory sense and are binding upon the executive whose duty it is to carry them into effect. 24 Op. 594. 306 NAVIGABLE WATERS, II, c; III, a. 103. Same. — While " may " in any statute is ordinarily to be construed as "shall" or "must" when public rights or interests are concerned, yet the construction depends upon the context of the statute, the test being the intent of the legislature. lb. 104. Harbor at Brunswick, Ga. — The re- quirements as to time, with reference to the improvement of the outer bar of the harbor at Brunswick, Ga., under the river and harbor acts of 1894 (28 Stat. 342) and 1896 (29 Stat. 208), have been sufficiently complied with in respect to the certificate and payment of $100,000, and the certificate may now be authorized. 22 Op. 156. 105. There being a question as to the assignment of the contract, all parties may exe- cute an agreement in the nature of a trust to embody a release to the United States as to a present payment and an agreement to release as to future payments, and providing for payment to a trustee for disbursement. lb. 106. As regards the Government and the payment referred to, there is but one valid claim — that of the contractor named in the acts. lb. 10.7. License for construction of a wharf in the harbor of San Juan, P. R. — 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 main- tenance 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 Ex- ecutive Council of that island do not extend to an antecedent license granted by him. 23 Op. 552. 108. Same.— The power to revoke the license so granted is vested in the Secretary of War, and so long as it is unrevoked, the rebuild- ing of the wharf, under such license, is sub- ject to his control and supervision, and not to that of the Executive Council. lb. 109. Dock line interfering with harbor im- provements. — It is the duty of the War De- partment to direct proceedings to be taken to enjoin the construction of a "dock line" which will obstruct, encroach upon, or inter- fere with harbor improvement. 17 Op. 279. See also II, a — Appropriations; also Samoa. III. Obstructions to Navigation, a. Bridges. 110. Niagara Biver bridge— President no power to consent to or approve. — In the ab- sence of any act of Congress or constitutional provision conferring upon him authority so to do, the President can not officially consent to and approve the erection of the proposed bridge across the Niagara River. 17 Op. 523. 111. Mississippi Biver bridge at St. Paul. — The provision in the act of July 5, 1884 (23 Stat. 104), fixing the width of the waterway between the spans of the proposed bridge across the Mississippi River at St. Paul, Minn. , extends to the entire structure over so much of the river as is ordinarily navigable at some seasons of the year for either boats or rafts. 18 Op. 133. 112. Missouri Biver bridge at Omaha — Ap- proval of plans for. — The plans for the bridge authorized by the act of March 3, 1887 (24 Stat. 501), to be built across the Missouri River between the cities of Omaha and Coun- cil Bluffs, should not be approved by the Sec- retary of War unless they provide for a struc- ture of sufficient strength to bear trains of cars drawn by locomotives. 19 Op. 29. 113. Approval of location or plan of proposed bridge. — By section 3[7] of the river and har- bor act of 1892 (27 Stat. 110), the Secretary of War is authorized to approve or disapprove of the location or plan of a proposed bridge duly authorized by a State legislature over waters wholly within the limits of that State. 20 Op. 479. 114. The waters of the East Biver comprise navigable waters of the United States lying wholly within the limits of a State, lb. 115. Washington and Arlington Railroad Company bridge over Potomac Biver. — It is not the duty of the Secretary of War under the act of February 28, 1891 (26 Stat. 789), incorpo- rating the Washington and Arlington Rail- road Company, to select or approve of the exact location of the bridge to be built across the Potomac River, but rather to approve the plans, specifications, and materials used, and the manner of construction of such bridge. 20 Op. 549. 116. Same. — It is his duty to refuse to approve the plans for the construction of a bridge at a place so far removed from the NAVIGABLE WATEES, III, a. 307 point indicated in the act as to be plainly beyond its scope. lb. 117. Same. — He has authority, however, to relocate the bridge as requested by the com- pany, provided the place designated is a reasonable compliance with the terms of the act. lb. 1 18. Ohio River bridges — Flans. — Under the provisions of the acts of December 17, 1872 (17 Stat. 398), and February 14, 1883 (22 Stat. 414), authorizing and regulating the construc- tion of bridges over the Ohio River, the Sec- retary of War has power to disapprove of the plans of such bridges where he is of the opinion that they would unduly obstruct the navigation of the river. . 18 Op. 512. 119. Franchises. — The Covington and Cincin- nati Elevated Railway Transportation and Bridge Company, authorized by act of May 20, 1886 (24 Stat. 69), to erect a bridge across the Ohio between Covington and Cincinnati, has no power under that act to sell the franchise granted to it thereby. Such power is not to be im- plied from the words "successors or assigns" in the act. lb. 120. Construction of bridge by purchasers of the right. — Where a State has granted au- thority to construct a bridge over a navigable river, and the location and plan have been approved by the Secretary of War, the ques- tion whether the purchasers of such right are authorized to proceed is one which does not concern the Government. 21 Op. 293. 121. Same. — The action of a State with ref- erence to the rights of parties among themselves concerning the construction of such a bridge does not affect the interests of the United States so long as the directions of the Secretary of War concerning the location and plan of the bridge are respected. lb. . 122. The power of Congress to regulate bridges over navigable waters is paramount, and where it comes in conflict with that of a State the latter necessarily becomes ineffect- ive. 18 Op. 164. 128. Yet, until Congress acts, and by ap- propriate legislation assumes control of the subject, the power of a State over bridges across navigable streams within its limits is plenary. lb. 124. Bridge across Mississippi authorized by Minnesota. — Accordingly, where a railroad company was authorized by the laws of Minnesota to construct a bridge across the Mississippi River within the limits of that State : Held that, if such authority is unaffected by any law of Congress, the company may act thereunder, though in so doing it will sub- ject itself to the risk of future Congressional interference. lb. 125. little Kanawha — State authority in absence of Congressional action. — Where, under authority of the legislature of West Vir- ginia it is proposed to construct a bridge over the Little Kanawha, a navigable river within the limits of that State, which bridge, if built, will be an obstruction to navigation ; but its construction is neither expressly nor impliedly forbidden by any law of Congress. The case is not one which warrants the in- stitution of judicial proceedings for the pre- vention of obstruction to navigation threat- ened. 18 Op. 425. 126. Same. — A State may authorize the ob- struction of a navigable stream within its limits by a bridge, in the absence of any legislation by Congress on the subject. lb. (But see case of Union Bridge Co. v. United States, 204 U. S., 364.) 127. Monongahela Biver bridge. — The Sec- retary of War is not authorized to approve or disapprove the location and plan of the bridge proposed to be erected over the Monongahela River at Bessemer, Pa. 20 Op. 488. 128. — The authority conferred upon the Sec- retary of War by section 7 of the river and harbor act of 1890 (26 Stat. 454), is limited to the cases of bridges authorized by State law to be erected over waters, the navigable portions of which lie wholly within the limits of the State. lb. 129. Same. — Navigable waters extending beyond the limits of a State should not, under the act of 1890, be bridged without explicit authority from Congress. lb. 130. Bridges over navigable waters between or extending into two or more States — Ap- proval. — No general law exists [1892] providing for or permitting bridges to be built over navi- gable waters which divide or extend into two or more States, nor does any general legislation confer the power of approval upon the Secretary of War as to bridges over such waters. 20 Op. 492. 131. The Mississippi Riverin Minnesota, both above and below the Falls of St. Anthony, is a navigable river, not wholly within the limits of any particular State, and can not be bridged 308 NAVIGABLE WATERS, III, a. without the permission of the United States. 22 Op. 52. Opinions of Nov. 19, 1892 (20 Op. 488), and Jan. 18, 1896 (21 Op. 293), approved, lb. 132. Flan and location of bridge across bound- ary waters authorized by acts of the States in- terested. — The Secretary of War would not be prohibited from approving the plan and location of a bridge across boundary waters if acts of authorization were passed by the legislatures of the States interested. 22 Op. 332. 133. Same. — Clause 2 of the proviso to sec- tion 3 [7] of the act of July 13, 1892 (27 Stat. 110), does not limit the authority of the Secre- tary of War to grant permission for the con- struction of a work of this character to navi- gable waters which lie wholly within the limits of one State. lb. 134. Same. — The words "or other works" in that section are not to be interpreted ac- cording to their natural and usual sense, but are restricted to things of the same kind as those just enumerated, lb. 135. Hudson River Bridge — Construction of — Consent of Congress. — The Hudson Highland Bridge and Railway Company, a corporation created by the legislature of the State of New York, with authority to construct a bridge across the Hudson River between two points in the State of New York can not lawfully build such bridge without first obtaining the consent of Congress, as required by section 9 of the act of Congress of March 3, 1899 (30 Stat. 1155). 25 Op. 601. 136. Norfolk and Western bridges over Elizabeth River — Obstruction. — In the case of the bridges of the Norfolk and Western Rail- road Company across the Southern and Eastern branches of Elizabeth River, the facts set forth are insufficient to authorize judicial proceedings against said company in behalf of the United States on the ground that such bridges are an obstruction to navigation. 18 Op. 200. 137. Bock Island bridge — Extent of repairs to — Authority Secretary of War. — In expend- ing the appropriation in the act of March 2, 1889 (25 Stat. 963) "for repairs to draw pier of the Rock Island bridge" the Secretary of War is not required to use all of the money appropriated or more than is necessary to do the work properly, bearing in mind that temporary repairs are not always most economical or expedient. 19 Op. 375. 138. Same. — In case of doubt as to the necessity of any expenditure, due weight should be given to the judgment of the law- making power as expressed in the appropria- tion, lb. 139. Same. — The refusal of the Chicago, Bock Island and Pacific Railroad Company to contribute to the expense incurred any sum in excess of one-half of what would be neces- sary to place the existing pier in as nearly as practicable the condition it was in when the bridge was completed, does not relieve the Secretary of War of his duty to make the repairs directed by the above-named act. lb. See also Bridges. 140. Muskingum Biver bridge at Taylors- ville, Ohio. — The bridge over the Muskingum River at Taylorsville, Ohio, is a nuisance to navigation which ought to be abated. 19 Op. 599. 141. Same. — The case of the county bridge over the Muskingum River at Taylorsville, Ohio, on which an opinion, of the Attorney- General was given July 19, 1890, (vol. 19, p. 599), distinguished from the case of the bridge of the Baltimore and Ohio Southwestern Bail- way Company across the same river at Marietta, Ohio, subsequently presented, and that opin- ion shown to be inapplicable to the latter case by reason of -recent statutory amend- ments affecting it. 19 Op. 676. 142. Canalstreet bridge over Chicago River. — It is the duty of the Secretary of War under section 4 of the act of, September 19, 1900 (26 Stat. 453), to ascertain whether, in his judgement, the Canal Street Bridge across the south branch of the Chicago River is an unreasonable obstruction to the free navi- gation of that river, and in case he decides that it is, to proceed as directed by that statute and require such an alteration of the bridge as will render navigation through and under it, safe, easy and unobstructed. 20 Op. 101. 143. Elements which help to constitute reasonableness. — The rights of intersecting lines of freight and of travel, the needs and the convenience of residents, and the business movements of all who come and all who go are elements which help to constitute the reasonableness or the unreasonableness of an interfering structure built for their use, but to some extent obstructive to the waterway. lb. NAVIGABLE WATERS, III, a. 309 144. Sakonnet River bridge — State of Rhode Island can not be required to alter. — The State of Rhode Island is not a person, corporation, or association within the meaning of sec- tions 4 and 5 of the river and harbor act of September 19, 1890 (26 Stat. 453). Conse- quently the Secretary of War is not authorized to serve notice on the State of Rhode Island requiring it to alter the bridge over the Sa- konnet River, R ; I., which bridge is the property of that State. 20 Op. 606. 145. Secretary of War may determine when bridge is an unreasonable obstruction. — The provision in section 4 of the river and harbor act of September 19, 1890 (26 Stat. 453) , that whenever the Secretary of War shall deter- mine that any bridge constructed over "any of the navigable waterways of the United States is an unreasonable obstruction to the free navigation of such waters," he shall give notice to have such obstruction removed or remedied, is not an unconstitutional delegation of the legislative functions. 21 Op. 430. 146. Alteration without compensation. — Where a bridge was erected by authority of a State before Congress assumed actual jurisdiction over the river for the purposes of navigation, and it was declared an obstruction to naviga- tion by the Secretary of War under the above act, the owners or parties controlling the bridge may be required to alter it without com- pensation by the United States for the ex- penses incurred. 26. See also Union Bridge Co. v. United States, 204 U. S.,364. 147. When Congress chooses to act, it is not concluded, by anything that the States or that individuals by its authority have done, from assuming entire control of the matter and abating any erection that may have been made and preventing any others from being made, except in conformity with such regu- lations as it may impose, lb. 148. Ohio River bridges — Removal of — Authority of Congress. — Congress has power to improve the navigation of the Ohio River, and for that purpose may actually take such property as is requisite, and may cause the abatement and prostration of all structures which in its judgment, interfere with its plan of improvement. 22 Op. 343. 149. Same — Compensation. — Structures which are unauthorized by law may be sum- marily removed and without compensation. Those which are authorized by law can only be removed upon making just compensation, unless the authorization by the Federal Government was accompanied with a reser- vation of a right to change, modify, or re- move, lb. 150. Baltimore and Ohio bridge over Ohio River. — The Secretary of War is not authorized under the provisions of section 4 of the act of September 19, 1890 (26 Stat. 453), to require changes to be made in the bridge of the Balti- more and Ohio Railroad Company over the Ohio River at the expense of the owner without compensation, as this act applies only to such bridges as are constructed under the authority of an act of Congress which ex- pressly reserved to Congress the right to require changes or modifications in the structure. lb. 151. Same. — If the company itself volun- tarily prostrates its bridge, with the intention of constructing another in its place, the Sec- retary of War has the right to prescribe condi- tions as to height, length of span, etc. lb. 152. Ohio River bridges — Alteration of. — The owners of bridges constructed across the Ohio River under the authority of the act of Congress of July 14, 1862 (12 Stat. 569), which contained no reservation of power in Congress to alter, amend, or repeal the act so as to prevent or remove obstructions to navigation arising from the construction of bridges thereunder (including the Steuben- ville bridge), can not be required to alter or modify them at their own expense, without compensation. 25 Op. 194. 153. Same. — If the Ohio Falls bridge, which was constructed under the act of July 14, 1862 (12 Stat. 569), and the amendatory act of February 17, 1865 (13 Stat. 431), at the time of its construction complied with all the re- quirements of those acts and did not then interrupt the navigation of the river, there being in neither of those acts any reservation of power to alter, amend, or repeal the acts, the owners thereof can not be required to make such changes therein as the interests of navi- gation may now demand, at their own expense, without compensation. 76. (195.) 154. Same — Question of obstruction. — The question whether that bridge was so con- structed as not to interrupt the navigation of the river was necessarily to be determined by the requirements of navigation at that time, 310 NAVIGABLE WATERS, III, a, b. and could not be made dependent upon the interests of future navigation, lb. 155. Same. — The express reservation in the act of December 17, 1872 (17 Stat. 398), and the amendatory act of February 14, 1883 (22 Stat. 414), of the power to require the alteration of any bridge constructed under their authority, places beyond question the power in Congress to compel the owners to alter any bridge con- structed under the authority of those acts, at their own expense, without compensation, so as to remove all material obstructions to navi- gation. 76. 156. Same. — The authority conferred upon the Secretary of War by section 18 of the act of March 3, 1899 (30 Stat. 1153), to require any bridge constructed over any navigable water of the United States which is an un- reasonable obstruction to navigation to be bo altered as to render navigation under it rea- sonably free, easy, and unobstructed, applies to bridges constructed under the authority of acts of Congress, provision having been made in the previous sections of that act for the case of structures of that nature unauthorized by Congress. lb. 157. Same. — The power conferred upon the Secretary of War by section 18 of the act of March 3, .1899, is administrative in character and is a lawful delegation of power. lb. 158. Same. — The obstructions to navigation which the Secretary of War by section 18 of the act of March 3, 1899, is authorized to prevent or to remove at the expense of the owner, without compensation, are "material" obstructions. lb. 159. The obstructions to navigation contem- plated by sections 9 and 10 of the act of August 11, 1888 (25 Stat. 424), are such as pertain to the structure and plan of the bridge, in view of its location. Obstructions caused by failure to promptly open the draw of the bridge for passing vessels are not within those sections. 19 Op. 395. 160. The Attorney-General can not pass upon the question as to whether a bridge is an "un- reasonable" obstruction, and its maintenance a violation of law, as its determination involves an examination of all the facts, circumstances, and equities surrounding the case. 19 Op. 676. 161. The question of unreaeonableness must be determined in the first instance by the Sec- retary of War, whose decision is probably sub- ject to review by the courts. lb. 162. Lehigh Valley Railroad drawbridge over the Passaic River — Closing for repairs. — Section 5 of the act of August 18, 1894 (28 Stat. 362), does not, of its own force, prohibit the Lehigh Valley Railroad Company from exercising its privilege under the New Jersey statutes of closing its drawbridge over the Passaic River a reasonable time for repairs. 22 Op. 312. / 163. Same. — Drawbridges — Rules and regu- lations governing the opening. — Section 5 of. the river and harbor act of August 18, 1894 (28 Stat. 362) , does not add anything to the law previously in force upon this subject, except that it gives authority to the Secretary of War to adopt rules and regulations to govern the opening of such drawbridges for the passage of vessels and other water crafts, which rules and regulations, when made and published, shall have the force of law. 22 Op. 314. 164. Same. — It is the duty of all persons op- erating such drawbridges to open or cause them to be opened in a reasonable manner and at a reasonable time, consistent with the uses for which draw bridges are constructed, for the passage of vessels. The repair of such draws and of the bridges with which they are con- nected is also necessary for their maintenance. It is reasonable that a sufficient time should be allowed for such repairs, and if they can not be prosecuted without closing the bridge for a number of successive days, such closing can not be considered an unreasonable interfer- ence with navigation, lb. b. Dams. 165. Dams across Rio Grande for irrigation purposes. — The Secretary of the Interior had no power, under the act of March 3, 1891 (26 Stat. 1101), providing for the location and se- lection of reservoir sites on the public lands of the United States and rights of way for irrigating ditches and canals, to grant a right to construct dams across the Rio Grande for irrigation purposes. 21 Op. 518. 166. Same. — The control and supervision of the navigable waters of the United States is vested in the Secretary of War. lb. 167. The St. Louis and Cloquet rivers, being navigable waters of the United States, can be obstructed by dams only by permission of the Secretary of War, to whom Congress has by express statute given exclusive jurisdiction of the subject. 20 Op. 713. NAV [GABLE WATERS, III, b, c, d. 811 168. Same.— The St. Louie and Oloquet rivers are navigable waters of the United States, and the Secretary of War had author- ity to authorize their obstruction by dams, but he can not revoke his permit after large ex- penditures have been made on the faith thereof. (20 Op. 713, reaffirmed). 21 Op. 41. 169. Unauthorized dams. — The remedy of the United States in case of an unauthorized erection of a dam across navigable waters is by injunction, under section 10 of the act of Sep- tember 19, 1890 (26 Stat. 454), and if the dam has been constructed, also by criminal prosecution. 21 Op. 518. c. Deposits in Rivers and Harbors. 170. Deposits in HudsonRiver. — The author- ity conferred upon the Secretary of War by the act of June 29, 1888 (25 Stat. 209), to prevent obstructive and injurious deposits within the harbor andadjacent waters of New York City, does not extend to the waters of the Hudson Eiver as far distant from New York Harbor as Troy, Albany, and New Baltimore. 19 Op. 317. 171. Same. — The term " tributary waters," as used in that act, covers only such parts of the river as, in a broad sense, can be regarded as connected with that harbor, lb. 172. Discharge of refuse matter in river. — It is the duty of the Secretary of War to act upon a petition to have designated the portion of a river within which refuse matter may be dis- charged, in accordance with the provisions of section 6 of the act of August 18, 1894 (28 Stat. 336) , although the navigability of the river will not be affected. 21 Op. 305. 173. Same. — The Secretary of War, in de- ciding this question, should be governed only by considerations affecting the navigation of the river, or which may affect future naviga- tion, lb. 174. Same. — The discretion given to the Secretary of War is very broad, and no princi- ples governing it are declared. There is no appeal from his action. These facts impose the obligation of a careful scrutiny of the con- siderations which should control his judg- ment, lb'. 175. Deposit of ballast in New York Har- bor — Secretary of War can not prevent. — Nei- ther the Secretary of War nor the supervisor of the harbor of New York has power to prevent the deposit of ballast in New York Harbor at a distance of more than 3 miles from the shore at low-water mark. 20 Op. 293. 176. Although the Attorney-General can not determine, without considering questions of fact, whether or not a bar in Flushing Creek, formed opposite the mouth of a sewer and offering an obstruction to navigation, is such a case as comes within the exception provided in section 6 of the act of August 17, 1894 (28 Stat. 363), the Secretary of War is not precluded from taking such action inviting the attention of the town authorities of Flushing to the matter, as may be advisable. 21 Op. 594. d. Miscellaneous. 177. Hydraulic mining. — It is the duty of the United States to take prompt action by an information in chancery to restrain certain hy- draulic mining operations in California which are creating obstructions to the navigation of certain rivers in that State. 18 Op. 404. 178. Same. — Recommended that the atten- tion of Congress be called to the situation with a view to making it a penal offense to obstruct or impair the navigation of any water under the jurisdiction of the United States. lb. 179. The power to regulate commerce is one of the instances in which the Constitution op- erates proprio vigore, and its effect as to the navigable waters of the Union was to estab- lish them as highways, open to the free and unrestricted use of all persons engaged in for- eign or interstate commerce. lb. 180. Whether Congress has spoken or not, the duty of the United States toward commerce in its several departments of traffic, intercourse, and navigation is equally imperative. lb. 181. Sunken scow — Contributory negli- gence. — 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 sink- ing of the scow, its locality, and that boats had been engaged in unloading and trying to raise the boat. At. the time of the strik- ing 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 try- ing to raise the scow, that the harbor master had been notified of the sinking of the scow, 312 NAVIGABLE WATERS, III, d— NAVY. 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 sig- nal 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. 23 Op. 43. 182. Same- — Damages. — But if, at the time of the accident, the master of the Resolute knew of the danger, or if, under all the circum- stances, 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. lb. Dredge, Construction of. See 62, 63. Power of the United States over. See I,b. Tolls. See 37. NAVIGATION. 1. The Great Lakes are "high seas" within the meaning of the act of August 19, 1890 (26 Stat. 320). 21 Op. 106. 2. The regulations in that act for preventing collisions at sea are applicable to the Great Lakes and to all waters navigable for seagoing ves- sels connected either with the ocean or with the Great Lakes, whether the connection be by a navigable river or a canal, and are ap- plicable to every kind of steam vessel. lb. 3. Rules 6 and 7 of section 4233, Revised Statutes, relating to river steamers navigating waters flowing into the Gulf of Mexico, and their tributaries, and to coasting steam vessels, etc. , navigating bays and inland waters, etc., are abrogated or repealed by the act of 1890 (26 Stat. 320). lb. 4. Sections 12 and 13 of the act of March 3, 1897 (29 Stat. 690), relating to navigation laws, which amend section 4233, Revised Statutes, are special rules duly made by local authority according to the provisions of article 30 of the act of August 19, 1890 (26 Stat. 328). 21 Op. 513. 5. Those portions of the act of 1890 which do not "interfere" with the operation of special rules duly made by local authority according to the provisions of artiele 30, as construed by the act of February 19, 1895 (28 Stat. 672), are rules for the guidance of American vessels, not only on the high seas, but also on "all waters connected therewith navigable by seagoing vessels." lb. 6. The provision of section 4234, Revised Statutes, requiring sailing vessels to show a lighted torch on the approach of any steam vessel during the nighttime, was not repealed by section 3 of the act of February 19, 1895 (28 Stat. 672). 21 Op. 227. 7. Navigation laws not extended to Guam. — Congress has not yet extended the laws of the United States relating to entry, clearance, and manifests of steamships, and other simi- lar laws to Guam. 25 Op. 128. Obstructions to Navigation. fe'Nivi- 'gable Waters, III. Registry, Tonnage, etc. See Shipping. Vessels. See Shipping; and Vessels. NAVY. I. In General. a. Enlistment, 1-5. b. Bounty, 6-7. c. Discharge, 8-9. d. Deposit of Savings, 10. e. Transportation, 11-16. f. Supplies, Equipment, Ordnance, 17-22. g. Appropriations, 23. II. Officers. a. In General, 24-29. b. Appointment, Advancement, Pro- motion, etc., 30-51. c. Retirement, Dismissal, etc., 52-69. d. Rank and Pay. 1. Rank— Relative Rank, 70-82. 2. Grade, 83-92. 3. Title, 93-98. 4. Precedence, 99-101. 5. Pay, 102-107. e. Arrest, 108. f. Reprimand, 109-111. III. Marine Corps. a. In General, 112-117. b. Appointment, Promotion, Exami- nation, 118-135. c. Retirement, 136-137. d. Rank and Pay, 138-149. e. Transportation and Subsistence, 150-151. NAVY, I, a, b, c, d, e. 313 IT. Engineer and Engineer Corps, 152-169. V. Court-Martial, 170-184. VI. Navy Regulations, 185-188. VII. Vessels — Contracts for Construction, etc., 189-216. I. In General. a. Enlistment. 1. A minor who at the age of 19, with the consent of his father, enlisted in the Navy, has not the right on coming of age to demand his discharge under the rule which applies to his ordinary civil contracts. 21 Op. 327. 2. Same. — The United States have a right to prescribe the rules and conditions under which voluntary or compulsory services are to be rendered by citizens. lb. 8. Same. — The period at which persons reach their majority and become sui juris with respect to the ordinary affairs of life can not abridge this power of the General Govern- ment, lb. 4. Same. — If a statute authorizes a minor by enlistment to bind himself during his mi- nority, he can bind himself for a further period. lb. 5 . Same. — The phrase ' 'other persons' ' in the act of March 2, 1837 (5 Stat. 153) , now sec- tion 1416, Eevised Statutes, included minors above 18 as well as men of full age. lb. b. Bounty. 6. Bounty — Navy regulations. — The regu- lations of the Secretary of the Navy issued July 1, 1901, pursuant to the act of March 1, 1889 (25 Stat. 781), which act provides a bounty to each person enlisting as an appren- tice in the United States Navy, are inconsis- tent with law and void in so far as they re- quire a refund of the bounty, or any portion of it, in case an apprentice is discharged within a year after his enlistment for disa- bility not incurred in the line of duty. 25 Op. 270. 7. Same. — Under section 1547, Eevised Statutes, all navy regulations issued since July 14, 1862, require the approval of the President. lb. Pay. See Navy, I, g. c. Discharge. 8. The words "by reason of absence from his command at the time he became entitled to his discharge," as used in the first section of the act of August 14, 1888 (25 Stat. 442), "to relieve certain appointed or enlisted men of the Navy and Marine Corps from the charge of desertion," are to be regarded as equally applicable to the date when the term of enlist- ment of the applicant expired, and to the date when he would have received his dis- charge along with other enlisted men with whom he served, had he been present. 19 Op. 221. 9. Same. — The proviso in the third section of that act is applicable to the latter section alone. lb. d. Deposit of Savings. 10. Paymasters of the Navy may receive from enlisted men or petty officers, for deposit, under the act of February 9, 1889 (25 Stat. 657), accumulated savings of any amount, pro- vided they represent the earnings of such a person as an enlisted man or petty officer in the United States Navy. 21 Op. 498. e. Transportation. 11. Government-aided railroads. — The word " troops," as used in section of the act of July 1, 1862 (12 Stat. 493), providing for the trans- portation of mails, troops, and ammunitions of war, etc., by Government-aided railroads,, includes enlisted men of the Navy. 20 Op. 11. 12. Same. — Whether the whole amount of the contract price should be paid the West Shore Railroad Company of New York, for the trans- portation of enlisted men of the Navy from New York to California, a portion of the dis- tance being over Government-aided railroads, the compensation for transportation over such roads being applicable, under the acts of July 1, 1862 (12 Stat. 489), and March 7, 1878 (20 Stat. 56), to the payment of bonds issued by the United States to aid in build- ing roads, held to be a judicial question. lb. 18. Same. — Advised that all compensation earned by the bond-aided railroads should be withheld until the questions of the rights of such roads in the premises are adjusted by agreement under the terms of the law or are judicially determined, lb. 14. The methods adopted in settling accounts for transportation of the Army under the act of March 3, 1879 (20 Stat. 420), are not applica- ble to accounts for the transportation of en- 314 NAVY, I, e, f, g; II, a. listed men of the Navy and Marine Corps. 21 Op. 297. 15. The Navy Department is authorized to pay for the actual subsistence of the enlisted men of the Navy employed in taking, care of and preserving the stores and other Govern- ment property placed on exhibition at the World's Columbian Exposition under the super- vision of the Navy Department and in pur- suance of law. 20 Op. 577. 16. Same. — The expenses necessarily accru- ing out of the transportation and subsistence of the marines detailed for that purpose may be paid from the fund provided for the Ma- rine Corps and its subsistence. lb. f. Supplies, Equipment, Ordnance. 17. Contracts" for supplies — Award. — The Secretary of the Navy is obliged to award contracts for supplies to the lowest bidder who complies with the requirements as to security, etc., but he is charged with the duty of ascertaining the facts in this regard, and his decision is not reviewable by any court. 21 Op. 56. 18. Under sections 3709 and 3718, supplies of every name and nature for the Navy are to be purchased by contract upon advertisements, except in cases when the public exigency will not permit of delay, and then by open pur- chase as between individuals. 21 Op. 181. 19. Contract for supplies— Advertisement. — A contract with the Maxim-Nordenfelt Company for the manufacture and delivery to the Navy Department of 100 guns, the manufacture of materials to be subject to the inspection and approval of the Department, supplemented by an agreement providing for the manu- facture of the guns at the Naval Gun Factory in Washington, D. C, and for keeping an ac- count of the cost of labor involved, in order to arrive at the remuneration ultimately to be paid the Maxim Company, is a contract for supplies to the Navy Department, and not for services, and a contract with another com- pany for the manufacture of any of said guns may be made by that Department as a con- tract for ordnance, under section 3721, Re- vised Statutes, without submitting the matter to competition by public advertisement as re- quired by section 3709, Revised Statutes. 21 Op. 577. 20. Purchase of patent rights — Ordnance. — The Secretary of the Navy is not prohibited by section 3718 of the Revised Statutes from contracting with an ensign of the Navy for the purchase of patent rights and improve- ments in B. L. R. ordnance for use in the Navy, where the ensign was not employed to make experiments, paid for his own patent, and was afforded no facilities by the Board of Ordnance for the improvement of his inven- tion. 20 Op. 329. 21. Same. — Section 3721, Revised Statutes, and not section 3718, applies to this case. lb. 22. Frauds in supplying equipment — Com- pensation of person furnishing evidence.— The Secretary of the Navy is authorized, by im- plication from statutes authorizing him to enter into contracts for certain equipment, to contract for the compensation of persons fur- nishing information of frauds practiced upon the Government in supplying such equip- ment, the compensation to be regarded as money paid for inspectors' wages or for detective work. (Sec. 3732, Revised Statutes, con- sidered in connection with 15 Op. 235, 240.) 21 Op. 1. g. Appropriations. 23. Unexpended balances of moneys appro- priated for the pay of the Navy and Marine Corps for the fiscal year ending June 30, 1884, are not available for payment of the Navy and Marine Corps for services rendered during the fiscal year ending June 30, 1885. 18 Op. 412. See also VII. II. Officers. a. In General. ,24. The Secretary of the Navy has authority to detail men to guard and protect property of the Government placed on exhibition at the World's Columbian Exposition. 20 Op. 576. 25. Secretary to the Admiral — Appoint- ment.— The appointment of the secretary al- lowed the Admiral of the Navy by section 1367, Revised Statutes, does not belong to the President, with the advice and consent of the Senate, but devolves upon the Admiral as one personal to himself; and the contemporaneous continuation of the statute and uniform prac- tice thereunder by the executive branch of the Government have accorded with this view. 19 Op. 589. NAVY, II, a, b. 315 26. Paymaster of the fleet — Designation and pay. — No designation other than that made by the President entitles a naval paymaster to the place and perquisites of paymaster of the fleet. 18 Op. 156. 27. Paymasters of the Navy may receive from enlisted men or petty officers, for deposit, under the act of February 9, 1889 (25 Stat. 657), accumulated savings of any amount, pro- vided they represent the earnings of such a person as an enlisted man or petty officer in the United States Navy. 21 Op. 498. 28. Paymasters' clerks assigned to sea duty, not being classified by the President's order of May 6, 1896, while those performing similar services in offices on shore were classified by that order, there is no authority for the transfer of one of the former to a similar po- sition in the Navy Department. 21 Op. 503. 29. Medical Corps — Assistant surgeons — Ex- aminations. — The custom and practice of- the Navy Department requiring competitive ex- aminations of assistant surgeons, and assign- ing them positions on the Navy Register in the order of relative merit as ascertained and reported by the board of examiners author- ized by existing law and regulations,' is not under the present law (sec. 1480, R. S. ; act of Feb. 27, 1877) correct; the effect of such law being to adopt the rule of seniority in regard to promotions from one grade to another in the Medical Corps of the Navy. 17 Op. 48. Chief Engineers. See Navy, II, d. (2). b. Appointment, Advancement, Promotion, etc. 80. Appointment — Officers of the line and staff. — The President may appoint the officers of the line and staff of the Navy authorized by the act of May 4, 1898 (30 Stat. 369), without the advice and consent of the Senate. 22 Op. 82. 31. Same — Commission— Signature of the President. — A commission issued pursuant to the foregoing act should show upon its face that it is the commission of the President, but his actual signature is not necessary. The docu- ment should declare the act to be that of the President, performed by the head of the Navy Department as his representative, lb. 32. Appointment — Chief o| Bureau of Yards and Docks. — An officer of the Corps of Engineers, not below the relative rank of captain, is eli- gible for appointment as Chief of the Bureau of Yards and Docks. 22 Op. 47. See also Naval Academy. Appointment of Secretary to the Ad- miral. See Navy, 25. Promotion of Officers on Retired List. See Navy, II, c. 33. Designation and pay — Naval paymas- ter. — No designation other than that made by the President entitles a naval paymaster to the place and perquisites of paymaster of the fleet. 18 Op. 156. 34. Nominations for advancement. — The President has power to nominate for advance- ment, 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 serv- ices, although at the time of such nomination such officers may have been honorably dis- charged from the naval service. 23 Op. 413. 35. Same — Senate's approval — Nunc pro tunc advancement. — 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 Govern- ment, and is not open to the objection that it amounts to the advancement of an officer who is no longer in the service. lb. 36. Advancement — Eeconsideration. — Where, under the provisions of section 1506, Revised Statutes, an officer was advanced in numbers by the President, with the advice and consent of the Senate, for eminent and con- spicuous conduct in battle or extraordinary heroism, such action is conclusive upon the Executive Department of the Government, and is not subject to reexamination or revision by a succeeding President. 17 Op. 76. 37. Advancement — Confirmation — Status — McCalla — Pillsbury — Bittenhouse. — On August 10, 1898, Commodore William T. Sampson was advanced eight numbers by the Presi- dent and appointed a rear-admiral; Capt. John Philip was similarly advanced five num- bers and appointed a commodore; Com- mander Bowman H. McCalla was likewise advanced five numbers and appointed a cap- tain, all to take rank from date of appoint- ment. None of these appointments was con- firmed by the Senate. Lieut. Commander John E. Pillsbury was appointed a "com- 316 NAVY, II, b. mander from the 10th day of August, 1898, vice Commander Bowman H. McCalla, ad- vanced and promoted," which appointment was confirmed by the Senate December 14, 1898. Lieut. Hawley 0. 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 ad- vancement of McCalla was confirmed. Held that (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 con- firmation of Pillsbury necessarily either re- moved McCalla or it promoted him, and the Senate has said which it was, "in the place of McCalla, advanced and promoted." There- fore 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 appoint- ments. (3) The confirmation of an officer nominated for promotion may ba 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 pro- motion. (4) Those below McCalla were pro- moted 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. 191), does not apply to entitle them to pay in the higher grades from the time they took rank, respectively. 23 Op. 30. 38. Promotion — Age limit before action thereon. — Where, upon the retirement of a rear- admiral, a commodore next in line was nomi- nated to be a rear-admiral to fill the vacancy, and before action thereon by the Senate, the said commodore attained the age of sixty- two years and was retired, under section 1444, Revised Statutes, as a commodore, advised that, according to the law and usage of the service, that officer was entitled, by relation, to be a rear-admiral from the date when the vacancy occurred, and to receive the pay of a rear- admiral from that date, and, if the Senate should confirm his nomination , he might be com- missioned as a rear-admiral and placed on the retired list as of that grade. 18 Op. 393. 39. Promotion — Volunteer service. — W. was appointed an acting third assistant engineer in the volunteer Navy February 8, 1862, and performed sea service continuously until JMay 20, 1864, when he was made a third assistant engineer in the regular Navy, and completed two years of sea service as such January 1, 1867. He was promoted to the grade of sec- ond assistant engineer October 6, 1869, to take rank from January 1, 1868. On July 1, 1870, he completed two years' sea service in the latter grade, and on March 12, 1875, was promoted to the grade of passed assistant en- gineer, to take rank from October 29, 1874: Held that the credit of his volunteer service, under section 1412, Revised Statutes, does not entitle him to the benefits claimed therefor as regards promotion to or pay in his present grade, his volunteer service having been per- formed in a different grade from the one from which last promoted. 17 Op. 401. 40. Promotion. — Section 1461, Revised Stat- utes, gives to naval officers on the retired list a right to promotion on that list as their sev- eral dates on the active list are promoted. 17 Op. 36. 41. Same. — The word "entitled" in sec- tion 1461, Revised Statutes, can not be con- strued as giving to the President the right of selection in determining who are and who are not entitled to promotion on the retired list of the Navy- lb. 42. Same. — A practical effect of the law which would be undesirable can not be al- lowed to overcome its expressed terms. lb. 43. The right to promotion,, inhering in one who is a commissioned officer, is. under existing legislation, in the nature of a vested right, subject, nevertheless, to being de- feated in accordance with the provisions of the laws. 20 Op. 433. 44. The promotion of Lieutenant McLean to fill a vacancy created by the order of the Presi- dent, dated July 1, 1899, retiring certain officers under sections 8 and 9 of the naval personnel law of March 3, 1899 (30 Stat. 1006), and his commission, should be dated July 1, 1899, and he is entitled, from and including that date, to the grade, rank, and emoluments indicated by his commission. 22 Op. 657. NAVY, II, b, c. 317 45. Promotion — "Wounds received in the line of his duty." — The expression "wounds received in the line of his duty," found in section 1494, Revised Statutes, which pro- vides for the promotion of officers of the Navy whose physical disqualifications do not incapacitate them for other duties, means precisely what itsays— namely, wounds received in the line of duty — and is not re- stricted to any particular part of that duty, as to wounds received in battle or in some hazardous enterprise. 23 Op. 324. 46. Same. — 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 pro- motion, lb. 47. Same — "Other duties." — The words "other duties," in section 1494, Revised Statutes, refer to duties other than duties at sea. lb. See also Navy, III, b; Marine-Hospital Service. 48. The restoration of the name of an officer of the Navy to its proper place on the navy list, from which it was illegally removed , affects and disturbs the relative positions of other officers subsequently advanced, whose names have been placed on the list in accord- ance with the belief that such removal was legal. 17 Op. 21. 49. Same. — Such illegal order was not a dismissal from the service, and the restoration order did not restore the officer to the serv- ice. In a legal sense his name was always upon the list, although by error it was omitted in the register. lb. 50. Same. — In such cases the only rule that can be adopted is to treat such officer as having always been nominally what he was really, an officer of the United States; and if positions have been arranged in regard to the rank of other officers upon the theory that he was not an officer, those positions should be so altered as to rectify the error thus committed. lb. 51. Same. — The controlling word in the nomination and confirmation of an officer of the Navy for advancement by definite num- ber to take rank after a particular person named, is the number of the "numbers" which the officer is to be advanced, and not the name of the person after whom he is to take rank. ■ lb. c. Retirement, Dismissal. 52. Retired — Reexamination of, by medical board. — The Secretary of the Navy, in 1878, was not authorized by law to submit the case of Surgeon Thomley, who was retired under section 3 of the act of February 21, 1861 (12 Stat. 150), to a medical board for reexamin- ation as to the origin of the disability for which he was retired, and his decision, based upon the report of that board, is without legal effect as regards the cause for the retirement of that officer or his right to pay. 17 Op. 178. 53. Retired officers — Employment in clerical position. — The Secretary of the Navy is not pre- cluded by section 2 of the act of July 31, 1894 (28 Stat. 205), from employing a retired offi- cer, under the act of February 19, .1897 (29 Stat. 565), to supervise the completion of cer- tain tables of planets, as the act authorizing the expenditure does not create an office or con- template any formalities in the selection of such an employee. 21 Op. 507. 54. Same. — The person to be employed may be designated either by order of the Secretary of the Navy or the head of the bureau having charge of the work to be done, which order need only designate the person selected as a competent mathematician and the compensa- tion he is to receive. lb. 55. Attempted retirement. — Where the Sec- retary of the Navy by order retired, or at- tempted to retire, an officer of the Navy who had served intermittently, but not continuously, for forty years, and no appointment had been made to the place vacated, the officer must be regarded as still on the active list of the Navy. 21 Op. 103. 56. Voluntary or compulsory retirement. — The provisions of the act of March 3, 1899 (30 Stat. 1004, 1006), relative to voluntary or compulsory retirement, applies to the current year ending June 30, 1899, as well as to any fiscal year in the future. 22 Op. 380. 57. Retirement, order of. — The voluntary re- tirement of officers of the Navy under section 8 of the Navy Personnel act of March 3, 1899 (30 Stat. 1006), and the compulsory retirement of such officers under section 9 of that act, are to be made in the order of the rank of the applicants, regardless of the grade they are in. 25 Op. 452. 318 NAVY, II, c, d, 1. 58. Same. — The word "casualties" in sec- tion 9 of the above-named act, refers, as or- dinarily understood, to death, resignation, or dismissal, and does not include promotion. lb. 59. Same. — The vacancies caused by pro- motion to extra numbers, under the act of March 3, 1901 (31 Stat. 1108), should not be counted in determining the average vacancies enumerated in section 8 of the Navy Per- sonnel act of 1899. lb. 60. Retirement — Vacancy. — The order of the President, dated July 1, 1899, retiring certain officers under sections 8 and 9 of the naval personnel law of March 3, 1899 (30 Stat. 1006), had the effect to retire Lieutenant-Commander Driggs on June 30, 1899, and thus created a vacancy during the fiscal year ending with that date. 22 Op. 657. 61. Same — Promotion — Date of commis- sion. — The promotion of Lieutenant McLean to fill such vacancy, and his commission, should be dated July 1, 1899, and he is entitled from and including that date to the grade, rank, and emoluments indicated by his commis- sion, lb. 62. Same. — Vacancies occurring through re- tirements, as provided under the naval per- sonnel law of 1899, are to occur or be accred- ited to the fiscal year which ends with the 30th of June of that year. lb. 63. Retirement — Rank and pay of pay di- rector and medical director. — Under section 11 of the naval-personnel act of 1899 (30 Stat. 1007), the pay director and medical director will be retired with the rank and three- fourths the sea pay of the next higher rank, which is that of a rear-admiral, although this will result in a higher relative rank than that to which they are entitled in the active service. 22 Op. 433. 64. Same. — The highest officer in the Med- ical Corps being a medical director having the relative rank of captain, it is impossible to promote him to a higher place in such corps, though he may have a higher rank conferred upon him than that of captain. lb. 65. Same. — A medical director who had been retired with the relative rank of rear- admiral, if recalled to the service, would enter with the rank and pay of "a rear-admiral, but he would enter only in the Medical Corps and as a medical director. lb. 66. Retired on furlough — Transfer with in- crease of pay. — An officer retired on furlough pay under section 1454, Revised Statutes, can not be transferred on the retired pay list under section 1594, Revised Statutes, with increase of pay, such increase being forbid- den by the act of August 5, 1882 (22 Stat. 286). 18 Op. 96.' 67. Same. — Nor can an officer be simulta- neously retired on furlough pay, and transferred to the retired pay list, so as to give him the pay of the latter. lb. 68. Retirement of a captain while chief of Bureau of Navigation — Rank — Pay. — A captain in the Navy who was appointed chief of the Bureau of Navigation, with the relative rank of commodore, should, in case of his retire- ment during his incumbency in that office and while borne on the Navy Register as captain, be placed on the retired list with the rank of captain. He would then be entitled to 75 per centum of the sea pay of officers of that rank. 17 Op. 154. 69. . Dismissal on sentence of court-martial. — Where a paymaster in the Navy was sen- tenced to dismissal by court-martial, and it appeared by the order of the Secretary of the Navy that the President approved the find- ing of the court and directed the sentence to- be carried into effect, but the President's own signature was not attached to the order: Held that the officer was legally dismissed from the naval service^ 17 Op. 43. d. Rank and Pay. 1. Rank. 70. Rank. — A volunteer officer transferred to the regular Navy is not entitled to hold a commission dated as of the date of his volun- teer commission, but he must take his place upon the Navy Register according to the rank given him by his commission as an officer of the regular Navy. 17 Op. 189. 71. Same, — Construction of section 1412, Revised Statutes, as given in 14 Op. 192, 358, and 15 Op. 45, namely, that it gives to transferred officers of the Navy the full ben- efit of their former sea service only in so far as this may go to complete the period of such service required in their respective grades previous to examination for promotion, and in so far as it ought properly to be taken into account in the matter of assignment to.duty — reaffirmed, lb. NAVY, II, d, 1. 319 72. Actual rank. — Engineer officers who at- tained the relative rank of commander prior to the passage of the personnel act of March 3, 1899 (30 Stat. 1004), became entitled, under the first sentence of section 2 of the act, to take that actual rank in the line of the Navy. 22 Op. 449. Rank and Pay of a Captain Retired While Chief of Bureau of Navigation. See Navy, 68. 73. Relative rank — Length of service. — The concluding clause of section 1486, Revised Statutes, which provides that "officers who have been advanced or lost numbers on the Navy Register shall be considered as having gained or lost length of service accordingly," as applied to officers of the line in the Navy who were promoted by selection under the act of July 25, 1866 (14 Stat. 222), can not be held to operate as a degradation of an officer over whom another officer had been pro- moted, or to deprive him of a right already acquired by honorable length of service. 17 Op. 56. 74. Same. — The officer promoted will be considered as having gained length of service according to his promotion, but the other officer will not be considered to have lost any- thing in length of service, the effect of the promotion upon the latter being purely an incidental one. lb. 75. Relative rank.— The granting of a par- don to a naval officer for the purpose of restoring him to his original position on the Navy list, under the belief that a nomination intended to accomplish that end had failed because it had not been directly confirmed by the Sen- ate, but which, in reality, had been confirmed by the advancement of another officer nomi- nated at the same time, did not operate to advance such officer beyond the relative po- sition he originally held on the list. 24 Op. 606. 76. Same. — The effect of a pardon is to put an end to the infliction of further punish- ment. In the present instance it merely oper- ated to end any doubt there might be as to the legality of the restoration of such officer to his original position. lb. 77. Relative rank. — Under the practical interpretation of section 423, Revised Stat- utes, naval constructors are treated as officers of the Navy and their relative rank as the actual rank or grade required by that section. 22 Op. 47. 78. Relative rank — Pay director and med- ical director. — Under section 11 of the naval- personnel act of 1899 (30 Stat. 1007), the pay director and medical director will be retired with the rank and three-fourths the sea pay of the next higher rank, which is that of a rear-admiral, although this will result in a higher relative rank than that to which they are entitled in the active service. 22 Op. 433. 79. Same. — The highest officer in the Medical Corps being a medical director having the relative rank of captain, it is impossible to promote him to a higher place in such corps, though he may have a higher rank conferred upon him than that of captain. lb. 80. Same. — A medical director who had been retired with the relative rank of rear- admiral, if recalled to the service, would enter with the rank and pay of a rear-admiral, but he would enter only in the Medical Corps and as a medical director. lb. 81. Relative rank of officers — Maj. Charles H. Laucheimer — Maj. Charles H. McCauley. — 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, ap- pointed 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 examination,, held (1) That the advance- ment of an officer to a higher grade, one to which he could not then succeed in due course by seniority, while called an appoint- ment, 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 rela- tive rank. (2) As Major Laucheimer's com- mission and induction into office each ante- date by several days thatof Major McCauley' s, during that period the former ranked the 320 NAVY, II, d, 1, 2, 3. 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 commis- sion and rank of Major Laucheimer entitle him to precedence in rank. 23 Op. 155. 82. Same — Determination of relative rank of naval officers. — The Secretary of the Navy, by virtue of his general power under the Presi- dent 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 particu- lar cases, but it may be done either way. 23 Op. 156. Eelative Rank of Officers of the Ma- rine Corps and Officers of the Line of the Navy. See Navy, III, d. Relative Rank in Case of Restoration of Name of Officer to Navy List. See Navy, 48-51. 2. Grade." 83. Grade. — There is but on$ grade of chief engineers in the Navy, and the division of the seventy chief engineers into "three grades" by relative rank, as provided for in sections 1390and 1476, Revised Statutes, creates merely three classes of chief engineers of the same grade. 20 Op. 358. 84. Same. — The relative rank among the chief engineers changes with their seniority in that grade. Such change may be indicated by a notification from the Secretary of the Navy, and does not require examination, new appointment, or confirmation by the Senate. lb. 85 . Same. — Promotion to the grade of assistant engineer from that of first assistant engineer requires examination under sections 1493 and 1496, Revised Statutes. lb. 86. Medical Corps — Passed assistant sur- geon — Assistant surgeon. — In the organization of the Medical Corps of the Navy a passed assistant surgeon and an assistant . surgeon are officers of one and the same grade, but belong to different classes in such grade. 19 Op. 169. 87. Same.— A passed assistant surgeon is simply an assistant surgeon who has been officially notified that he has passed success- fully the examination necessary to be under- gone before he can be appointed a full surgeon when a vacancy occurs. lb. 88. Effect of remission of sentence on grade. — An order remitting the unexecuted portion of the sentence of a lieutenant commander of the U. S. Navy who had been suspended for two years, and was to retain his number and grade, does not have the effect of advancing him two numbers in grade, although during the time of his suspension from duty two officers with commissions dated subsequently to his had been advanced above him in the grade of lieutenant- commander. 20 Op. 243. 89. Officers of the line. — Neither boatswains, gunners, nor warrant machinists are officers of the line of the Navy within the meaning of the Revised Statutes and the acts of August 5, 1882 ( 22 Stat. 284 ) , and March 3, 1899 (30 Stat. 1004). 22 Op. 620. 90. Same. — Boatswains and gunners are officers in the line of command, and there is nothing in the classification in the act of 1862 (12 Stat. 583), to indicate an intent to make unlawful the exercise of command by them. lb. 91 . Same. — These officers are not improperly classed in the Regulations of the Navy as offi- cers of the line, and may therefore be given the star upon their uniforms. lb. 92. Same. — Warrant machinists created by the naval personnel act were not placed in the list of line officers of the Navy, and are not entitled to command, lb. 3. Titles. 93. The titles of the heads of the existing staff bureaus of the Navy are positively fixed bylaw (Rev. Stat. sec. 1471) and are unchanged by the later legislation (Navy personnel act of 1899, 30 Stat. 1004) which confers the ad- vanced rank and pay upon all bureau chiefs below the rank of rear-admiral. 25 Op. 122. 94. Same. — Under those laws, construed in connection with the statutes relating to retirement and with past usage in the service, the designated titles of staff bureau chiefs carry over from the active to the retired list. 16. 95. Same. — Respecting bureaus which, though aiding in central administration, are not technically of the staff; and line or staff officers serving as chiefs of those bureaus or retired as such; and line or staff officers in NAVY, II, d, 3, 4, 5. 321 the grade or having the rank of captain and entitled to be retired (sec. 11, personnel act) "in the next higher grade," i. e., as rear- admiral; and the special cases of the Judge- Advocate-General and the Secretary to the Admiral — in all these cases the law lays down no explicit rule relative to titles, and hence in those situations and aspects the subject may be and should be disposed of by Executive order or navy regulation or usage. lb. 96. Titles of retired staff bureau chiefs. — The evident meaning of the opinion of March 4, 1904 (25 Op. 122), is that the legal title of the head of a staff bureau is carried on into his retirement when that step occurs or the right to be retired accrues, while he is at the head of the staff bureau. 25 Op. 294. 97. Same. — When the retirement of an officer occurs during service as the head of one of the staff bureaus, the retired officer is entitled under the law to be borne upon the Navy Eegister as a retired officer under that title permanently. 76. 98. Same. — A pay director of the Navy who by appointment has become a Paymaster-General, and who while holding that office reaches the retiring age, has the right to bear the title of Paymaster-General not only after he has reached the retiring age but is still perform- ing the duties of that office, and not only after he is actually retired and detached from the office and before his term of appointment as Paymaster-General has expired, but also after the latter date, and permanently, upon the retired list. lb. 4. Precedence. 99. Engineer Officers. — There is no in- consistency between sections 1483 and 1484, Revised Statutes, in their operation upon the question of the precedence of engineer offi- cers of the Navy. 21 Op. 46. 100. Same. — The rule of the Febiger Board for ascertaining the date of precedence of officers on the active list of the Navy is in conflict with the act approved August 5, 1882 (22 Stat. 284). lb. 101. Same. — Status of members of the staff corps is governed by .sections 1485, 1486, and 1487, Revised Statutes. lb. 5. Pay. 102. Longevity pay, actual time of service. — In computing the longevity pay of officers of 18456—08 21 the Army, under the provision in the act of February 24, 1881 (21 Stat. 346), declaring that "the actual time of service in the Army or Navy, or both, shall be allowed all officers," etc. : Held that where an officer served in the Medical Corps of the Navy the actual time of his service in that corps should be allowed; that where an officer served as a captain's clerk in the Navy, the actual time of his service as such clerk should be allowed* but that where the officer served as an assist- ant civil engineer in the employ of the War Department on the Florida coast and else- where, the actual time of his service in that capacity should not be allowed. 17 Op. 93. {But see United States v. Morton, 112 U. S. 103. Pay commences at date of appoint- ment. — The increased pay of a naval officer, promoted from one grade to another to take rank at a date prior to the confirmation of his appointment, commences, not at the date from which he took rank, but at the date of his ap- pointment. 17 Op. 319. 104. No increase of pay for services prior to act of 1883. — The provisions of the Navy ap- propriation acts of August 5, 1882 (22 Stat. 287), and March 3, 1883 (22 Stat. 473), requir- ing all officers of the Navy to be credited with the actual time they may have served as offi- cers or enlisted men in the regular or volun- teer Navy, etc., do not entitle such officers to any increased pay for services rendered by them prior to March 3, 1883. 17 Op. 555. 105. An officer retired on furlough pay under section 1454, Revised Statutes, can not be transferred on the retired pay list under section 1594, Revised Statutes, with increase of pay; such increase being forbidden by the act of August 5, 1882 (22 Stat. 286). 18 Op. 96. 106. Nor can an officer be simultaneously re- tired on furlough pay, and transferred to the retired pay list, so as to give him the pay of the latter. 16. 107. Paymaster of the fleet, — No designa- tion other than that made by the President entitles a naval paymaster to the place and perquisites of paymaster of the fleet. 18 Op. 156. Pay of Marine Cokps. See Navy, III, d, 145, 149. 322 NAVY, II, e, f; III, a, b. e. Arrest. 108. As adequate power is possessed by the Secretary of the Navy to cause, the arrest of an officer for malappropriation of public funds, notwithstanding the fact that he has been arrested by the civil authorities for the same offense and discharged on bail, it is improper to cause his arrest by the civil officers in order that he may be brought to trial before a naval court-martial. 21 Op. 504. f. Reprimand. 109. Private reprimand no bar to court- martial. — A private reprimand, administered by the commander in chief of a fleet to a naval officer in accordance with the recom- mendation of a court of inquiry, as a punish- ment for an offense, such as neglect of duty, is no bar to a subsequent trial of such officer by general court-martial for the same offense. 25 Op. 623. 110. Same. — The proceedings of a board of inquest or of a court of inquiry are in no sense a trial of an issue or of an accused person. These boards perform no real judicial func- tion, and are convened only for the purpose of informing the Department in a preliminary way as to the facts involved in the inquiry. lb. 111. Same. — The jeopardy of the law means real peril, originally of life or ^imb, and always of substantial punishment or penalty. There must be a trial upon an indictment for an offense, or upon some equivalent charge and presentment, as by court-martial, sub- mitting a definite issue and involving con- viction or acquittal. lb. III. Marine Corps. a. In general. 112. Certificate of merit.— Section 1216, Re- vised Statutes, as amended (act of March 29, 1892; 27 Stat. 12), which empowers the Presi- dent to grant a certificate of merit to an en- listed man of the Army who has distinguished himself in the service and' has been recom- mended therefor by the commanding officer of the regiment or the chief of the corps to which such man belongs, applies only to en- listed men of the Army, and not to members of the U. S. Marine Corps who have been simi- larly commended. 24 Op. 579. 118. Detail. — The Secretary of the Navy may detail men from the Marine Corps to guard property of the Government placed on exhibition at the World's Columbian Exposi- tion. 20 Op. 576, 577. 114. Same. — The actual subsistence of en- listed men of the Navy employed in taking care of the wares and other Government property placed on exhibition at the World's Columbian Exposition may be paid from the fund provided for the Marine Corps and its subsist- ence, lb. 115. Deposit of savings. — The act of Feb- ruary 9, 1889 (25 Stat. 657), "to provide for the deposit of the savings of seamen of the United States Navy," does not extend to en- listed men of the Marine Corps. 19 Op. 616. 116. Retention of part of pay. — The provi- sions of section 1 of the act of June 16, 1890 (26 Stat. 157), directing the retention of $4 monthly from the pay of each enlisted man of the Army to be paid upon discharge, the same being subject to forfeiture for desertion, are applicable to enlisted, men of the Marine Corps by force and effect of section 1612, Revised Statutes; but sections 2, 3, and 4 of that act were not intended to include the Marine Corps. lb. 117. Deposit of savings with paymaster of corps. — Sections 1305-1308, Revised Statutes, which provide for the deposit with any army paymaster by any enlisted man of the Army of his savings, have no application to the Ma- rine Corps, and the enlisted men of that corps have not the right or privilege of making such deposits with a paymaster of that branch of the service. 25 Op. 190. Appropriations. See Navy, 149. b. Appointment, Promotion, Examination. 118. Appointment. — Theexemption asto age limit with reference to the eligibility to ap- pointment in the Marine Corps is not restricted to those who served in such corps, but extends to all graduates of the 'Naval Academy who served in the war with Spain. 22 Op. 485. 119. Promotions — Time of service. — In mak- ing the promotions provided for by the act of March 3, 1899 (30 Stat. 1004, 1009), in the Marine Corps, an applicant is entitled to have NAVY, III, b. 323 his time at the Naval Academy and at sea anterior to commission counted as time of serv- ice. 22 Op. 377. 120. Promotion — Physical examination. — There is no law requiring an officer of the Marine Corps, before promotion, to be ex- amined as to his physical qualification for duty at sea. 17 Op. 117. 121. Same. — A board of naval surgeons, con- stituted under section 1493, Revised Statutes, is not by law invested with authority to ex- amine and pronounce upon any other cases than those of officers on the active list of the Navy. lb. 122. Same. — Semble that the examination, physical or other, of a retiring board, consti- tuted under section 1623, Revised Statutes, is the only one to which an officer of the Marine Corps is by law subjected in order to determine his fitness for active duty; and unless the officer is by this board found incapacitated for active service, and the finding is approved by the President, he remains in the line of promotion on the active list as he previously was, and is entitled to all the rights which belong to his position. lb. 123. Promotions — Accrued rights — Examina- tion. — Certain promotions in the Marine Corps, the rights to which had been earned and which vacancy occurred eighteen days previous to the act of July 28, 1892 (27 Stat. 321), providing for the examination of com- missioned officers of the Marine Corps and regulating promotions therein, may lawfully be made without examination. 20 Op. 433. 124. Same. — The right to promotion, inher- ing in one who is a commissioned officer, is, under existing legislation, in the nature of a vested right, subject, nevertheless, to being defeated in accordance with the provisions of the laws. lb. 125. Examinations of officers for promo- tion. — Examinations for promotion of officers in the Marine Corps should be held anterior to the date upon which a vacancy is expected to occur. 25 Op. 568. 126. Same. — Where an officer entitled to promotion upon examination is required to be absent from any place where an examining board can be convened, as provided by sec- tion 32 of the act of February 2, 1901 (31 Stat. L. 756), the President may promote the officer subject to future examination, lb. 127. Same. — Should such officer upon ex- amination be found disqualified, he should b,e treated in the same manner as if he had been examined prior to promotion. lb. 128. Same. — An officer who fails to pass his examination should be suspended from promo- tion for one year from the date of the ap- proval of the proceedings of the examining board by the Secretary of the Navy, during which period he is ineligible for reexamina- tion, lb. 129. Same. — If, however, a vacancy occurs during such period of suspension for which, owing to death, resignation, or other cause, there should be no senior officer eligible, then the suspended officer must, of necessity, take the vacancy, lb. 130. Same. — The Secretary of the Navy may make the date of such suspension coincident with the date of the vacancy, by delaying the approval until the vacancy occurs. lb. 131. Same. — Where an examination is held before the vacancy occurs, and the officer fails in such examination for other than physical cause, he can not be reexamined until one year from the date of the approval of the proceedings of the examining board. lb. 132. Same. — Should the examination be held after the date of the vacancy, and the officer fail in such examination, he should be suspended from promotion for one year from the date of the vacancy to which he was promoted by the President subject to exami- nation, lb. 133. Same.— The period of "loss of date" is not necessarily contemporaneous with the period of suspension, but it should corre- spond-in length of time with the period of suspension, lb. 1 34. Same. — While the period of suspension from promotion begins to run from the date of the approval of the examining board, the period of "loss of date" begins to run from the date of the vacancy to which the sus- pended officer would have been promoted had he passed his examination, lb. 135. Same. — Several questions concerning suspensions from promotion, appointment, and rank of certain designated officers of the Marine Corps, involving a complicated chain of circumstances, considered in the light of the above rulings and decided. lb. 324 NAVY, III, c, d. c. Retirement. 136. Retirement of officers of the Marine Corps. — In the matter of retirement, officers of the Marine Corps with creditable records who served during the civil war, are governed entirely by the act of April 27, 1904 (33 Stat. 324, 349), which provides that they shall be retired "in like manner and under the same conditions as provided for officers of the Navy who served during the civil war." To this extent, that act alters and amends section 1622, Eevised Statutes. 25 Op. 262. 137. Same. — The retirement provision of the act of April 23, 1904 (33 Stat. 259, 264), has no application, by virtue of section 1622, Revised Statutes, to officers of the Marine Corps who served with credit during the civil war. lb. Discharge of Enlisted Men. See Navy, I, c. d. Rank and Pay. 138. Relative rank. — The mere promotion of two officers in different departments of the Marine Corps does not, under sections 1603 and 1219, Revised Statutes, disturb their pre- existing relative rank. 24 Op. 74. 139. Same. — Section 1219, Revised Statutes, does not purport to regulate merely the rela- tive rank of officers in the same department of the Army, but is intended to fix the relative rank of the various officers of different depart- ments of the Army. lb. 140. Same. — There is no warrant, there- fore, for holding that promotions are appoint- ments where the officers promoted are in different departments of the Marine Corps, but are not appointments where they are in the same department. lb. 141. Relative rank and precedence of officers of the Marine Corps and officers of the line of the Navy.— There is no express provision of law which fixes the relative rank and pre- cedence of officers of the Marine Corps and of- ficers of the line of the Navy. 25 Op. 517. 142. Same — Army and Navy officers. — By an unwritten law of the Army and Navy, officers of the Army and officers of the Navy take relative rank, as respects the two classes, according to their respective grades; and if of similar grade then according to dates of com- mission, lb. 143. Same. — Officers of the Marine Corps, who are "in relation to rank on the same footing as officers of similar grades in the Army," take rank and precedence relatively to line officers in the Navy according to grade; and if of similar grade, then according to dates of commission. lb. 144. Same. — There is no law making any distinction as to relative rank and precedence between the officers of the Marine Corps who are, and those who are not, graduates of the United States Naval Academy, either as respects themselves or officers of the line of the NaYy. lb. 145. Rank and pay of retired officers of Marine Corps. — Section 11 of the act of March 3, 1899 (30 Stat. 1007), which fixes the rank and pay of retired officers of the Navy, does not apply to officers of the Marine Corps. 24 Op. 709." 146. Fay of retired commodore promoted to grade of rear-admiral. — An officer who was retired as a commodore, and has since been promoted to the grade of rear-admiral on the retired list, under the act of August 15, 1876 (19 Stat. 204), amendatory of section 1460, Revised Statutes, is not entitled to any in- crease of pay by reason of his promotion. 17 Op. 495. 147. Same — Active service only. — The first section of the act of June 22, 1874 (18 Stat. 191), is in pari materia with the provision touching the pay of promoted officers con- tained in section 7 of the act of July 15, 1870 (16 Stat. 333), the act of June 5, 1872 (17 Stat. 226), and section 1516, Revised Statutes, and was designed to fix the commencement of the increased pay of promoted officers in active service only. lb. 148. Same. — Section 1591, Revised Stat- utes, which declares that an officer promoted on the retired list shall not, in consequence of such promotion, be entitled to increase of pay, is applicable alike to officers promoted under section 1461, Revised Statutes, and to those promoted under section 1460, as amended. lb. 149. Appropriations — Pay. — Unexpended balances of moneys appropriated for the pay of the Navy and Marine Corps for the fiscal year ending June 30, 1884, are not available for payment of the Navy and Marine Corps for services rendered during the fiscal year ending June 30, 1885. 18 Op. 412. NAVY, III, e; IV. 325 e. Transportation and Subsistence. 150. The cost of transportation and sus- tenance of men detailed from the Marine Corps to guard and protect property of the Govern- ment placed on exhibition at the World's Co- lumbian Exposition must be paid from the fund provided for the Marine Corps and its subsistence, and is only limited by the con- sideration of the question whether there are sufficient funds available for that purpose, as to which the Secretary of the Navy is the sole judge. 20 Op. 576, 577. 151. Transportation accounts. — The meth- ods adopted in the settlement of accounts for the transportation of the Army under the act of (20 Stat. 420) are not applicable to accounts for the transportation of enlisted men of the Navy, and Marine Corps. 21 Op. 297. IV. Engineers and Engineer Corps. 152. Chief engineers grade. — There is but one grade of chief engineers in the Navy, and the division of the seventy chief engineers into "three grades " by relative rank, as pro- vided for in sections 1390 and 1476, Revised Statutes, creates merely three classes of chief engineers of the same grade. 20 Op. 358. 153. Same. — The relative rank among the chief engineers changes with their seniority in that grade. Such change may be indicated by a notification from the Secretary of the Navy, and does not require examination, new ap- pointment, or confirmation by the Senate. lb. 154. Same. — Promotion to the grade of as- sistant engineer from that of first assistant en- gineer requires examination under sections 1493 and 1496, Revised Statutes. lb. 155. Engineer officers who attained the rela- tive rank of commander prior to the passage of the personnel act of March 2, 1899 (30 Stat. 1004), became entitled under section 2 of that act to take the actual rank in the line of the Navy. 22 Op. 449. 156. Civil engineers in the naval service are officers in the Navy, possessing defined rela- tive rank with other naval officers. 17 Op. 126. 157. Same. — They may be retired from ac- tive service and placed on the retired list under the statutory provisions regulating the retirement of officers in the Navy (see sees. 1443 el seq., Rev. Stat. ) lb. 158. Engineer Corps. — Vacancies in the Engi- neer Corps can not be filled by graduates of the Line and Marine Corps division at Annapolis, or vice versa. 20 Op. 615. 159. Same. — No appointments can be made under the act of March 2, 1889 (25 Stat. 878), either to the Line or Marine Corps, or to the Engineer Corps, except from graduates of the cadet division whose studies are directed to such appointments respectively. lb. 160. Same. — In case of more vacancies than can be filled in this manner, no appointment can be made during the year in which the deficiency occurs. The act of March 2, 1889 (25 Stat. 878), authorizes appointments from final graduates only. lb. 161. Cadet Engineers — Pay. — A cadet engi- neer, who completed the prescribed coiirse of instruction at the Naval Academy and at sea June 10, 1881, and successfully passed an examination, and was confirmed by the Senate as.an assistant engineer December 20, 1881, to take rank from the former date, is entitled to the pay of assistant engineer from the date he took rank as such, if that date is subse- quent to the vacancy he was appointed to fill. 17 Op. 329. 162. -Same. — Section 1 of the act of June 22, 1874 (18 Stat. 191), comprehends cadet engineers, and fixes the commencement of their pay in the grade of assistant engineer when promoted thereto. lb. 163. Same. — Cadet engineers are "officers" within the meaning of section 1558, Revised Statutes, also within the meaning of sec- tion 1557, which regulates the pay of "offi- cers on furlough." They are furthermore "officers of a class subject to examination before promotion" within the meaning of section 1562. 17 Op. 332. 164. The cadet engineers in the Navy (grad- uates of the classes of 1881 and 1882) who were discharged under a misconstruction of the act of August 5, 1882 (22 Stat. 285), not hav- ing been legally removed, are still the lawful incumbents of their respective offices, and should be recognized as in the immediate line of promotion, in their proper order, to fill the vacancies that may occur in the office of assistant engineers. 18 Op. 373. 165. Cadet engineers — Illegally deposed — Appointment to another office — Reinstate- 326 NAVY, IV, V. ment. — The appointment of a former cadet en- gineer of the Navy, who had been illegally deposed from that position, to the office of second assistant engineer in the Revenue-Ma- rine Service, does not operate to prevent his reinstatement as cadet engineer in the Navy. 18 Op. 395. 166. Same. — Such acceptance is no more inconsistent with an intention on his part to resume the exercise of the office of cadet engineer as soon as he might be recognized as such, than would the acceptance of any other employment from which he might de- rive support. lb. 167. Same. — Even if the acceptance of the second office be viewed as a resignation, he is nevertheless an incumbent of the office of cadet engineer, for the reason that his resig- nation has not been accepted, and, as the two offices are incompatible, he has never been de jure a second assistant engineer in the Revenue Marine Service. lb. 168. Same. — The action of the Secretary of the Navy in ordering two cadet engineers to be dropped from the Navy rolls because they failed to pass the final examinations as naval cadets, when they had already completed the four years' course as cadet engineers, had passed their examinations as such, had received the usual certificate of graduation and been appointed cadet engineers, was void, and they are still in the service, and entitled to rein- statement with their classmates upon the roll of the Navy. lb. 169. Same. — The theory under which the Secretary of the Navy acted, that they were transmuted by the act of August 5, 1882 (22 Stat. 284), into naval cadets, and consequently liable to examination and dismissal for failure to pass as such, was fallacious. (U. S. v. Red- grave, 116 U. S. 474.) lb. Cadets. See also Naval Academy. V. Naval Court-Martial. 170. Arrest — Copy of charges. — Upon con- sideration of articles 24, 43, and 44 for the government of the Navy (sec. 1624, R. 8.): Held that there may be two arrests, namely: First, an arrest in an emergency, or upon discovery of the alleged wrongdoing, with a view to a preliminary examination, and, if necessary, the formulation and specification of charges; and, secondly, under Article 44, an arrest for trial. 19 Op. 472. 171. Same. — Article 43 in declaring that "the person accused shall be furnished with a true copy of the charges, with the specifi- cations, at the time he is put under arrest," has reference to the second and formal arrest for trial, and not to the apprehension or arrest as preliminary to an investigation. lb. 172. Witnesses — No power to compel civil- ians to testify. — A naval court-martial, or judge-advocate thereof, has no power to com- pel a civilian who is not subject to the arti- cles for the government of the Navy to appear and testify before such court. A court-mar- tial is a court of limited and special jurisdic- tion, and has only such powers as are clearly conferred by statute. 19 Op. 501. 173. Same. — Neither article 42 nor article 57 in section 1624, Revised Statutes, gives the power to compel the attendance of civil- ian witnesses. lb. 174. Same. — The provisions of section 1202, Revised Statutes, taken from section 25 of the act of March 3, 1863 (12 Stat. 754), apply only to military (i e. Army) courts. lb. 175. Special counsel may be employed by the Attorney-General, at the request of the Secretary of the Navy, to assist the judge- advocate in a trial by court-martial; the com- pensation of such counsel (in the absence of other provision) to be paid from the appro- priation for the contingent expenses of the Navy. 18 Op. 135. 176. Same. — Snch counsel should be com- missioned by the Attorney-General under sec- tion 366, Revised Statutes. lb. 177. The conviction by a general court- martial properly called can not be ratified or confirmed by the Secretary of the Navy where one member of the court has been re- lieved by a subordinate without authority of the Secretary and another judge substituted in his stead. 22 Op. 137. 178. Same. — The consent of the accused can not confer jurisdiction upon a court not possessing it by virtue of statutory author- ity, lb. 179. Same. — Trial by a court not legally con- stituted is not a trial which can be said to be " due process of law." lb. 180. Sentence — Effect of remission on grade. — An order remitting the unexecuted portion of the sentence of a lieutenant-com- NAVY, V, VI, VII. 327 mander of the United States Navy who had been suspended for two years, and was to retain his number and grade, does not have the effect of advancing him two numbers in grade, although during the time of his sus- pension from duty two officers with commis- sions dated subsequently to his had been advanced above him in the grade of lieutenant- commander. 20 Op. 243. 181. Attestation of sentence. — 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. 23 Op. 550. 182. Bestoration — Pardon. — C, a lieuten- ant-commander in the Navy, was sentenced by a court-martial to suspension for one year, and to retain his then present number on the list of lieutenant-commanders for that time. The sentence having been executed, he ap- plied to be restored to the number on said list which he thereby lost: Held that the restoration could not be effected by the Presi- dent otherwise than by a pardon. 17 Op. 31. 183. Same. — The punishment imposed (loss of numbers), being a continuing one, is still subject to the pardoning power, which, -when exercised, would have the effect to restore the officer to his former rank according to the date of his commission. lb. 184. The Chief of the Bureau of Medicine and Surgery in the Navy Department is amenable to the jurisdiction of a naval court-martial upon charges and specifications preferred against him for acts done as such chief. 18 Op. 176. VI. Navy Regulations. 185. The orders, regulations, and instruc- tions issued by the Secretary of the Navy, with the approval of the President, for the government of the Navy have the force of the statute law when not inconsistent therewith. 21 Op. 46. 186. Article 21 of the Navy Regulations of 1893 is within the authority conferred upon the Secretary of the Navy by section 1547, Revised Statutes. lb. 187. Bounty — Refund of. — The regulations issued by the Secretary of the Navy issued July 1, 1901, pursuant to the act of March 1, 1889 (25 Stat. 781), which act provides a bounty to each person enlisting as an apprentice in the United States Navy, are inconsistent with law and void in so far as they require a refund of the bounty, or any por- tion of it, in case an apprentice is discharged within a year after his enlistment for disa- bility not incurred in the line of duty. 25 Op. 271. 188. Same. — Under section 1547, Revised Statutes, all navy regulations issued since July 14, 1862, require the approval of the President. lb. Via. — Vessels — Contracts for construction, etc. 189. Proposals — Work on Navy vessels — Surety. — The Secretary of the Navy may, in his discretion, under section 7 of tlie act of August 3, 1886 (24 Stat. 215), authorizing proposals for certain work on Navy vessels, which shall be subject to "such provisions as to bonds and security for the quality and due completion of the work as the Secretary of the Navy shall prescribe," accept as surety (instead of an individual) a body corporate empowered to assume that relation. 19 Op. 57. 190. Modification of contracts — Reserve — Payment. — The Secretary of the Navy has power, in order to prevent delay in the con- struction of eertain new cruisers, to modify the contract as regards the construction of the shafts, and may also make the per cen- tum reserved upon each installment available to the contractor before the time originally stipulated; but payment in full for the vessels, in advance of their completion, would be a violation of section 3648, Revised Statutes. 18 Op. 101. 191. Payment of the tenth installment, but not the final payment, on a vessel under con- struction for the Government, may properly be made to the contractor in advance of the time stipulated in the contract, where the money has been earned, but the full trial trip and formal acceptance have been delayed. 18 Op. 105. 192. Same. — Section 3648, Revised Stat- utes, does not preclude a payment in any case 328 NAVY, VII. where the money has been actually earned and the Government has received an equivalent therefor. lb. 193. Transferor contract. — A manufactur- ing company, after having entered into a con- tract with the Navy Department to deliver a large quantity of steel eastings to be used in the construction of an armored cruiser, proposed to transfer the contract to another manufac- turing company, which contemplated fulfill- ing the covenants of the former company with the Government, and asked the approval of such transfer by the Secretary of the Navy : Advised that, in view of the prohibition in section 3737, Revised Statutes, the proposed transfer can not lawfully be approved and recog- nized by the Navy Department. 19 Op. 186. 1 94. Where a covenant in a contract for the construction of a dispatch boat, the "Dolphin," provided that the vessel should be constructed in accordance with the provisions of certain acts of Congress, one of which stipulated that it should be constructed in conformity with the recommendations of the naval advisory board, which board recommended that the vessel should ' ' have a sea speed of 15 knots : ' ' Held that the covenant bound the contractor as effectually to make a vessel of that speed as though it had been agreed to in express words. 18 Op. 207. 195. Same. — The provision in the contract that if upon the trial trip the engines should not develop the full power called for by the contract and the failure should not be due to "defective workmanship or materials," the ship should be accepted by the Government nevertheless, is without effect as modifying the speed requirement. lb. 196. Same. — The provisions of the contract binding the United States to accept the vessel on the approval of the Naval Advisory Board are void and inoperative as shifting that responsi- bility from the Secretary of the Treasury to the board, in violation of the act under which the contract was made. lb. 197. Same. — The obvious intent of the provision for the acceptance of the vessel in case of its failure to maintain on trial the re- quired power being to relieve the contractor of all duty and responsibility as to the power and speed of the ship: Held that no contract exists between Mr. Roach and the United States; that the money paid him was without authority of law, and may be recovered; and that the money so paid having gone into the ship, a court of equity will follow it there and for that purpose will entertain a proceeding against the ship itself. lb. 198. Same. — The objection that the vessel is wanting in the necessary strength and stiff- ness is also a fatal defect, as the contract pro- vides that the vessel "shall be sufficiently strong to carry the armament, equipment, coal, stores, and machinery prescribed by the naval advisory board and indicated in the annexed drawings and specifications. lb. 199. Same. — The Government stands unaf- fected by acts of acquiescence, approval, or ac- ceptance by the advisory board or others, the statute providing that "no such vessel shall be accepted unless completed in strict con- formity with the contract, with the advice and assistance of the naval advisory board." lb. Reaffirmed, 18 Op. 240. 200. Penalties for failure to complete. — The Secretary of the Navy had the power under the contract of February 11, 1887, with the Pneu- matic Dynamite Gun Company for the con- struction of the U. S. S. Vesuvius, to impose the penalties provided for in the sixth clause of that contract for failing to complete the vessel within the time specified. 20 Op. 631. 201. Same — Remission. — The present Sec- retary of the Navy has no authority to remit those penalties and pay the amount thereof to the claimants. lb. 202. Allowance for change of plans. — The Secretary of the Navy is authorized to em- body in the contracts for building battle ships Nos. 26 and 27 a provision to the effect that the contract time for the completion of the vessels shall cover changes ordered by the Government, not exceeding an increased cost of 5 per cent of the contract price; and that should the increased cost occasioned by such changes exceed 5 per cent of the contract price, the Secretary may allow the contractors such reasonable sums for each ship delayed beyond the time of completion as shall be caused by such additional changes, the allow- ances in no case to exceed the amount of the penalties for delay due to the contractor as prescribed by the contract. 25 Op. 588. 203. Same. — The explicit recognition in the act of March 3, 1893 (27 Stat. 731) of similar authority in regard to former speed premiums and penalties affected by speed, is NAVY, VII. 329 not to be regarded as applicable to those par- ticular contracts alone, but is the recognition of an authority inherent in the Secretary's dis- cretion respecting all naval constructions, lb. 204. Change of construction and material from that directed by the statute. — The act of March 3, 1893 (27 Stat. 731), contemplates construction of light draft protected gunboats of steel, and does not authorize the building of such gunboats on the "composite plan," a vessel of which some other material than steel forms a substantial integral part. 20 Op. 617. 205. Same. — If it be the fact that in naval architecture the term "steel," as descriptive of a vessel, has a special meaning, and in- cludes a vessel built on the composite plan, as well as a steel vessel proper, an opposite conclusion might be reached. lb. 206. Flans and specifications where not spe- cifically authorized by the statute. — Where a statute authorizes the building of vessels by the Navy Department, but makes no provi- sion for procuring the necessary plans and specifications therefor, it is to be construed as impliedly authorizing the head of the De- partment to procure such plans and specifica- tions in the mode and manner which he shall deem best. 18 Op. 244. 207. Materials and labor. — The act of Au- gust 13, 1894 (28 Stat. 278), entitled "An act for the protection of persons furnishing materi- als and labor for the construction of public works," relates to contracts for the construc- tion 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. 23 Op. 174. 208. Appropriation for construction and com- pletion. — The words "exclusive of armament," as used in the first sectionof the act of August 3, 1886 (24 Stat. 215), with reference to ar- mored vessels, are not to be understood as ex- cluding the offensive armament, such as guns, torpedoes, etc., only; the term "armament" comprehending, besides those articles, such shields and protections as are directly and necessarily connected with the efficient and safe working thereof. 19 Op. 235. 209. The unexpended balances of the appro- priations made by the act of March 3, 1883 (22 Stat. 476, 477), under the headings "Bureau of Construction and Repair," and "Bureau of Steam Engineering," may be used ia completing the hulls and machinery of the cruisers Chicago, Boston, and Atlanta, provided the total expenditure shall not exceed the total estimated cost thereof, as reported by the naval advisory board. 18 Op. 566. 210. Same. — The balance of an appropria- tion made for a specific purpose may be used for that purpose in the discharge of obliga- tions imposed by a lawful continuous con- tract, lb. 211. Speed premiums. — The appropriation for special speed premiums made by the act of July 26, 1894, is not limited in its applica- tion to premiums earned prior to January 1, 1894. 21 Op. 84. 212. Release of mortgage given by Robert L. Stevens. — It is competent for the Secretary of the Navy to release a mortgage given by Robert L. Stevens on the 9th of September, 1848, as security for the performance of a contract theretofore entered into by him for the construction of a war vessel since known as the "Stevens Battery," all interest of the United States in the construction of said vessel having been relinquished by the reso- lutions of July 17, 1862 .(12 Stat. 628), and July 1, 1870 (16 Stat. 383) . 17 Op. 281. 213. Release of cruiser Galveston from posses- sion of State court. — The Attorney-General defers answering the question as to the right of the Secretary of the Navy, under the direction of the President, to employ the military forces of the Government to obtain possession of the cruiser Galveslon, in course of construction under contract with the Wm. R. Trigg Company, of Richmond, Va., which company has gone into the hands of a receiver app'ointed by the chancery court of Virginia, for the reason that a method of procedure in such cases is provided for by section 3753, Revised Statutes, and occasion for the exer- cise of this power is not likely to arise if the stipulation authorized by that section is filed. 24 Op. 679. 214. Same. — No instrumentality of the Federal Government may be taken into cus- tody and held under any adverse authority whatever. This applies as well to an instru- mentality in process of creation as to one already completed. lb. 330 NAVY, VII— NAVY DEPARTMENT, I. 215. Same. — The United States is entitled to the undisputed possession and control of its property and of property in which it is interested to the extent of that interest, and this possession and control are exempt from the process of every court. lb. 216. Same. — The word "stipulation," as used in section 3753, Revised Statutes, denotes an undertaking in the nature of bail, and is analogous to the "stipulation for value" under present admiralty practice, the meas- ure of the Government's obligation being limited in section 3754, Revised Statutes, to* " the value of the interest of the United States in the property in question." lb. Appropriations. See Appropriations; and Navy, 208-211. Cadets. See Naval Academy; and Navy, 160-168. Marine-Hospital Service. See Marine- Hospital Service. Supplies. <&eNAVY, I, f. Secretary to the Admiral. See Navy. 25. 95. NAVY DEPAKTKENT. I. In General, 1-7. II. Officers. a. Secretary of the Navy, 8-22. b. Commissioner of Navigation, 23-24. III. Bureaus, 25-31. IV. Clerical Force, 32-34. I. In General. 1. Reimbursement of Navy Department from appropriation for Bevenne-Marine Service" for ordnance furnished. — No legal obstacle exists against reimbursing the appropriation for the Navy Department from the appropriation for the Revenue-Marine Service with the cost of such heavy ordnance and ordnance stores as may be furnished by that Department to be used in said service. 17 Op. 480. 2. Same. — Where one Department receives from another Department supplies which are within the scope of appropriations belonging to each, a reimbursement of the appropriation of the one from the appropriation of the other, of the cost of "such supplies, is not a violation of section 3678, Revised Statutes; nor do the provisions of 3618, Revised Statutes, apply to such case. lb. 8. Payment of money due contractor. — The Navy Department is not affected by an in- junction issued by a State directing a contractor to pay to a receiver all moneys received by him in his contract with the United States Gov- ernment, for the reason that the order is merely interlocutory, to which the United States was not a party, and in which the court does not attempt to interfere with the operation of that Department. 20 Op. 643. 4. Same. — The moneys due such contractor may be paid to him through his attorney in fact, constituted for that purpose. lb. 5. Claim — Armor -plate royalty — Harvey process. — The Navy Department may right- fully 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 process is determined in the suit pending in the Court of Claims. 23 Op. 422. Reconsidered and reaffirmed. 23 Op. 495. 6. Same. — 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. 23 Op. 495. 7. Culebra Islands — Assignment as naval base. — 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 sec- tion 13 of the act of April 12, 1900 (31 Stat. 77), to the administration. of the government of Porto Rico. 23 Op. 564. NAVY DEPARTMENT, II, a. 331 II. Officers. a. Secretary of the Treasury. 8. Bounty. — In determining questions with reference to bounty arising under section 4635, Revised Statutes, the Secretary of the Navy is authorized: (1) To institute proceedings tinder a libel of information in a district court of the United States (or the Supreme Court of the District of Columbia), sitting as a prize court; (2) to submit the case to the Court of Claims; (3) or to determine himself the question aris- ing and award the bounty, the better view being that the questions of fact involved should be adjudicated by the proper court. 22 Op. 205. 9. Same. — Proceedings for adjudication of bounty for the capture or destruction of a vessel may be begun at the instance of the Secretary of the Navy in any district that he may designate, and upon his failure to desig- nate a district within three months after the vessel has been captured or destroyed, the claimants may institute proceedings. lb. 10. Court-martial — Substitution of a judge. — The Secretary of the Navy is without author- ity to ratify and confirm, after trial and con- viction, the act of a subordinate in relieving one judge of a court-martial before trial, by substituting another in his stead. 22 Op. 137. 11. Reexamination of retired officer by medical board. — The Secretary of the Navy, in 1878, was not authorized by law to submit the case of Surgeon Thomley, who was retired under section 3 of the act of February 21, 1861 (12 Stat. 150), to a medical board for re- examination as to the origin of the disability for which he was retired, and his decision, based upon the report of that board, is without legal effect as regards the cause for the retire- ment of that officer or his right to pay. 17 Op. 178. 12. Determination of the relative rank of naval officers. — 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. 23 Op. 156. 13. Naval cadet nominated by Congressman who was unseated. — The Secretary of the Navy is not authorized to revoke the nomination of a cadet to the Naval Academy, made upon the recommendation of a Member of the House of Representatives who. was afterwards un- seated by contest of election, and notify the newly seated Member that a vacancy occurs. He has no right to call for a new recommenda- tion, except under section 1516, Revised Stat- utes, when the candidate fails to pass his examination. 21 Op. 342. 14. Armor plate royalty — Harvey process. — The Secretary of the Navy should withhold his approval of the claim of the Carnegie Steel Company until the question of the right of the Harvey company to collect royalty from the Government has been judicially determined in a suit pending in the Court of Claims. 23 Op. 495. 15. Same. — 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. lb. See 23 Op. 422. 16. Commissions of military governors. — The Secretary of the Navy may issue commissions to the naval officers serving as military gov- ernors of the islands of Guam and Tutuila. 25 Op. 292. 17. The Secretary of the Navy has author- ity to transfer control of certain land at San Juan, P. B., reserved by Executive order for naval purposes, to the Department of Commerce and Labor, for the extension of the light-house reservation at that place. 25 Op. 269. 18. Employment of counsel in foreign countries. — The Secretary of the Navy is not authorized in view of the provisions of sec- tion 189, Revised Statutes, to employ counsel in foreign countries to institute suit in behalf of the United States for the recovery of damages caused to a war vessel of the United States, but should refer the matter to the Depart- ment of Justice for attention. 21 Op. 195. 19. Mitigation of fines, penalties, and forfeit- ures in timber depredation cases. — The Secre- tary of the Navy has power under section 4751, Revised Statutes, to mitigate, before trial and conviction of the offender, any fine, 332 NAVY DEPARTMENT, II, a, b; III. penalty, or forfeiture incurred under the pro- sions of the statutes therein referred to which relate to timber depredations. 17 Op. 282. 20. Same.— Where proceedings are already commenced, it is the duty of the prosecuting officer, upon receipt of the order of mitiga- tion, and on the terms and conditions thereof being complied with, to carry it into effect by discontinuing the proceedings. 76. 21. Uncompleted dry dock — Appropriation exhausted. — The Secretary of the Navy is without authority, in view of sections 3732, 3733, and 5503, Revised Statutes, to incur any ohligation for work on an uncompleted dry dock when the appropriation has been ex- hausted, even though immediate action is very important. 21 Op. 288. 22. Release of mortgage — Stevens Bat- tery. — It is competent for the Secretary of the Navy to release a mortgage given by Robert L. Stevens on the 9th of September, 1848, as security for the performance of a contract theretofore entered into by him for the construction of a war vessel since known as the "Stevens Battery," all interest of the United States in the construction of said ves- sel having been relinquished by the resolu- tions of July 17, 1862 (12 Stat. 628), and July 1, 1870 (16 Stat. 383). 17 Op. 281. Battle Ship Contracts, Proposal, Surety, etc. , and the construction and equipment of naval vessels generally. See Navy, VII. Hazing, Dismissal and Reinstatement op Naval Cadets, including Power to Per- mit Cadet to Withdraw Resignation After Acceptance. See Naval Acad- emy. Supplies, Ordnance, Equipment. See Navy, I, f. Purchase of Patent Rights. See Navy, 20, 21. Moneys Recovered from Timber Depreda- tions. See Public Lands, XIII. Surety on Contractor' s Bond. See Surety, 9. Surety on Bond of Pay Officers in the Navy. See Bonds, 14. Power to Contract with Patentee for Purchase of Patent or License to Use it. See Patents, 6-8. b. Commissioner of Navigation. 23. Decision of — Claims of Sweden and Nor- way for return of tonnage dues. — The President has no authority to reverse the decision of the Commissioner of Navigation so as to adjust the claims of Sweden and Norway for the return of tonnage dues alleged to have been erroneously exacted. Any application for relief should be addressed to the legislative branch of the Government. 20 Op. 367. 24. Same. — The decision of the Commis- sioner of Navigation is final on all questions of interpretation relating to the collection of tonnage taxes, and the refund thereof. lb. For officers of the several bureaus. See III — Bureaus. m. Bureaus. 25. Chief of a hureau can not hold over. — The chief of a bureau in the Navy Depart- ment can not lawfully hold over after the expiration of the term for which he was ap- pointed. (Sec. 421, Rev. Stat.) 17 Op. 648. 26. Same. — The general rule is that where Congress has not authorized the officer to hold over, his incumbency must be deemed to cease at the end of his term, though no appointment of a successor may then be made. lb. 27. Death, resignation, or absence of chief of a bureau. — A naval officer assigned to duty as an assistant to the chief of a bureau in the Navy Department is not authorized by section 178, Revised Statutes, in case of the death, resig- nation, absence, or sickness of the latter (where the President has not otherwise directed, as provided by sec. 179, Rev. Stat,), to perform the duties of such chief until his suc- cessor is' appointed or until his sickness or absence shall cease. 19 Op. 503. 28. Same. — The phrase " assistant or deputy of such chief," etc., in said section 178, is to be construed as including an assistant or deputy only whose appointment is specific- ally provided for by statute. lb. 29. Bureau of Navigation-Captain retired while chief of the Bureau of Navigation — Bank — Pay. — A captain in the Navy who was ap- pointed chief of the Bureau of Navigation, NAVY DEPARTMENT, III, IV— NEGOTIABLE INSTRUMENTS. 333 with the relative rank of commodore, should, in case of hia retirement during his incum- bency in that office and while borne on the Navy Register as captain, be placed on the retired list with the rank of captain. He would then be entitled to 75 per centum of the sea pay of officers of that rank. 17 Op. 154. 30. The chief of the Bureau of Medicine and Surgery in the Navy Department is amenable to the jurisdiction of a naval court-martial upon charges and specifications preferred against him for acts done as such chief. 18 Op. 176. 31. Chief of Bureau of Yards and Socks — Appointment. — An officer of the Corps of En- gineers, not below the relative rank of cap- tain, is eligible for appointment as chief of the Bureau of Yards and Docks. 22 Op. 47. IV. Clerical force. 32. Employment of retired officer. — The Sec- retary of the Navy is not precluded by section 2 of the act of July 31, 1894 (28 Stat. 205), from employing a retired officer, under the act of February 19, 1897 (29 Stat. 565), to supervise the completion of certain tables of planets, as the act authorizing the expenditure does not create an office or contemplate any formali- ties in the selection of such an employee. 21 Op. 507. 33. Same. — The person to be employed may be designated either by order of the Secre- tary of the Navy or the head of the bureau having charge of the work to be done, which order need only designate the person selected as a competent mathematician and the com- pensation he is to receive. lb. 34. Same. — An act of Congress authorizing the expenditure of money for the above-named purpose, providing no permanency to the term, with no requirement that the person employed shall either take an official oath or receive a commission, and no formalities in the selection of such an employee, does not create an office. lb. NAVY PENSION LIST. See Pensions, II, b; Revenue Marine, 5. NAVY PERSONNEL ACT. Act of March 3, 1899 (30 Stat. 1004). 25 Op. 452, 508. NAVY REGULATIONS. See Navy, VI. NAVY-YAED. 1. Navy-yard closed by Executive order — Compensation. — Per diem employees at the Washington Navy-Yard on duty April 6, 1899, should be allowed and paid for that day without reduction of compensation for the portion of the day that the navy-yard was closed by executive order of the President. 22 Op. 472. 2. Navy-yard employees, Philippine Islands — Compensation on holidays. — The resolutions of January 6, 1885 (23 Stat. 516), and January 23, 1887 (24 Stat. 644), allowing pay to per diem employees "on duty in the United States," for services on certain legal holidays, do not extend to the Philippine Islands. 25 Op. 127. NEGLIGENCE. See Navigable Waters, III, 181. NEGOTIABLE INSTRUMENTS. 1. Checks of disbursing officers of the Gov- ernment 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. 22 Op. 637. 2. Negotiable paper may be transferred so as to pass the title and ownership, by the indorse- ment of the payee or indorsee thereon, which may be made as well by the agent of such payee or indorsee as by such principal. lb. 3. In the making of such indorsement it is only necessary that the agent act by the au- 334 NEGOTIABLE INSTRUMENTS— NEUTRALITY . thority of the principal, which authority may be conferred by power of attorney, by writing, orally, or by a continual practice or use with the permission of the principal. No special form is required so long as the agent acted by authority of the principal. lb. . 4. A promissory note is an unconditional promise to pay to another's order, or bearer, a stated sum of money at a specified or implied time. 22 Op. 369. See also Internal Revenue, II, f. (2). NEUTRALITY. 1 . The rules of international law with re- spect to belligerent and neutral rights and duties do not apply to the present Cuban insurrec- tion. 21 Op. 267. 2. The failure of the United States to pass neutrality laws would not diminish its inter- national obligations, nor would the passing thereof increase such obligations. lb. 3. The mere sale or shipment of arms and munitions of war by persons in the United States to persons in Cuba is not a violation of inter- national law, however strong a suspicion there may be that they are to be used in an insurrection against the Spanish Government. Individuals in the United States have a right to sell such articles and ship them to who- ever may choose to buy. lb. 4. The goods, and sometimes the ship carry- ing them, are subject to seizure by the govern- ment within whose jurisdiction they may come, if its domestic laws or regulations are violated, but international law imposes no duty upon our Government with respect to such transactions. lb. 5. The sale and shipment or carriage of such articles to Cuba does not become a violation of international law merely because they are not destined to a port thereof which is recog- nized by the Spanish Government as open to commerce, nor because they are to be, or are, landed by stealth. lb. 6. If, however, the persons supplying or car- rying arms and munitions from a place in the United States are in any wise parties to a design that force shall be employed against the au- thorities of Spain, or that, either in the United States or elsewhere, before final de- livery of such arms and munitions, men with hostile purpose toward the Spanish Govern- ment shall also be taken on board and trans- ported in furtherance of such purpose, the enterprise is not commercial but military, and is in violation of international law and of the United States Statutes. lb. 7. The duty of the United States, when a state of war is declared or recognized by an- other country, is of its own motion to use dili- gence to discover and prevent within its bor- ders the formation or departure of any mili- tary expedition intended to carry on or take part in such war. lb. 8 The neutrality laws of the United States, so called because their main purpose is to carry out the obligations imposed upon the United States while occupying a position of neutral- ity toward belligerents, were intended to pre- vent offenses against friendly powers, whether they should or should not be engaged in war or in attempting to suppress revolt. 21 Op. 267. 9. Military supplies — Horses. — A general statement of the law to be applied in the mat- ter of the shipment of horses from New Or- leans to South Africa, for military purposes, and the alleged establishment of foreign agen- cies in the United States for the purchase and shipment of hostile supplies (horses and mules) for use against a third party. 24 Op. 15. 10. Same — Contraband.— 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. lb. 11. Same — Commerce. — 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. lb. 12. Same — Commerce. — The mere increased demand for warlike articles, and their conse- quent increased quantity in the commerce be- tween the neutral and the belligei'^ii: coun- tries, does not of itself make the commerce cease to be the same that was usual before the war. lb. 1 3 . Same . — A belligerent may sieze merchan- dise at sea 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, lb. NEUTRALITY— NO MAN'S LAND. 335 14. Same — Due diligence. — The fact that neutral individuals, instead of their govern- ment, 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 burden- some'for the government to watch and pre- vent, or, if preventable without excessive burden, the government uses due diligence about their prevention. lb. 15. Same — Obligation of the Government. — The fact that neutral merchants give aid to belligerents purely from motives of gain seek- ing does not relieve their government from its obligation to prevent such aid being given. lb. 16. Same — Points by which to be guided. — In determining whether a series of transac- tions which, in one aspect are commercial in character, are prohibited to the neutral na- tion and its people as being an aid to one of the belligerents in carrying on war against the other, the criteria are practically impos- sible 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 exten- siveness, their persistence in time, their gov- ernmental character or the absence of it, their objects and results, and, principally, their re- lation, if any, to the prosecution of the war being carried on by the belligerent, lb. 17. Arms — China. — The mere shipment or exportation of arms, in the way of commerce, to a country in which there are insurrection- ary movements, does not seem to be prohib- ited by the statutes of the United States or by the law of nations. 24 Op. 25. See also International Law. NEW MEXICO. The commissioner from New Mexico to the world's fair of 1893, appointed under the act of April 25, 1890 (26 Stat. 62), may be re- moved by the concurrent action of the gov- ernor and the President, although the stat- utes contain no express provisions therefor. The appointment of a successor to fill the vacancy thus created was legally made. 20 Op. 641. NEW OEIEANS PACIFIC RAILWAY COM- PANY. See Railroads, 41, 52. NEW YORK HABBOR ACT. See Department op Commerce and Labor, 17, 18. NEW YOEK STATE. See Claims, 42. NEWSPAPEES. Sunday Magazine Sections. See Postal Service, V, 120-122. NIAGARA RIYER BRIDGE. See Navigable Waters, 110 NO MAN'S LAND. 1. Jurisdiction of crimes.— The strip of territory known as "No Man's Land" not being within any existing judicial district, punishment of crime committed therein will not be within reach of the criminal law of the United States (see sixth article of amend- ments to the Constitution) until legislative action is had ascertaining the district which shall embrace such strip. 19 Op. 66. 2. Same. — Upon reexamination of the question whether the territory called "No Man's Land" lies within the boundaries of any judicial district of the United States: Ad- vised (1 ) that from January 6, 1883, to March 1, 1889, said territory was included within the boundaries of the judicial district for the north- ern district of Texas; (2) that since March 1, 1889, it has been and is included in the judi- cial district for the eastern district of Texas. Opinion of Attorney-General Garland of No- vember 15, 1887 (19 Op. 66), dissented from. 19 Op. 477. 336 NO MAN'S LAND— OBLIGATIONS OF UNITED STATES. 3. Same. — Violations of laws of the United States committed within that territory are properly cognizable in the circuit and district courts of the United States for the eastern dis- trict of Texas. lb. NOLAN LAND CLAIM. See Public Lands, XII, 43. NOMINATIONS. See Abmy, II, 67; Naval Academy, 28; Ap- pointment. NORFOLK HARBOR POWDER OFFICER. Jurisdiction of. See United States, 5. NORFOLK, VA., DRY DOCK. JURISDICTION OF STATE HARBOR COMMISSION- ERS. See United States, 22. NORTH AMERICAN COMMERCIAL COMPANY. See Seal Fisheries, II; Alaska, 10. NORTH CAROLINA CHEROKEES. See Indians, I, d. NORTH DAKOTA. University Land Grants. Lands, VI. See Public NORTHERN PACIFIC RAILROAD COMPANY. See Railroads, II, b; III, 43, 44, 60, 63; Res- ervations and Parks, 11. NOTARIES. 1. A notary's authority to administer an oath does not exist by virtue of his office, but is derived from positive enactment. 20 Op. 455. 2. A notary of Austria-Hungary, who is not authorized by the laws of his country to admin- ister oaths or take affidavits lacks the requisite authority to administer the oath prescribed by section 4892, Revised Statutes. lb. See also District of Columbia, 23. NOTES IN CIRCULATION. See Internal Revenue, II, c. NOTICE OF PAYMENT OF BONDS. See Treasury Department, VI. NUMBER IN GRADE. See Navy, II, d, 88. OAKLAND HARBOR, CALIFORNIA. See Navigable Waters, II, c, 100. OATH. Authority of Notary Public to Adminis- ter, see Notaries. Form of, upon Making Entry, see Customs Laws, III, 63. Oath of Office, see Office, III; Consular Courts, 3; Department of Commerce and Labor, 34. OBLIGATIONS AND SECURITIES OF THE UNITED STATES. See Postal Seevice, 114, 115; Treasury De- partment, V, VI. OBSTRUCTION TO NAVIGATION— OCEAN MAIL SERVICE. 337 OBSTRUCTION TO NAVIGATION. See Navigable Waters, III. OCEAN MAIL SERVICE. 1. The authority to make contracts for carry- ing the mail between ports of the United States and foreign ports, given by section 4007, Re-- vised Statutes, is limited by section 4009, Revised Statutes, with respect to the amount of compensation; so that in such contracts under the former section no greater compen- sation can be allowed to American steamship lines than the sea and inland postage upon the mail transported. 18 Op. 248. 2. The word "mile," as used in section 5 of the act of March 3, 1891 (26 Stat. 830), to pro- vide forocean mail service between the United States and foreign ports, etc., means a mile of 5,280 feet, and not a geographical mile. 20 Op. 98. 3. The act of March 3, 1891 (26 Stat. 830), providing for ocean mail service between the United States and foreign ports, confers no authority upon the Postmaster-General to vary at his discretion the operation of contracts en- tered into under that act. Such powers, if any, as are given in that act, should be strictly construed. 20 Op. 161. 4. Same. — The Postmaster-General is not authorized under the above-named act to dis- continue, during the ■contract term, the serv- ice performed by a ship of the lower class and transfer it to a ship of the higher class, where the contractor offers the latter, if the change involves any increase in the rate of compen- sation, lb. 5. Same. — Section 2 of that act does not au- thorize the Fostmaster-General after the com- mencement of service on any ocean mail route, to increase the number of ships thereon, and make proportionate payment for the same, as that section relates merely to the details of the mode of advertising and letting such con- tracts, lb. 6. Same — Annulment of contract. — The Postmaster-General may insert a condition in any contract forbidding its annulment during the contract term without the mutual consent of the parties thereto, but it would not pre- vent either the Government or the contractor from avoiding the contract for a breach of its terms. In the absence of the breach the con- tract could not be annulled, save by mutual consent, whether the condition proposed was inserted or not. lb. 7. Same. — A corporation organized under the laws of any State in the Union is an American citizen within the meaning of the act. lb. ' 8. Same. — The Postmaster-General may advertise for a limited or weekly service on any route for a definite period, at which time a shorter or triweekly service shall begin and be continued to the end of the contract term. Under such a contract the term would begin with the limited service, and extend in its entirety not longer than ten years. 76. 9. Same. — The Postmaster-General may ad- vertise for a service between New York and the continent of Europe for the full term often years, to be conducted in ships of either the first or second class, conditioned for the commence- ment of the service in ships of the lower grade, and the substitution of ships of a higher grade at a time specified, within the contract term, at a higher rate of compensation, thus involving two kinds of service at different rates of pay in the same contract. lb. 10. Same. — There is no objection to inviting proposals in the alternative as to two different routes between the United States and Great Britain, but one rotate only to be contracted for, provided each alternative contains every specification required by section 2 of the above named act. lb. 11. Same. — In a contract for service to the continent of- Europe in vessels of the second class no provision can be made for the delivery of mails at Southampton, England, as an inter- mediate point, as the statute limits service between the United States and England to vessels of the first class, lb. 12. A person bidding, pursuant to the act of March 3, 1891 (26 Stat. 830), on various routes for foreign mails, can not refuse to carry out one bid because another was not accepted, even if he verbally said his bid was condi- tioned on his receiving both contracts. 20 Op. 293. 13. Same. — Section 817, Postal Laws and Regulations, respecting discontinuances of mail service, does not apply to contracts made un- der the above named act. lb. 14. Same. — A person honestly refusing to carry out his bid because another route was not 18456—08- -22 338 OCEAN MAIL SERVICE— OFFICE AND OFFICERS, I. also awarded him can not be prosecuted under section 3954, Revised Statutes, as amended August 11, 1876 (19 Stat. 130). lb. 15. Same. — Action may, however, be brought against him and the sureties on his bond under section 3945, Revised Statutes, as amended by the act of January 23, 18,74, .section 12 (18 Stat. 235). lb. 16. The Postmaster-General may properly accept a proposal from the Pacific Mail Steam- ship Company, the holder of a contract with the Government for performing second-class mail service, to perform first-class mail service under the subsidy act of March 3, 1891 (26 Stat. 830), on the condition that if the pro- posal be accepted the existing contract shall be rescinded, but the company should be required to stipulate for the safety of the Government that in consideration of the above, the exist- ing contract shall, at the option of the Post- master-General, be void in case some other party than the company shall be the success- ful bidder for first-class service. 20 Op. 304. 17. Where a contract has been entered into with a party for foreign mail service for a term of ten years under the act of March 3, 1891 (26 Stat. 830), it is not competent to make a new contract with that same party for five years in lieu of the ten years unless the party procured the same by new bidding after due advertise- ment. Any change in the terms of the con- tract between the parties releases the sureties on said contract from subsequent liability. 20 Op. 321. 18. Where a contract is made with a company for carrying the foreign mails pursuant to the act of March 3, 1891 (26 Stat. 830), in vessels of the third class, but the Secretary of the Navy ac- cepts the vessels as of the fourth class, but not of the third class, the company can not be paid at the rate of compensation provided for in the act for vessels of the third class, nor even at the rate prescribed for vessels of the fourth class, but must be paid under section 4009 of the Revised Statutes. 20 Op. 409. OFFENSES. Committed on the High Seas. See Trea- ties, IV, 62. Generally. See the particular subjects to which the offenses relate. OFFICE AND OFFICERS. I. In General — What Constitutes, 1-13. II. Appointment, Vacancy, etc., 14-52. III. Oath of Office— Qualification, 53-66. IV. Tenure of Office— Holding Over, 67-73. V. Holding More Than One Office, 74-89. Performing Duties of Vacant Office, see 19, 20. VI. Eligibility— Disability, 90. VII. Compensation, Payment, Assignment, 91- 104. I. In General — What Constitutes. 1. There may be a de facto officer, but never a de facto office. 19 Op. 443, 449. 2. A Member of Congress is not an " officer of the Government" within the meaning of the provision in section 6 of the act of August 15, 1876 (19 Stat. 169), whereby "all executive officers or employees of the United States, not appointed by the President with the advice and consent of the Senate, are prohibited from requesting, giving to, or receiving from any other officer or employee of the Govern- ment any money or property or other thing of value for political purposes," etc. 170p.419. 3. The words, "every person elected or appointed to any office of honor or profit, either in the civil, military, or naval service," employed in section 1756, Revised Statutes, which prescribes an oath of office, includes Mem- bers of Congress. lb. 4. In section 1786, Revised Statutes, which provides that "whenever any person holds office, except as a Member of Congress, or of some State legislature, contrary to the pro- visions of the third section of the fourteenth article of amendment to the constitution," he shall be proceeded against, etc., the station of Member of Congress is distinctly recognized as an office, lb. 5. But it seems that a Member of Congress is not an officer of the United States within the constitutional meaning of the term. lb. (420.) 6. Army officers on the retired list hold public office. 25 Op. 185. 7. The advancement of a retired army officer, as authorized by the act of April 23, 1904 (33 Stat. 264), does not create an office, and is not OFFICE AND OFFICERS, I, II. 339 accomplished by an exercise of the appoint- ing power. lb. 8. A referee appointed by the Court of Claims under the act of June 16, 1880 (21 Stat. 284), does not hold an office under the Government within the meaning of section 1763, Revised Statutes. 18 Op. 304. 9. The members of the California Debris Commission, established by the act of March 1, 1893 (27 Stat. 507), do not hold civil office within the meaning of the Revised Statutes, section 1222, nor does Revised Statutes, sec- tion 1224, necessitate their withdrawal from the Engineer Corps. 20 Op. 604. 10. mathematicians to supervise the comple- tion of certain tables of planets. — An act of Congress making appropriation for the employ- ment of a competent mathematician to super- vise the completion of certain tables of planets, providing no permanency to the term, with no requirement that the person employed shall either take an official oath or receive a commission, and no formalities in the selection of such an employee, does not create an office. 21 Op. 507. 11. Whenever power is given to public officers to be exercised for the public interest the language used, though permissive in form, is mandatory. 21 Op. 167. 12. Where a statute imposes a particular duty upon an executive officer, and he has performed the duty according to his under- standing of the law, there is no appeal from Mb action or his decision, unless such appeal is expressly provided by law. His decision is final and conclusive. (See 16 Op. 317; 1 Op. 624; 2 id. 481-482; 5 id. 275; 11 id. 14; United States v. Ferriera, 13 Howard, 40. ) " 17 Op. 353. 13. Official power — Authority for exercise of. — As a general rule, when it is sought to exercise any official power or function, ex- plicit authority must be found in the law; but the application of this doctrine is not necessarily universal, and depends upon the character and relations of the particular power and all the germane circumstances. 25 Op. 98. II. Appointment, Vacancy, etc. 14. Ad interim appointments — Head of a Department.— Under sections 177, 178, 179, and 180, Revised Statutes, the President has power to temporarily fill (by an appointment ad interim, as there prescribed ) a vacancy oc- casioned by the death or resignation of the head of a Department, or of the chief of ' a bureau therein, for a period of ten days only. When the vacancy is thus temporarily filled once for that period, the power conferred by the statute is exhausted. It is not competent to the President to appoint either the same or another officer to thereafter perform the duties of the vacant office for an additional period of ten days. 16 Op. 596. 15. Same.— Sections 177, 178, 179, and 180, Revised Statutes, considered with reference to the p'ower of the President to make ad interim appointments, and opinion of Attor- ney-General Devens (16 Op. 596, 597) con- curred in. 17 Op. 530. 16. Temporary appointments to nil vacan- cies.— Section 180, Revised Statutes, providing that vacancies occasioned by the death or res- ignation of an officer of an Executive Department must not be temporarily filled for a longer period than ten days applies as well where they are filled (under sections 177 or 178, Revised Statutes) without action by the President, as where they are filled (under section 179, Revised Statutes) by his au- thority and direction. 17 Op. 535. 17. Same. — The .discretionary power given the President by section 179, Revised Statutes, may be exercised after the vacancy has already been supplied under the operation of either of the two preceding sections; and in that case the ten days' limitation is to be computed from the date of the President's action. lb. 18. Same. — President may fill office for an ad- ditional ten days after the office has already been filled by a • subordinate for ten days. — While, therefore, the Deputy Commissioner, upon whom the duties of the office of Commissioner of Internal Revenue temporarily devolved by virtue of section 178, can not fill the office for a longer period than ten days, it is competent to the President, under the pro- visions of section 179, to designate the same or another departmental officer whose ap- pointment is vested in the President and Senate, to perform the duties of such office, and the officer so designated may thereafter lawfully perform those duties for a period not exceeding ten days. lb. (536.) 340 OFFICE AND OFFICERS, II. 19. A vacancy in the head of a Department can not be temporarily filled for a longer period than ten days, either by operation of law or by designation of the President. 20 Op. 8. 20. Same. — The view expressed in 17 Op. 535, that twenty days may be taken to fill such vacancy by allowing the statutory oc- cupation of the office for ten days, followed by a designation by the President for an ad- ditional ten days, is not accepted. lb. 21. Performing duties of vacant office. — Where the office of Sixth Auditor became vacant by the death of the incumbent, and the duties thereof devolved by operation of the statute upon the deputy auditor: A dvised that the period during which such duties may be discharged by the deputy is limited by statute to ten days. 18 Op. 50. 22. Same. — In the case of a vacancy in the office of Secretary of the Treasury, caused by the death of the incumbent, the duties of the office can not be performed by any other officer, under sections 177, 179, 180, and 181, Revised Stat- utes, for a longer period than ten days. 18 Op. 58. 23. Temporary recess appointments. — The President has the right under the Constitu- tion, and impliedly under section 181, Revised Statutes, to make a temporary appointment, designation, or assignment of one officer to perform the duties of another in the case of a vacancy caused by death, disability, or otherwise, during the recess of the Senate, and such tem- porary appointment, designation, or assign- ment is not limited by law to any particular period. 25 Op. 258. 24. Ad interim appointment. — The vacancy in the office of Paymaster-General, created by the retirement of Gen. William B. Rochester, may be filled by an ad interim appointment or assignment under the provisions of sec- tion 179, Revised Statutes. Said retired officer may be said to be "absent" within the mean- ing of that section. 19 Op. 500. 25. Appointment during holiday adjourn- ment. — 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. 23 Op. 599. 26. Same — Distinction between an appoint- ment and a nomination.— There is no distinc- tion between an appointment and a nomina- tion 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. 76. 27. Same — Distinction between a recess of the Senate and an adjournment.— The recess of the Senate during which the President shall have power to fill a vacancy that may happen (Cons. 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. lb. 28. Recess appointments. — A vacancy in an office which happens during a session of the Senate, but which remains unfilled until a recess of the Senate occurs, may be filled by the President during such recess by a temporary appointment. 19 Op. 261. 29. Same. — The rule is the same in the case of a new office, which is not filled during the session in which it was created. The Presi- dent may fill the original vacancy existing therein by a temporary appointment made during the recess of the Senate. lb. 30. Becess appointments — Original vacan- cies. — The provisions of section 1769, Eevised Statutes, relative to filling vacancies during a recess of the Senate, are limited to vacancies happening by death or resignation or expira- tion of term of office, but do not apply to original vacancies. 18 Op. 28. 31. Same — Temporary appointment. — When an office is created by a law taking effect during a session of the Senate, and no nomination is made thereto, the original vacancy thus exist- ing may be filled by the President during the ensuing recess of the Senate by a temporary appointment. lb. 82. Temporary appointment. — The power of the President to fill vacancies in office by tem- porary appointment, derived under section 2, Article II, of the Constitution, comprehends all vacancies that may happen to exist-in a re- cess of the Senate, irrespective of the time when such vacancies first occur. 18 Op. 29. '38. Becess appointments — Salary. — An of- fice which has become vacant during a ses- OFFICE AND OFFICERS, II. 341 sion of the Senate may be filled during the next ensuing, recess of the Senate by a tem- porary appointment by the President; but by section 1761, Revised Statutes, payment of the salary of the appointee in such cases is postponed until he has been confirmed by the Senate. 17 Op. 521. 34. Accepting an appointment to an office, the term of which is to commence in futuro does not, until such term actually commences, affect an office previously held by the appointee. 20 Op. 593. 35. The general rule is that, where there is no express enactment to the contrary, the appointment of any officer of the United States belongs to the President by and with the ad- vice and consent of the Senate. 17 Op. 532. 36. Under the law at present in force, assistant engineers in the Revenue-Cutter Serv- ice should be appointed by the President with the concurrence of the Senate. lb. 37. The President can appoint to office only those who are eligible under the Constitution. His appointment of one not eligible is a nullity. 21 Op. 211. 38. When Congress in pursuance of its au- thority under Article II, section 2, paragraph 2, of the Constitution, 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., sees. 88, 555, 677, 1053, 1313, 1411, 2538; sec. 19, act of May 28, 1896, 2 Supp. R. S., 485; act of Mar. 3, 1897, id. 578) ; and, on the other hand, when Con- gress means the appointment to an office estab- lished by law to be made by and with the ad- vice and consent of the Senate the intention to that effect is specifically shown by the language used (sec. 2, act of .Tune 11, 1878, 1 Supp. R. S., 174; act of June 4, 1897, 30 Stat., 58; act of Apr. 12, 1900, sees. 17, 18, 34, 40; act of Apr. 30, 1900, sees. 66, 69, 80, 86). 23 Op. 138. 39. The nomination and confirmation of a person who, at the time, is ineligible for the office by force of section 6, Article I of the Constitution, can not be made the basis of his appointment to such office after his ineligibility ceases. 17 Op. 522. 40. Preference — Honorably discharged, sol- diers and sailors. — By section 1754, Revised Statutes, it is made the duty of those making appointments to civil offices to give a prefer- ence, other things being equal, to the class of persons named in that section; but the mat- ter of capacity and personal fitness for the place is for the determination of the appoint- ing power. 19 Op. 318. See also Civil Service, V. 41. The President may appoint the officers of the line and staff of the Navy authorized by the act of May 4, 1898 (30 Stat. 369), without the advice and consent of the Senate. 22 Op. 82. 42. Same. — A commission issued pursuant to the foregoing act should show upon its face that it is the commission of the President, but Ms actual signature is not necessary. The docu- ment should, however, declare the act to be that of the President, performed by the head of the Navy Department as his representa- tive, lb. 43. If a battalion is made up of companies contributed by two or more States the officers of the battalion as such must be appointed by the President. 22 Op. 147. 44. Regimental officers of such regiments as may be formed by contributions of companies from two or more States are to be appointed by the President of the United States, under the constitutional provisions which make him the Commander in Chief of the Army and Navy and which authorize him to appoint all officers of the United States whose appoint- ment is not otherwise provided for by law. 22 Op. 135. 45. Appointment of a captain in the Quarter- master's Department — Confirmation by Senate not necessary. — It being the intention of Con- gress, as expressed in the sixteenth section of the act of February 2, 1901 (31 Stat. 751), not to require confirmation of appointments in the grade of captain in the Quartermaster's Department, the appointment of Captain A, of that Department, on June 14, 1901, was not a recess appointment, the concurrence of the Senate was not necessary, and the action of the President alone was final and com- plete. 23 Op. 574. 46. Subsequent vacancies^Promotion. — The only vacancy which the President is author- ized 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. lb. 342 OFFICE AND OFFICERS, II, III. 47. The appointment of the assistant col- lector at the port of New York (who was form- erly employed by the collector with the ap- proval of the Secretary of the Treasury, should now, by virtue of the effect of section 5596, Bevised Statutes, be made by the President with the advice and consent of the Senate. 18 Op. 98. 48. Collector of internal revenue — Suspen- sion. — The President has the undoubted right during a recess of the Senate, to suspend from office a collector of Internal Revenue, with or without cause, and to designate some one else to perform the duties of that office (sec. 1768, Rev. Stat.). 18 Op. 318. 49. The office of chief examiner in the Civil Service Commission, created by the act of Jan- uary 16, 1883 (22 Stat. 403), is to be filled by ap- pointment by the President, with the advice and consent of the Senate, since that officer comes within the terms "all other officers of the United States," in clause 2 section 2, Ar- ticle II, of the Constitution. 18 Op. 409. 50. The President can not appoint an hon- orary commissioner to the "Inventions Interna- tional Exposition" at London, such office not existing by virtue of .any law of the United States. 18 Op. 171. 51. Appointment of Chinese secretary. — The President is authorized to sign the commission of the Chinese secretary, whose appointment is authorized under the act of April 4, 1900 (31 Stat. 60), in the same manner as he does those of other interpreters who are not con- firmed by the Senate. 23 Op. 136. 52. Appointment of student interpreters at legation to China. — The President is author- ized, under the provisions of the diplomatic and consular appropriation act of March 22, 1902 (32 Stat. 78), to appoint the 10 student interpreters at the legation to China therein provided for, without sending their names to the Senate for confirmation. 24 Op. 52. See also Army; Navyj Civil Service; The various Executive Departments; Presi- dent, etc. m. Oath of Office. — Qualification. 53. Members of Congress — Oath of office — Office. — The words "every person elected or appointed to any office of honor or profit, either in the civil, military, or naval serv- ice," employed in section 1756, Revised Statutes, which prescribes an oath of office, includes Members of Congress. So in section 1786, which provides that "whenever any person holding office, except as a Member of Congress," etc., the station of Member of Congress is distinctly recognized as an office. 17 Op. 419. 54. Indian incompetent to take oath of office. — An Indian residing in the Indian Ter- ritory, who is a member of one of the tribes there and not a citizen of the United States and is subject to tribal jurisdiction, is not eli- gible to appointment as a postmaster, he being incompetent, in contemplation of law, to take the required oath of office. 18 Op. 181. 55. Indian not competent to take oath of office. — "The condition of an Indian who is a member of a tribe, and especially one who dwells within the territory and jurisdiction of his tribe, is peculiar. He is regarded and treated by our Government as belonging to a separate though dependent political commu- nity, the members of which owe immediate allegiance thereto, and are not ordinarily dealt with by the Government individually, so long as their tribal relation is preserved. The obligation imposed by the oath does not seem to be consistent with the duty of obedi- ence to tribal authority which springs from such relation, and the existence of which is distinctly recognized by our Government, and its effect would obviously be to greatly weaken if not destroy that relation. Unless clearly warranted by the provisions of some treaty or statute, an act which thus interferes with the tribal relation, and is productive of con- sequences so discordant and in such direct conflict with the authority of the tribe over its members and their allegiance thereto, must be deemed to have no sanction in our laws. Therefore an Indian, while a member of a tribe and subject to tribal jurisdiction, is not in legal contemplation competent to take the oath referred to. " 18 Op. 183. 56. While postmasters, in common with all other officers of the United States except the President, are now required to take the oath of office prescribed in section 1757, Revised Statutes, they are not exempted from taking the oath prescribed by the act of March 5, 1874, (18 Stat. 19) relative to the performance of duties in the postal service, but must take this also. 18 Op. 182. OFFICE AND OFFICERS, III. 343 57. The charge d'affaires to Paraguay and Uruguay, whose office was raised to minister, but who did not receive his commission or take the oath of office until nearly two months after appointment, is entitled to salary as minister from the date on which he qualified and en- tered upon the duties of the office, and not from the date of his appointment. 19 Op. 219. (2 Op. 27, 638; 3 Op. 105, 124, 641; 4 Op. 123, 250, 318, 348; 5 Op. 132; 7 Op. 304; 10 Op. 250, 308.) 58. Oath taken for a different office does not relieve. — Whatever form of oath is taken, the taking of the oath is a prerequisite to the en- tering upon the official duties or drawing salary therefor. That the minister prior to ' his appointment had taken the oath and en- tered upon the duty of a different office does not relieve him from the requirements of sec- tion 1756, Revised Statutes. 19 Op. 221. 59. Same. — Section 1756, Revised Statutes, provides that the appointee shall take the oath before he enters upon the duties of such office as he may be appointed to. That Mr. Bacon was his own successor does not relieve him from the provisions of the section, for it con- templates that the oath shall be taken at every new appointment before entering upon the duty. lb. 60. Oath of acceptance. — Where a former Army officer was appointed from civil life to the position of major of engineers in the Army un- der the act of February 14, 1889 ( 25 Stat. 670 ) , and thereupon was placed on the retired list of the Army as of that grade, he must take the oath required by section 1756, Revised Stat- utes, which act would be in law a legal ac- ceptance of the office, and, as such, a sufficient formal acceptance. 19 Op. 283. 61. Regulation as regards taking the oath. — The Secretary of the Treasury has power, under section 161, Revised Statutes, to make a regulation which prescribes that the oaths to be taken by an officer of the Revenue- Marine Service, or an officer or employee in any branch of the customs service, to the correctness of his account for pay or salary, as required by sections 1790 and 2693, Revised Statutes, shall be taken before some person authorized to administer oaths generally. 19 Op. 401. 62. The fee paid by the officer or employee in such case for administering the oath does not constitute a proper charge against the United States, and if charged in his account should not be allowed in the settlement thereof. lb. 63. marshals of consular courts. — 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. All such officers should be required to take an oath or affirmation to faith- fully perform the duties of their offices, and similar to that prescribed, except as to alle- giance and support of the Constitution of the United States. Even if the sections referred to applied to such officers abroad who are foreign subj ects, it might well be held that this, being ad far a compliance therewith as is law- ful, was a sufficient compliance. 23 Op. 608. 64. The territorial limitation prescribed by section 1758, Revised Statutes, with regard to the taking of oath of office means.a State, Ter- ritory, ordistrict 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. 23' Op. 611. 65. Oath includes what. — While the section is in terms permissive only, it is in effect much more, for, as it says that all oatha 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 quali- fied 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. lb. 66. Consul-general to Haiti — Qualification. A person appointed consul-general to Haiti, who takes the oath of office, but failing to execute a bond, as required by section 1697, Revised Statutes, his commission was not deliv- ered to him, is not qualified to receive the com- 344 OFFICE AND OFFICEES, III, IV, V. mission or to enter upon the duties of the office, and consequently is not entitled to pay as an incumbent of such office. . 18 Op. 157. Discharge of Surety, or Notice to Surety. See Surety and Surety Companies. Official Bonds. See Bonds. IV. Tenure of Office — Holding Over. 67. The act of March 3, 1887 (24 Stat. 500), repealing the tenure of office law (sees. 1767 to 1772, Revised Statutes), leaves unaffected such designations, nominations, and appoint- ments as shall have been made before the repeal, and requires all business begun but unfinished before the repeal to be completed under the law as it then stood. 18 Op. 576. 68. Appointments and removals after the re- peal are to be made under the law as it now exists, lb. 69. Holding over.— The chief of a bureau in the Navy Department can not lawfully hold over after the expiration of the term for which he was appointed (sec. 421, R. S.). 17 Op. 448. 70. The general rule is that where Con- gress has not authorized the officer to hold over, his incumbency must be deemed to cease at the end of his term, though no ap- pointment of a successor may then be made. lb. 71. An assistant treasurer of the United States may lawfully continue to perform the duties of his office after the expiration of his term of four years, and until the qualification of his successor, Congress having expressly provided in the acts of March 2, 1895 (28 Stat. 808, 844), for the continuance in office of all officers of the Treasury Department under similar conditions. 25 Op. 636. 72. Same. — The sureties on the bond of an assistant treasurer continue liable for his acts while continuing in office after the expiration of his term and until the qualification of his successor. lb. 73. Same. — The Secretary of the Treasury may defer the qualification of an assistant treasurer until a proper count can be made of the funds in the subtreasury under a prede- cessor, in accordance with the custom of the Treasury Department. lb. V. Holding More, than one Office. 74. An inspector of customs who renders service as a special deputy marshal is not a public officer within the constitutional limi- tation as to appointment (Const. Art. II, sec. 2), and so can claim nothing by reason of sec- tion 1763, Revised Statutes. 17 Op. 685. 75. The holding of a State office by an officer or employee in the civil service of the United States is not prohibited by any act of Congress. 18 Op. 3. 76. Same — Prohibited by Executive orders. — But by Executive orders dated January 17 and 28, 1873, which have not been revoked, per- sons holding any civil office under the United States are expected, while holding such office, not to accept or hold any State, Territorial, or municipal office, with certain exceptions; otherwise they will be regarded as having resigned the office held under the United States. lb. 77. Same. — In the case of an employee of the United States Fish Commission, not in the service by appointment, who holds the office of village constable: Advised that he may properly exercise the functions of the latter office, provided this does not interfere with-the reg- ular and efficient discharge of his employ- ment under the Government. lb. 78. An officer of the Army who was ten- dered a place on n. "board of experts," created by a city ordinance to determine the most dura- ble and best pavement for the streets of the city, should not, in view of the provisions of section 1222, Revised Statutes, accept the po- sition offered. 18 Op. 11. 79. The detail of an officer of the Army to report to the president of the World's Co- lumbian Commission, with a view to his as- signment by the latter to the duties of an en- gineer in the preparation and construction of buildings, grounds, etc., for the Columbian Ex- position, is within the prohibition of section 1224, Revised Statutes, provided that the per- formance of such duties requires the officer to be separated from his company, regiment, or corps, or interferes with the discharge of his military duties. 19 Op. 600. 80. Same. — Where a leave of absence is asked by an army officer, for the very purpose of enabling him to undertake the employments prohibited by said section, the granting of OFFICE AND OFFICERS, V, VI, VII. 345 such leave would be an evasion of the statute and be unwarranted. lb. 81. A retired officer of the Army is not inel- igible to receive a civil appointment at a fixed rate of compensation, to take charge of work in connection with the improvement of. rivers and harbors. 19 Op. 283. See also Akmy, 103-106, 112, 120, 121, 163. 82. Employment of retired naval officer to supervise completion of tables of planets. — The Secretary of the Navy is not precluded by sec- tion2ofthe act of July 31,1894 (28 Stat. 205), from employing an officer retired under the act of February 19, 1897 (29 Stat. 565), to supervise the completion of certain tables of planets, as the act authorizing the expendi- ture does not create an office or contemplate any formalities in the selection of such an employee. 21 Op. 506. 83. The circuit judge appointed as a com- missioner under the convention of February 8, 1896, with Great Britain, concerning claims growing out of seizures of vessels in Bering Sea, is entitled to compensation additional to that of his salary, notwithstanding sections 1763 and 1765, Revised Statutes, and section 2 of the act of July 31, 1894 (28 Stat. 205). 22 Op. 184. 84. Same. — This latter act should not be regarded as enacted by Congress to invade the domain of the treaty-making authority and establishing restrictions upon future oc- casional and temporary commissionerships created by international agreement, the na- ture and functions of which neither Congress nor the framers of Article II, section 2, of the Constitution, could wisely undertake or foresee. lb. 85. Same. — The word "office," as used in section 2 of the act of 1894, is to be presumed, in the absence of indications to the contrary, not to embrace such commissionership, be- cause it is not what is called a constitutional office. lb. 86. The acceptance of an appointment as counsel for the delegates of the United States to the Fan-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 penal- ties 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. 23 Op. 533. 87. Incompatibility in law exists where the nature and duty of the two offices are such as to render it improper, from considerations of public policy, for one incumbent to hold both, and does not necessarily arise when the incumbent places himself for the time being in a position where it may be impossible for him to discharge the duties of both offices. 22 Op. 237. 88. Incompatible service. — 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 employ- ment," is not applicable to the case of a general appraiser detailed by the Secretary of the Treasury, without additional compensa- tion, as "an expert to represent the United States in the international commission for the conversion of the present Chinese tariff into spe- cific 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 in- compatible Government service. 24 Op. 12. 89. Same. — There is no incompatibility be- tween 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. lb. VI. Eligibility— Disability. 90. Rebellion— Effect of Pardon. — The third section of the fourteenth amendment of the Constitution, which provides that no person who having previously taken the oath to support the Constitution of the United States shall have engaged in insurrection or rebel- lion against the same shall hold any office, civil or military, under the United States or under any State, is not applicable to an officer who had received a full pardon from the President for such offense prior to the adoption of that amendment. 18 Op. 149. VII. Compensation, Payment, Assignment. 91. Where an office which has become vacant during a session of the Senate is filled tempo- 346 OFFICE AND OFFICERS, VII. rarily during the recess of the Senate, payment of such appointee is postponed until he has been confirmed by the Senate. 17 Op. 521. 92. Where an inspector of customs, while holding that office, rendered service as a special deputy marshal under section 2031, Revised Statutes: Held that he is prohibited by the third section of the act of June 20, 1874 (18 Stat. 109), from receiving any compensation for such service beyond his salary as inspector of customs. 17 Op. 684. 93. The word "payment," as used in the proviso to section 3 of the act of June 20, 1874 (18 Stat. 109), signifies to fix or determine the compensation for the services referred to; and the proviso is a virtual recognition of the prac- tical construction given the act of June 22, 1870 (sec. 189, Rev. Stat. ). 19 Op. 65. 94. The elements necessary to justify the payment of compensation to an officer of the Government for additional services are that they shall be performed by virtue of a separate aud distinct appointment authorized by law; that such services shall not be services added to or connected with the regular duties of the place he holds; and that a compensation whose amount is fixed by law or regulation shall be provided for their payment. 19 Op. 121. 95. Compensation of clerk for superintending erection of Government building. — It was com- petent for the Secretary of War, under the act of June 16, 1880 (21 Stat. 260), providing for the construction of a building at the corner of 17th and F streets, Washington, D. C, to designate a clerk from the office of the Chief of Engineers to take charge and superintend the work, and to compensate him from the fund appropriated, his salary and services as clerk having been suspended during the period The case is not within section 1765, Revised Statutes, there being no "additional pay, extra allowance, or compensation" received by said clerk. 17 Op. 321. 96. Extra compensation of officer of Post- Office Department for preparing new edition of Postal Laws and Regulations. — The act of March 3, 1891 (26 Stat. 880), appropriating money for a new edition of the Postal Laws and Regulations, does not authorize the Post- master-General to grant extra compensation to any officer of his Department whom he may designate to perform the preparation of that work. 20 Op. 221. 9 7 . Additional compensation. — Section 1765, Be vised Statutes, and section 3 of the act of June 20, 1874 (18 Stat. 109), prohibit an officer of any branch of the Government from receiv- ing additional or extra compensation for any service rendered by him, if the service so rendered have any affinity or connection with the duties -of his office, unless such compen- sation is "authorized by law and the appro- priation therefor explicitly states that it is for such additional pay, extra allowance, or com- pensation." 20 Op. 223. 98. A United States marshal appointed an agent, in pursuance of section 5276, Revised Statutes, to bring back a fugitive criminal from a foreign country, is entitled to receive com- pensation for this service out of the fund ap- propriated "for bringing home fugitive crimi- nals, ' ' where the amount of the compensation is fixed by regulation before his appointment; otherwise he is entitled to be paid his ex- penses only. 19 Op. 121. 99. The circuit judge appointed as a com- missioner under the convention of February 8, 1896, with Great Britain, is entitled to compen- sation additional to that of his salary, notwith- standing sections 1763 and 1765, Revised Stat- utes, and section 2 of the act of July 31, 1894. 22 Op. 184. See also United States Attorneys; United States Marshals; Customs Law, IX, h; and under appropriate headings for any particular officer in question. 100. Payment by mistake. — Where money was paid by a United States marshal, under a mistake of fact, to a person who subsequently became an officer in the postal service: Held that the latter is in arrears to the United States for the amount so paid, and that it may be set off against his compensation as such officer. 17 Op. 677. 101. Where an officer's account for the same month was paid twice by different paymasters, one payment being made in November and the other in December: Held that the pay- master who made the last payment is charge- able with the overpayment. 17 Op. 425. 102. In such case the Government may hold liable for the overpayment both the officer who made and the officer who received the pay- ment, lb. 103. — Assignment of pay account — Officer in arrears. — Where an Army officer assigned his pay accounts in payment of certain indebted- OFFICE AND OFFICERS; VII— OKLAHOMA. 347 ness, which accounts the Paymaster-General declined to pay, for the reason that on the maturity thereof the officer was in arrears to the United States: Held that the refusal of the Paymaster-General was in accordance with section 1766, Revised Statutes. 17 Op. 30. 104. Same. — Section 1766, Revised Stat- utes, does not require that, before payment is withheld, the officer shall be adjudged in arrears in a suit brought against him. lb. Army Officers. See Army, II. Navy Officers. See Navy, II. Officers of the Marine Corps. See Navy, III. Officers of the Line. See Navy, 89-92. Officers of the various Executive Departments. See those Departments severally, uniformly under division, II. Members of Congress. See Congress, 6. Rendition of Accounts. See Treasury De- partment, II, h. See also General Arbitration Board; and Pan-American Conference. OFFICIAL BONDS. See Bonds, II. OFFICIAL MAIL. See Postal Service, VI, VII. OFFICIAL EECOEDS. Of an Executive Department, production of. See Executive Departments, 35-38. OHIO EIVEK BRIDGES. See Navigable Waters, 148-158. OKLAHOMA. 1. National banks. — Under existing legis- lation relating to the establishment of na- tional banking associations, and in the present condition of Oklahoma ( being without a gov- ernment and system of laws), such banking associations can not lawfully be authorized and established in the Territory known by that name. 19 Op. 315. 2. Same. — In view of the provisions of the act of May 2, 1890 (26 Stat. 81), entitled "An act to provide a temporary government for the Territory of Oklahoma," etc., there no longer exists any obstacle to the establishment of natioanl-banking associations in the Indian Territory. 19 Op. 585. 3. Sale of spiritnons liquors not forbidden. — The Indian title to the lands within the Ter- ritory known as Oklahoma having become extinguished, and the lands thrown open to settlement, that Territory has ceased to be "Indian country," and sections 2139 and 2140, Revised Statutes, are accordingly no longer applicable thereto; nor is the sale of spirituous liquors and beer in such Territory forbidden thereby. 19 Op. 306. 4. Same.— Yet, for reasons stated, the In- ternal-Bevenue Department may decline to fur- nish special revenue stamps for the sale of in- toxicating liquors within that Territory until Congress shall have time to consider the sub- ject, lb. 5. Same. — Such refusal may be based upon the fact that there are no counties nor legally organized towns whose limits are capable of definition, and therefore such license can not specifically define and describe known places of doing business as contemplated by sections 3240 and 3241, Revised Statutes. lb. 6. Same. The internal-revenue laws should be enforced in the Territory of Oklahoma in the same manner and to the same extent that they are enforced in other parts of the Union, the act of May 2, 1890 (26 Stat. 81), having established an organized government within that Territory. 19 Op. 569. 7. When the legislature of Oklahoma Terri- tory, at its first session, took a recess for one or more days on account of an approaching elec- tion: Advised that the period covered by the recess should be counted as part of the one hundred and twenty days limited for such session, by section 4 of the (organic) act of May 2, 1890 (26 Stat. 83). 19 Op. 682. See also Arizona, 1-5. , 8. Surety companies — Process agents. — A surety company authorized by the act of Au- gust 13, 1894 (28 Stat. 279), to transact a 348 OKLAHOMA— PANAMA. surety business, which has appointed an agent at Guthrie, Okla., upon whom all law- ful process issued against it may be served, and has filed copies of such appointment at all places in that Territory where court is held, thereby consents to accept service upon such agent of a summons issued from any county in that Territory, and effectuates the purpose of section 2 of that act. 25 Op. 598. 9. Same. — Section 5 of that act does not so qualify section 2 thereof as to make the ap- pointment of a process agent in the district only where the bond is returnable or filed a compliance with the statute. The purpose is also to require the appointment of an agent in the district where the contract is to be performed. 2 5. 10. Same. — The Government can enforce a contract between it and a surety company in Oklahoma, although the company has not made the deposit required by the territorial act of Oklahoma of March 15, 1905. lb. OLEOMARGARINE. See Food Products, 10. OPENING OF BIDS. See Contracts, 35, 43-45. OPINIONS. See Attorney-General; Treasury Depart- ment, II, f. OPTION. See Shiloh Battlefield. ORDNANCE. See Contracts, 140; Navy, 1, f; Patents, 9, 10, 14, 15; United States, 58, 59. OREGON. While the Secretary of the Treasury has the power to locate the public building at Portland, Oreg., within the present limits of that city, yet it would be more in accord with the intent of the act of Congress of January 24, 1891 (26 Stat. 727), to locate the building in the limits as they existed at the time said act was passed. 20 Op. 320. Oregon Territory. See Claims, I, 34. OSAGE INDIANS. See Claims, I, 31-33. OVERHEAD WIRES. See District of Columbia, 49. OVERPAYMENT. Of Army Officers. See Army-, 168-176. OWNERSHIP. Of Public Buildings Erected on Private Lands. See United States, 92-94. PAGO PAGO HARBOR. See Samoa. PANAMA. 1. Exports to Panama or Colon for Canal Zone. — The effect of the order of the President of December 3, 1904, is to prevent the diject shipment of goods, wares, and merchandise into the Canal Zone of Panama; and distilled spirits withdrawn for shipment to Panama or Colon, although ultimately to go to the Canal Zone, are withdrawn for shipment to PANAMA. 349 a foreign country within the letter and spirit of the statutes. 25 Op. 324. 2. Panama Canal — Title. — The United States will, upon the purchase of the rights, fran- chises, and property of the New Panama Canal Company of France in the Panama Canal, secure a good, valid, and unincumbered title thereto, provided the Colombian Gov- ernment consents to such transfer. 24 Op. 144. 3. Panama Canal — Authority of the Presi- dent to make contracts for construction. — The President is authorized under existing law to make contracts for the construction and com- pletion of the Panama Canal in excess of the appropriation at present available, so long as such contracts do not involve the Govern- ment in the ultimate expenditure of moneys for its construction and completion in excess of the amount designated in section 5 of the act of June 28, 1902 (32 Stat. 483), limiting the total cost of the canal. 25 Op. 557. 4. Same. — The authority thus granted by the act of June 28, 1902, remains unaffected and unimpaired by the provision in the act of December 21, 1905 (34 Stat. 5), prohibiting the expenditure of any money for the con- struction of such canal ' ' except in accordance with appropriations made by Congress. " lb. 5. Same. — The phrase " no money shall be expended except in accordance with appro- priations made by Congress," as used in the act of 1905, means nothing more than that no money shall be expended in excess of appropriations made by Congress. lb. 6. Panama Canal — Expenses incident to project. — The President is authorized by sec- tion 5 of the Atlantic and Pacific canal act of June 28, 1902 (32 Stat, 481, 483), to provide by proper order for carrying into effect cer- tain recommendations of Admiral Walker, and direct the paymentof expenses necessarily- incurred in accomplishing the purposes of that act, to wit, the snpportof Major Black's party on the Isthmus, the maintenance of an office in Washington to supervise his work, receive his reports, preserve records, etc., of the old Isthmian Canal Commission, and the storage of certain machinery, boats, etc., at Greytown. 25 Op. 54. 7. Panama Canal — Deposit of funds in bank — Authority of the President. — Section 5 of the act of June 28, 1902 (32 Stat. 483), appropriat- ' ing $10,000,000 for use in the construction of the Panama Canal, does not authorize the President to deposit $1,500,000 of that sum with the International Banking Corporation of New York, upon the condition that the bank will maintain the new coinage of the Republic of Panama at its legal parity with gold, supply the Isthmain Canal Commission with said coinage, and sell foreign and do- mestic exchange at reasonable rates — a de- posit upon such conditions not being an incident of the financial operations to be car- ried on for the Government by the bank, but a distinct deposit of public money with a private bank for its own purposes. 25 Op. 484. 8. Same. — The President may enter into a similar contract with that company which would not involve the deposit of the money in question, but provide for payment, out of the sum appropriated, for the services which it is desired to have the bank perform. lb. 9. Panama Canal — Eight-hour law. — The act of August 1, 1892 (27 Stat. 340), which limits and restricts to eight hours the daily service of laborers and mechanics employed by the Government of the United States or by any contractor or subcontractor upon the public works of the United States, applies to the employment of laborers and mechanics in the construction of the Panama Canal. 25 Op. 441. 10. Same. — That act, however, does not apply to the office force of the Isthmian Canal Commission stationed on the Isthmus of Pan- ama, or to any of the employees of the Gov- ernment who are not within the ordinary meaning of the words "laborers and mechan- ics." lb. 11. Same. — The scope of the act is not lim- ited by the territorial jurisdiction of Congress, but is coextensive with the subject-matter to which it was directed, to wit, the conduct of officers and agents of the United States in respect to the hours of labor of mechanics and laborers upon all public works of the United States. lb. 12. Same. — Congress may fix the hours of labor upon all the works of the United States, wherever conducted, and make the law bind- ing upon the officers of the United States and, through the agency of contracts, upon all con- tractors with the United States. lb. 13. Panama Canal — Contract labor — Invol- untary servitude. — A person held to labor or 350 PANAMA— PARDON. service against his will, although he may have voluntarily contracted to submit himself to such control, is in a condition of involuntary servitude within the meaning of the thir- teenth amendment to the Constitution. 25 Op. 474. 14. Same. — A laborer may agree to reside in a specified place, to perform only specific work, and to remain in a territory a specified time; but if- compelled by force or law to comply with his obligations in these respects he, while thus under compulsion, is in a con- dition of involuntary servitude. lb. 15. Panama Railroad — Eight-hour law. — The words "laborers and mechanics" as used in the eight-hour law of August 1, 1892 (27 Stat. 340), apply to all persons who may fairly come within the description of laborers and mechanics, whether they are paid by the year, by the month, or by the day. 25 Op. 465. 16. Same. — The above named act does not apply to laborers and mechanics in the em- ployment of the Panama Railroad and Steam- ship Line, such persons being employed by the corporation and not by the United States. lb. 17. Panama Railroad — Power of the Presi- dent to redeem bonds. — The President has the power under section 5 of the act of June 28, 1902 (32 Stat. 483), providing for the con- struction of a canal connecting the waters of the Atlantic and Pacific oceans, to turn over to the Panama Railroad Company money sufficient to redeem certain bonds of that company, recently sold to raise money to pay for necessary improvements to the rail- road. 25 Op. 550. See also Isthmian Canal Commission. PAN-AMERICAN CONFERENCE. 1. Counsel for delegates of the United States. — Appointment — Penalty . — The accept- ance of an appointment as counsel for the del- egates of the United States to the Pan-Amer- ican 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 pre- scribed 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. 23 Op. 533. 2. Same. — While the appointee would be subject to no penalty for accepting such ap- pointment, yet if, while holding the place of such counsel, he should engage in the pros- ecution of claims against the United States before that Commission, or other tribunal, he would be subject to the penalties therein prescribed. lb. 3. Same. — While such person would not be an officer, as that term is there used, he would come within the description of a per- son holding a place of trust or profit under the Government of the United States. lb. 4. Same — Services of, not "clerical" in char- acter.— The acts of June 6, 1900 (31 Stat. 437), and March 3, 1901 (31 Stat. 1179), making appropriation for the "expenses of the dele- gates to the proposed international confer- ence, and for incidental clerical assistance," do not contemplate nor provide for the pay- ment 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. lb. PAPERS. Disposal of Papers. See Treasury De- partment, 19. Production op Records. See Civil Service, II, d; Executive Departments, 36-38. PASS A LOT/TRE. See Navigable Waters, 70-71. PARDON. 1. Of a naval officer — Restoration of lost numbers — C. , a lieutenant-commander in the Navy, was sentenced- by a court-martial to suspension for one year, and to retain his then present number on the list of lieutenant- commanders for that time. The sentence having been executed, he applied to be re- stored to the number on said list which he PARDON. 351 thereby lost: Held, that the restoration could not he effected by the President otherwise than by a pardon. 17 Op. 31. 2. Same — The punishment imposed (loss of numbers) being a continuing one, is still subject to the pardoning power, which, when exer- cised, would have the effect to restore the officer to his former rank according to the date of his commission. lb. Annulment of Sentence. See Courts- Maktial, IV. 3. Remission of sentence of court-martial. — Where a lieutenant was sentenced by a court- martial to reduction of rank in his grade, and the sentence was carried into effect, and later the department commander remitted the sen- tence under the power to pardon conferred by article 112 of the Articles of War: Held that the punishment imposed by the sentence be- ing a continuing one, the sentence could be remitted by the pardoning power, and tl^at the authority exercised by the department commander was in conformity to law. 17 Op. 656. 4. An officer who is authorized to order a general court-martial has no power under the one hundred and twelfth article of war to pardon or mitigate the punishment adjudged by it after confirmation by him of the sentence. 19 Op. 106. 5. A convicted deserter from the Army, un- dergoing sentence, must become the recipient of Executive' clemency and must make appli- cation for reenlistment before the question of the effect of the President's pardon upon his right to reenlist can arise. 21 Op. 568. 6. Effect of President's pardon as regards re- enlistment. — A recruiting officer has the right to reject a pandidate for reenlistment in the Army whose service during his previous term was not honest and faithful, notwithstanding the President's pardon of the offense. 22 Op. 36. 7. Same. — While the President's pardon restores such a criminal to his legal rights and fully relieves him .of the disabilities legally attaching to his conviction, it does not destroy an existing fact that his service was not faithful and honest. lb. 8. Same. — A person convicted of desertion from the military service and afterwards par- doned by the President, would be restored by reason of the pardon to all the rights and privi- leges of a citizen which he had anterior to such conviction. lb. 9. — Congress has no power to abridge the effect of the President's pardon. lb. 10. Same. — The pardoning power of the President is not subject to legislative control. 20 Op. 330. 11. Same. — The President has the constitu- tional power, without Congressional authority, to issue a general pardon or amnesty to classes of foreigners. 20 Op. 330, 368. 12. Pardon of persons who engaged in the rebellion— Holding office. — Section 3 of the four- teenth amendment of the Constitution, which provides that no person who having previ- ously taken the oath to support the Consti- tution of the United States shall have engaged in insurrection or rebellion against the same shall hold any office, civil or military, under the United States or under any State, is not applicable to an officer who had received a full pardon from the President for such offense prior to the adoption of that amendment. 18 Op. 149. 13. Same. — A person pardoned becomes "a new man," endowed with "a new credit and capacity;" his guilt has been "blotted out," and he becomes "as innocent as if he had never committed the offense. ' ' lb. 14. Same. — L., having been commissioned a lieutenant in the United States Army, and taken an oath as such officer to support the Constitution of the United States, afterwards bore arms against the United States in the war of the rebellion, but on the 6th of Feb- ruary, 1867, received a full pardon from the President for the part he had taken therein: Held that the fourteenth amendment of the Constitution (sec. 3), which did not take effect until more than a year after such par- don was granted, does not operate to exclude L. from holding office under the United States. lb. 15. Same. — If, as claimed, a cadet upon en- tering the Naval Academy, took no oath to sup- port the Constitution of the United States, and after a year's service joined the rebellion, the President's proclamation of December 25, 1868, which embraced all cases not within the third section of the fourteenth amend- ment, necessarily restored him to his lost civil rights. 18 Op. 180. 16. Same. — If he did take an oath in effect, although not in terms, to support the Consti- 352 PARDON— PASSPORT. tution, he may have been entirely rehabili- tated by the President's proclamation of amnesty of the 7th September, 1867; in which case the rights thus restored would continue in full force notwithstanding the fourteenth amend- ment, subsequently adopted. lb. (See 38 Op. 149.) 17. For contempt of court.— The President has power to grant a pardon to a prisoner undergoing punishment for a contempt of court. 19 Op. 476. 18. Polygamy. — The President has the con- stitutional power, without Congressional ac- tion, to issue a general pardon or amnesty to classes of offenders, including persons in Utah guilty of polygamy and unlawful cohabita- tion, etc. 20 Op. 330. 19. Same. — The President's constitutional pardoning power covers the case of the of- fense in Utah of unlawful cohabitation. This power is absolute, and not subject of legislative control. 20 Op. 668. 20. Misdemeanor. — If the action of the President on an application for pardon of an offense styled by the laws of the United States a misdemeanor, depends simply on the question of necessity for pardon, such neces- sity exists, unless the applicant is to be pre- vented from freely changing his residence under penalty of losing his rights of citizen- ship thereby, for the reason that in some States a person convicted of a misdemeanor loses his right to vote, to sit as juror, etc. 21 Op. 242. 21. A pardon is a. gracious act of mercy rest- ing on any ground which the Executive may regard as sufficient to call for its exercise. 20 Op. 332. PARIS EXPOSITION OP 1900. See Expositions and Fairs, III. PARKS AND RESERVATIONS. See District of Columbia, V; Reservations and Parks. PART PAYMENTS. See Contracts, VI, b. ; Navy VIII, 191. PARTNERSHIP. 1. If a power of attorney signed by the individual members of a firm as well as in the firm name confers explicit authority upon one of its members to use the partner- ship name in signing entries and executing certain customs bonds, acts performed in com- pliance with such anthorization are obligatory upon the firm. 20 Op. 311. 2. The common law rule that one partner has no implied authority to bind his partners by executing a bond in the firm name, is well established and refers to an implied power without specific authority. lb. 3. Fraud committed by one member of a partnership in a transaction which he is con- ducting on behalf of the firm is regarded by the law as fraud committed by the firm, although it be unsuccessful, and although it was the intention of the partner to cheat his own firm as well as the other party. 21 Op. 90. PASSED ASSISTANT SURGEON. See Navy, 86, 87; Marine-Hospital Serv- ice, 1. PASSENGER TRANSPORTATION. In Foreign Vessels. See Shipping, III, 44-47, 71-75. PASSENGER VESSELS. See Vessels. PASSENGERS. Tax on. See Immigration, V; Shipping, 45- 48, 72-76. PASSPORT. 1. The provisions of sections 4075 and 4076, Revised Statutes, which confer upon the Secretary of State the authority to issue PASSPORT— PATENTS. 353 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. 23 Op. 509. 2. Certain papers issued by the mayor of Savannah, Ga., and also by a notary public at Cedar Keys, Fla., containing the essentials of a passport, and intended to be used in travel- ing in a foreign country, are a violation of sec- tion 4078, Revised Statutes. 17 Op. 674. PATENT OFFICE. See Department op the Interior, III, a. PATENTED ABTICLES. Purchase of Bond of Indemnity. See United States, IX. PATENTS. 1. The privilege of filing caveats in the Patent Office preliminary to applications for patents is limited by section 4902, Revised Statutes, to citizens of the United States, and aliens who have resided therein one year and declared their intention to become citizens. 19 Op. 273. 2. Same. — This privilege does not extend to the subjects and citizens of nations parties to the convention entered into between the United States and certain other nations, pro- claimed by the President on June, 9, 1887, for the reason that article two thereof is not self-executing and Congress has passed no law for its execution. lb. 3. Same.— A treaty of the United States is the supreme law of the land, but there is a class of treaties which, without legislation, does not become self-executing as a rule of municipal law. lb. (276). 4. Application for renewal — Statutory limi- tation. — Where letters patent were allowed on an original application, December 9, 1887, but the final fee was not paid as required by statute; and the same were again allowed on 18456—08 23 a renewed application, under section 4897, Revised Statutes, December 4, 1889; and pay- ment of final fee as required not having been made on the last allowance, a second appli- cation for renewal, under said section, was filed June 7, 1890: Advised that the applicant is not entitled to an allowance of letters pat- ent on such second application, the statutory limitation (two years) imposed by said section having attached before the filing thereof. 19 Op. 698. 5. Goods smuggled into the United States may be seized and sold by a collector of cus- toms, although protected by patents. 21 Op. 72. 6. Liability of United States for use of article patented by officer or employee of the Govern- ment. — A naval officer or employee of the Government at a navy-yard, who has in- vented an article for use in the naval service and patented it, if the invention does not re- late to a matter as to which he was specially directed to experiment with a view to sug- gest improvements, is entitled to compensa- tion from the Government for the use of such article, in addition to his salary or pay as such officer or employee. 19 Op. 407. 7. Same. — It makes no difference that the invention consists of an improvement upon an article already patented, and that when the improvement was patented the officer or employee was assigned to the duty of super- intending for the. Government the manufac- ture of the article improved upon. lb. 8. Same. — The Secretary of the Navy can not legally contract with the patentee for the purchase of his patent, or for a license to use it, under an appropriation limited to the pur- chase of material and the employment of labor in the manufacture of such article out of it. lb. 9. Purchase of patent rights and improve- ments in ordnance from an ensign of the Navy. — The Secretary of the Navy may lawfully con- tract with an ensign of the Navy for the pur- chase of patent rights and improvements in "B. L. R. ordnance" for use in the Navy, when the ensign was not employed to make experiments, but paid the expenses of obtain- ing letters patent, and when no expense was authorized or facility furnished by the Bureau of Ordnance to aid him in making or perfect- ing his invention. 20 Op. 329. 10. Same. — Section 3721, Revised Statutes, and not section 3718, applies to the case. lb. 354 PATENTS— PENITENTIARIES. 11. A contractor manufacturing certain sup- plies for the United States, under an alleged infringing patent, may be restrained by injunc- tion from manufacturing or using such articles prior to a determination of the question of infringement by the courts. 21 Op. 96. 12. Same. — No injunction or action for dam- ages for the infringement of a patent will lie against the Government. 21 Op. 96. 13. Same. — Where loss may result to the Government or its officers from the use by contractors of patented inventions, or other property of third persons, a board of indem- nity should be required. ' 21 Op. 97. 14. The right of the United States in the manufacture of a patented breech mechanism under a license which reads, "to manufacture * * * guns containing the patented im- provements and to use and sell the same, " is confined to the right to manufacture in its own shops, and does not include contracting with other parties therefor. 22 Op. 10. 15. Same. — From the right to use a patent the right to make or have made may be im- plied; but this implication can only be made when the right to use is unrestricted, lb. 16. Philippine Islands. — The Attorney- General declines to answer the question whether citizens of the Philippine Islands are entitled to the benefits of the patent laws of the United States, there being no case involv- ing that question pending before the Depart- ment making the inquiry. 25 Op. 179. See also Licenses; Public Lands, V. PAY. See Army, II, d; Navy, II, d. PAYMASTER. See Army, II, 49-52; Navy, I, 10; II, 107. PAYMASTEB'S CLERKS. See Civil Service, IV, 113. PAYMENT. Op Acceded Pensions. See Pensions, I, e. Op Advertisements. See Executive De- partments, 62. Op Army Transportation. See Railroads, IV. Op an Award. See Administration; Dis- trict, op Columbia, XL Op United States Bonds. See Treasury Department, VI. Op Claims. See Treasury Department, I, b; Claims, I, g. Op Moneys Due on Government Contracts. See Contracts', VI, b; Navy, VII. Op Direct Taxes. See Direct Taxes. Op Duties. See Customs Law, V, a. On Contracts for Naval Vessels. See Navy, VII. On River and Harbor Improvement Con- tracts. See Navigable Waters, II. By or under the Head op an Executive Department. See Attorney-General, II, s; Treasury Department, II, f. Through Mistake. See Army, I, c. PENAL BOND. /SfeeCusTOMs Law, III, 73, 74. PENAL DUTIES. See Customs Law, IX, b. PENALTIES. See Customs Laws, IX; Internal Revenue, IV; Contracts, V; Pan-American Con- ference. PENALTY ENVELOPES. See Postal Service, VI. PENITENTIARIES. 1. Prisoners sentenced by a military court- martial to confinement 'in a United States penitentiary should be conducted thereto by the PENITENTIARIES— PENSIONS, I, a. 355 proper officer of the War Department, and riot be turned over to a United States marshal for delivery. 21 Op. 204. 2. Washington State Penitentiary. — In view of the fact that the State of Washington al- ready has a penitentiary, the attention of Congress should be called to the matter be- fore any further expenditure is made of money appropriated by the act of March 3, 1893 (27 Stat. 661), for the purpose of the crea- tion of a penitentiary at Walla Walla in sup- posed conformity with the promise made in section 15 of the act of February 22, 1889 (25 Stat. 680). 21 Op. 352. 3. Grant of lands in Colorado for peniten- tiary purposes. — The provisions of section 9 of the act of March 3, 1875 (18 Stat. 474), granting certain sections of unappropriated public lands within the State of Colorado to the State for penitentiary purposes, to be se- lected and located by direction of the legis- lature with the approval of the President of the United States on or before a specified date, are not directory, as Congress had no right to give directions to the legislature of a State, but are in the nature of conditions precedent, and can only be given effect as conditions, and a failure by the designated authorities to select and locate the lands within the time named, renders the grant inoperative. After the expiration of said time the President is not authorized to ap- prove a selection and location of said lands. 21 Op. 462, PENNSYLVANIA. See Claims, I, e. PENSION OFFICE. See Department of the Interior, III, b; Public Buildings, 1. PENSIONS. I. Generally. a. Administration of Pension Laws, 1-7. b. Application, Filing, Declaration, 8-14. c. Oaths— Fees, 15-18. d. Suspension, 19-22. e. Accrued Pensions, Sickness, and Burial Expenses, 23-32. f. Miscellaneous, 33-34. II. Bight to. a. Officers on Retired List — Arrears, 35-37. b. Navy Pensions, 38. c. Widows and Children, 39-45. d. Dependent Parents, 46. e. By Special Act and Under General Law, 47-52. f. Miscellaneous, 53-64. III. Money improperly paid — Recovery, 65-69. IV. Pension agents, 70-74. I. Generally, a. Administration of Pension Laws. 1. Commissioner of Pensions. — Duty to ad- minister the pension laws. — It is not within the province of the accounting officers of the Treasury to construe the pension laws and give instructions to pension agents as to the payment of pensions. This properly belongs to the Commissioner of Pensions, whose duty it is, under the direction of the Secretary of the Interior, to administer these laws. 17 Op. 339. 2. Same. — There is no allusion in any of the pension laws to the accounting officers of the Treasury as having any authority to con- strue those laws, or to direct the pension agents as to the amount that shall be paid to any class of pensioners or to whom pensions shall be paid. This is matter for the super- vision and instruction of the Commissioner. The certificate and his orders as to its pay- ment are binding upon the Comptroller and Auditor. 17 Op. 340. 3. The Commissioner of Pensions is not in- vested with power to audit and adjust accounts for the last sickness and burial of deceased pen- sioners arising under section 4718, Revised Statutes. This power belongs solely to the proper accounting officers of the Treasury by virtue of section 236, Revised Statutes. 17 Op. 440. Opinion of April 28, 1882 (17 Op. 339), dis- tinguished, lb. 356 PENSIONS, I, a,, b. 4. The Attorney-General is not authorized to give to the Secretary of the Treasury his opinion as to the proper construction of a pension appropriation act, because the Treas- ury Department is bound to follow the rulings of the Department of the Interior in considering that act. 20 Op. 178. 5. Accounting officers of the Treasury no authority to disallow — Double pensions. — A person who- for a time drew two pensions, one as the widow of a soldier in the war of the rebellion and the other as the widow of a soldier in the war of 1812, was required to make an election, and having elected to hold the first-mentioned certificate, the Commis- sioner of Pensions ordered the amount which had been paid to her upon the other certificate to be withheld in installments of $6 per month from payments thereafter, and issued an order to the pension agent accordingly: Advised that the order made in this case, being within the general jurisdiction of the Commissioner, is obligatory on the pension agent, and that the accounting officers of the Treasury have no power to disallow pay- ments made by the agent pursuant thereto. 19 Op. 214. 6. Same. — It is not within the province of the accounting officers of the Treasury, upon learning of any order made by the Commis- sioner of Pensions to a pension agent for the payment of pensions, to notify such agent of what their decision will be upon his account when rendered. lb. 7 . Overpayment — Withholding amount due. — In the case stated, the whole of the monthly pension under the certificate which the pen- sioner elected to hold should be withheld until the amounts so withheld shall equal the sum paid the pensioner under the other certificate. lb. b. Application — Filing — Declaration. 8 . Application — filing. — The provision in sec- tion 4713, Revised Statutes, declaring that where an application for pension shall not have been filed "within three years of the termination of a pension previously granted on account of the service and death of the same person, the pension shall commence from the date of filing by the party prose- cuting the claim, the last paper requisite to establish the same," is applicable to half-pay pensions allowable under section 4725, Re- vised Statutes. 17 Op. 221. 9. Declaration — Limitation as to date of filing. — The proviso in section 4714, Revised Statutes, which authorizes the acceptance of a declaration to exempt a pension claim from the limitation as to date of filing provided by section 4709, a section which has been re- pealed, is to be construed as applicable to the new limitation relating thereto prescribe! by section 2 of the act of March 3, 1879 (20 Stat. 469) ; and a declaration made in accordance therewith may be accepted to exempt a claim from such limitation. 17 Op. 355. 10. Same.— Section 2 of the act of 1879 is a reenactment of the provisions of section 4709, Revised Statutes, with some modifica- tion thereof. 76., 11. Declaration — How made. — Declarations of pension claimants must be made before a court of record, or before some officer thereof having custody of its seal. 17 Op. 510. 12. Same — Court of record — How distin- guished. — The power to fine and imprison is not in this country a distinguishing mark of a court of record, but the enrolling or record- ing of their acts and proceedings is; and such court must have a seal by which its acts and proceedings are authenticated and proved. lb. 13. Application by letter — Arrears, — Where an application for a pension was made by letter, sufficient to identify the claimant and the claim, and was placed on file as a part of the record of the case before July 1, 1880, and the claim was not abandoned, but delay in its prosecution satisfactorily accounted for by sickness: Advised that (the claim being subsequently established and allowed) such application by letter is sufficient to warrant the granting of arrears of pension provided for by section 2 of the act of March 3, 1879 (20 Stat. 470). 19 Op. 190. 14. Same — Form of application. — "An ap- plication is the first regular substantial step taken by a claimant to obtain a pension. In the administration of the pension laws literal adherence to for-m or the strict pleading of the courts of law is not required. If the claimant is identified, and the time and place of his service and the injury or disease which constitute the ground of his claim are substantially set forth, the form is immaterial. Substance and merit in the application are controlling. The PENSIONS, I, c, d, e. 357 original application may be only sufficient to identify the claim and claimant, and will yet be a valid application, for it Is subject to amendment for defective statements." 19 Op. 191. c. Oaths — Fees. 15. Oaths administered free of charge. — The act of June 7, 1888 (25 Stat. 174), which provided for the administering of oaths to pensioners free of charge, applies only to the officers authorized to administer oaths at the time of the passage of that act. 22 Op. 86. 16. Same. — United States commissioners are not required to administer oaths to pensioners and their witnesses in the execution of pen- sion vouchers free of charge, the fee for which service is ten cents. lb. 17. The fees of witnesses subpoenaed under section 184, Ee vised Statutes, on application of the Pension Bureau, to testify before a United States commissioner, and also the fees of the commissioner by whom their testimony is taken, may properly be allowed out of the judiciary fund (21 Stat. 454). The former should be paid by the United States marshal of the district on the certificate or order of the com- missioner; the latter, as in ordinary course, on settlement of the commissioner's accounts at the Treasury. 17 Op. 247. 18. Pension agents — Fees for forwarding claim. — The provision of section 4769, Revised Statutes, authorizing pension agents to deduct from the fees of attorneys in each pension case 30 cents, in payment of the services of the former for forwarding the same, is re- pealed by the act of June 14, 1878 (20 Stat. 112). 18 Op. 251. 19. Suspension without notice prohibited. — The urgent deficiency act of December 21, 1893 (28 Stat. 16, 18), prohibits a suspension, with- out notice, of payments under forged or fraud- ulent pensions and prohibits further suspen- sion of payments under pensions theretofore ordered to be suspended. 20 Op. 735. 20. At the expiration of the statutory notice, however, the Commissioner of Pensions may decide the case and stop payment of the pen- sion without precluding himself from there- after reopening the case at the request of the pensioner when justice requires. lb. 21. Suspension is a continuing act. lb. 22. " The act of 1893 clearly applies to every certificate that has been lawfully granted by the Pension Office, whether the evidence upon which the office acted was complete or incomplete, honest, fraudulent, or forged. Such certificate may still, of course, be can- • celed upon charges made, but until the thirty days' notice is given, the evidence received, and a decision reached, the money must con- tinue to be paid, even though the crime has been confessed and the criminal may be already serving his term of sentence. In fact, the statute practically abolishes the right to sus- pend payments pendente lite in these cases." 20 Op. 736. e. Accrued Pensions — Sickness and Burial 23. Accrued pensions. — The term "accrued pensions," as used in section 4718, Revised Statutes, means the amount of money unpaid by the Government to which a pensioner, or a person who had a valid claim for pension pending, was entitled at the time of his death. 19 Op. 1. 24. Check not cashed or transferred not pay- ment. — The receipt by a pensioner of a check for the amount due him on his pension, which was indorsed but not transferred by him in his life-time, is not payment. lb. 25. Payment. — The amount thus due is accordingly "accrued pension," and is pay- able to those only who are entitled thereto under such section. lb. 26. Duty imposed by section 4718, Revised Statutes. — "Section 4718, Revised Statutes, imposes upon the officers of the Government the obligation to neither make nor allow to be made any payment of the ' accrued pension ' to the executors or administrators of the dece- dent for the general payment of debts or distri- bution, with the possible single exception that if they have borne the necessary ex- penses of his last sickness and burial and he shall have died without sufficient funds to reimburse them, so much of the accrued pension may be paid them as they shall have paid for those purposes. In no event can they receive any part of the 'accrued pen- sion' merely as the legal representatives, of the decedent." 19 Op. 2. 27. "Unless, then, the pension was paid to the decedent in his life-time and becamfe a part of his general assets, it can not pass to its legal 358 PENSIONS, I, e, f; II, a, b. representatives so as to be subjected to the payment of the debts of the deeedent." lb. 28. Accrued pensions. — The proviso in the act of March 1, 1889 (25 Stat. 782), authorizing payment to a deceased pensioner's legal repre- sentatives, in certain contingencies, of the accrued pension due on his pension certificate at the time of his death, is to be construed as applicable to all outstanding pension certificates, whether issued before or since the passage of the act, but the pensioner must have died since the passage of that act to entitle his legal rep- resentatives to claim such accrued pension. 19 Op. 359. 29. Sickness and burial expenses. — The Com- missioner of Pensions has no power to audit and adjust accounts for the last sickness and burial of deceased pensioners arising under section 4718, Revised Statutes. This power belongs solely to the proper accounting officer of the Treasury by virtue of section 236, Revised Statutes. 17 Op. 440. 30. Same. — There is no ground whatever for holding that section 4718 was intended to restrict or qualify the declaration contained in section 236, that all demands and accounts whatever against the Government shall be audited and adjusted in the Treasury. lb. 31 . Accrued pension — Burial expenses of de- ceased pensioner. — 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 sick- ness and for the burial of a deceased pen- sioner who died not leaving sufficient assets to meet such expenses. 23 Op. 428. 32. Accrued money benefits due deceased beneficiary — Naval pension fund. — There is no authority of law for the payment to the personal representatives of a deceased beneficiary of money benefits which may have accrued under sections 4756 and 4757, Revised Stat- utes, between the date of the last quarterly payment and the date of death; nor may such money be paid to the Naval Home in cases ■where the beneficiary has been cared for and subsisted by that institution between the date of the last quarterly payment and the date of death. 25 Op. 85. See also II, 39; and Tkeasuby Department, 131, 132. * f. Miscellaneous. 33. Permanent disability. — A disability may properly be said to be permanent when it appears to be chronic or of indefinite future duration. 21 Op. 287. 34. Same — Termination. — The granting of a pension for "permanent specific disability" does not necessarily imply an adjudication that the disability is one which can not termi- nate, lb. ' II. Bight to. a. Officers on Retired IAst. 35. Can not draw both pension and pay. — In view of long established departmental practice, the provision of section 4724 of the Revised Statutes " that no person in the Army, Navy, or Marine Corps shall be allowed to draw both a pension as an invalid and the pay of his rank or station in the service " should not be held applicable to an officer upon the retired list prior to August 29, 1890. 21 Op. 408. 36. Same — Arrears. — Under the pension appropriation acts of August 20, 1890 (26 Stat. 370), and March 3, 1891 (26 Stat. 1081), no. pen- sion moneys can be drawn by retired officers of the Army, Navy, or Marine Corps after the date of the former act, but these two statutes are not to be given a. retrospective ef- fect so as to cut off arrears aleady due. lb. 37. Same — Not entitled to arrears. — A re- tired officer of the Army is not entitled to draw an invalid pension or arrears of pen- sions. (Opinion of Sept. 11, 1886, 21 Op. 408, reversed. ) 21 Op. 453. b. Navy Pensions. • 38. Officers or seamen of revenue cutters. — The revenue cutters employed in carrying out the order issued by President Lincoln to the Secretary of the Treasury, dated June 14, 1863, were, while so employed, cooperating with the Navy by order of the President; and if any of the officers or seamen thereof, during such employment, were wounded or disabled in the discharge of their duty, they became entitled to be placed on the Navy pen- sion list at the same rate of pension and under PENSIONS, II, c, d, e. 359 the same regulations and restrictions as are provided by law for the officers and seamen of the Navy. 19 Op. 505. See also 32. c. Widows and Children. 39. Daughter — Mother deceased after daugh- ter attained age of sixteen. — T. died while his application for pension was pending, leaving a widow arid a daughter under 16 years of age; the mother died after the daughter at- tained the age of 16 years; and subsequently the pension was allowed and a certificate therefor issued : Held that under section 4718, Revised Statutes, the daughter is entitled to the pension which had accrued up to the death of the father. 17 Op. 190. 40. Same. — "The purpose of the statute was to give the accrued pension to the widow or the child; and in my opinion, at the death of the father, each acquired a distinct con- tingent interest; the widow's being contin- gent on her survival until allowance and payment, the child's being contingent on the death of the mother prior to, and its own survival until, payment." lb. 41. Surviving child of pensioner, widow dead. — Under section 4702, Eevised Statutes, the surviving child of a pensioner (the widow and other children being dead) is entitled to the whole of the pension to which the father would he entitled were he living. 17 Op. 339. 42. Eight of children.— '"His child or children,' one or many, 'shall be entitled.' It is clear that the whole is given to the off- spring of the father as a class. N If there is more than one child, they have a joint estate, so to speak, in the pension. The statute dis- poses of the whole. No part of it reverts or •falls back to the Government until the last child arrives at the age of 16 years or until his death before reaching that age." lb. 43. A widow's pension, provided for by section 4702, Eevised Statutes, is limited to the amount given for " total disability" by section 4695, Revised Statutes. 18 Op. 39. 44. The claim of Mrs. Burnett for a pen- sion, as widow, considered in connection with the acts of June 18, 1874 (18 Stat. 78), and June 16, 1880 (21 Stat. 281), and held that those acts did not change or increase her rights, which are still governed, as to the amount of the pension to which she is entitled, by sec- tion 4695, Revised Statutes. 18 Op. 73. 45. "The law clearly contemplates that the widow and children, as provided by the statute, shall be the beneficiaries and not the general creditors of the pensioner, and unless the pay- ment has been legally received by the pen- sioner, it is incumbent on those intrusted with the administration of the law neither to- make nor allow payment to be made to any other person." 19 Op. 5. d. Dependent Parents. 46. The first section of the act of June 27, 1890 (26 Stat. 182), entitled "An act granting pensions to soldiers and sailors who are in- capacitated for the performance of manual labor," etc., is to be regarded as an amend- ment of section 4707, Revised Statutes; and, so regarded, the word "soldier" employed therein should be construed to comprehend alsa sailor and marine — the term being used as a short expression to embrace all the persons under section 4707 whose death entitled their parents to a pension. 19 Op. 586. See also 53. e. By Special Act and Under General Laws. 47. Pensioners who were entitled but had not applied — General Burnett. — Pensioners who, under the general law, section 4698 Re- vised Statutes, were entitled to receive $31.25 per month, and consequently were entitled under the act of June 18, 1874 (18 Stat. 74), to an increase to $50 per month, but who had not applied therefor at the date of the pas- sage of the act of June 16, 1880 (21 Stat. 281), are entitled to $72 per month under the latter act. 17 Op. 327. 48 . Same. — The intent and spirit of the pen- sion act of June 16, 1880, is that those sol- diers and sailors whose present right it was at the time of its passage to demand and receive a pension of $50 a month under the law of 1874 should have the same increased to $72 per month. lb. 49. Same. — The words "now receiving" in Section 1 of the act of June 16, 1880 (21 Stat. 281), should be construed to mean now en- titled to receive. lb. 50. General Burnett's pension. — Bates of pension which should be allowed General Burnett under the general laws of March 3, 1873, June 18, 1879, and June 16, 1880, and under the special act of March 3, 1879, stated; 360 PENSIONS, II, e. f; III. and advised that two pension certificates be issued — one under the general law of June 16, 1880, the other under the special act of March 3, 1879. 17 Op. 401. 51. Same. — Where a pensioner was en- titled to, though not actually receiving, a .pension of $50 a month under a general law, and while so entitled a special act was passed giving him another pension: Held that his right under the general law did not cease or be- come merged in that granted by the special act. 17 Op. 415. 52. Same — Section 4715 Revised Statutes not applicable. — " Under the title 'Pensions,' as enacted in 1878, nothing can be so con- strued as to allow more than one pension at the same time to the same person. But subsequently, Congress having the power, stepping beyond the rule prescribed in sec- tion 4715, by a separate, independent law gives to a pensioner already entitled to a pen- sion of $50 another pension of the same amount. Section 4715 has no application to a case of this kind." 17 Op. 416. f. Miscellaneous. 53. Where a contract surgeon went aboard a steamer to proceed to the place to which he had been ordered, but before the departure of the boat, he became sick, and was removed to a hospital, where he died in a few days of typhoid fever, leaving a dependent mother, but no widow or child: Held that, under the provi- sions of sections 4692, 4693, and 4707, Revised Statutes, the dependent mother is entitled to be enrolled as a pensioner, on the ground that the deceased, when taken down with sick- ness, was "in transitu ' ' under orders. 17 Op. 457. 54. Same. — When an officer is ordered to go to a given point for duty and has set about his preparations to go, his transitus has begun. lb. 55. The professors of the Military Academy at West Point are commissioned officers of the Army, whose pay and allowances are assimu- lated to those of a lieutenant-colonel and a colonel; and in case of such disability as is described in section 4693, Revised Statutes, they are entitled to pensions at the same rate with officers of the rank of lieutenant-colonel. 17 Op. 359. 56. Volunteer not actually mustered but engaged in the service under an officer of the T/nited States. — A person who enlisted in the Forty-seventh Regiment of the Pennsylvania Militia pursuant to the President's proclama- tion for volunteers to serve for six months, which regiment was not actually mustered into service of the United States, but was en- gaged in the service of the United States un- der the command of an officer of the United States Army, has a pensionable status within the first subdivision of section 4693, Revised Statutes. 20 Op. 322. 57. Injury received not in line of duty. — Consideration of legal principles applicable to the case of a claim for pension, where the injury followed the use of abusive language of the claimant toward his assailant. 17 Op. 172. 58. Same. — If the assault on the claimant was brought on by his own misconduct, he can not be said to have been disabled while in the line of duty, and is not entitled to a pension. lb. 59. Same. — The phrase "in the line of duty," has been uniformly used in the stat- utes in defining the right to pensions. lb. 60. Same. — The question of remote or proxi- mate cause, though frequently treated as question of law, is in reality one of fact. lb. 61. Same. — If there did not intervene be- tween the contact and the injury an adequate and sufficient cause, for which claimant was responsible, he is entitled to pension. lb. 62. Same. — Claimant can not be said to be entitled to a pension unless the provocation he gave was such as to acquit the assailant in a court of law; nor on the other hand does the slightest departure from the rules of proper conduct, followed by an injury, pre- clude allowance of his claim. lb. 63. Same — Burden of proof. — A wound is such an improbable effect of duty in the serv- ice as to throw upon the applicant the burden of showing that his misconduct was not the cause of 'the injury, but if this is done with reasonable certainty the claim should be al- lowed, lb. 64. Same. — The Attorney-General's advi- sory powers do not extend to an examination of evidence to ascertain what is established by a preponderance of testimony. lb. III. Payment — Money Improperly Paid — Recovery. 65. It is, the duty of the Commissioner of Pensions, in a case where money has been PENSIONS, III, IV. 361 paid on a pension certificate alleged to have been fraudulently obtained, to furnish the Solicitor of the Treasury with all the material facts and evidence in the case at his com- mand, or which he can obtain, includinglacts and evidence with regard to certificates of deposit and mortgages that have been made and purchased with part of such money, and in every way in his power to aid in the prose- cution of such suits as may be brought. 19 Op. 210. 66. Where money was recaptured from the wife of the prisoner and he was afterwards ac- quitted. — Part of the money having been recap- tured from the wives of the parties charged, to wit, the prisoner and his accomplice, and they having been acquitted by a United States court of perjury for making false affi- davits to obtain the pension: Held (1) that the officer making such seizure acted at his own peril; (2) that no provision of law exists by which the Government can indemnify such officer in case he should be found, on a judi- cial trial, to have made a wrongful caption; (3) that retention of the money by any fu- ture officer continues subject to the same con- ditions, and does not effect a legal release from responsibility of the prior officer who made the caption; (4) that the officer would be justified in returning the money to the per- sons from whom it was taken, in which event the Commissioner of Pensions should at once report all the facts and evidence relating thereto to the Secretary of the Treasury, lb. 67. Possession is prima facie evidence of right of property, which would have to be over- thrown by evidence of fraud in obtaining the certificate, and fraud is not to be presumed, but must be clearly proven. lb. 68. The dropping of the name of the alleged pensioner from the rolls by the Secretary of the Interior, while conclusive as to future payments on the certificate, would have no retroactive effect in a judicial trial as to the right of the prisoner to such money as had been paid. lb. 69. The verdict of acquittal in the prosecu- tion for perjury does not establish the right of the pensioner to the money, nor could the pro- ceedings in that case be legally received in evidence in a civil suit. lb. See also, 71-73. IV. Pension Agents. 70. Bond. — The provision in the act of June 30, 1890 (26 Stat. 187), making appropria- tions for the payment of invalid and other pensions, etc., which requires a new bond "from all pension agents now in office," is mandatory, and applies to all pension agents then in office, without any exception what- ever. 19 Op. 581. 71. Instructions to pension agents. — It is not within the province of the accounting offi- cers of the Treasury to construe the pension laws and give instructions to pension agents as to the payment of.pensions. This properly belongs to the Commissioner of Pensions, whose duty it is, under the direction of the Secre- tary of the Interior, to administer these laws. 17 Op. 339. 72. The order of the Commissioner of Pen- sions directing a pension agent to withhold from payment installments of a pension, when the pensioner had been drawing two pensions, was within the general jurisdiction of the Commissioner, and is obligatory on the pension agent, and the accounting officers of the Treas- ury have no power to disallow payments made by the agent pursuant thereto. 19 Op. 214. 73. Same. — It is not within the province of the accounting officers of the Treasury, upon learning of any order made by the Commis- sioner of Pensions to a pension agent for the payment of pensions, to notify such agent of what their decision will be upon his account when rendered. lb. 74. Fees of forwarding pension certificate. — The provision of section 4769, Eevised Stat- utes, authorizing pension agents to deduct from the fees of attorneys in each pension case 30 cents, in payment of the services of the former for forwarding the same, is repealed by the act of June 14, 1878 (20 Stat. 112). 18 Op. 251. Artificial Limbs. See Artificial Limbs. Half-pay Pensions. See 8. Disability Incurred in the Line of Duty. See 57-63. Double Pension. See 5-7. Officers and Seamen of the Revenue- Cutter Service. See 38. 362 PENSIONS, IV— PHILIPPINE ISLANDS. Officer who was taken sick on steamer before it started, was removed to HOSPITAL, AND DIED THERE. See 53-54. Pension Examiners. See Department of the Interior, III, b, 32-36. PERIODICAL PUBLICATIONS. Duties on. See Customs Laws, IV, 190. PERMANENT COURT OF ARBITRATION. See General Arbitration Board. PERSONAL PROPERTY. Disposition of Personal Effects Found on Prisoner at Time of His Arrest. See Extradition, 10, 11. PHILIPPINE ISLANDS. 1. Citizenship. — The attitude of the execu- tive and legislative departments of the Gov- ernment has been, and is, that the native inhabitants of 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. 23 Op. 370. 2. Citizenship. — Seamen born in the Philip- pine 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. 23 Op. 400. 3. Civil service. — 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 the Philippine Islands mast be a citizen of the United States or a native in- habitant of said islands. 23 Op. 458. 4. Contract labor.— Certain natives of the Philippine Islands, not being professional actors, artists, or singers, within section 5 of the con- tract-labor law of February 26, 1885 (23 Stat. 332),' are properly excluded, unless on other grounds they may be regarded as not within the prohibition of the law. 22 Op. 495. 5. Same. — As the claim of these aliens for admission appears meritorious and no possi- ble competition with American labor will be involved, and as they will be returned to their country in due time, there is no conclu- sive objection to the Secretary of the Treasury exercising his favorable administrative discre- tion in admitting them. lb. 6. Same. — The law does not necessarily exclude all persons who do not come within its express exceptions if they are not manual laborers. lb. 7. Copyright laws. — When the Philippine Islands and Porto Rico have been duly ceded to the United States their respective inhabi- tants will not be entitled to the benefits of the copyright laws unless the treaty by its terms confers such right, or Congress shall extend such laws to the inhabitants of those coun- tries. 22 Op. 268. 8. Copyright law. — The provisions of the copyright act of March 3, 1891 (26 Stat. 1107), which requires that the two copies of books, photographs, chromos, or lithographs re- quired to be deposited with the Librarian of Congress shall be printed from type set within the limits of the United States, are not com- plied with by depositing with that officer copies of publications printed from type set within the Philippine Islands. 25 Op. 25. 9. Same — Constitution not extended. — Con- gress has not extended the copyright laws to the Philippines, but has enacted, in setting up a separate government for those islands, that section 1891 of the Revised Statutes, ex- tending the Constitution and applicable laws to organized Territories, is not to be in force in the Philippines. lb. 10. Copyright and trade-mark laws. — The Philippine Islands are not "a foreign state or nation" within the meaning of the copyright laws, and the inhabitants of those islands are entitled to avail themselves of the benefits of those laws within the United States. Opin- ion of December 2, 1898 (22 Op. 268), over- ruled. 25 Op. 179. PHILIPPINE ISLANDS. 363 11. Same. — The proviso contained in sec- tion 4956, Revised Statutes, that the two copies of books, photographs, chromos, or litho- graphs required to be deposited with the Librarian of Congress shall be printed from type set within the limits of the United States, is not complied with by depositing with that officer copies of publications printed from type set within the Philippine Islands. Opinion of July 28, 1903 (25 Op. 25), adhered to. lb. 12. Same. — The Librarian of Congress in de- termining what fees should be charged under section 4958, Revised Statutes, for the re- cording, etc., of copyrights, should treat a citi- zen or resident of the Philippine Islands as "a person not a citizen or resident of the United States." lb. 13. Same. — Owners of trade-marks who are residents of the Philippine Islands are not en- titled to obtain registration thereof under our laws, for the reason they are not "domiciled in the United States or located in any for- eign country or tribes, etc.," as required by the act of March 3, 1881 (21 Stat. 502). Opinion of February 19, 1902 (23 Op. 634), adhered to. lb. 14. Patent laws. — The Attorney-General de- clines to answer the question whether citizens of the Philippine Islands are entitled to the benefits of the patent laws of the United States, there being no case involving that question pending before the Department making the inquiry. lb. 15. Registration of trade-marks. — The Phil- ippine Islands not being organized Territories of the United States as contemplated by sec- tion 1891, Revised Statutes, the residents of those islands are not as such entitled to the privileges of the trade-mark law. 23 Op. 634. 16. Customs duties on Spanish publications. — All such Spanish scientific, literary, and ar- tistic 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 un- der the Spanish tariff in force when our Gov- ernment began to exercise authority therein, are entitled, under Article XIII of the treaty of peace with Spain (30 Stat. 1760), to con- tinue to be admitted free of import duty and of the duty or charge of 2 per cent ad val- orem for harborandcommercialimprovement 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 bind- ings, in which such works, if publications, are inclosed, provided .such bindings were previously admitted free. 23 Op. 115. 17. Manila not a foreign port. 24 Op. 28. 18. Internal-revenue tax. — Cigars shipped from the Philippine Islands to the United States are not subject to internal-revenue tax under section 3402, Revised Statutes. 24 Op. 120. 19. Same. — Prior to the passage of the act of July 1, 1902 (32 Stat. 691), the Philippine Islands were "within the exterior bounda- ries of the United States" within the mean- ing of section 3448, Revised Statutes, and subject to its provisions; but since its passage the provisions of that section have been inop- erative in those islands, section 1 of that act providing in effect that the laws of the United States shall not apply to the Philip- pine Islands. No internal-revenue tax, there- fore, can be imposed under the laws of the United States on cigars shipped into this country from the Philippine Islands. lb. 20. Head tax. — Citizens of the Philippine Islands coming to the United States from for- eign ports are not required to pay the head tax prescribed by section 1 of the act of March 3, 1903 (32 Stat. 1213). 25 Op. 131. 21. Philippine land purchase bonds. — The issue and form of bonds proposed by the Sec- retary of War for carrying out the provisions of sections 63, 64, and 65 of the Philippine civil government act of July 1, 1902 (32 Stats. 706, 707) , are in strict conformity with the statute and are legal in all respects. 25 Op. 89. 22. Same. — There is no legal objection to the Treasurer of the United States receiving the principal and interest of the Philippine land purchase bonds from the Philippine government, and distributing the same to the holders of the securities, nor to the Register of the Treasury of the United States registering and recording said bonds, pro- vided the officers in question are willing and the Secretary of the Treasury consents and approves; but there is no specific provision of law authorizing the performance of such services. 25 Op. 98. 23. Same. — As a general rule, when it is sought to exercise any official power or func- tion, explicit authority must be found in the 364 PHILIPPINE ISLANDS. law; but the application of this doctrine is not necessarily universal, and depends upon the character and relations of the particular power and all the germane circumstances. lb. 24. Same. — Suggested that Congressional action be sought to provide for the various features of expense, compensation to the Gov- ernment or its officers, official liability for the faithful performance of the trust, etc. lb. 25. Bond Issue — Validity of. — Act No. 1323 of the Philippine Commission, to pro- vide funds for the construction of sewers, etc., in the city of Manila, contemplates an issue of bonds to the amount of $4,000,000, which will be in strict conformity with the provisions of the act of July 1, 1902 (32 Stat. 708), authorizing the issuance of such bonds. 25 Op. 419. 26. Taxation — Philippine government — Power to tax gross receipts of the Commercial Pacific Cable Company. — Act No. 1189 of the Philippine Commission does not confer upon the Philippine government the power to impose a tax upon the gross receipts of the Commercial Pacific Cable Company, nor has Congress conferred upon that Commission the authority to enact a law imposing such a tax upon that company. " 25 Op. 563. 27. Same — Power to tax imports. — The Philippine government has no power, under section 139 of the internal-revenue law of 1904 enacted by the Philippine Commission, to impose a tax upon meat brought into the Philippine Islands from Australia and delivered to the United States on board its vessels in the harbor of Manila. 25 Op. 582. 28. Same. — A tax upon such a sale would be equivalent to a tax on imports, which the Philippine Commission, under the present law, have not the power to impose, lb. 29. Spanish railway concessions. — The prov- inces 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 ar- rangement with the company as to the two- thirds of the guaranteed interest which the -decree imposed upon the province. 23 Op. 181. 30. Same. — This concession of Spain is re- garded as a personal contract, binding on the parties who made it and equitably on the provinces affected thereby; but whatever ob- ligation, -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, lb. 3 1 . Same. — 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 in- debtedness which, under the decree, was to be paid from the royal or peninsular funds in the Philippine treasury. lb. 32. Same. — As Congress has not yet deter- mined the future permanent status of the islands, , the President has authority to settle this preexisting accrued indebtedness, if he be- lieves that the settlement can not justly and wisely be left to await action by the future government. 16. 33. Same. — 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 dis- charge of their equitable liability, based upon so much of the concessionary agreement as has been already executed, the amonnt of which liability he has authority to determine in view of all the facts and circumstances, lb. 34. Spanish concessions for telegraphs. — The concessions secured from Spain by English telegraph companies in Cuba and the Phil- ippines are not binding, as contracts, on the United States, Cuba, the Philippines, or other governments replacing Spain; but, as to the Philippine cables, it does not follow from this fact that no obligation whatever exists. 23 Op. 195. 35. Same. — There is an equitable obligation on the part of the four islands connected by ca- bles, and on the part of the archipelago as a whole, with regard to the concession for in- terisland cables in the Philippines, which concession provides for an annual subsidy. lb. 36. Same. — With regard to two other con- cessions 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 equit- able obligation upon the islands concerned, and upon the archipelago, though less ob- vious, exists. lb.. PHILIPPINE ISLANDS. 365 37. Same. — It is for Congress to determine whether any such obligation exists on the part of the United States. lb. 38. Same. — 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. lb. 39. Spanish railway and telegraph conces- sions—Opinions of July 26 and 27, 1900 (23 Op. 181, 195), holding that the" concessions granted by Spain to certain railway and tele- graph companies in Cuba and the Philippine Islands are not binding as contracts on the United States, Cuba, and the Philippines, or other governments replacing Spain, affirmed. 23 Op. 451. 40. The domestic postal service of the Phil- ippine Islands is under the exclusive control of the Philippine government. 24 Op. 534. 41. Official mail coming from those islands through the postal service of the United States should, however, comply with the general laws of the United States regulating the mails under the administration of the Postmaster-General. lb. 42. Government of the Philippine Islands — War Department. — Under the instructions of the President to the Philippine Commission of April 7, 1900, and the Executive order of June 21, 1901, the powers and duties thereby conferred upon the Commission and the civil governor were to be exercised under the direc- tion and control of the Secretary of War, and the act of July 1, 1902 (32 Stat. 691), in rati- fying and approving the instructions and order referred to continued this relation. The reasonable inference is, therefore, that until otherwise provided Congress intended that the government for the Philippine Islands should be regarded as a branch of the War Department. lb. 43. The penalty envelopes used for the transmission of official mail from those islands should, accordingly, bear the indorsement of the War Department. lb. 44. A patent or license granted by the Span- ish Government July 11, 1898, to a Spaniard for the manufacture of hemp by steam in the Philippine Islands for the term of five years is protected by article 13 of the treaty with Spain (30 Stat. 1760), if on that date it would, in ordinary times, have been good under Spanish law, notwithstanding American law gives no identical rights. 22 Op. 617. 45. The laws of Spain concerning industrial property were contemplated by the framers of article 13 in providing protection for Spanish rights. lb. 46. A good title can be acquired by the United States to land in the Philippine Islands required for use as military posts under either section 1 or 2 of the act of the Philippine Commission of March 5, 1903 (No. 665), the method provided by section 1 being slightly more circuitous than that provided by sec- tion 2, in that it provides for condemnation by the Philippine insular government and subsequent transfer to the United States. 24 Op. 640. 47. The Philippine government derives the power of eminent domain from section 63 of the organic act (32 Stat. 706). lb. 48. Title to land for Los Banos military post, Laguna. — The title acquired from Dona Saturnina Eizal y Alonzo to certain lands at Los Banos, Laguna, P. I., for a military post, will be good, the land in question having been made the subject of possessory proceed- ings under the royal order of February 13, 1894, and her title thereto in fee having been upheld by the decree of the court of land claims under act No. 627, Philippine Com- mission, which decree binds the land and quiets the title thereto, except as to liens, claims, or rights defined in section 39 of land registration act No. 496, Philippine Commis- sion. 25 Op. 238. 49. Same. — Under articles 2 and 42 of the mortgage law, articles 24-31 of the regula- tions thereunder, and the royal decree of November 14, 1885 r etc, nearly everything that could possibly affect the title is required to be registered, and any governmental or public claim to the land would probably be notorious. lb. 50. Jurisdiction of civil and military courts. — An officer in the Army of the United States who, while operating in the Philip- pines during the insurrection in those islands, and while the government of military, occu- pation was in force therein, committed an offense against a native of those islands, was amenable only to the laws of war, and can not be tried by the civil courts of those islands or of the United States; and having left the military service, he can not now be 366 PHILIPPINE ISLANDS— PORTO RICO. tried for the offense by a military court. 24 Op. 570. 51. Same. — A court-martial has no juris- diction over an officer after he has left the service, and a military commission has no jurisdiction to try such officer now that peace has been proclaimed in the Philippines. lb. 52. Confinement of Filipino convicted in con- sular court in China. — There is no warrant of law for confining in a Philippine prison a-Fili- pino sailor convicted in the United States consular court at Shanghai, China, of the murder of a Chinaman on the U. S. Army transport Listrom, and sentenced to fifteen years' imprisonment. 24 Op. 549. 53. Same. — Section 5546, Revised Statutes, as amended by the act of March 3, 1901 (31 Stat. 1451), or without the amendment, con- tains nothing to indicate that Congress con- sidered the home or domicile of a convict in providing for his confinement, or that in speaking of a " convenient State or Territory ' ' the Philippine Islands were in contemplation. lb. 54. Return of property and possessions taken from insurgents. — The military government of the United States at Manila should return to certain claimants all property and posses- sions taken from them by the United States in pursuance of the order of General Otis of November 25, 1898. 22 Op. 352. 55. Transportation of Spanish soldiers to Spain. — Under the treaty with Spain the United States obligated itself to convey from the Philippine Islands to Spain only such Spanish soldiers as were actually made prison- ers of war either by the United States or by the insurgents. 22 Op. 383. 56. Same. — Troops remaining under arms, under the control and direction of Spanish officers, are to be removed at the expense of the Spanish authorities. 76. 57. Navy-yard employees — Compensation on holidays. — The resolutions of January 6, 1885 (23 Stat. 516), and January 23, 1887 (24 Stat. 644), allowing pay to per diem employees "on duty in the United States," for services on certain legal holidays, do not extend to the Philippine Islands. 25 Op. 127. Philippine Prison. See 52. PHILOSOPHICAL APPARATUS. See Customs Law, 232. PINKERTON LAND CLAIM. See Public Lands, 46. PLEURO-PNEUMONIA. See Health and Quarantine, 17. FLEDGE. See Internal Revenue, II, f, (9). PNEUMATIC GUN CARRIAGE AND POWER COMPANY. See Premiums. POINT PETER, GEORGIA. History of the title of the United States to the tract of land known as "Point Peter, " situated at the mouth of St. Marys River, Georgia, given, and adverse claims to own- ership of the premises set up by one Alex. Curtis, a resident of Georgia, shown to be utterly groundless. 18 Op. 384. POLARISCOPIC TESTS. See Customs Law, 84. POLITICAL CONTRIBUTIONS. See Congress, 6; Civil Service, 9, 10. PORTLAND, OREG. See Public Buildings, 17. PORTO RICO. 1. Citizenship. — The attitude of the exec- utive and legislative departments of the PORTO RICO. 367 Government has been, and is, that the na- tive inhabitants of Porto Rico did not be- come citizens of the United States by virtue of the cession of the islands bj' Spain by means of the treaty of Paris. 23 Op. 370. 2. Same. — The act for the temporary government of Porto Rico did not confer federal citizenship upon the inhabitants of that island. 76. 3. Civil Service. — 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. 23 Op. 458. 4. 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 com- plete grant, the War Department has no author- ity to grant or complete such concessions. 22 Op. 551. 5. Same. — Under Spanish law a tramway is a railroad constructed on a public highway. lb. 6. Secretary of War — License to construct wharf. — Prior to the passage of the Porto Rican act of April 12, 1900 (31 Stat. 77), the Secretary of War had authority, under sec- tion 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 theharbor 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 fran- chises by the executive council of that island do not extend to an antecedent license granted by him. 23 Op. 551. 7. Same — Operative until revoked. — 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 ex- ecutive council. lb. 8. Copyright laws. — When Porto Rico and the Philippine Islands have bee,n duly ceded to the United States their respective inhabitants will not be entitled to the benefits of the copyright laws unless the treaty by its terms confers such right or Congress shall extend such laws to the inhabitants of those countries. 22 Op. 268. 9. Registration of trade - marks. — Porto Rico being an organized Territory of the United States, and the laws of the United States not locally inapplicable having been extended to thai island, its residents are en- titled to register trade-marks in the United States, as provided in the act of Congress of March 3, 1881 (21 Stat. 502). 23 Op. 634. 10. Customs duties. — 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 coun- try, and the President has no authority to alter or modify the laws under which such duties are required to be paid. 22 Op. 561. 11. Same. — The admission of merchan- dise into the ports of the United States from such conquered territory is governed solely by existing laws passed by Congress, and the Presi- dent has no power to add to or detract from the force and effect of such laws. lb. 12. Customs revenues — Expenditures — The President.— The act of March 24, 1900 (31 Stat. 51), which directs that certain Porto Rican customs revenues "shall be placed at the disposal of ±he President, to be used for the government now existing and which may hereafter be established in Porto Rico, and for other governmental arid 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 authori- ties" instead of the "Executive Council." 23 Op. 450. 13. Free importation of Porto Rican prod- ucts. — All articles of Porto Rican origin ex- ported from Porto Rico to foreign countries after the passage of the Foraker Act of April 12, 1900 (31 Stat. 77) , may, since the procla- mation of the President on July 25, 1901, doing away with the 15 per cent duty im- posed 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 368 PORTO RICO. condition by any process of manufacture or other means. 24 Op. 55. 14. Same — Internal revenue. — 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 lb. 15. Free importation of tobacco grown in Porto Bico. — Tobacco grown in Porto Rico after the cession of that island to the United States and brought into this country for warehousing, and afterwards exported to Canada and thence returned to the United States, is within the benefits of paragraph i83 of the act of July 24, 1897 (30 Stat. 195), but subject to the internal-revenue tax provi- sions of section 3 of the act of April 12, 1900 (31-Stat. 77). 24 Op. 612. 16. Native Porto Bican, an American artist — Free entry of paintings. — 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) . 24 Op. 40. 17. Storage charges, etc., collected in Porto Bico. — Storage charges, fines, penalties, and forfeitures, and other collections, not duties or taxes, made by customs officers in Porto Rico in the administration of the customs laws, should be deposited to the credit of the Treasurer of the United States. 24 Op. 621. 18. Exhorto or letter rogatory. — 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, P. R., to the judge, tribunal, or court of justice in New York, requesting the latter to order cer- tain persons in that State to appear as defend- ants in an action instituted in said tribunal. 23 Op. 112. 19. Fortifications act — Bange finders. — The appropriation contained in the fortifications act of May 25, 1900 (31 Stats. 183, 184), for the installation of range and position finders may be used for the installation of these instru- ments in Porto Rico. 23 Op. 390. 20. Head tax — Immigration fund. — 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 passen- gers arriving at ports in the United States. 24 Op. 86. 21. Same — Immigration act. — Section 14 of the act of April 12, 1900 (31 Stats. 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). lb. 22. National banks. — 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. 23 Op. 169. 23. Publiclands and property in Porto Bico. — 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 Departments of the Government. 22 Op. 545. 24. Same. — 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. 15. 25. Same. — The grant of such 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. lb. 26. Public lands of. — 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. 24 Op. 8. 27. Remission of taxes — Orders of the gov- ernor-general. — 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 govern- ment. 23 Op. 167. 28. Same. — The action of the governor in approving each specific remission is purely executive and administrative and in no sense legislative. lb. 29. Same — Governor — Bules and regula- tions. — The governor has power to establish PORTO RICO. 369 rules and regulations governing the submis- sion 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 estab- lishment of certain facts, lb. 30. Franchises — Exemption from taxation by executive council. — 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 fran- chises respecting the public utilities of that island did not confer upon it the other sover- eign power of taxation, including the author- ity to exempt from taxation. 23 Op. 490. 81. Same. — The power to grant franchises and the power to tax are different and distinct things. The power of taxing or of exempt- ing franchises from taxation can not be re- garded 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. 76. 32. Same. — The action of the executive coun- cil, 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. 76. 33. Same. — As the franchises granted to the Compania de los Ferrocarriles de Puerto Rico and the Port America Company by the execu- tive council of Porto Rico and approved by the governor thereof provide that the exemp- tion from taxation therein granted "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 ap- prove the franchises. 23 Op. 581. 34. 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. 24 Op. 122. 35. River beds or channels. — 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 innavigable, to the extent covered by the waters in their ordinary greatest swells. 22 Op. 546. 36. River Plata — Use of water power. — In the absence of authority from Congress, 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. lb. 37. Same. — 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. lb. 38. 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. 23 Op. 551. 39. 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. 1 754 ) , must be regarded as immediate and absolute from, the date of its signature, subject only to the possibility of a failure of ratification. lb. 40. Culebra Islands. — Under the treaty of peace with Spain (30 Stat. 1755) , the Culebra Islands constitute a part of Porto Rico. 23 Op. 564. 41. Same — Local control of "harbor shores, docks, Blips, and reclaimed lands." — 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 administra- tion of certain public property and utilities, including "harbor shores, docks, slips, and reclaimed lands," but excluding "harbor areas or navigable waters." 76. 42. Same — Retrocession of part needed for United States naval station. — 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 18456—08- -24 370 PORTO RICO. part of the Culebra Islands as may be needed for a naval station. lb. 43. Same — Assignment by President not warranted. — 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 in- volves harbor shores, or any other branch of the rights and property committed by sec- tion 13 of the act of April 12, 1900, to the ad- ministration of the government of Porto Rico. lb. 44. Naval reservation — Shore line. — By proclamation of the President of June 26, 1903; the following-described lands were re- served for naval purposes: "All public lands, natural, reclaimed, partly reclaimed, or which may be reclaimed in the island of Porto Rico, embraced within the following boundaries." The boundaries to the north and west are definitely described. On the south it was to be bounded by " the shore of the harbor, and to extend east 2,400 feet, more or less, to in- clude 80 acres. " The eastern boundary was not defined: ifcMthat this area can not be made up in part of submerged lands or harbor areas which may be reclaimed, but that the southern boundary should run along the present shore of the harbor, extending as far easterly as is necessary to include 80 acres within the area described. 25 Op. 172. 45. Same. — The word "shore," in Spanish law, means that space of land which the waters in the movement of the tide alter- nately cover and uncover, the limit of the inner or land line being at the point of the highest equinoctial tides. Where the tides are perceptible, the shore line begins on the land side of the line reached by the waters in storms. lb 46. Same. — The " seashore," in the United States, is that space of land on the border of the sea which is alternately covered and left dry by the rising and falling of the tide; the space of land between high and low water mark. lb. 47. Navigable waters — Jurisdiction. — The United States may establish aids to naviga- tion on submarine sites under navigable waters of Porto Rico without cession of juris- diction having first been made by Porto Rico to the United States. 25 Op. 166. 48. Title of United States to Cabras Island. — The facts , contained in a certificate of the record by the registrar of property at Hu- macao are sufficient evidence that the United States will, upon the purchase thereof, ac- quire from the grantors a good and unen- cumbered title to Cabras Island, Porto Rico. 25 Op. 226. 49. Same. — The conveyance should be to the "United States of America" instead of to the " Department of LiglnvHouses of the United States." lb. 50. Title to Miranores Island.— The United States possesses a valid and complete title to the whole of Miraflores Island. That island did not belong to Porto Rico before the ces- sion, and by the treaty of peace title to it was transferred by Spain to the United States. 25 Op. 193. 51. 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 ratifica- tion. 23 Op. 551. 52. Bent of post-office building at San Juan — Demand of the insular government. — The Post- master-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 Gov- ernment and came into the possession of the United States with the cession of Porto Rico. 23 Op. 571. 53. Same— Ownership of public buildings, etc. — 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 the existing laws, not decided. lb. 54. Schoolhouses. — The act of April 12, 1900 (31 Stat. 77) entitled "An act tempo- rarily to provide revenues and a civil gov- ernment 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, PORTO RICO-POSTAL NOTES. 371 the revenues collected on importations there- from prior to January 1, 1900. 23 Op. 329. 55. Same. — The President may lawfully direct that a portion of the latter appropria- tion be used for the purpose of erecting and equipping schoolhouses in that island. lb. 56. Nationalized Porto Bican vessels. — Sec- tion 12 of the act of June 26, 1884 (23 Stat. 56), which provides that consular officers rendering official services to American vessels and sea- men, 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 serv- ices rendered to nationalized Porto Rican vessels. 23 Op. 414. 57. Same. — 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 con- ferred upon them the benefits of the act of 1884. lb. 58. A Porto Bican engaged in the occupa-. tion 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. 23 Op. 400. Affirmed. 23 Op. 414. 59. Marine-Hospital Service — Eligibility of citizen of Porto Bico. — The question as to whether or not a citizen of Porto Rico, legally a resident of New York, is eligible for appointment in the Marine-Hospital Serv- ice under a departmental regulation which requires the applicant to be a citizen of the United States, or, if of foreign birth, to fur- nish proof of American citizenship, does not - involve any question of law within the mean- ingof section 356, Revised Statutes, and there- fore is not one properly calling for an opinion of the Attorney-General. The requirement not being demanded by law, its interpretation may properly be left to the department or bureau responsible for its existence and exe- cution (18 Op. 521, 20 Op. 649, 21 Op. 255, followed). 25 Op. 183. POSSE COMITATES. Troops of the United States can not, without violating the provisions of section 15 of the act June 18, 1878 (20 Stat. 152), be employed as a posse comitatus to aid the United States marshal or his deputies in arresting certain persons in the State of Kentucky charged with robbing an officer of the Government. 17 Op. 71. See also Indian Territory, 9. POST EXCHANGE. See Army, I, e. POST-OFFICE BUILDINGS. See Public Buildings. POSTAGE. See Postal Service, V. POSTAL CONVENTIONS. See Treaties and Conventions, 62-70. POSTAL GUIDES. i See Post-Office Department, 1-3. POSTAL NOTES. See Postal Service, 150. 372 POSTAL SERVICE, I, II, a. POSTAL SERVICE. I. Laws and Regulations, 1-3. II. Officers and Employees. a. Postmaster- General, 4-26. b. Postmasters and Assistant Postmas- ters, 27-46. c. Clerks and Employ ees, Carriers, etc., 47-57. III. Transportation and Delivery. a. In General, 58-66. b. Bids, Contracts, Subletting, Annul- ment, etc., 67-84. c. Compensation, Allowance, Deduc- tion, Suspension, etc., 85-100. d. Delivery — Free Delivery, 101-109. IV. Mailable and TJnmailable Matter, 110-111. V. Postage, Postage Stamps, 112-130. VI. Official Mail — Penalty Envelopes — Frank- ing Privilege, 131-141. VII. Registered Mail, Money Orders, etc., 142- 152. VIII. Foreign Mail, 153-156. IX. Printing or Purchase of Postal Matter — Envelopes, 157-160. X. Civil Service, 161-164. XI. Miscellaneous, 165-170. I. Laws and Regulations. 1. Section 1019 of the Postal Regulations (edition of 1887) can not prevail over, but must yield to, the subsequently adopted amendment of clause 5 of Railway Rule II, adopted August 19, 1889, which excepts from examination clerks in the Railway Mail Serv- ice who are "employed exclusively as porters in handling mail matter in bulk, in sacks, or pouches, and not otherwise," which clause should be strictly confined to the class of transfer clerks therein mentioned. 19 Op. 583. 2. Section 1099 of the Postal Laws and Regulations is not annulled by the act of March 17, 1882 (22 Stat. 29), which authorizes the Postmaster- General to grant relief to post- masters for the loss of money-order funds in certain cases. 18 Op. 369, 3. Sections 3985 and 3993, Revised Stat- utes, with regard to the carriage of letters by other than Government agencies, are not in derogation of common right. They are reve- nue laws and are not to be strictly construed, though they impose penalties. 21 Op. 394. See also Lottery. II. Officers and Employees, a. Postmaster-General. 4. Bidders for mail contracts. — The Post- master-General may require from the bidder for mail contract conformity to all proper and rea- sonable administrative regnlations of the Post- Office Department; and if the bidder neglects to conform thereto, his bid may be rejected. 17 Op. 285. 5. Bid for mail contract accompanied by worthless bond. — Where the Postmaster-Gen- eral is satisfied, from reliable information, that the bond accompanying a bid for a mail contract is worthless and therefore unac- ceptable, he may and should treat the bid as though it were unaccompanied by a bond. 17 Op. 293. 6. Same. — The statutory requirements rela- tive to bids for mail contracts, by which, inter alia, every proposal must be accompanied by a bond with sureties, are intended for the protection of the Government against worthless bids. lb. 7. The Postmaster-General should adver- tise for proposals for the work of engraving and printing United States postage stamps, for which work the Bureau of Engraving and Printing may be permitted to compete. 22 Op. 40. 8. Mail transportation— Compensation — Re- duction in speed. — The act of April 7, 1880 (21 Stat. 71), places no restriction upon the Postmaster-General as to the compensation to be allowed for the transportation of mail when a reduction in speed below the con- tract rate is proposed. In such cases he is at liberty to act as in his judgment the good of the service and the interests of the public may demand. 17 Op. 240. 9. An order made by the Postmaster-Oeneral suspending pay of a mail contractor, for fraudu- lent representations, is entitled to every rea- sonable presumption to support it, and should not be vacated by a successor in office on un- supported application for that purpose, or where no substantial ground is shown for the application. 20 Op. 281. POSTAL SERVICE, II, a. 373 10. The principle of res adjudicata applies to departmental action of a final nature. lb. 11. Accounts for mail transportation — Audit. — It is not incumbent upon the Post- master-General to have an account for mail transportation performed in July, 1876, aud- ited in favor of the Lake Superior and Mississippi Railroad Company, until satis- factory evidence is presented that the com- pany has maintained its existence and that there are proper officers to receive and re- ceipt for the money. 18 Op. 129. 12. Lottery — Return of registered letters. — Until the Postmaster-General has found, upon evidence satisfactory to himself, that any lottery, gift enterprise, or scheme is a means of fraudulently obtaining money through the mails, he is not authorized to instruct postmasters to return registered letters or to forbid them to pay money orders because the same are addressed or made payable to an individual conducting such lottery, gift enter- prise, or scheme. 18 Op. 325. 13. Fraud orders — Denial of mail facilities. — The acts of September 29, 1890 (26 Stat. 466), and March 2, 1895 (28 Stat. 964), for the suppression of lotteries, are constitutional and empower the Postmaster-General to deny all mail facilities to those engaged in any of the classes of business described therein. 21 Op. 314. 14. Fraud orders. — The Postmaster-Gen- eral is legally justified in issuing a fraud or- der against the People's United States Bank, of St. Louis, Mo., under the facts set forth in the papers submitted, which show that by the published false representations of its officers', acquiesced in and accepted by the bank, it is conducting a scheme or device for obtaining money through the mails by false and fraud- ulent pretenses. 25 Op. 503. 15. Same. — The evidence upon which a fraud order may issue must, under section 3929, Revised Statutes, as amended, be satisfactory to the Postmaster-General, and when he is satisfied, it lies within his discretion to issue or not issue the order. lb. 16. No power to make the tops of letter boxes authorized depositories for mail — The Post- master-General can not by an order to letter carriers directing them in regard to the col- lection of papers which they may find upon the outside of letter boxes, make the tops of those boxes authorized depositories for mail matter. 17 Op. 524. 1 7 . Indemnity for foreign mail. — The act of February 27, 1897 (29 Stat. 599) , authorizes the Postmaster-General to establish, as part of the system of registration, rules providing for indemnity for foreign as well as domestic first- class registered matter lostinthemail. 22 Op. 290. 18. Indemnity on foreign mail. — Until Con- gress shall otherwise provide with reference to indemnity for lost registered mail the Post- master-General may either pay the limited indemnity on foreign matter, as provided in the actof February 27, 1897 ( 29 Stat. 599), irre- spective of what other countries may do, or so amend the rules of the Department as to limit the indemnity to lost registered matter origi- nating in and addressed to a place within the United States. 22 Op. 363. 19. Postal conventions — Authority to con- clude. — The Postmaster-General has power, under section 398, Revised Statutes, with the approbation of the President, to conclude a postal convention with a foreign country for admission to and transmission through the mails exchanged with such foreign country of parcels of mail matter of either class ex- ceeding 4 pounds in weight. The limitation as to weight of mail packages in section 3879, Revised Statutes, applies only to domestic mail service. 19 Op. 39. 20. Same. — Section 398, Revised Statutes, relates to foreign, and section 3879 to domes- tic, mail service. 19 Op. 39, 42. See also Treaties and Conventions, 64-70. 21. Eent of post-office building at San Juan, Porto Rico. — The Postmaster-General may properly refuse the demand of the insular govern- ment of Porto Rico for rent for the post-office building at San Juan, which belonged to the Spanish Government and came into the pos- session of the United States with the cession of Porto Rico. 23 Op. 571. 22. Detail of registry clerk to the White House. — The Postmaster-General had no au- thority to detail a registry clerk from the Wash- ington post-office on detached service at the White House; and the accounting officers of the Treasury having refused to allow credits to the postmaster for salary paid such clerk for the period covered by the detail, that officer must be remitted to Congress for an appropriation for his relief. 25 Op. 302. 374 POSTAL SEEVICE, II, a, b. 23. ■ Return Postage Clearing Company. — The Postmaster-General is without authority to put into operation the plan of the Return- Postage Clearing Company, designed to re- lieve advertisers and others from paying post- age on return cards and envelopes until they are actually deposited in the mails and reach the office of destination, and giving to that company the exclusive control of the sale of such return envelopes and postal cards, for the reason that its adoption would violate the spirit and also the letter of many of the pro- visions of the postal laws. 25 Op. 354. 24. Cancellation of postage stamps — Change ef ink. — The Postmaster-General is authorized by the act of June 20, 1878 (20 Stat. 240), to substitute, for the black printing inks and writing fluids used under section 721, Postal Regulations, any canceling ink which/is uni- form and which actual experiment and test have shown to his satisfaction to be best cal- culated to guard against fraud, and to order its use in all post-offices where stamps are canceled. 18 Op. 131. 25. Postal Guide. — The determination of what shall be the contents of the Postal Guide rests entirely with the Postmaster-General. 19 Op. 521. 26. Telegraph. — The power given the Post- master-General to contract for carrying the mail does not include authority to contract for sending messages by telegraph for the benefit of the people at large. Mail matter as defined by statute, does not include telegraphic corre- spondence as such. 19 Op. 650. Purchase of Records of the Postal De- partment of the Late Confederate- States. See Post-Office Dept. 12. Relief of Postmasters for Loss of Money' Orders and Funds. See Postal Service, II, b. See also Copyright, 10; Ocean Mail Serv- ice, 3; Treaties and Conventions, 68. b. Postmasters — Assistant Post- masters. 27. Oath. — " While postmasters in common with all other officers of the United States except the President, are now required to take the oath of office prescribed in section 1757, Revised Statutes, they are not exempted from taking the oath prescribed by the act of March 5, 1874 (18 Stat. 19), relative to the per- formance of duties in the postal service, but must take this also. " 18 Op. 182. 28. Bond — Sureties. — The responsibility of sureties on the bond of a postmaster whose com- mission expired at the close of a session of the Senate which failed to act on his renomina- tion, will continue for sixty days thereafter under the provisions of section 3836, Revised Statutes, unless the vacancy is sooner sup- plied by the act of the President or the Post- master-General. 20 Op. 447. 29. The sureties can lawfully assume pos- session of the post-office and the Government property therein, and depute one of their num- ber or another person as acting postmaster, to perform the duties of the office until a suc- cessor is appointed and takes possession, lb. 30. Suspension — Appointment of special agent to take charge of office. — Section 3836, Revised Statutes, under which in certain cases a special agent may be put in charge of a post-office, does not apply to the case of a suspension of a postmaster by the President under section 1768, Revised Statutes. Such a^ent might, of course, be designated by the President, but he would be required to give bond as required by the latter section. 17 Op. 475. 31. Expiration of the commission of a post- master whose office is reduced in grade. — Where, as under the act of March 3, 1883 (22 Stat. 600), a post-office of either the first, second, or third class (allofwhich classes are filled by appointment by the President) is by law re- duced to a post-office of the fourth class (which is filled by appointment by the Post- master-General), the commission of the then incumbent, though he may not have served out the term for which he was appointed, expires, and a new appointment (by the Post- master-General) becomes necessary. 18 Op. 271. 32. To entitle a postmaster to receive com- pensation for issuing and paying money orders under the provisions of section 4047, Revised Statutes, he must earn it by performing the service himself or having it performed by a clerk or agent employed and paid by him for that purpose. 17 Op. 627. 33. Salaries.— The act of March 8, 1888 (22 Stat. 487), merely directs the readjust- ment of the salaries of postmasters . to be made in accordance with the preexisting law, leaving the meaning of the latter to be POSTAL SERVICE, II, b. 375 determined in the usual and proper methods. 17 Op. 658. 34. Same. — By that act the Postmaster-Gen- eral is required to make, on behalf of an appli- cant thereunder, the adjustment or readjust- ment of salary which he may claim and be found to have been entitled to, at any one or more of the biennial periods since the act of July 1, 1864 (13 Stat. 335), under the latter act as amended by the proviso added thereto by the act of June 12, 1866 (14 Stat. 59), crediting the applicant with any difference in his favor between the amount of the salary so readjusted for the prospective biennial period and the salary paid to him for the time of his service in such period, lb. 35. The readjustment of postmaster's ac- counts directed by the acts of July 1, 1864 (13 Stat. 335), June 12, 1866 (14 Stat. 59), and March 3, 1883 (22 Stat. 487), takes effect in all cases prospectively. These acts do not warrant the readjustment of a claim for a, retrospective settlement. 18 Op. 17. Opinion of February 13, 1884 (17 Op. 658), referred to and explained. lb. 36. Postmasters' accounts in the custody of the Auditor of the Treasury for the Post-Office Department are papers in the Treasury De- partment, within section 1076, Revised Stat- utes. 20 Op. 677. 37. Belief of postmasters for loss of money- order funds.— The act of March 17, 1888 (22 Stat. 29), which authorizes the Postmaster- General to grant relief to postmasters for the loss of money-order funds in certain cases, does not annul the requirements of regulation 1099 of the " Postal flaws and Begulations," whereby the postmaster is to make good the loss should he fail to comply with such regu- lation. 18 Op. 369. 38. Same. — Nor is the Postmaster-General at liberty, so long as the regulation is in force, to disregard it in a case where he is satisfied that the postmaster had in fact remitted the money lost, but did not have the remittance witnessed as the regulation requires. 26. 39. Same. — The authority to credit post- masters with lost remittances being limited by the act of 1882 to cases where the remit- tance is made "in compliance with the in- structions of the Postmaster-General," such compliance forms a necessary element in each case to bring it within the statute. lb. 40. Credit for amount of funds stolen. — The act of September 30, 1890 (26 Stat. 525), di- recting the Postmaster-General to credit a certain sum to the account of a postmaster named therein, being the amount of certain postal funds stolen from his office, is manda- tory and leaves no discretion to the.Postmaster- General. 20 Op. 315. 41. Postmaster's liability for money paid for clerk hire where no service was rendered. — The Attorney-General declines to express an opinion as to the liability of the postmaster at Baltimore, Md., for a sum of money paid by him to a former clerk in the Baltimore post-office, and for which no service was per- formed, for the reason that the question is essentially a judicial one, amounting to an in- quiry whether in regular legal proceedings a court and jury would hold that officer liable. Advised, however, that the circumstances may be regarded as showing a prima facie case of liability, and calling for action in the way of securing a judicial determination of the ques- tion of liability. 25 Op. 97. 42. A postmaster can not lawfully refuse to receive and forward registered packages ad- dressed to lottery companies or persons de- scribed as agents, officers, or managers there- of; nor can he lawfully refuse to issue money orders payable to such companies or to persons described in the orders as agents, officers, or managers thereof. 18 Op. 307. See also Lottery. 43. An Indian residing in the Indian Ter- ritory, who is a member of one of the tribes there and not a citizen of the United States, and as such subject to tribal jurisdiction, is not eligible to appointment as a postmaster ; he being incompetent, in contemplation of law, to take the required oath of office. 18 Op. 181. 44. Same — Official bond. — It is also doubt- ful if such Indian would be competent to give the required official bond. lb. 45. Assistant postmaster — Bemoval. — An assistant postmaster can only be removed by that authority which by law is vested with his appointment. 17 Op. 475. 46. Assistant postmaster — Dishonest — Lia- bility of Government or of postmaster.— Where a person placed money in the hands of an assistant postmaster for the purchase of "special request envelopes," but the latter gave no receipt therefor, did not order the 376 POSTAL SERVICE, II, b, c. envelopes, and appropriated the money to his own use — the postmaster having no knowl- edge of the receipt of the money at the time, and not being chargeable with any negli- gence in the matter: Held that the person who paid the money to the assistant post- master has no claim upon the Government for the envelopes, and that the postmaster is under no liability for the. money so paid to his assistant. ■ 17 Op. 526. c. Clerks and Employees, Carriers, etc. 47. Classification of— Duty of Postmaster- General. — The authority conferred upon the Postmaster-General by the act of March 2, 1889, chapter 374, to classify and fix the sala- ries of the clerks and employees in first and second class post-offices is not merely discre- tionary with him. It imports a duty to make the classification of such salaries which is provided for in the act. 19 Op. 324. 48. liability of surety on bond of dishonest postal elerk. — AVhere 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 faith- fully discharge all duties and trusts imposed on him either by law 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. 23 Op. 476. 49. Same — Extent of liability. — 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 f 10. lb. 60. Same — Eemedies of the "United States Government. — The Government, as intrusted with a commodalum, so to speak, by the sen- der of a letter, and as parens patrise, 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. lb. 51. Same — Duty of the United States Gov- ernment. — 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 embezzle- ment, and is equally bound in conscience, as the statutes recognizes, to return to the owner of a registered letter the entire amount thus recovered. lb. 52. Railway postal clerks — Appointment — Qualification after civil-service rules requiring examination became operative, — A railway postal clerk who was appointed by the Post- master-General on April 29, 1889, without hav- ing undergone a civil-service examination (none being then required for such appoint- ment), but who did not take the oath of office and enter upon its duties until May 18, 1889, which was after the civil-service rules for the Railway Mail Service went into effect requir- ing an examination thereunder as a prelimi- nary to making an appointment like the above: Held to have been legally appointed on April 29; that his appointment was com- plete on that date, although he did not qualify by taking the oath of office until afterwards; and that no examination under the civil-serv- ice rules was required in his case. 19 Op. 410. 53. Bailway transfer clerks not exempted from examination as porters. — The appoint- ment of certain railway transfer clerks, who had not been examined and certified for ap- pointment by the Civil Service Commission, was not within the amendment of clause 5 of Railway Rule II, adopted August 19, 1889, which excepts from examination clerks in the Railway Mail Service who are "em- ployed exclusively as porters in handling mail matter in bulk, in sacks, or pouches, and not otherwise," such appointees being clerks and not porters as above described. 19 Op. 583. 54. Same. — Section 1019 of the Postal Regu- lations (edition of 1887) can not prevail over, but must yield to, the subsequently adopted amendment of said clause 5, which should be strictly confined to the class of transfer clerks therein mentioned. lb. 55. Carriers — Reinstatement. — In the ex- ercise of his discretion the Postmaster-General abolished the free-delivery service at Huron, S. Dak., on January 15, 1895, and in consequence POSTAL SERVICE, II, c; III, a, b. 377 certain carriers were separated from the serv- ice: 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. 22 Op. 663. 56. Special agent. — Section 3836, Revised Statutes, under which in certain cases a special agent may be put in charge of a post-office, does not apply to the case of a suspension of a postmaster by the President under section 1768, Revised Statutes. Such agent might, of coarse, be designated by the President, but he would be required to give bond as required by the latter section. 17 Op. 475. 57. Special agent. — -"It is plain, from the reading of section 4017, Revised Statutes, that Congress intended to establish by it a distinc- tion between the two cases of a special agent in the service of the Post-Office Department and drawing an annual salary and a special agent as "actually employed" in that service, and for that reason entitled to a per diem allowance." (OUter). 20 Op. 423. III. Transportation and Delivery. a. In General. 58. The public interest requires that the Government should have a monopoly of the business of carrying letters, etc. 21 Op. 395. 59. Transportation of letters by railroads, outside of the mails. — A railroad company has the right to carry outside of the mails and not in Government stamped envelopes letters and packets relating to the business of the railroad on which they are carried, but it has no right to transport letter's for third persons. This right includes letters written sent by the officers and agents of the railroad company which carries and delivers them, about its business, and these only. They may be letters to others of its officers and agents, to those of connecting lines, or to anyone else, so long as no other carrier intervenes, lb. 60. Same. — Letters of a company addressed to officers or agents of a connecting line on company business and delivered to an agent of the latter at the point of connection may be carried by the latter to any point on its line, because such letters become its own on receipt'by any one of its agents, lb. 61. Same. — Any company, or any officer or employee thereof, carrying letters which are neither written by that company nor addressed to it, is liable to the penalties imposed by law. lb. 62. Same.— The officer or agent of the per- son or company sending letters to be carried contrary to law is, it seems, also liable, lb. 63. Same. — A railroad company may not carry letters from one of its connecting lines to another although they relate to through busi- ness over the lines of all. Such letters do not " relate to its business" within the meaning of the postal regulations. 26. 64. Same. — The expression "privatehands," in section 8992, Revised Statutes, was intended to cover all except common carriers on post routes. Neither the latter nor their em- ployees can be considered as " privatehands" under this section, and if they could be, the express or implied obligation of railroads to carry letters for each other to remotely con- necting lines would amount to "compensa- tion" within the meaning of the statute. lb. 65. Same. — The denial of the right of rail- road companies to carry letters between other companies with whose lines their own con- nect applies also to the carrying of letters by railroad companies for companies, corporations, or private individuals, operating car lines, transportation lines, hotels, restaurants, or any class of business that may either be connected with or not connected with the railroad proper, lb. 66. Same. — Railroad companies can not set up any " common right " against the conditions which the law incorporates in their contracts with the Government. lb. Transportation of Officers and Agents of the Postal Service. See Railroads, IV. b. Bids, Contracts, Subletting — Annulment, etc. 67. Bidding — Conformity with Department regulations. — The Postmaster-General may require from the bidder for a mail contract conformity to all proper and reasonable ad^ ministrative regulations of the Post-Office Department; and if the bidder neglects to conform thereto, his bid may be rejected. 17 Op. 285. 68. Same. — An erasure and interlineation in a bond increasing the amount of the penalty does not invalidate that instrument 378 POSTAL SERVICE, III, b. or impair its legal- effect, if in fact it "was made prior to its execution. lb. 69. Same. — The attestation of witnesses to a bond is merely for convenience of proof. The law does not require such witnesses, but it is expedient and safe always to require them. lb. 70. Same. — If any material change is made in a bond subsequent to its execution, the in- strument is thereby rendered void, unless it can clearly be shown that after the change the parties assented to it, and still acknowl- edge the signing and sealing to be their act. lb. 71. The statutory requirements relative to bids for mail contracts (by which, inter alia, every proposal must be accompanied by bond with sureties) are intended to protect the Government against imposition through worthless bids. 17 Op. 293. 72. Same. — Where such requirements are conformed to in point of form, but the Post- master-General is satisfied, from reliable in- formation, that the bond is worthless and therefore unacceptable, he may and should treat the bid as though it were unaccom- panied by a bond. lb. 73. Same — Law contemplates an acceptable bond, — The provision in section 3949, Re- vised Statutes, that contracts "shall be awarded to the lowest bidder," etc., contem- plates that a bid in order to entitle it to con- sideration should have with it an acceptable bond. A worthless bond, though regular in form, can not be regarded as such, nor does the party offering it thereby become entitled to be treated as a bidder. 16. 74. Acceptance of bid. — Where the Govern- ment advertises for bids on designated routes for carrying the mails a formal acceptance of the bid binds the Government. 20 Op. 293. 75. Same. — When a successful bidder refnses to execute a contract on some honest ground or reason, he can not beheld to have "wrong- fully" refused or failed to execute the con- tract. Congress evidently meant by section 3954, Revised Statutes, as amended by the act of August 11, 1876 (19 Stat. 130), to make a distinction between a refusal on some honest ground or reason, however bad in point of law, and a "wrongful" refusal or failure pro- ceeding from intentional disregard of the contract rights of the United States. 20 Op. 297. 76. Subletting of contract — Annulment. — The first proviso in the act of May 4, 1882 (22 Stat. 53), empowering the Postmaster-General to annul the contract of any contractor or subcontractor who shall sublet his contract for a less sum than that for which he con- tracted to perform the service, is prospective in its operation. 17 Op. 514. 77. Same. — All subletting of contracts after the date of that act is governed thereby, whether such contracts were made before that date or not. lb. 78. Same. — The fourth proviso in the same act, giving any person employed by a con- tractor or subcontractor a lien for his com- pensation, or any money due such contractor or subcontractor, properly extends to con- tracts and subcontracts existing at the date of the act. lb. 79. Same. — The fifth proviso applies to con- tracts thereafter made, and has no effect upon those existing prior to the passage of the act. lb. 80. Subletting of mail contract. — Where a person who has contracted with the Govern- ment to carry the mails over several routes enters into an agreement with a third person, without the consent of the Postmaster-Gen- eral, to perform the whole service he has ' contracted to perform with regard to one of the routes, and is to receive the whole com- pensation allowed therefor, such agreement is a subcontract within the meaning of the act of May 17, 1878 (20 Stat. 62), and the reg- ulations of the Post-Ofnce Department there- under. 24 Op. 541. 81. Discontinuance of contract. — The Post- master-General may discontinue a contract for carrying the mail before expiration of the term thereof, allowing the contractor one month's extra pay, when in his judgment the public interests require such discontinuance, for the purpose of readvertising and reletting the service on an increased schedule, in pref- erence to permitting the contractor to perform the increased service at the pro rata to which he would be entitled under his contract. 19 Op. 146. 82. Contracts entered into by the Post-Offioe Department for carrying the mail should be in the name of the United States as directed by statute. (See sec. 3949, Rev. Stat.; also sec. 403, Rev. Stat. ) 18 Op. 112. POSTAL SERVICE, III, b, c. 379 83. Interest of Member of Congress in tho contract. — The express condition mentioned in section3741, Revised Statutes, thatno Mem- ber of Congress has an interest in the con- tract, need not be inserted in those contracts made with railroad corporations. 76. 84. Authority of the Postmaster-General. — The clause in the act of March 3, 1885 (23 Stat. 386), authorizing the Postmaster-Gen- eral "to contract for inland and foreign steam- boat mail service, when it can be confined in one route, where the foreign office or offices are not more than 200 miles distant from the domestic office, on the same terms and con- ditions as inland steamboat service, and pay for the same out of the appropriation for in- land steamboat service," is permanent in character and amendatory of the general law; but the authority of the Postmaster- General thereunder is limited by the terms and conditions imposed in the latter part of the same clause. 18 Op. 411. c. Compensation, Allowance, Deduction, Suspension, etc. 85. Additional compensation for expedited service. — The proviso in section 2 of the act of April 7, 1880 (20 Stat. 72), limits the power of the Postmaster-General in allowing increased pay for expedited service in carrying the mail to 50 per centum of the compensation expressed in the original contract. The original letting, and not any subsequent in- crease of -service and pay, under section 3960, Revised Statutes, is made the standard of limitation. 17 Op. 166. 86. Same. — "Increase of service," men- tioned in section 3960, Revised Statutes, rela- tive to the carriage of mails, means an addi- tional number of trips above that originally contracted for. "Expedited service" means a speedier performance of each trip than was originally stipulated for. lb. 87. Additional allowance — Expedited serv- ice.— The act of April 7, 1880 (21 Stat. 71), providing for an additional allowance over original contract rate for expedition in the delivery of mails, applies only to an expedi- tion of the service, and is not applicable where a reduction of speed is proposed. 17 Op. 240. 88. Same. — In such cases the act implies no restriction upon the Postmaster-General, and he is at liberty to act as in his judgment the good of the service and the interests of- the public may demand, lb. 89. Compensation. — The authority to make contracts for carrying the mail between ports of the United States and foreign ports, given by section 4007, Revised Statutes, is limited by section 4009, Revised Statutes, with respect to the amount of compensation ; so that in such contracts under the former section no greater compensation can be allowed to American steamship lines than the sea and inland post- age upon the mail transported. 18 Op. 248. 90. The allowance made to the Union Pacific Railway Company for special service, to be paid out of the so-called "special-facilities" ap- propriation, can not lawfully be paid to the company in cash, but must be retained and applied as directed by section 2 of the act of May 7, 1878 (20 Stat. 58). 17 Op. 393. 91. Deduction for nonperformance of trip, though without fault of contractor. — Section 3962, Revised Statutes, makes it imperative upon the Postmaster-General to deduct from the pay of mail contractors the price of the trip where, without fault on their part, the trip is not performed. 17 Op. 276. 92. Same. — That section has the same ef- fect as regards the pay of companies perform- ing what is termed "recognized service," in cases where trips are not performed by them. 76. 93. Same. — Companies performing recog- nized service must be regarded as contractors. The correspondence under which they came into the postal service ascertains their obli- gations. 17 Op. 279. 94. Deductions for delayed transportation. — The power conferred upon the Postmaster- General by section 3962, Revised Statutes, to make deductions from the pay of mail con- tractors in cases where, through no fault of the carrier, mails are delayed, as in case of a washout on a railroad, is discretionary. 18 Op. 313. 95. Eescisaionof order allowing deductions. — Where a deduction has been ordered by the Postmaster-General and he afterwards be- comes satisfied that the order was made under a misapprehension of the facts, it is within his power either to directly rescind the order or to refer the matter to the Sixth Auditor under the provisions of section 409, Revised Statutes. 16. 380 POSTAL SERVICE, III, c, d. 96. Withholding payment — Surety. — A and B had each a separate contract for transport- ing the mails, and the latter was also a surety for the former. A incurred indebtedness to the Government by reason of fines, penalties, and forfeitures beyond the amount due him; and the pay of B, his surety, was withheld for the protection of the Government against loss. Prior to the performance of the service by B, for which his pay was withheld, he gave a pay draft to C, which was placed on file in the Auditor's office "subject to fines, etc., in accordance with the act of Congress approved May 17, 1878, and any claim or demand the Post-Office Department may have against the contractor: " Held that payment of an amount due B under his contract, suffi- cient to meet his liability as surety on the contract of A, might lawfully be withheld; and that the draft given by the former on his pay conferred upon the holder thereof no right which prevents such pay being thus, withheld. 17 Op. 244. 97. Suspension of pay — Revocation of order. — An order made by the Postmaster-General suspending pay of a mail contractor for fraud- ulent representations is entitled to every reasonable presumption to support it, and should not be vacated by a successor in office on unsupported application for that purpose, or where no substantial ground is shown for the application. 20 Op. 280. 98. Restitution of money collected from a. Southern State during the civil war, which money was paid out of moneys belonging to the United States that the State had seized. — Cer- tain mail contractors for routes in the State of Arkansas, service on which was discontinued May 31, 1861, up to which time, from January 1, 1861, they were paid by the Government in full what was due them. Afterwards they collected from the State of Arkansas for the same period of service (January 1 to May 31, 1861 ) certain amounts, which were paid out of moneys belonging to the United States that had been seized by the State: Advised that the contractors are under a legal liability to make restitution to the United States of the amounts so collected, but that their sureties can not be held responsible therefor upon the undertaking of the latter. 18 Op. 414. 99. Arbitration of claims of the United States. — The right to submit to arbitration claims of the United States against certain mail contractors held to be doubtful. Sug- gested that suit be brought and that the court, upon application and consent of the parties, would probably appoint. an arbitrator. 17 Op. 486. 100. Audit of account. — It is not incumbent upon the Postmaster-General to have an ac- count for mail transportation performed in July, 1876, audited in favor of the Lake Su- perior and Mississippi Eailroad Company, until satisfactory evidence is presented that the company has maintained its existence and that there are proper officers to receive and receipt for the money. 18 Op. 129. d. Delivery — Free Delivery. 101. Delivery of mail of disputed owner- ship. — Mail addressed to the "National Life Insurance Company, Chicago, Illinois," should be delivered by the postmaster to the Vermont corporation bearing that name, whose principal office is in Chicago, and not to the "National Life Insurance Company of the United States of America," an Illinois corporation, also located in that city. 25 Op. 494. 102. Same. — Under the law postmasters are confined to an inspection of the outside of an envelope in determining for whom a letter is intended. lb. 103.' Same. — The burden of establishing claim to a letter should be placed upon the person claiming it, to whom it is not ad- dressed, rather than upon the person to whom it is addressed. lb. 104. Free-delivery offices. — The President's order of January 5, 1898, amending postal rule No. 1 (under the civil-service act of January 15, 1883 (22 Stat. 403), went into effect at once in so far as it calls for classification by the Postmaster-General and for the provision of examinations by the Civil Service Com- mission; otherwise it went into effect at each free-delivery vost-omce as soon as the classifi- cation was completed and first examination pro- vided at that office. 20 Op. 584. 105. An extension of the free-delivery serv- ice of the Detroit post-office, so as to permit the delivery of mail to vessels in Canadian waters, is not legally authorized. 21 Op. 173. 106. Tree-delivery offices as a class, and not offices formerly free-delivery offices, were intended to be within Postal Rule I and the present Rule III. 22 Op. 613. POSTAL SERVICE, III, c; IV; V. 381 107. When free delivery is discontinued at a post-office such office ceases to be under the civil-service rules. lb. 108. Where free delivery was abolished at an office and afterwards reestablished. — In the exercise of his discretion the Postmaster- General abolished the free-delivery service at Huron, S. J)ak., on January 15, 1895, and in consequence certain carriers were separated from the service: Held that on the reestab- lishment of free-delivery service at that place the former carriers could not be reinstated. 22 Op. 663. 109. To entitle a person to reinstatement in the civil service under Rule IX 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. lb. Audit of Account. See 100. Claims of United States. See 99. Discontinuance of Contract. See 81. Expedited Service. See 85-88. Restitution. See 98. Sukety. See 96. Withholding Payment. See 96. IV. Mailable and TJnmailable Hatter. 110. Newspapers, marked "Sample copy," etc. — The following words printed upon the wrapper of a newspaper sent by mail, name- ly, "Sample copy. If not called for by party to whom addressed postmaster please deliver to some local teacher," held to be a direction for delivery within the meaning of section 1 of the act of January 20, 1888 (25 Stat. 1), and therefore permissible. 19 Op. 596. 111. Newspapers printing in installments an objectionable story, where some issues contain nothing objectionable. — An order of the Post- master-General issued under the act of Sep- tember 26, 1888 (25. Stat. 496), excluding a book from the mails on the ground of inde- cency would not justify the exclusion from the mails of every copy of certain newspapers which were republishing the book in install- ments or parts, as some of the parts or in- stallments of the book appearing therein may be unobjectionable. 19 Op. 667. See also Lottery. V. Postage, Postage Stamps. 112. Postage — Newspapers issued at one place, mailed at another, for distribution at place of publication. — Where there is a letter-carrier office at the place of publication of a news- paper or periodical, and at another place, within another postal district, a newsdealer is employed by the publisher to mail at the latter place copies of the newspaper or peri- odical intended for distribution to subscribers at the former place, such copies are not entitled to transmission through the mail at pound rates. 17 Op. 164. 113. Same. — By "actual subscribers there- to," in section 11 of the act of March 3, 1879 (20 Stat. 359), is meant those who have in fact subscribed fora paper, and who, in subscribing, have dealt directly with the agency, or whose subscriptions have been obtained for or in behalf of the agency, the subscription list being in all cases owned by the newsdealer. lb. 114. A canceled postage stamp is not an obligation or security of the United States within the meaning of section 5430, Revised Statutes. 20 Op. 691. 115. An uncanceled postage stamp is an obligation or security of the United States within the meaning of section 5430, Revised Statutes. 20 Op. 697. 116. Postage stamps are supplies within the meaning of section 3709, Revised Statutes. 22 Op. 40. 117. The Postmaster-General should ad- vertise for proposals for the work of engraving and printing United States postage stamps, for which work the Bureau of Engraving and Printing may be permitted to compete. lb. 118. Section 5413, Revised Statutes, does not apply to or limit the meaning of the words "other securities of the United States," as used in paragraph 4 of the act of March 3, 1877 (19 Stat. 344). lb. 119. When the word "securities" is used in the property sense, it refers to bonds, mortgages, certificates of deposit, certificates of stock, etc. In this sense postage stamps are not investments or securities. lb. 120. Second-class postage — Sunday maga- zine sections. — A magazine which is issued with a newspaper, but which is a separate and distinct periodical having no connection whatever with the newspaper, either in its 382 POSTAL SERVICE, V, VI. physical form or in the nature of its contents, is not an integral part of the paper and nan not be considered a supplement within the meaning of section 16 of the act of March 3, 1879 (20 Stat. 358-361). 25 Op. 594. 121. Same. — Such newspaper and maga- zine are, however, entitled to second-class rates of postage under section 14 of that act, as being a publication "issued at stated in- tervals, and as frequently as four times a year." lb. ■ 122. Same. — The fact that the magazine part of the publication is edited and printed in one place, and the newspaper in another, is not material if they are both issued from the same place, lb. 123. Return Postage Clearing Company — Plan of. — The Postmaster-General is without authority to put into operation the plan of the Eeturn-Postage Clearing Company, designed to relieve advertisers and others from paying postage on return cards and envelopes until they are actually deposited in the mails and reach the office of destination, and giving to that company the exclusive control of the sale of such return envelopes and postal cards, for the reason that its adoption would violate the spirit and also the letter of many of the provisions of the postal laws. 25 Op. 854. 124. Same. — The long-established policy of the Government is to exercise exclusive control 'over the postal service. Under the plan pro- posed there would be a divided responsibil- ity. 26. 125. Same. — Section 3896, Revised Stat- utes, requires postage on all mail matter to be prepaid by stamps at the time of mailing, except in certain cases specially provided for by law. lb. 126. Same. — Section 14 of the act of July 12, 1876 (19 Stat. 82), prohibits the Post- Office Department from selling stamped en- velopes and paper for less than face value, including the cost of production. lb. 127. Same. — Section 3915, Revised Stat- utes, provides that stamped envelopes shall be sold as nearly as may be at the cost of produc- tion, with the value of the postage stamps impressed thereon, and that "no stamped envelope furnished by the Government shall contain any lithographing or engrav- ing, nor any printing except a printed re- quest to return the letter to the writer." lb. 128. Same.— Section 3920, Revised Stat- utes, as amended by the act of June 17, 1878 (20 Stat. 141), provides that no postmaster or other person connected with the postal serv- ice shall sell or dispose of postage stamps or postal cards, for any larger or less sum than the values indicated on their faces. lb. 129. Same. — While it might not be a vio- lation of section 32 of the act of March 3, 1879 (20 Stat. 362), which forbids payment of money for royalty or patent on any dou- ble postal card or envelope, the carrying into effect of the scheme would be to give the com- pany an absolute monopoly of the sale of all such envelopes and cards, and to place it in a position to exact tribute from the public. lb. 130. Canceling ink. — The Postmaster-Gen- eral is authorized by the act of June 20, 1878 (20 Stat. 240), to substitute, for the black printing inks and writing fluids used under section 721, Postal Regulations, any cancel- ing ink which is uniform and which actual experiment and test have shown to his satisfaction to be best calculated to guard against fraud, and to order its use in all post-offices where stamps are canceled. 18 Op. 131. VI. Official Kail — Penalty Envelopes — Franking Privilege. 131. Penalty envelopes. — United States Com- missioners are ' ' officers of the United States, ' ' within the meaning of section 29 of the act of March 3, 1879 (20 Stat. 362), and as such are entitled to use the penalty envelope pro- vided for by sections 5 and 6 of the act of March 3, 1877 (19 Stat. 335), in the trans- mission to the Departments at Washington of mail matter relating to their accounts for fees payable by the Government and other official business. 17 Op. 183. 132. A United States marshal, upon the ex- piration of his term, ceases to be an officer of the United States, and is not entitled to use the "penalty envelope" in executing process (under sec. 790, Rev. Stat.) then in his hands. 17 Op. 529. 133. Penalty envelopes. — Indian agents and registers and receivers of land offices are by virtue of section 29 of the act of March 3, 1879 (20 Stat. 362), entitled to use the penalty envelope for the transmission of official mail POSTAL SERVICE, VI, VII. 383 matter between themselves and other officers of the United States or between themselves and the Executive Departments, but not for the transmission of such matter to private persons. 17 Op. 255. 134. Same. — These officers are not "depart- mental in their character" within the meaning of sections 5 and 6 of the act of March 3, 1877 (19 Stat. 335, 336). lb. 135. Same. — When supplied with official postage stamps by the Departments, they may use them for the transmission of official mail matter as well to private persons as to other officers of the Government. lb. 136. Use of penalty envelopes by Department in making reply. — Where a Member of Congress has addressed an inquiry about official busi- ness to a Department, or any bureau thereof, the reply may properly be addressed to the person concerned in a penalty envelope and sent unsealed to the Member (that he may take cognizance of its contents), to be by him forwarded to its destination. But in such case the use of the envelope must be strictly limited to the Department or bureau and the applicant. 16 Op. 501. Opinion of May 25, 1880 (16 Op. 501) , as to the use of the penalty envelope, reaffirmed. 17 Op. 264. 137. Section 29 of the act of March 31, 1879 (20 Stat. 362), so far as it relates to the indorsement to be placed on the penalty envelope, is a substitute for the corresponding provision in the fifth section of the act of March 3, 1877 (19 Stat. 335). Such envelope must be indorsed with a proper designation of the -office from which the same is transmitted, and a statement of the penalty provided by the fifth section of the latter act. 17 Op. 631. 138. Official mail coming from the Philippine Islands through the postal service of the United States should comply with the general laws of the United States regulating the mails under the administration of the Postmaster- General. 24 Op. 534. 139. The penalty envelopes used for the transmission of official mail from those islands Bhould bear the indorsement of the War De- partment, lb. 140. The monthly bulletin published by the Bnrean of American Republics, although it con- tains advertisements of private firms or cor- porations, is entitled to transmission through the mails free of postage under the act of Feb- ruary 20, 1897. 21 Op. 514. 141. Franking privilege. — An unseated Member of Congress has no right thereafter to send public documents through the mail free of postage, under the proviso in the first sec- tion of the act of March 3, 1879 (20 Stat. 356. 19 Op. 592. For Free Registration of Official Mail. See VII. VII. Registered Letters, Money Orders, etc. 142. Free registration of official mail else- where than at Washington; — Under the second. proviso of section 3 of the act of July 5, 1884 (23 Stat. 158), a departmental officer, in the discharge of his official duties, may register letters and packages elsewhere than in the post-office at Washington. 18 Op. 49. 143. Same. — ;' Section 3 of the act of July 5, 1884 (23 Stat. 158), making appropriations for the service of the Post-Office Department, etc., does not authorize Indian agents, or receiv- ers and registers of land offices, to free registry of official letters and packets. Such letters and packets are not registered 'by either a Department, or a bureau of a Department,' within the provisions of that act. " 18 Op. 54. 144. Free registry of official mail — Execu- tive Departments. — 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 " Ex- ecutive Departments or Bureaus thereof, ' ' em- braces a department officer who, in the course of public business, is called tempo- rarily to discharge his official duties at some place away from the seat of government; but such words do not embrace examiners, spe- cial agents, inspectors, etc., of the various departments, who are located at points out- side of Washington or are traveling through- out the country. 23 Op. 316. Opinions of May 16, 1877 (15 Op. 262), commented on, and of August 2, 1884 (18 Op. 49), affirmed. lb. 145. United States pension agents are en- titled to free registration of their official mail matter. 25 Op. 617. 384 POSTAL SERVICE, VII, VIII, IX. 146. Indemnity for lost foreign registered -matter.— The act of February 27, 1897 (29 Stat. 599), authorizes the Postmaster-General to establish, as part of the system of registra- tion, rules providing for indemnity for foreign as well as domestic first-class registered mat- ter lost in the mail. 22 Op. 290. 147. 'Same. — The rules promulgated pur- suant to said act apply to both domestic and foreign registered mail matter, and no further legislation is required in order that the pro- visions of the postal convention relative to loss of registered matter may become operative or to make the Department liable, to the ex- tent therein limited, for foreign first-class registered matter lost in the mails. lb. 148. Same. — Until Congress shall otherwise provide with reference to indemnity for lost reg- istered mail the Postmaster-General may either pay the limited indemnity on foreign matter, as provided in the act of February 27, 1897 (29 Stat. 599), irrespective of what other coun- tries may do, or so amend the rules of the Department as to limit the indemnity to lost registered matter originating in and addressed to a place within the United States. 22 Op. 363. 149. Same. — The registry provisions of the Postal Convention of Washington of January 1, 1899, are not operative in or as to the United States, but its liability is only that imposed by the act of 1897 and the rules of the Post- Office Department made in pursuance there- of, lb. Return of Registered Letters Addressed to Lottery Companies, etc. See Lot- tery, 11. 150. Postal notes, under the act of March 3, 1883 (22 Stat. 526), are required to be drawn payable only at the office selected by the remitter. 17 Op. 620. 151. Same. — "Thewords ' which the remit- ter may select' in the act of March 3, 1883 (22 Stat. 526), are substantially the ones used in section 4028, Revised Statutes, which authorizes the issue of the ordinary postal money orders; and while many reasons may exist why the designation of place of payment need not be contemporaneous with the issue where no letter of advice is sent, they do not seem to have been accepted by Congress, and the intention of the law is express that the remitter and not the payee should select the place of payment." 17 Op. 621. 152. Money orders. — To entitle a postmaster to receive compensation for issuing and paying money orders under the provisions of section 4047, Revised Statutes, he must earn it by per- forming the service himself or having it per- formed by a clerk or agent employed and paid by him for that purpose. 17 Op. 627. VIII. Foreign Hail. 153. Foreign magazines and newspapers transported by mail from Canada into the United States, addressed to dealers, for the purpose of sale by them, or of being by them distributed among subscribers, are dutiable. 17 Op. 159. 154. The postal convention with Canada and section 15 of the act of March 3, 1897 (20 Stat. 359), were not intended to affect existing tariff laws. lb. 155. Printed matter other than books, re- ceived by mail from foreign countries, under the provisions of postal treaties or conven- tions, is declared free of duty by section 17 of the act of March 3, 1879 (20 Stat. 360) and no distinction is there made between such as is mailed to subscribers for their own use and such as is mailed to dealers for sale. 17 Op. 187. 156. Same. — Books which are admitted to the international mails, exchanged under the provisions of the Universal Postal Union Convention, may be delivered to addresses upon the payment of the duty thereon. lb. See also Ocean Mail Service. Indemnity for Lost Foreign Registered Mail. See 146-149. IX. Printing or Purchase of Postal Matter- Envelopes. 157. Purchase of envelopes by contract — Case of exigency. — Section 96 of the act of January 12, 1895 (28 Stat. 624), which pro- vides that "the Postmaster-General shall contract for all envelopes, stamped or other- wise, designed for sale to the public or for use by his own or other Departments," does not apply where an exigency requires an imme- POSTAL SERVICE, IX, X, XI. 385 diate delivery of envelopes to a particular De- partment and the public service might be seriously impaired by the necessity of a requisition upon the Postmaster-General; but it does apply to those cases in which contracts were to be made by advertisement. 21 Op. 181. 158. Same. — Where the public exigency requires the immediate delivery of the en- velopes, they may be purchased, under section 3709, Revised Statutes, by the head of the Department in Which the exigency arises. lb. 159. "Special-request" envelopes. — The pro- viso contained in section 96 of the act of Jan- nary 12, 1895 (28 Stat. 624), when construed in connection with section 3915, Revised Stat- utes, constitutes no substantial limitation upon the power to print and supply ' ' special-request ' ' envelopes. 21 Op. 119. 160. Postage stamps. — The Postmaster- General should advertise for proposals for the work of engraving and printing United States postage stamps, for which work the Bureau of Engraving and Printing may be permitted to compete. 22 Op. 40. X. Civil Service. 161, Free-delivery offices as a class, and not offices formerly free-delivery offices, were in- tended to be within Postal Rule I and the pres- ent Rule III. 22 Op. 613. 163. When free delivery is discontinued at a post-office such office ceases to be under the civil-service rules, Rule I applying to free- delivery offices only. lb. 163. Reinstatement of carriers when free de- livery was abolished at an office and afterwards reestablished. — In the exercise of his discre- tion 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 car- riers could not be reinstated. . 22 Op. 663. 164. To entitle a person to reinstatement in the civil service under Rule IX 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, lb. XI. Miscellaneous. 165. Postal Guide. — The determination of what shall be the contents of the Postal Guide rests entirely with" the Postmaster-General. 19 Op. 521. 166. Depository formail matter. — Thetopor outside of a letter box, attached to a lamp-post, is not an authorized depository for mail mat- ter the taking of which therefrom is punish- able under section 5469, Revised Statutes. 17 Op. 524. 167. Same. — ThePostmaster-Generalcannot by an order to letter carriers directing them in regard to the collection of papers which they may find upon the outside of letter boxes, make the tops of thoseboxes authorized depositories for mail matter, lb. 168. "Use of telegraphin the postal service. — The Post-Office Department has no power, under existing laws, to make contracts for the transmission of intelligence by telegraph for the general public as a part or branch of the postal service. 19 Op. 650. 169. Same. — Mail matter, as defined by statute, does not include telegraphic corre- spondence as such; nor does the power given the Postmaster-General to contract for carry- ing the mail include authority to contract for sending messages by telegraph for the bene- fit of the people at large. lb. 170. The Attorney-General is not at lib- erty and has no power under the law to express an opinion to the Postmaster-Gen- eral on the question whether a certain publica- tion is within the description of matter which the statute denominates "second class,"' on the ground that it is a pure question of fact which it is the province of the Postmaster- General to decide. 20 .Op. 384. Classification of Postal Service. See 170. Canceling Ink. See 130. Directions on Mail Matter. See 110. Discontinuance of Service. See 81. Surety Liability of, Dishonest Postal ' Clerk. See 48-51. Postal Guide. See 165. Special Agents. See- 56, 57. Obstruction of Mail Trains. See Mails. See also Ocean Mail Service; Philippine Islands, 40-43; Treaties and Conven- tions, IV; Lottery. 18456—08- -25 386 POSTMASTEE-GEN ERAL— POST-OFFICE DEPARTMENT. POSTMASTER-GENERAL. See Postal Service, II, a. POSTMASTERS. See Postal Service, II, b. POST-OFFICE DEPARTMENT. 1. Contracts for Postal Guide. — A contract for furnishing the Post-Office Department with copies of the Postal Guide, under the act of March 3, 1881 (21 Stat. 385, 412), mak- ing an appropriation for ' ' publication of cop- ies" thereof, does not come within the pro- visions of section 3709, Revised Statutes, and the Postmaster-General is not required to ad- vertise for proposals previously to making such a contract. 17 Op. 84. 2. Same. — The object of that section, in requiring advertisement for proposals before making purchases and contracts for supplies, is to invite competition among bidders, and it contemplates only those purchases and contracts where competition as to the article needed is possible, which is not the case with the Postal Guide. lb. 3. Same. — The determination of what shall be the contents of the Postal Guide rests en- tirely with the Postmaster-General. 19 Op. 521. 4. Award of coal contract where member of the firm is an officer of the Department. — Sec- tion 412, Revised Statutes, does not prohibit the Postmaster-General from awarding a con- tract for furnishing coal for his Department to a Arm, it being the lowest bidder, one of the members of which is an officer of that Department; but if the contract was one for "carrying the mail," it would be clearly within the general prohibition of that sec- tion. 24 Op. 557. 5. Same. — Nor does section 1783, Revised Stat- utes, prevent the awarding of such contract to the firm referred to if the officer does not " act as an officer or agent of the United States" with reference to the purchase of the coal. That section, being quasi-penal in character, must be strictly construed; and, under such construction, a partner can not be held to be an "agent," for he is a principal, and the act is essentially the act of principals. lb. 6. Same — Administrative discretion. — While there is no statute forbidding the Postmaster-General from awarding the con- tract to such a firm, he is under no legal ob- ligation to do so. As the question is one of administrative judgment and discretion, the Attorney-General is without authority or obligation to express an -opinion with refer- ence to it. lb. 7. The adjustment of accounts for expendi- tures of the Post-Office Department under the legislative, executive, and judicial appropria- tion acts may be performed by such accounting officers in the Treasury Department as the Sec- retary of the Treasury may assign to that duty. It is not required by statute that this duty shall be performed by the Sixth Audi- tor.' 19 Op. 30. 8. The accounts which the Sixth Auditor is required to audit under section 277, Revised Statutes, etc., are of a fiduciary character, de- pendent upon the discretion of the Postmas- ter-General under authority of law, and gen- erally refer to the postal service. lb. 9. Telegraph.— The Post - Office Depart- ment has no power, under existing laws, to make contracts for the transmission of intelli- gence by telegraph, for the general public, as a part or branch of the postal service. 19 Op. 650. 10. Secret agents. — The confidential agents formerly employed in the free-delivery division of the Post-Office Department, and desig- nated secret agents, did not become classified employees of the departmental service within Rule III of the civil-service rules promul- gated May 6, 1896. *21 Op. 407. 11. Postal Laws and Regulations. — The act of March 3, 1891 (26 Stat. 880), appropriating money for a new edition of the Postal Laws and Regulations, does not authorize the Postmaster-General to make an allowance to an officer of his Department whom he may designate for the preparation of that publica- tion. 20 Op. 221. 12. Records.of the postal department of the late Confederate States. — The Postmaster-Gen- eral advised that he may act favorably toward the' acquisition of certain records and books of the postal department of the late Confederate States, the purchase of which is authorized by the act of March 3, 1891 (26 Stat. 1079), POST-OFFICE DEPABTMENT— PREMIU MS. 387 and several ways suggested in which they might be of value to the United States. 20 Op. 260. 13. The Postmaster-General has no author- ity to detail a. registry clerk from the Wash- ington post-office on detached service at the White House; and the accounting officers of the Treasury having refused to allow credits to the postmaster for salary paid such clerk for the period covered by the detail, that offi- cer must be remitted to Congress for an ap- propriation for his relief. 25 Op. 302. Postmaster-General. See Postal Service, II, a. Clerks and Employees in Post-Oppices. See Postal Service, II, c. Postmasters. See Postal Service, II, b. • Lotteries. See Lottery. Lease op Post-Ofpice Buildings. See Pub- lic Buildings, 24. Bids and Contracts in Regard to the Pos- tal Service. See Postal Service, III, b. POTOMAC EIVEE AND FLATS. See Navigable Waters, 72-74. POTTAWATOMIE INDIANS. Ellis Contract — Attorneys' Fees. dians, 128-134. See In- POWEE OF ATTOENET. 1. A power of attorney given to collect a claim against the Government, with an agree- ment that the donee of the power shall re- ceive "a sum equal to 50 per cent of the amount allowed" on the claim, is not a power coupled With an interest, and is revo- cable. 19 Op. 483. 2» The power having been given to a firm, one of the members of which has since died, whereby the firm became dissolved, such' power can not he executed by the surviving members. lb. 3. Under the circumstances stated, the power should not be recognized. lb. 4. ' ' The word ' irrevocable ' in the power of attorney is not conclusive. It is the general rule that a principal can revoke the power, except in cases where the power is coupled with a sufficient interest, although the power be in express terms declared to be 'exclu- sive' or 'irrevocable.' (Mechem on Agen- cy, sees. 204, 207, and cases cited. ) See also id. , section 209, as giving reasons for the rule. " 19 Op. 484. 5. If a power of attorney, signed by the in- dividual members of a firm as well as in the firm name, confers explicit authority upon one of its members to use the partnership name in signing entries and executing certain customs bonds, acts performed in compliance with such authorization are obligatory upon the firm. 20 Op. 311. 6. A power of attorney is an instrument by which the authority of one person to act in the place of another, as attorney in fact, is set forth. 22 Op. 218. See also Contracts, 132-133; Indians, 129. PBACTICE. Departmental. See ExecutiveDepartments, III; Statutory Construction, 10-24. See also Letters Rogatory. PBEFEBHENT. Of Honorably Discharged Soldiers. See Civil Service, V; Department of Com- merce and Labor, 26-28. PEEMITJMS. 1. The appropriation for special speed pre- miums earned by certain naval vessels, made by the act of July 26, 1894 (28 Stat. 123, 140), is not limited in its application to premiums earned prior to January 1, 1894. 21 Op. 84. 2. The contract with the Pneumatic Gun Carriage and Power Company for the construc- tion of a disappearing gun carriage, under the act of August 1, 1894, makes no provision for the payment of a premium and does not bind 388 PREMIUMS— PEESIDENT, I. the Government beyond the amount appro- priated. 21 Op. 457. 3. The Secretary of War is not -authorized by the act of August 1, 1894 (28 Stat. 214), pro- viding for the purchase of a 10-inch pneumatic disappearing gun carriage upon the same con- ditions relative to payments, etc., as are em- bodied in the contract for the Gordon car- riage to enter into a supplemental contract for the payment of a bonus or premium for each shot per hour the carriage is capable of sus- taining above the number required by the original contract, for the reason that the whole amount appropriated f orthe pneumatic carriage was expended in the original con- tract, and there is no authority to contract for further expenditures. 21 Op. 495. PRECEDENCE OF COMMAND. See Army, 152. PREEMPTION. See Public Lands, II. IV. V. VI. VII. PRESIDENT. I. Appointment, 1-34. II. Army, 35-40. III. Court-Martial, 41-43. Cuba, 44-47. Hawaii, 48-49. Indians, 50-54. Naval Officers, 55-57. VIII. Panama, 58-65. IX. Pardoning Power, 66-78. X. Porto Rico, 79-80. XI. Miscellaneous, 81-115. I. Appointment. 1, Temporary recess appointments. —When an office is created by a law taking effect during a session of the Senate, and no nomination is made thereto, the original vacancy thus ex- isting may be filled by the President during the ensuing recess of the Senate by a temporary appointment. 18 Op. 28. & Same. — The power of the President to fill vacancies in office by temporary appoint- ment, derived under section 2, Article II, of the Constitution, comprehends all vacancies that may happen to exist in a recess of the Sen- ate, irrespective of the time when such va- cancies first occur. 18 Op. 29. 3. Same. — A vacancy in an office which hap- pens during a session of the Senate, but remains unfilled until a recess of the Senate occurs, may be filled by the President during such recess by a temporary appointment. 19 Op. 261. 4. Same. — The rule is the same in the case of a new office which is not filled during the session in which it was created. The Presi- dent may fill the original vacancy existing therein by a temporary appointment made during the recess of the Senate. lb. 5. Same — Salary postponed until confirma- tion by Senate. — An office which has become vacant during a session of the Senate may be filled during the next ensuing recess of the Senate by a temporary appointment by the President; but by section 1761, Revised Statutes, payment of the salary of the ap- pointee, in such cases, is postponed until he has been confirmed by the Senate. 17 Op. 521. 6. Appointment during holiday adjourn- ment. — The President is not authorized to ap- point 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. 23 Op. 599. 7. Same — Distinction between an appoint- ment and a nomination. — There is no distinc- tion between an appointment and a nomina- tion 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. lb. 8. Same — Distinction between a recess of the Senate and an adjournment. — 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 Con- gress for the session and before the next ses- PRESIDENT, I. 389 sion begins; while an adjournment during a session of Congress means a merely tempo- rary 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, lb. 9. Ad interim appointments — T e n - d a y limit.— Under sections 177, 178, 179, and 180, Revised Statutes, the President has power to fill temporarily (by an appointment ad in- terim, as there prescribed), a vacancy occa- sioned by the death or resignation of the head of a Department, or of the chief of a bureau therein, for a period of ten days only. When the vacancy is thus temporarily filled once for that period, the power conferred by the statute is exhausted. It is not competent for , the President to appoint either the same or another officer to thereafter perform the duties of the vacant office for an additional period of ten days. 16 Op. 596. 10. Same.— Sections 177, 178, 179, and 180, Revised Statutes, considered with reference to the power of the President to make ad interim appointments, and opinion of At- torney-General Devens (16 Op. 596-7) concurred in. 17 Op. 530. 11. Temporary appointments — Ten -day limit. — Section 180, Revised Statutes, provid- ing that vacancies occasioned by the death or resignation of an officer of an Executive De- partment must not be temporarily filled for a longer period than ten days, applies as well where they are filled (under sections 177 or 178, Rev. Stat.) without action by the Presi- dent, as where they are filled (under section 179, Rev; Stat. ) by his authority and direc- tion. 17 Op. 535. v 12. Same. — The discretionary power given the President by section 179, Revised Statutes, may be exercised after the vacancy has already been supplied under the operation of either of the two preceding sections, and in that case the ten days' limitation is to be com- puted from the date of the President's action, lb. 13. Where there is a vacancy in the head of a Department, it can not be temporarily filled for a longer period than ten days, either by opera- tion of law or by designation of the President. Section 180, Revised Statutes. 20 Op. 8. 14. The view expressed in 17 Op. 535, that twenty days may be taken to fill such vacancy by allowing the statutory occupation of the office for ten days, followed by a designation by the President for an additional . ten days, is not accepted. lb. See also Office and Officers, II. 15. Temporary recess appointments. — The President has the right under the Constitu- tion, and impliedly under section 181, Revised Statutes, to make a temporary appointment, designation, or assignment of one 'officer to perform the duties of another in the case of a vacancy caused by death, disability, or other- wise, during the recess of the Senate, and such temporary appointment, designation, or assignment is not limited by law to any partic- ular period. 25 Op. 258. 16. Suspension of collector of internal reve- nue.— The President has the undoubted right during a recess of the Senate, to suspend from office a collector of internal revenue, with or without cause, and to designate someone else to perform the duties of that office (sec. 1768, Rev. Stat.). 18 Op. 318. 17. Under the law at present in force assist- ant engineers in the Revenue-Cutter Service should be appointed by the President with the concurrence of the Senate. 17 Op. 532: 18. Power of appointment. — The general rule is that where there is no express enactment to the contrary, the appointment of any of- ficer of the United States belongs to the Presi- dent by and with the advice and consent of the Senate. lb. 19. Congress can not assume the power to require the President and the Senate to exer- cise their appointing power. 18 Op. 18, 23. 20. Same. — A bill which imposes, or attempts to' impose, upon the President, a duty to ap- point a person designated therein, is without any support in the Constitution. It is an as- sumption of an implied power which is not based upon any express power, and clearly invades the constitutional rights of the Presi- dent. 18 Op. 18, 27. 21. The appointment of the assistant collector at the port of New York (who was formerly employed by the collector with the approval of the Secretary of the Treasury) should now by virtue of the effect of section 5596, Revised Statutes, be made by the President, with the advice and consent of the Senate. 18 Op. 98.' 22. Honorary Commissioners to the Inven- tions International Exposition at London. — The President can not appoint an honorary com- 390 PRESIDENT, I, II. missioner to the "Inventions International Exposition" at London, such office not exist- ing by virtue of any law of the United States. 18 Op. 171. 23. The office of chief examiner in the Civil Service Commission, created by the act of January 16, 1883 (22 Stat. 403), is to be filled by appointment by the President, with the ad- vice and consent of the Senate, since that officer comes within the terms ' ' all other offi- cers of the United States," in clause 2, sec- tion 2, Article II, of the Constitution. 18 Op. 409. See also Civil Service 48, 49. 24. The President can appoint to office only those who are eligible under the Constitution, His appointment of one not eligible is a nul- lity. 21 Op. 211. 25. When Congress, in pursuance of its authority under the Constitution, sees fit to give the sole power of appointment to the Presi- dent, it does so by language appropriate to that end, such as the unqualified phrase " may ap- point" in section 1680, Revised Statutes; 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. 23 Op. 137, 138. 26. Reappointment of Rev. Charles M. Blake as post chaplain. — It is not competent for the President, with the concurrence of the Sen- ate, now (in May, 1881) to reappoint Rev. Charles M. Blake a post chaplain in the Army as of the 28th day of September, 1878, so as to entitle him to pay from that date. 17 Op. 97. 27. The President may appoint the officers of the line and staff of the Navy authorized by the act of May 4, 1898 (30 Stat. 369) , without the advice and consent of the Senate. 22 Op. 82. 28. Same — Signature of the .President to the commission. — A commission issued pursuant to the foregoing act should show upon its face that it is the commission of the Presi- dent, but his actual signature is not neces- sary. The document should, however, de- clare the act to be that of the President, per- formed by the head of the Navy Department as his representative. lb. 29. Regimental officers of such regiments as may be formed by contributions of companies from two or more States are to be appointed by the President of the United States, under the constitutional provisions which make him Commander in Chief of the Army and Navy and which authorizes him to appoint all offi- cers of the United States whose appointment is not otherwiseprovided bylaw. 22 Op. 135. 30. If a battalion is made np of companies contributed by two or more States the officers of the battalion as such must be appointed by the President. 22 Op. 147. 31. Appointment of a captain in the Quar- termaster's Department — Confirmation by Senate not necessary. — It being the intention of Con- gress, as expressed in the sixteenth section of the act of February 2, 1901 (31 Stat. 751), not to require confirmation of appointments in the grade of captain in the Quartermaster's Department, the appointment of Captain A, of that department, on June 14, 1901, was not a recess appointment, the concurrence of the Senate was not necessary, and the action of the President alone was final and complete. 23 Op. 574.' 32. Subsequent vacancies — Promotion. — The only vacancy which the President is author- ized to fill under sections 16 and 26 of that' act isan original vacancy. Aftersuch vacancy has been filled there is no longer an original vacancy in that particular place, and any subsequent vacancy must be filled by promo- tion or by detail, lb. 33. Appointment of Chinese secretary. — The President is authorized to sign the commis- sion of the Chinese secretary, whose appoint- ment is authorized under the act of April 4, 1900 (31 Stat. 60), in the same manner as he does those of other interpreters who are not confirmed by the Senate. 23 Op. 136. 34. Appointment of student interpreters at legation to China.— The President is author- ized, 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. 24 Op. 52. II. Army. 35. Power of the President under the act of July 15, 1870 (16 Stat. 319), to drop an PRESIDENT, II, III, IV, V. 391 officer from the rolls of the Army, considered. 17 Op. 13. 36. Same. — Neither the act of March 3, 1865 (13 Stat. 487), nor that of July 13, 1866 (14 Stat. 90) , applies to cases expressly and specifically provided for by section 17 of, the act of July 15, 1870 (16 Stat. 319). lb. 37. Assignment of enlisted men notwith- standing additional lieutenants remain un- assigned in other corps. — The President has authority to assign enlisted men of the Army, who ha ve passed the examination as candidates for commissions, to vacancies that may exist in any corps or arm of the service in which they have been commissioned, notwithstand- ing the fact that additional lieutenants re- main in other corps unassigned. 21 Op. 491. 38. The Secretary of War is the regular constitutional organ of the President for the administration of the military establishment of the nation, and as such, the rules and orders publicly promulgated through him must be received as acts of the Executive, and are binding upon all within the sphere of his legal and constitutional authority. 22 Op. 54. 39. The President . should not concede that the offense of an officer found guilty of making false statements to the Secretary of War for the purpose of deceiving that officer is either trivial in its nature, as being merely against good order and military discipline, or other than an offense " unbecoming an officer and a gentleman." 18 Op. 113, 118. 40. The President is not empowered under the provisions of section 6 of the act of April 22, 1898 (30 Stat. 362), to authorize the or- ganization of companies, battalions, or regiments possessing special qualifications from the nation at large, beyond the number of 3,000 men in the aggregate. 22 Op. 161. III. Court-Martial. 41. Approval of proceedings, etc. — Where the approval of the proceedings, findings, and sentence of a court-martial by the President is attested by an entry on the record signed by the Secretary of War, this is sufficient evi- dence of such approval. 17 Op. 397. (But see Note. 17 Op. 399.) 42. The President has no power to review the proceedings of a court-martial and annul its sentence where the court was legally con- stituted, the case within its jurisdiction, and the sentence approved by the proper review- ing authority and carried into execution. 20 Op. 297. 43. Order of one President rescinding an unexecuted order of a preceding President re- moving certain disabilities. — Where an order of one President removing the disabilities and ordering the honorable discharge of an army officer who had been sentenced by court- martial to dishonorable discharge was not executed but was subsequently rescinded by a succeeding President, the original order, being executory and revocable before execu- tion, was completely annulled thereby. 17 Op. 436. See also 55. IV. Cuba. 44. Payment of Cuban soldiers. — For the purpose of disbanding the insurgent forces in Cuba, the President is authorized to pay some or all of the soldiers of such forces either out of the revenues of the island or out of the emergency fund of $3,000,000 provided by the act of January 5, 1899 (30 Stat. 772). 22 Op. 301. 45. The President is authorized to do what- ever he finds necessary or expedient for the proper administration of government in Cuba, having in view the pacification of the island and tne establishment of order and industry. lb. 46. Disposal of mining rights in Cuba.— 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. 23 Op. 222. 47. Same. — 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. lb. V. Hawaii. 48. Public lands of Hawaii.— The President is authorized, under section 91 of the organic 392 PRESIDENT, V, VI, VII, VIII. act of the Territory of Hawaii (31 Stat. 159), to take such of the public lands of Hawaii as he deems proper for the uses and purposes of the United States. 24 Op. 600. 49. Suspension of Hawaiian registers. — An order of the Executive suspending the issu- ance of Hawaiian registers would be a legal exercise of power under the resolution of Congress annexing Hawaii. 22 Op. 578. VI. Indians, 50. Compensation for Indian lands taken by railroad. — The President has power to direct, by an executive order, the manner in which shall be ascertained and determined the com- pensation for property taken or destroyed in the construction of the Missouri, Kansas and Texas Railway through the reservation of the Chickasaw and Choctaw tribes of Indians. 17 Op. 265. 51. Indian reservation — Creation of from public domain within a State. — The President has power to make a reservation for occupa- tion by Indians from public domain lying within the limits of a State. 17 Op. 258. 52. Same. — The power of the President to set apart a portion of~the public domain for the exclusive occupancy of Indians does not include the case of a reservation for Indians not born or commorant in the United States. 18 Op. 557. 53. Payment of Indian depredation judg- ments. — The President is not charged with any power or duty of approval or disapproval re- specting the payments of Indian depredation judgments from annuities and property of Indians or from appropriations on their ac- count, but all authority and discretion in the premises are vested in the Secretary of the Interior. 21 Op. 131. 54. Indian allotment lands — Extension of trust patents to. — The allotment act of Feb- ruary 8, 1887 (24 Stat. 388), does not con- template that the President may extend the period of twenty-five years as to all trust patents issued to Indian allottees of land, but only that such extension may be made in par- ticular cases, in the discretion of the President. 25 Op. 483. VII. Naval Officers. 55. Reconsideration of an advancement of naval officer made by predecessor. — Where, under the provisions of section 1506, Revised Statutes, an officer was advanced in numbers by the President with the advice and con- sent of the Senate, for eminent and conspicu- ous conduct in battle or extraordinary hero- ism, such action of the President and Seriate is conclusive upon the Executive Department of the Government, and is not subject to reex- amination or revision by a succeeding Presi- dent. 17 Op. 76. 56. Selection in promotion of naval officers on retired list. — The word "entitled" in sec- tion 1461, Revised Statutes,_can not be con- strued as giving to the President the right of selection in determining who are and who are not entitled to promotion on the retired list of the Navy. 17 Op. 36. 57. Nomination for advancement. — The President has power to nominate for advance- ment, 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 serv- ices, although at the time of such nomina- tion 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. 23 Op. 413. VIII. Panama. 58. Panama Canal project, expenses incident to. — The President is authorized by section 5 of the Atlantic and Pacific canal act of June' 28, 1902 (32 Stat. 481, 483), to provide by proper order for carrying into effect certain recommendations of Admiral Walker, and direct the payment of expenses necessarily incurred in accomplishing the purposes of that act, to wit, the support of Major Black's party on the Isthmus, the maintenance of an office in Washington to supervise his work, receive his reports, preserve records, etc., of the old Isthmian Canal Commission, and the storage of certain machinery, boats, etc., at Greytown. 25 Op. 54. PRESIDENT, VIII, IX. 393 59. Panama Canal funds, deposit of in bank. — Section 5 of the act of June 28, 1902 (32 Stat. 483), appropriating $10,000,000 for use in the construction of the Panama Canal, does not authorize the President to deposit $1,500,000 of that sum with the International Banking Corporation -of New York, upon the condi- tion that the bank will maintain the new coinage of the Republic of Panama at its legal parity with g61d, supply the Isthmian Canal Commission with said coinage, and sell for- eign and domestic exchange at reasonable rates — a deposit upon such conditions not being an incident of the financial operations to be carried on for the Government by the bank, but a distinct deposit of public money with a private bank for its own purposes. 25 Op. 484. 60. Same. — The President may enter into a similar contract with that company which would not involve the deposit of the money in question, but provide for payment, out of the sum appropriated, for the services which it is desired to have the bank perform, lb. 61. Panama Canal — Authority to make con- tracts for construction of. — The President is authorized under existing law to make con- tracts for the construction and completion of the Panama Canal in excess of the appropri- ation at present available, so long as such contracts do not involve the Government in the ultimate expenditure of moneys for its construction and completion in excess of the amount designated in section 5 of the act of June 28, 1902 (32 Stat. 483), limiting the total cost of the canal. 25 Op. 557. 62. Same.— The authority thus granted by the act of June 28, 1902, remains unaffected and unimpaired by the provision in the act of December 21, 1905 (34 Stat. 5), prohibit- ing the expenditure of any money .for the construction of such canal ' ' except in accord- ance with appropriations made by Congress. ' ' lb. 63. Same. — The phrase "no money shall be expended except in accordance' with ap- propriations made by Congress," as used in the act of 1905, means nothing more than that no money shall be expended in excess of appropriations made by Congress. lb. 64. Panama railroad bonds — Power to re- deem. — The President has the power under section 5 of the act of June 28, 1902 (32 Stat. 483), providing for the construction of a canal connecting the waters of the Atlantic and Pacific oceans, to turn over to the Panama Railroad Company money sufficient to re- deem certain bonds of that company, recently sold to raise money to pay for necessary im- provements to the railroad. 25 Op. 550. 65. Goods shipped to Panama or Colon des- tined ultimately for the Canal Zone. — The effect of the order of the President of December 3, 1904, is to prevent the direct shipment of goods, wares, and merchandise into the Ca- nal Zone; and distilled spirits withdrawn for shipment to Panama or Colon, although ulti- mately to go to the Canal Zone, are with- drawn for shipment to a foreign country within the letter and spirit of the statutes. 25 Op. 324. IX. Pardoning Power. 66. Court-martial — Eestoration. — C, a lieu- tenant-commander in the Navy, was sen- tenced by a court-martial to suspension for one year, and to retain his then present num- ber on the list of lieutenant-commanders for that time. The sentence having been exe- cuted, he applied to be restored to the num- ber on said list which he thereby lost: Held that the restoration could not be effected by the President otherwise than by a pardon. 17 Op. 31. 67. Same — Effect of pardon. — The punish- ment'imposed (loss of numbers), being a con- tinuing one, is still subject to the pardoning power, which, when exercised, would have the effect to restore the officer to his former rank according to the date of his commis- sion, lb. 68. Contempt of court. — The President has power to grant a pardon to a prisoner under- going punishment for a contempt of court. 19 Op. 476. 69. General pardon or amnesty. — The Presi- dent has the constitutional power, without Congressional authority, to issue- a general pardon or amnesty to classes of offenders, including persons in Utah guilty of polygamy and unlawful cohabitation, etc. 20 Op. 330. 394 PRESIDENT, IX, X, XI. 70. Same. — The pardoning power of the President is absolute, and not subject to legis- lative control. lb. 71.' Same. — The question of the President's pardoning power reviewed and the authorities collated. Various proclamations of general amnesty appended. lb. 72. Utah — Unlawful cohabitation. — The President's constitutional pardoning power covers the case of the offense in Utah of unlawful cohabitation. This power is abso- lute and not subject to legislative control. 20 Op.' 668. 73. The word "amnesty" in the Edmunds Act of March 22, 1882 (22 Stat. 30), was used advisedly with intent to indicate that the Pres- ident might, by act of Executive clemency, embrace a whole class of offenders, instead of dealing with each case separately, lb. 74. Misdemeanor. — If the action of the President on an application for a pardon for an offense styled by the laws of the United States a misdemeanor, depends simply on the question of necessity for pardon, such necessity exists, unless the applicant is to be prevented from freely changing his residence under penalty of losing his rights of citizen- ship thereby, for the reason that in some of the States a person convicted of a misde- meanor loses his right to vote, to sit as juror, etc. 21 Op. 242. 75. Congress has no power by legislation to abridge the effect of the President's pardon. 22 Op. 36. 76. A person convicted of desertion from the military service and afterwards pardoned by the President, under section 1118, Revised Statutes, would be restored by reason of the pardon to all the rights and privileges of a citizen which he had anterior to such con- viction, lb. 77. While the President's paTdon restores a criminal to his legal rights and fully relieves him of the disabilities legally attaching to his conviction, it does not destroy an existing fact that his service was not faithful and honest. lb. 78. A recruiting officer has the right to reject a candidate for enlistment in the Army whose service during his previous term was not honest and faithful, notwithstanding the President's pardon of the offense. lb. See also Pardon. X. Porto Rico. 79. Disbursement of Porto Eican customs revenues.— The act of March 24, 1900.(31 Stat. 51), which directs that certain Porto Rican customs revenues "shall be placed at the dis- posal of the President, to be used for the gov- ernment now existing and which may here- after 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" in- stead of the ' 'executive council. ' ' 23 Op. 450. 80. Same — Erection of schoolhouses — The President may lawfully direct that a portion of the revenues collected on importations from Porto Rico prior to January 1, 1900, be used for the purposes of erecting and equip- ping schoolhouses in that island. The act of March 24, 1900 (31 Stat. 51), appropriates these revenues for the benefit and govern- ment of Porto Rico. 23 Op. 329. ) XI. Miscellaneous. 81. Acceptance of presents. — In view of sec- tion 1784, Revised Statutes, the President can not properly accept presents from persons in the public service. 25 Op. 46. 82. Appropriations — Pago Pago Harbor, Sa- moa. — The President may lawfully use such part of the appropriation of $500,000 provided in the act of February 26, 1889 (25 Stat. 699), in making and executing contracts for the control of such property in Pago Pago Harbor, Samoa, whether by lease or purchase, as may in his judgment be necessary for the protection of the interest of the United States. 20 Op. 484. 83. Approval of bill after Congress ad- journs. — It is competent for the President to approve within ten days any bill presented to him, although Congress may adjourn in the interim, not sine die, but for a longer period than ten days, exclusive of Sundays. 20 Op. 503. 84. Same. — Should such abill not be signed within the ten days it would probably fail to become law. Suggested, however, that the better plan would be, in case the bill does not PRESIDENT, XI. 395 meet with Executive approval, to return it vetoed to Congress when that body recon- venes. Its validity can then be determined by the courts. 26. 85. Atlantic and Pacific Railroad Company's lines — Acceptance. — The President should ap- prove the recommendations of the Secretary of the Interior as to the acceptance of certain sections of the railroad and telegraph lines of the Atlantic and Pacific Railroad Company. 17 Op. 251. 86. Cables— landing of.— The President has the power, in the absence of legislation by Congress, to control the landing of for- eign submarine cables on the shores of the United States. .He may either prevent the landing, if the rights intrusted to his care so demand, or permit it on conditions which will protect the interests of this Government and its citizens. 22 Op. 13. 87. Same.— The Executive permission to land a cable is subject to subsequent Con- gressional action. lb. 88. Same. — Under the obligation entered into by the President it is his duty to pre- serve, protect, and defend the Constitution, to do which he must preserve, protect, and defend those fundamental rights which flow from the Constitution itself and belong to the sovereignty it created. lb. 89. Same. — The preservation of our terri- torial integrity and the protection of our for- eign interests are intrusted in the first instance to the President. lb. 90. Certificate of merit — Military service. — The President may grant a certificate of merit to an enlisted man of the Army who has dis- tinguished himself in the service and is recom- mended for such certificate by the command- ing officer of his regiment or by the chief of the corps to which he belongs, notwithstand- ing the fact that he is not in the military serv- ice at the time his case reaches the President for consideration, and, if granted the certifi- cate, will be entitled to additional pay for the period intervening between the date of such service and the date of his discharge frqm the military service; but the President can not grant a certificate of merit if the recommenda- tion therefor by the commanding officer or chief of his corps was made after the enlisted man was discharged from the military service. 24 Op. 127. 91. Medals of honor — Military service. — Under section 6 of the act of March 3, 1863 (12 Stat. 751), the President may present a medal of honor to an officer or private in the military service of the United States who has distinguished himself in action, notwith- standing he is not in the military service at the time the case reaches the President for consideration, provided the application or recommendation therefor was made while he was in the military service; but a medal of honor can not be awarded where the appli- cation or recommendation therefor is made after the officer or private has been discharged from the military service. 24 Op. 580. 92. Compromise of forfeited recognizance. — The President has no power, outside of the District of Columbia, to remit the forfeiture of a judgment on a recognizance. The power to compromise claims in favor of the United States, which includes judgments on recog- nizances, is vested by law in the Secretary of the Treasury with respect to all claims save those arising under the postal laws. 21 Op. 494. 93. Fees of consuls — Inspection cards — Un- official services. — The President may prescribe a fee, as provided by section 1745, Revised Statutes, for the services of a consul in fur- nishing inspection cards to steerage passen- gers on vessels destined to the United States, as required by the quarantine regulations of April 1, 1903, but he has no authority to de- clare such a fee unofficial and to permit the consul to retain it as such- 24 Op. 672. 94. Electoral vote — Failure to deliver certif- icate of the votes of any State. — It is the duty of the Secretary of State, under the provisions of section 141, Revised Statutes, as amended by the act of October 19, 1888 (25 Stat. 613), to send a special messenger to the district judge holding the certificate of the votes of his State, in each of the four States where the messenger has failed to deliver to the Presi- dent on the fourth Monday in January, 1893, the package containing the certificate of the votes of that State. 20 Op. 522. 95. Same. — The expression "Whenever a cer- tificate of votes from any State has not been re- ceived," as found in the act of October 19, 1888 (25 Stat. 613), should be construed so as to read "whenever any certificate of votes 396 PRESIDENT, XL required by law from any State has not been received." lb. 96. Executive action after statute is re- pealed. — Mistakes, if any, made in the execu- tion of an act which is subsequently repealed, can not be rectified by executive action after such repeal. Therefore the President has no power to retire Lieutenant-Colonel Freuden- berg with the rank and pay of colonel of in- fantry from the date of his first retirement, December 15, 1870. 17 Op. 60. 97. Executive and administrative officers. — The President has, under the Constitution and laws, certain duties to perform, among these being to see that the laws be faithfully executed; that is, that the other executive and administrative officers of the Govern- ment faithfully perform their duties; but the statutes regulate and prescribe these duties, and he has no power to add to, or snbstract from, the duties imposed npon subordinate ex- ecutive and administrative officers by the law. 19 Op. 686. 98. Executive clerk maysignland patents. — The President has power, under section 450, Be vised Statutes, as amended by the act of June 19, 1878 (20 Stat. 183), to designate one of his executive clerks to sign for him, and linhis name, all patents for land, etc.; and should an exigency of the public service re- quire it, he is authorized to appoint an assist- ant to aid in performing that duty, so long as the exigency exists. 17 Op. 305. 99. Influencing legislation — Order forbid- ding Government employees to influence legis- lation in their own interests. — 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 interests 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. 23 Op. 637. 100. Interference with judiciary. — The Executive has no right to interfere with the judiciary in proceedings against persons charged with being concerned in hostile ex- peditions against friendly nations. 21 Op. 267. 101. Military Academy, restoration of ca- det. — It is not within the authority of the President, in opposition to an adverse recom- mendation of the Academic Board of the Military Academy, to revoke an order of the Secretary of War for the discharge of a cadet and to restore him to the Academy to take his place in the next succeeding first class.. 17 Op. 67. 102. Mount Vernon relics, restoration of to rightful owner. — The Government having taken possession of the Mount Vernon Belies (so called) 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 Execu- tive authority as has been their preservation. 23 Op. 437. 103. Official bonds. — The President has power to require a bond of the register of wills and the recorder of deeds of the District of Columbia, for the faithful accounting by them of the- fees received by them, and he may likewise prescribe periods at which such ac- countings shall be had and payments made by them into the Treasury of the United States. 20 Op. 508. 104. The President's right to call for an opinion from the Attorney-General is not limit- ed to questions of law. Article II, section 2, clause 1, of the Constitution provides that he "may require the opinion of the principal of- ficer of each of the Executive Departments upon any subject relating to the duties of their respective offices." 23 Op. 360. 105. Proclamation. — The President has no power to issue the proclamation provided for in section 3 of the act of October 1, 1890 (26 Stat. 612), to take effect in futuro, nor has he the power to reimpose duties on one or more of five articles enumerated in said section but not on the others. In the proclamation the particular country on whose products the du- ties are to be reimposed should be named. 20 Op. 290. 106. Penitentiary. — The President is not authorized to approve a selection of public lands for penitentiary purposes by the State of Colo- rado under section 9 of the act of March 3, 1875 ( 18 Stat. 474 ) , as the failure by the desig: nated authorities of a State to select and lo- cate lands within the time named -by an act providing for such selection renders the grant inoperative. 21 Op. 462. PRESIDENT, XI— PRISONS AND PRISONERS. 397 107. Public domain, restoration to. — The President can not restore to the public do- main land reserved therefrom for the use of the Navy Department. It requires Congres- sional action. 21 Op. 120. 108. Bock Creek Park, acquisition of title — Beasonableness of prices. — Where an appro- priation for acquiring title to land for a pub- lic park is limited to $1,200,000, and the law requires the President to decide that the prices to be paid for various parcels of land are reasonable, and the commission appointed by the act has presented for his decision a report of appraisers in condemnation that would make the cost of the park consider- ably exceed that amount, it would not be law- ful for the President to decide that the prices as submitted are reasonable. 20 Op. 326. 109. Same — Valuation. — The President is. authorized to determine, parcel by parcel, whether the valuation of the lands embraced within the reduced area of the contemplated Rock Creek Park, as recommended by the Rock Creek Park Commission, bringing the total cost within the amount appropriated by the act of September 27, 1890 (26 Stat. 492), is reasonable or unreasonable. 20 Op. 377. 110. Same. — The validity and regularity of the proceedings culminating in the above recommendation are judicial questions, for the determination of the court and not for the Executive. lb. 111. Quarantine regulations. — The Presi- dent is authorized by the act of March 27, 1890 (26 Stat. 31), in the event he is satisfied that cholera, yellowfever, smallpox, or plague exists in any State or Territory or in the Dis- trict of Columbia, to adopt and enforce such rules and regulations as may be necessary to prevent its spread into another State or Ter- ritory or into the District of Columbia, and this notwithstanding the provisions of the act of February 15, 1893 (27 Stat. 450). 22 Op. 106. 112. Bemission of forfeiture. — Outside of the District of Columbia the President has no power to remit the forfeiture of a judgment or a recognizance. 21 Op. 494. 113. Bemission of forfeiture — Prize of war. — The President has authority to grant remis- sion 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 jurisdic- tion in these matters rests upon his pardoning power, as defined in section 2, Article II, of the Constitution. 23 Op. 360. 114. Same. — 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 forfeit- ures, with a limitation that a fine or penalty may not be remitted if the money has been paid into the Treasury, lb. 115. Tonnage dues — The President has no authority to reverse the decision of the Com- missioner of Navigation so as to adjust the claims of Sweden and Norway for the return of tonnage dues alleged to have been erro- neously exacted. 20 Op. 367. Authority to Extend Fort Missoula Mili- tary Reservation. See Reservations and Parks, 12. Authority to Remove Convict from one Prison to Another. See Consular Courts. Appeal to President in Regard to Survey of a Private Land Claim. See Depart- ment of the Interior, 15. Indians, Lease of Indian Lands. See In- dians, III, e. Protection of Indian Allottees. See In- dians, III, a, 56. Use of Military Forces. See Indian Ter- ritory. Tonnage Taxes, Suspension of. See Ship- ping, III, b. See also Cables; Civil Service, VI; Health and Quarantine, 7; Expositions and Fairs, 21, 30; Pardon; Prisons and Prisoners, 1. PRINTING. Printed Matter Coming by Mail From For- eign Countries. See Customs Law, 237. See also Public Printing. PBISONS AND PRISONERS. 1. Taking testimony of prisoners. — The- President has no power, in the absence of a treaty provision, to extend to a foreign gov- ernment the privilege of taking the testimony of prisoners, excepting when they are con- 398 PRISONS AND PRISONERS— PRIZE. fined in prisons of such of the Territories as are not invested with authority to regulate the prisons within their limit, and in the pris- ons of the District of Columbia; and then only, as to the former prisons, with the concurrence of the Attorney-General, and as to the latter prisons, with the concurrence of the supreme court of the District. 17 Op. 565. 2. Same. — Prisoners confined to State pris- ons, whether under sentence of Federal or State courts, are subject exclusively to the gov- ernment of rules and regulations prescribed by the several States. lb. 3. Spanish prisoners — Transportation of. — Under the treaty of 1898 with Spain the United States obligated itself to convey from the Philippine Islands to Spain only such Spanish soldiers as were actually made prison- ers of war either by the United States or by the insurgents. 22 Op. 383. 4. Troops remaining under arms, under the control and direction of Spanish officers, are to be removed at the expense of the Spanish authorities. lb. 5. A prisoner sentenced by a court-martial to confinement in a penitentiary of the United States should not be turned over to a marshal, but should be conducted to the prison by the proper officer of the Department of War. 21 Op. 204. 6. Philippine Prison — Confinement of Fili- pino convicted in Consular Court in China. — There is no warrant of law for confining in a Philippine prison a Filipino sailor convicted in the United States consular court at Shang- hai, China, of the murder of a Chinaman on the U. S. Army transport Listrom, and sen- tenced to fifteen years' imprisonment. 24 Op. 549. 7. Same. — Section 5546, Revised Statutes, as amended by the act of March 3, 1901 (31 Stat. 1451), or without the amendment, contains nothing to indicate that Congress considered the home or domicil of a convict in providing for his confinement, or that in speaking of a "convenient State or Territory" the Philip- pine Islands were in contemplation. lb. PRIZE. 1 . American Registry. — Under section 4132, Revised Statutes, a vessel lawfully condemned and sold as, a prize of war to an American citi- zen 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. 23 Op. 29. 2. Same. — The reversal of the decree of con- demnation operates only upon the fund pro- duced by the sale of the vessel, and does not disturb the title and rights of the purchasers. lb. Opinion of December 10, 1840 (3 Op. 606), distinguished. 76. 3. Prize money. — The officers and men of the IT. S. S. Hawk are not entitled to prize money under section 4625, Revised Statutes, for the destruction of the Spanish steamer Alphonso XII; as that, section refers only to property actually captured, and not to property de- stroyed without ever having been seized or in the possession of the United States forces. 22 Op. 171. 4. Same — Bounty. — If at the time of her destruction the Alphonso XII was a ship or vessel of war in the service of Spain, then the officers and crew of the Hawk may be entitled to bounty under section 4635, Revised Stat- utes, lb. 5. Same. — The division of prize money among vessels or between a capturing vessel and the Government must be determined by a prize court, and among the fleet officers and individual captors by the Treasury De- partment. 22 Op. 205. 6. Same. — A prize court is without jurisdic- tion to make distribution among individual cap- tors except in case of captures by privateers. lb. 7. Same. — In determining questions with reference to bounty arising under section 4635, Revised Statutes, the Secretary of the Navy is authorized: (1) To institute proceedings un- der a libel of information in a district court of the United States or the supreme court of the District of Columbia, sitting as a .prize court; (2) to submit the case to the Court of Claims; (3) or to determine himself the ques- tion arising and award the bounty, the better view being that the questions of fact involved should be adjudicated by the proper court. lb. 8. Same. — The Court of Claims has authority to hear and determine such questions of bounty, either as a claim founded upon a law of Congress or as one which may be trans- PRIZE— PROPOSALS. 399 mitted to it by the head of a department, under section 1063, Revised Statutes, and the act of March 3, 1887 (24 Stat. 505, 507). lb. 9. Certain tobacco belonging to the Portu- guese vice-consul at Gibara, Cuba, was seized by the United States and condemned as prize, together with the Spanish vessel of which it formed the cargo. It was asserted that a claim for the tobacco was not directly and for- mally presented owing to certain correspond- ence between the Departments of State and Justice and the Portuguese minister: Held that the precedents would have led to the con- demnation of tobacco so owned, so shipped, so originating, that its condemnation was not illegal and tortious, and that the demand of this merchant, whose status was not affected by his consular character, is without substan- tial merit. 22 Op. 327. 10. Same — Prosecution of claims. — Prize courts are, in a sense,' governed by the law of nations relating to war, and in all countries must have some, if not the same, rules con- cerning the manner of presenting claims. 22 Op. 327. 11. The President has authority to grant remission of forfeiture in cases of prizes of war after the vessels have been condemned, but be- fore the prize money has been deposited in the Treasury of the United States. His jurisdic- tion in these matters rests upon his pardon- ing power as defined in section 2, Article II of the Constitution. 23 Op. 360. PHIZES. ! Lottery, 13-18. PROCEDURE. A bill in equity will not lie against the State of Minnesota for the purpose of vacating a patent issued to that State under the swamp- land grant, on the mere ground that the land thus patented was not in fact swamp land. 19 Op. 684. See also Courts, 32. PROCESS. See Courts 32; United States, V. PROCESS AGENTS. See Oklahoma, 8. PROCLAMATION. See Customs Law, IV, g. PRODUCTION OF RECORDS. See Civil Service, II, d; Executive Depart- ments, 36-38. PROHIBITED IMPORTATIONS. See Customs Law, VII. PROMISSORY NOTES. See Internal Revenue, II. f, (2). PROMOTION. See Army, II, b, and V; Navy, II, b, and III, b; Civil Service, III, e; War Depart- ment, 109-113. PROPERTY LOST IN MILITARY SERVICE. See Claims, I, b. PROPOSALS. See Contracts, I, b; Executive Depart- ments, 63-65. 400 PROSECUTION OF CLAIMS— PUBLIC BUILDINGS. PROSECUTION OF CLAIMS. Against the United States. See Claims, 66-71; Executive Departments, II, d. PROTEST. See Customs Laws, III, c; Fines, Penalties, and Forfeitures, 6. PRUSSIA. See Customs Laws, 284, 285. PUBLIC BUILDINGS. 1. Site for Pension Office building.— The ap- propriation made by the act of March 3, 1881 (21 Stat. 448 ) , • " f or the purchase of a suitable site in the city of Washington for the erection of a brick building to be used and occupied by the Pension Bureau," etc!, is to be con- strued as applying solely to the purchase of a site. The language of the clause contains no ambiguity necessarily giving rise to the infer- ence that Congress intended it to embrace more than its terms express. 17 Op. 63. 2. Authority to purchase site does not in- clude power to acquire by condemnation. — -The authority given by the act of April 11, 1882 (22 Stat. 43 ) , "to purchase a site ' '. for a public building to be erected at Minneapolis, Minn. , does not include authority to acquire such site by condemnation under the eminent domain power of the United States. 17 Op. 509. 3. Purchase of site and building for office of the Chief Signal Officer of the Army. — The act of March 5, 1888 (25 Stat. 44), entitled 'An act for the purchase of a site, including the building thereon, etc., for the use of the office of the Chief Signal Officer of the Army," etc., does not carry with it an appropriation of money for the objects designated therein. 19 Op. 131. 4. No act for the erection of a public build- ing appropriates money unless the act in ex- press language makes appropriation therefor. Act of August 7, 1882 (22 Stat. 305). 20 Op. 54. 5. United States mint building at Philadel- phia.— The act of March -3, 1891 (26 Stat. 838), providing for the erection of a public building at Philadelphia, Pa., for the use of the United States mint does not carry an appropriation. lb. 6. ' Site for public building at Springfield, Mo.— The act of March 29, 1888 (25 stat. 46), entitled "An act for the erection of a public building at Springfield, Mo.," authorizes the Secretary of the Treasury to purchase "a site," and when this is done his authority in that regard is exhausted; he is not at liberty to buy another site in addition to the first. 19 Op. 297. 7. . Same. — As such authority is limited to a single site, so the authority derived there- under to select and contract for the purchase of a site is likewise restricted. lb. 8. Same. — Assuming that the contract to purchase a particular site, made with Messrs. Wooley, Porter & Hubbell, still exists, the Secretary is without authority to select a sec- ond site and contract for its purchase. lb. 9. Same. — Should that contract become re- scinded, or otherwise determined, without any actual sale taking place, the authority to select and contractfor the purchase of another site would revive. lb. 10. Same. — The obligation to pay for the property arises when a valid title thereto is conveyed and becomes vested in the United States; hence not until acceptance of the deeds tendered by the vendors. lb. 1 1 . The proposal made by Messrs. Mooney & Ferguson to sell to the United States a site for a public building at Buffalo, N. Y., which property they did not own or control, upon condition that the United States institute condemnation proceedings against any part thereof that can not be secured by grant, and deduct the cost of such proceedings from the contract price, and the acceptance thereof by the Secretary of the Treasury, do not constitute a contract obligatory upon the United States. 19 Op. 269. 12. Same. — The Secretary can not by con- tract bind the Government to exercise its power of eminent domain to enable persons to sell to the Government land which they do not own. lb. 13. Limitation of cost. — The first section of the act of April 11, 1882 (22 Stat. 43), au- PUBLIC BUILDINGS. 401 thorized a public building to be erected at Min- neapolis, Minn., limiting the cost of the build- ing, inclusive of its site, to $175,000, and the second section of same act appropriated $60,000 for purchase of site and toward con- struction of building ; by act of March 3, 1883 (22 Stat. 604), an appropriation of $60,000 was made for continuation of the building; and, by act of July 7, 1884 (23 Stat. 195), a further appropriation of $70,000 was made for exten- sion of site and continuation of building — the whole of the appropriations aggregating $190,000: Advised that the limitation fixed by the act of 1882 as to cost of the building, etc., is not repealed by the subsequent appropria- tion acts, the only additional expenditure allowable being for an "extension of site." 18 Op. 79. 14. Statutory provision for condemnation of land for buildings authorized by the 47th Con- gress does not include authority to acquire by condemnation site for a building authorized by 48th Congress. — The provision in the act of March 3, 1883 (22 Stat. 605), authorizing the Secretary of the Treasury "to acquire by pri- vate purchase or condemnation the necessary lands for public buildings and light-houses to be constructed, and for which money is ap- propriated, including all public building sites authorized to be acquired under any of the acts of the first session of the Forty-seventh Congress," does not empower him to acquire by condemnation the site for the proposed public building authorized to be erected at La Crosse, Wis., by the act of February 28, 1885 (23 Stat. 335). 18 Op. 174. ' 15. Same. — That provision is limited to lands for public buildings for which money is then (i. e.., by said act of March 3, 1883) appropriated, including building sites author- ized to be acquired under acts of the previous session, and does not extend to other cases. lb. 16. Same — Statutory construction. — A stat- ute should not be construed as making an appropriation, or authorizing the expendi- ture of money, unless the language is suffi- ciently explicit to clearly justify it; authority for the use of the public money can not arise by inference without very clear terms re- quiring it. lb. 17. Location of public building at Portland, Oreg. — While the Secretary of the Treasury has the power to erect the public building to be built in the city of Portland, Oreg., at any point within the present limits of that city, yet it is more in accord with the intent of the act of January 24, 1891 (26 Stat. 727), to select the location in the limits of said city as they existed at the time that statute was passed. 20 Op. 320. 18. Acceptance of Federal building site in Honolulu. — The Secretary of the Treasury may, if authorized by the President, accept a site for a Federal "building in Honolulu acquired in exchange for public land in Hawaii and assume the custody and control thereof, no objection thereto arising under section 3736, Kevised Statutes, or otherwise. 24 Op. 600. 19., Sites for Government buildings at Troy and Auburn — Condemnation. — Under an act of the legislature of New York, passed April 2, 1885, a valid title to certain lands situated in the cities of Troy and Auburn, in that State, which have heretofore been selected for the sites of Government buildings authorized by Congress to be erected there, may be acquired by the United States by condemnation proceed- ings instituted in the State court pursuant to its provisions. 18 Op. 352. 20. Same. — The acts of Congress of March 3, 1885 (23 Stat. 348, 482), providing for the purchase of such sites, may properly be taken to authorize the acquisition thereof in any mode which is in conformity to the laws of the State. Hence where, by a law of the State, the property may be condemned and title thereto acquired under the eminent do- main power of the State, recourse may be had as well to this mode of acquisition as to any other under the authority conferred by those acts. lb. 21. Public building site at Williamsport, Pa. — Condemnation. — Title to the additional ground authorized to be purchased by the act of July 10, 1886 (24 Stat. 141), for the site of a public building to be erected in Williams- port, Pa., may be acquired by the institution of condemnation proceedings under the laws of the State of Pennsylvania, in case no agreement for the purchase thereof can be made with the owner. 18 Op. 484. 22. Erection of temporary building at a col- lection port. — The Secretary of the Treasury is not authorized to employ any part of the appropriation for collecting the revenue from customs in the erection of a temporary struc- 18456—08- -26 402 PUBLIC BUILDINGS. ture at a collection port for the purposes of the customs service. 19 Op. 607. 23. Same. — No building, even of a tempo- rary character, to be used for storage pur- poses, can be erected at the public expense without special authority from Congress, lb. 24. Leases for post-offices. — Certain leases of post-offices, made by the Postmaster-General without express statutory authority prior to the act of March 3, 1885 (23 Stat. 385), for terms of twenty years: Held not to be ob- ligatory upon the Government. 18 Op. 215. 25. Where the tenancy of the Government is from year to year, it may be terminated by giving such notice as is required by the law of the State in which the property is situated. lb. 26. Disbursing agents — Public building fund — Custom-house and post-office at Philadel- phia — Compensation. — Wherea person not hold- ing any office under the United States requir- ing him to give bond, was appointed an agent to disburse funds appropriated to build the custom-house and post-office building in the city of Philadelphia, Pa. : Held that, in view of the provisions of sections 3657, 3658, and 255, Eevised Statutes, his appointment was improvidently made; that he was not lawfully empowered to receive or disburse the public funds placed in his hands; and that, under existing legislation, he is not entitled to any compensation for his services as such disbursing agent. 17 Op. 124. .-■-■ 27. Same — Maximum compensation. — "Where, under the act of March 3, 1869 (15 Stat. 312), an agent was appointed for the disbursement of money appropriated for the erection of a public building with the maxi- mum compensation allowed by law, at that time being one-eighth of 1 per centum, and afterwards the act of March 3, 1875 (18 Stat. 415), increased the compensation for similar services to a maximum of three-eighths of 1 per centum, and the Secretary increased the compensation to one-fourth of 1 per centum: Held that that was all the agent was entitled to, and that the Secretary of the Treasury had a discretion as to whether or not he would allow him the full maximum compensation under the later act. 17 Op. 219. 28. Same. — In the absence of any special designation by the Secretary of the Treasury, the collector of customs of the district in which a public building is being erected should act as disbursing agent. 19 Op. 393. 29. Same. — It is competent for the Secretary to designate the collector or any other bonded officer to act as disbursing agent in any such case. lb. 30. Same. — When such building' is at a place in which there is no collector, the Secre- tary may, in his discretion, designate a private citizen to act. lb. 31. Same. — The various statutory provisions in force relating to disbursing agents for the payment of moneys for the construction of public buildings (sees. 3657, 3658, and 255, Bev. Stat.) considered, lb. 32. Same — State, War, and Navy Building. — The lieutenant-colonel of the Corps of Engi- neers, in charge of the construction of the State, War, and Navy Building, who was di- rected by the Secretary of War, acting under the provisions of the act of March -3, 1875 (18 Stat. 391), to disburse the appropriations made from time to time for that building, is not entitled to compensation at the rate of three-eighths of 1 per cent upon the amount of money disbursed by him, as claimed under section 4 of. the act of March 3, 1875 (18 Stat. 415), said claim being controlled by the pro- visions of section 1153, Eevised Statutes. 19 Op. 425. 33. Same. — Section 1153 Revised Statutes, which makes it the duty of engineer officers in charge of any public work to disburse moneys applicable to the same, and expressly pro- vides that such officers shall not be allowed compensation therefor, was not repealed ex- pressly or by implication by the act of March 3, 1875 (18 Stat. 415), which limits the com- pensation of disbursing officers of moneys appropriated for the construction of public buildings to three-eighths of 1 per cent. lb. 34. The Secretary of the Treasury is given authority, by section 3658, Bevised Statutes, to appoint agents for the disbursement of money s appropriated for the construction of public build- ings where there is no collector of customs at the place of the location of such buildings. 25 Op. 536. 35. Same. — The words "the place of loca- tion of any public work," as used in that sec- tion, means some place, city, or town within a collection district, and not the whole dis- trict. H>. PUBLIC BUILDINGS— PUBLIC LANDS. 403 36. Same. — The doctrine anDounced by the Supreme Court of the United States in the case of Bartlett v. United States (197 U. S. 230) should not be extended beyond the particular facts in that case. lb. 37. Same. — Sections 255, 3654, 3657, and 3658, Revised Statutes, and the acts of March 3, 1875 (18 Stat. 415), and of August 7, 1882 (22 Stat, 306), relating to the appointment of disbursing agents for the payment of moneys appropriated for the construction of public buildings, are not inconsistent, and, except as one modifies another, may all stand together. lb. 38. State acts of cession which are not a compliance with the laws of the United States — Jurisdiction.— A State statute that the United States "shall have the right of exclusive leg- islation and concurrent jurisdiction" is not a compliance with an act of Congress for the erection of a building providing for exclusive jurisdiction save as to the administration of the criminal laws of the State and the service of civil process thereunder. 20 Op. 242. 39. Same. — A State statute that the United States shall have over land to be taken for public building "the right of exclusive legis- lation and concurrent jurisdiction together with the State of Louisiana" is not a com- pliance with the act of April 26, 1890 (26 Stat. 67), requiring a cession to the United States of jurisdiction over the site selected, for all purposes except the administration of the criminal laws of said State. 20 Op. 298. 40. Same. — The certificate of the governor of ■Wisconsin, in conformity to section 2, chapter 1, of the Revised Statutes of 1878 of the State, consenting to the purchase of certain land by the United States provided the State shall forever retain concurrent jurisdiction over any such place to the extent that all legal and military process issued under the author- ity of the State may be executed anywhere on such place or in any building thereon or any part thereof, and that any offense against the Jaws of the State committed on such place may be tried and punished by any compe- tent court or magistrate of the State, to the same extent as if such place had not been purchased by the United States, does not satisfy the provision of section 355, Revised Statutes of the United States. 20 Op. 611 . See also United States, V, 69-78. 41. Public buildings erected on private lands. — The United States has a right to remove or sell buildings or improvements erected or made on what was supposed to be the public domain, but which afterwards proved to be covered by a. Mexican land grant, and had been subsequently patented by the owner, the laches or mistake of the Government of- ficers in regard to the ownership of the land being no bar to the Government's right in the premises. 20 Op. 284. 42. Same. — An application should be made to Congress to authorize said disposition of the buildings, etc., as neither the President nor the Secretary of "War has authority to dispose of the same. lb. 43. Same. — Where land established as a military reservation includes the private claim of an individual, which was subse- quently discovered and the use of the reser- vation discontinued, and upon the land are erected some twenty-two buildings, but in the patent issued to the claimant there was a clause reserving to the United States its rights to ownership in the buildings: Held that the ownership of the buildings was in the United States. 20 Op. 603. Acquisition of Land for Public-Building Sites. See also United States, V. Rent of Post-Office Building at San Juan, P. R. See Porto Rico, 52. PUBLIC CAETAGE OF IMPORTED MER- CHANDISE. See Contracts, 163. PUBLIC LANDS. I. Entry, 1-2. II. Preemption, Homestead, 3-3, III. Certification, 7-8. IV. Surveys, 9-12. V. Patents, 13-17. VI. College and University Land Grants, 18-20. VII. Swamp-Land Grants, 21-30. VIII. To Counties for Public Building Sites, 31-32. 404 PUBLIC LANDS, I, II, III, IV. IX. Grants for Penitentiaries, 33. X. Mineral Lands, 34-38. XI. Reservations, 39-42. XII. Private Land Claims, 43-46. XIII. Timber Depredations, 47-56. XTV. Restoration to Public Domain, 57-60. XV. Miscellaneous, 61-78. I. Entry. 1. Limitation to 320 acres. — The provision in the act of August 30, 1890 (26 Stat. 391), declaring that "no person who shall, after the passage of this act, enter upon any of the public lands with a view to occupation, entry, or settlement under any of the land laws, shall be permitted to acquire title to more than 320 acres in the aggregate under all of said laws, ' ' does not operate upon entries made prior to the date of the act. 19 Op. 704. 2. Same. — An applicant who, by such prior entries, has already acquired title to 820 acres is not thereby precluded from acquiring title to an additional quantity, not exceeding 320 acres, by homestead entry, timber land, or other claim under the land laws, filed sub- sequent to the date of the act. lb. II. Preemption, Homestead. 3. After entry, can not be set apart for mili- tary reservation. — Where public land subject to homestead settlement has been duly en- tered under the homestead law, it thence- forth ceases to be at the disposal of the Gov- ernment so long as the entry of the settler subsists. Hence it can not, while such en- try stands, be set apart by the President for a military reservation. 17 Op. 160. 4. Same — but may be reserved before pay- ment and entry. — Where, however, a pre- emption filing has been made of public lands, the land covered thereby may be set apart by the President for such reservation at any time previous to payment and entry by the settler under the preemption law. lb. See also 34, 37. 5. Homestead entry of land withdrawn from preemption. — Where a homestead entry was made in 1884 of land lying within the indem- nity limits of the Northern Pacific Railroad land grant, alleging a prior settlement thereon in 1878, which land had been in 1872 with- drawn from preemption or homestead entry for the benefit of the railroad grant, and had not since been restored to entry, and the said land was in 1883 selected by the railroad company as "lieu land: " Held that the land being in a state of reservation from the date of the withdrawal in 1872 until its selection by the company in 1883, was not during that period open to homestead settlement, and consequently no right adverse to the claim of the company could be acquired by a set- tlement made in 1878. 18 Op. 571. 6. Same. — When public lands have been once withdrawn by competent authority from pri- vate appropriation under the general land laws, they do not. again become subject to such appropriation until restored to entry by like authority. lb. III. Certification. 7. Erroneous certification.— Certification of land already covered by a homestead or pre- emption entry is erroneous and without au- thority of law- 20 Op. 224. 8. Same.— The act of March 3, 1887 (24 Stat. 556), is mandatory, and makes it the duty of the United States to bring a suit to re- store title to the United States if the party to whom the land was erroneously certified after a prior certification does not give or procure a relinquishment or reconveyance. lb. IV. Surveys. 9. An appeal does not lie to the President to set aside a decision made by the Secretary of the Interior touching the correctness or validity of a resurvey of a private land claim, being the Charwin grant. 18 Op. 31. 10. Resurvey. — The Commissioner of the General Land Office may, in his discretion, direct a resurvey of patented land where a sub- stantial allegation of fraud or mistake is made, the sustaining of which will restore to the public domain land wrongfully patented, or subserve the public interest or protect the public right. 19 Op. 126. PUBLIC LANDS, IV, V, VI. 405 11. Same. — A survey made under the cir- cumstances stated would not be conclusive, but on allegation of fraud in the original running of the lines might, with other facts, be evi- dential, lb. 12. Same. — In connection with other tes- timony to establish fraud or mistake in the original running of the lines, the testimony of the surveyor who reran the lines as to the facts found by him on the ground, together with the plats made by him, might be admissible as evidence»to sustain an allegation of fraud, or mistake, lb. V. Patents. IS. Patents for mining claims. — No legal objection exists to the practice of the Land Department, in issuing patents for mining claims upon veins or lodes, to insert in the patent a clause excepting from the grant all town-site rights in the premises where it appears that the surface ground of any such claim lies wholly or partly within the limits of a previously located, entered, or patented town site. 17 Op. 248. 14. Signing land patents. — The President has power under section 450, Eevised Statutes, as amended by the act of June 19, 1878 (20 Stat. 183), to designate one of his executive clerks to sign for him, and in his name, all patents for land, etc.; and should an exigency of the public service require it, he is author- ized to appoint an assistant to aid in per- forming that duty so long as the exigency exists. 17 Op. 305. 15. Patents issued to persons who have pur- chased in good faith from railroads lands erro- neously certified, issuance whereof is pro- vided for in the fourth section of the act of March 3, 1887 (24 Stat. 556), are only in- tended to be issued after it shall have been legally determined, in the mode prescribed in the second section, that the certification or patent to the railroad company had been erroneously issued. 19 Op. 68. 16. Issuance of new patents. — In the case of s> voidable entry of public land upon which a patent has already issued, where the action of the board of equitable adjudication is ap- plied for with a view to obtaining the issue of a new patent by the Commissioner of the General Land Office under section 2456, Re- vised Statutes, a surrender of the outstanding patent should accompany the application or be made before the entry is acted upon by the board. 19 Op. 188. 17. Cancellation of old patent.— The out- standing patent, when surrendered, need not be canceled until after confirmation of the entry; it is sufficient if the cancellation take place previously to the issue of a new patent. lb. VI. College and University Land Grants. 18. Agricultural college lands. — Under the act of June 2, 1862 (12 Stat. 503), donating public- lands to establish agricultural colleges, the State of Kansas became entitled to a cer- tain quantity (90,000 acres) of public lands lying-within her borders subject to private entry at the minimum price of $1.25 an acre; and by the same act it was declared that if such lands are selected from those which have been raised to double minimum in con- sequence of railroad grants, they shall be computed at the maximum price and the number of acres diminished proportionately. Subsequently the Secretary of the Interior, pursuant to the provisions of the railroad land-grant act of July 1, 1862 (12 Stat. 492), made a withdrawal of lands for 15 miles on each side of the general route (as designated) of a certain railroad within the scope of the act, part of which lands (the even-numbered sections) were afterwards restored to market and raised to double-minimum lands, in ac- cordance with the act of March 3, 1853 (10 Stat. 244). Thereafter, in September, 1865, 7,682.92 acres of these double-minimum lands at $2.50 an acre were certified to and accepted by the State of Kansas, in lieu of 15,365.84 acres at the minimum price of $1.25 an acre, which last completed the quantity to which the State was originally entitled: Held that the claim of the State under the said act of July 2, 1862, is fully satisfied, and that it is not entitled to a further allowance there- under, as claimed, of 7,682.92 acres. 17 Op. 129. 19. University land grants. — Under the provisions of section 14 of the act of Febru- ary 22, 1889 (25 Stat. 680), the States of North Dakota and South Dakota take each 72 406 PUBLIC LANDS, VI, VII. sections of land for university purposes. 19 Op. 635. 20. Same — Certification. — Lands which, were selected for the Territory of Dakota un- der the act of February 18, 1881 (21 Stat. 326), and which lie within the State of South Da- kota, should be certified to that State. lb. VII. Swamp-Laud Grants. 21. Indemnity. — The decision of the Sec- retary of the Interior, in November, 1855, that those lands which had been reserved by the President under the act of September 20, 18S0 (9 Stat. 466), granting lands to the State of Illinois to aid in the construction of a railroad, did not pass to the State by virtue of the swamp-land grant of September 28, 1850 (9 Stat. 519), is to treated as res ad judicata as to all the lands embraced within the belt of ter- ritory to which it specifically relates and refers. 17 Op. 27. 22. Indemnity for swamp lands sold by the United States. — Under the provisions of the acts of March 2, 1855 (10 Stat. 634), and March 3, 1857 (11 Stat. 251), the State of Louisiana is entitled to indemnity for any swamp lands granted to that State by the act of March 2, 1849 (9 Stat. 352), which were sold by the United States between the date of that act and the 28th of September, 1850. 18 Op. 522. 23. Same. — But as to such swamp lands as were excepted out of the grant made by the said said act of 1849 (viz, ' ' lands f rontingon rivers, creeks, bayous, water courses," etc.), and as were first granted to that State by the act of September 28, 1850 (9 Stat. 519) , it is enti- tled to indemnity only for those which have been sold by the United States since the 28th of September, 1850. lb. 24. Same. — The Secretary of the Interior is warranted in approving certain statements of account between the United States and the State of Ohio, made by the Commissioner of the General Land Office, for cash indemnity for swamp lands sold during the period inter- vening between the passage of the swamp- land act of September 28, 1850 (9 Stat. 519), and March 3, 1857 ( 11 Stat. 251 ) . 18 Op. 170. See 15 Op. 340. 25 . A bill in equity will not lie against the State of Minnesota for the purpose of vacating a patent issued to that State under the swamp- land grant, on the mere ground that the land thus patented was not in fact swamp land. 19 Op. 684. 26. Swamp-land grants, Minnesota — Forest reserve.— The act of March 12, I860 (12 Stat. 3), granting to the State of Minnesota all swamp and overflowed lands unfit for culti- vation within its limits, was a, grant in prse- senti, the intention of Congress being to give the beneficial title immediately to, the State of all the lands thereby granted, as against claimants attempting to initiate rights after- wards, except under laws theretofore en- acted. 25 Op. 626.' 27. Same. — The requirement of the second section of that act (partly contained in sec-^ tion 2490, Rev. Stat.) , that the selection of sur- ve3 T ed lands should be made within two years from the adjournment of the legisla- ture of the State at its next session after the date of the act, and as to all unsurveyed lands within two years after such adjourn- ment after notice by the Secretary of the In- terior to the governor of the State that the surveys have been completed and confirmed, was not a condition or limitation of the grant, but merely a direction to the Secretary of the Interior, lb. 28. Same. — By section 2490, Revised Stat- utes, selections are to be made under section 2480 (the act of September 28, 1850) and not as provided by the act of March 12, 1860, and the act of March 2, 1849, relating to swamp lands in Louisiana. lb. 29. Same. — The authority conferred by the act of June 27, 1902 (32 Stat. 400, 402), upon the Forester of the Department of Agri- culture to select lands from certain Indian reservations to constitute a forest reserve did not authorize him to reserve the swamp lands conveyed to the State of Minnesota by the act of March 12, 1860. lb. 30. Same. — The creation, subsequent to the passage of the act of March 12, 1860, of an Indian reservation upon the lands which were free public lands at the date of the passage of that act did not give the In- dians such title to swamp lands embraced within the limits of the reservation as will prevent the fulfillment of the Government's grant of lands to Minnesota. lb. PUBLIC LANDS, VIII, IX, X, XI. 407 TOI. To Counties for Public Building Sites. 31. Proceedings to recover land used for other than purpose named in the grant. — The institution of proceedings on behalf of the United States to recover the title and pos- session of certain land (part of the Hot Springs Reservation) granted to the county of Garland, Arkansas, for the site of a public building, which land is not used for that pur- pose, but has been leased to private parties for a period of ninety-nine years, would not be warranted for the reason that it is not clear whether the statute donating the land an- nexes a condition to the grant or creates a mere trust, and for the further reason that the county has brought suit to annul the lease' and recover control of the property. 18 Op. 264. 32. Same — Forfeiture. — In the absence of any action on the part of Congress declaring forfeiture or directing suit, the Attorney-Gen- eral is not warranted in instituting proceedings to recover to the United States the title and possession of the land granted by section 19 of the act of March 3, 1877 (19 Stat. 380), to the county of Garland, Arkansas, as a public building site. 20 Op. 307. IX. Grants for Penitentiaries. 33. The provisions of section 9 of the act of March 3, 1875 (18 Stat. 474), granting certain sections of unappropriated public lands within the State of Colorado to the State for peniten- tiary purposes, to be selected and located by direction of the legislature with the approval of the President of the United States on or before a specified date, are not directory, as Congress" had no right to give directions to the legislature of a State, but are in the nature of conditions precedent, and can only be given effect as conditions, and a failure by the designated authorities to select and locate the lands within the time named, renders the grant inoperative. After the expiration of said time the President is not authorized to approve a selection and location of said lands. 21 Op. 462. X. Mineral Lands. 34. Mineral lands belonging to the public domain, which are reserved from sale under section 23 18, Revised Statutes, may be reserved by the President for military or other public purposes. 17 Op. 230. 35. Same.— Where such lands are included in a military reservation, they are not open to exploration and purchase under section 2319, Revised Statutes. lb. 36. Same. — It is otherwise where a right has once attached to mineral land, under the laws relating thereto, in favor of the locator of a mining claim, lb. 37. Same. — Where a right to mineral land has once attached, the land is not subject to reservation by the President during the ex- istence of such rights; and if it be subse- quently reserved, the locator may neverthe- less perfect his title. lb. 38. Patents for — Exception therefrom of town-site rights. — No legal objection exists to the practice of the Land Department, in issu- ing patents for mining claims upon veins or lodes, to insert in the patent a clause except- ing from the grant all town-site rights in the premises, where it appears that the surface ground of any such claim lies wholly or partly within the limits of a previously located, en- tered, or patented town site. 17 Op. 248. XI. Beservations. 39. Preemption — Homestead lands — After entry can not be set apart for military reserva- tion. — Where public land subject to home- stead settlement has been duly entered under the homestead law, i.t thenceforth ceases to be at the disposal of the Government so long as the entry of the settler subsists. Hence it can not, while such entry stands, be set apart by the President for a military reservation. 17 Op. 160. 40. Same — But may be reserved before pay- ment and entry. — Where, however, a pre- emption filing has been made of public lands, the land covered thereby may be set apart by the President for such reservation at any time previous to payment and entry by the settler under the preemption law. lb. See also X, Mineral Lands. 41. Irrigation purposes — Withdrawal from entry. — The provision in the act of October 2, 1888 (25 Stat. 526), reserving from sale or entry lands designated or selected for reser- voirs, ditches, or canals for irrigation pur- 408 PUBLIC LANDS, XI, XII, XIII. poses, and also lands made susceptible of irri- gation by such reservoirs, ditches, or canals, operates as an immediate withdrawal of the lands thus described from entry and settle- ment. 19 Op. 564. 42. Indian reservations made from public domain within limits of a State. — The Presi- dent has power to make a reservation for the occupation of Indians from public domain lying within the limits of a State. 17 Op. 258. See aho Indians, III. XII. Private land Claims. 43. New Mexico — Nolan grant. — The pro- viso in the fourth section of the act of July 1, 1870 (16 Stat. 646), confirming the Nolan grant, No. 48, does not include his claim to certain land in New Mexico, known as claim 39. 19 Op. 8. 44. Same. — There has not as yet been any "final action by Congress" on this claim, as contemplated in the eighth section of the act of July 22, 1854 (10 Stat. 309). lb. 45. A former citizen of the United States who in 1889 expatriated himself and became a citizen of Mexico can not invoke Article XXI of the treaty of Guadalupe Hidalgo for an arbi- tration as against an act of this Government done while he was a citizen thereof. lb. 46. New Mexico — Pinkerton claim. — A claim of one Pinkerton to certain lands in the Ter- ritory of New Mexico considered, and his remedy, if he has any, decided to be under the act of March 3, 1891 (26 Stat. 854), estab- lishing a court of private land claims in certain States and Territories. 20 Op. 118. XIII. Timber Depredations. 47. Disposition or deposit of moneys recov- ered for. — The provisions in section 2 of the act of April 30, 1878 (20 Stat. 46), requiring moneys collected for depredations upon the public lands to be covered into the Treasury, in effect modifies section 4751, Revised Statutes, only as to that part of the penalties, etc., recovered which was payable under the latter section to the Secretary of the Navy; it does not affect the part payable thereunder to informers.. 17 Op. 592. 48. Same. — Section 5 of the act of June 3, 1878 (20 Stat. 90), applies to the Pacific States ' and Washington Territory, and repeals sec- tion 4751, Revised Statutes, only so far as concerns such States and Territory, lb. ' 49. Seizure of timber unlawfully cut. — The Land Department has authority to make seizure, through its officers or agents, of tim- ber unlawfully cut on the public lands. 18 Op. 434. 50. Disposal. — Timber unlawfully cut on the public lands, which has been seized by duly authorized agents of the Land Departs ment, and is in their custody, may be dis- posed of by that Department ; and whether this be done by public or private sale, with or without previous advertisement, is a matter entirely discretionary therewith, lb. 51. Timber unlawfully cut on an Indian reservation may be sold for and on account of the United States. The sale should be made by the Commissioner of the General Land Office, under the supervision of the Secretary of the Interior. 19 Op. 710. Opinion of August 23, 1886 (18 Op. 434) concurred in. lb. See also Indians, IV. 52. The lands lying in the "Cherokee Strip," which are leased to the whites, are not lands of the United States within the meaning of section 5388, Revised Statutes, which penalizes the cutting or destroying of timber on the lands of the United States, 18 Op. 555. 53. Section 5388, Revised Statutes, makes no provision for seizure of property belonging to a wrongdoer. lb. 54. Removal of timber by railroad com- pany. — A railroad company to which has been granted by the United States every alternate section of the public land not mineral, des- ignated by odd numbers, to the extent of 20 alternate sections per mile on each side of its railroad, possesses no authority to select its own lands, locate them in sections, and then cut timber from the land which it has so surveyed. 20 Op. 542. 55. The provisions of sections 2461, 2462, 2463, and 4751, Revised Statutes, are intended to protect and preserve live oak, red cedar, and other like timber, whether the same shall be upon land reserved or purchased by the United States for the purpose of supplying PUBLIC LANDS, XIII, XIV, XV. 409 such timber for the Navy, or whether it be upon other lands of the United States, pro- vided only that the timber is live oak, or red cedar, or other like timber, such as would be useful to the Navy for naval pur- poses. 19 Op. 381. 56. Informers. — Where trespasses were committed in the State of Michigan, by cut- ting, destroying, removing, etc., live oak or red cedar trees, or other like timber useful for naval purposes, on and from lands be- longing to the United States: Advised that informers in such cases are entitled to one-half of the penalties, etc., recovered under section 4751, Revised Statutes, bearing in mind the power given to the Secretary of the Navy in that section. lb. XIV. Restoration to Public Domain. 57. Public lands once reserved by the President for military or other purposes, and subsequently no longer needed for such pur- poses, can not be restored to the public do- main' without authority from Congress. 17 Op. 168. (16 Op. 123; 10 Op. 360.) 58. The act of March 3, 1887 (24 Stat. 556), is mandatory, and makes it the duty of the United States to bring a suit to re- store title to the United States if the party to whom the land was erroneonsly certified after a prior certification does not give or procure a relinquishment or reconveyance. 20 Op. 224. 59. Certification of land already covered by a homestead or preemption entry is erroneous and without authority of law. lb. 60. Congress alone can restore to the public domain land reserved therefrom for the use of the Navy Department. 21 Op. 120. XV. Miscellaneous. 61. Military road — Withdrawal from Bale. — 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. 23 Op. 283. 62. Same— Effect of patents for lands through which such read passes. — 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. lb. 63. Same — Authority to abandon, vacate, or alienate 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 in- operative and void. lb. 64. Same — Not subject to State or private control. — Such a road, though within a State, is not subject to either State, municipal, or private control or interference in any way. lb. 65. The Soldiers' Home is not entitled to bounty land warrants belonging to the estates of deceased soldiers which remain unclaimed for the period of three years after their de- cease. 17 Op. 157. 66. Adjustment — Sale of unclaimed lands. — The term "bona fide purchasers of said un- claimed land," referred to in the third pro- viso of section 3 of the act of March 3, 1887 (24 Stat. 556), means those persons who, without knowledge of wrong or error, have purchased from the railroad company lands which had been previously entered by a pre- emption or homestead settler, where entry had been erroneously canceled as described in the first clause of that section, and which land the preemption or homestead settler did not elect to claim after the recovery by the proceedings prescribed by the second section of the act. 19 Op. 68. 67. Same — Issue of patents. — Patents, the issue whereof is provided for in the fourth section of the same act, are only intended to be issued after it shall have been legally de- termined, in the mode prescribed in the sec- ond section, that the certification or patent to the railroad company had been errone- ously issued. lb. 68. Same. — The word " grant," in the fifth section, should be construed to include (as it does in the preceding sections of the act) 410 PUBLIC LANDS, XV— PUBLIC PRINTING, I. both the primary and the indemnity limits. lb. See also Railroads, III. 69. Hawaii. — The officers of the Hawaiian government have no authority to sell or other- wise dispose of the public lands in the Ha- waiian Islands, and any such sales or agree- ments to sell are absolutely null and void as against the Government of the United States. 22 Op. 575. 70. Same. — 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. lb. 71. 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 entry- men to a grant have been subsequently per-, formed, such power having been transferred to the United States. 22 Op. 627. 72. Same. — By the resolution of annexa- tion the public property of Hawaii, including the lands, became vested in the United States, and only by their authority or direction can these lands be disposed of. lb. 73. Same. — All interest of the Republic of Hawaii in public lands at the time the resolu- tion of annexation took effect were thereby transferred to the United States, and thence- forth the officials of Hawaii were without power to convey by grant or cession the legal or equitable title of the United States. lb. 74. Same.— Congress having failed to legis- late on the subject of public lands for the Hawaiian Islands, the government of Hawaii is not reinvested with its former power of their disposition. lb. 75. Porto Eico. — Under Spaijish 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 ITnited States. 22 Op. 544. 76. Same. — 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 Departments of the Government, lb. 77. Same. — 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. lb. 78. 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. 24 Op. 8.. Fob Buildings Erected on What was Erroneously Believed to be the Public Domain. See United States, 90-92. See also Railroads, III; Reservations and Parks, III. PUBLIC MONEYS. Disbursing Agent. See Treasury Depart- ment, II, i; Public Buildings, 26-37. PUBLIC OFFICERS. See Office and Officers. PUBLIC WORKS. (See. Appropriations; Contracts; Rivers and Harbors; Cuba. PUBLIC PRINTING. I. In General, 1-6. II. Government Printing Office, 7-8. III. Bureau of Engraving and Printing, 9-14. IV. Executive Departments, 15-21. I. In general. 1. The allotment of the Public Printer's ap- propriation among the different Departments is not within the jurisdiction of the accounting officers of the Treasury. 21 Op. 423. 2. Copies of Congressional documents ordered by an Executive Department from the Public Printer under section 90 of the public print- PUBLIC PRINTING, I, II, III. 411 ing and binding act of January 12, 1895 (28 Stat. 623), by the Secretary of State to a number not exceeding the number of bureaus in his Department, should not be charged to the allotment of the Public Printer's appropriation for such Department. lb. 8. The word "dooument" in the joint res- olution of July 7, 1882, "to provide for the printing of public documents," etc., applies to everything that is a document, no matter by what kind of legislation ordered, whether by special act or otherwise, so that such legisla- tion does not actually forbid the printing of the "usual number" of the document. 18 Op. 51. 4. The "nsual number" at the present time (1884), within the meaning of the resolution, is 1900. lb. 5. Delivery of entire copy within fiscal year. — The word "order" in section 80 of the public printing and binding act of January 12, 1895 (28 Stat. 621), providing that "no order for public printing shall be acted upon by the Public Printer after the expiration of one year unless the entire copy and illustrations for the work shall have been furnished with- in that period," was not intended to include a joint resolution of Congress like the resolu- tion of April 2, 1894, providing for printing "a history of the international arbitrations to which the United States was a party, together with a digest of the decisions rendered in such arbitrations." 21 Op. 427. 6. Slip laws.— Under section 56 of the public printing and binding act of January 12, 1895 (28 Stat. 609), the Public Printer should print in slip form and distribute 760 copies of private laws, postal conventions, and treaties. 21 Op. 405. II. Government Printing Office. 7. Purchase of paper and materials for — Ad- vertisement. — Section 3709, Revised Statutes, prohibiting purchases and contracts for sup- plies by the Departments of the Government except after due advertisement for proposals, does not apply to paper and materials for the Government Printing Office; and the acts amendatory of that section (Jan. 27, 1894, 28 Stat. 33, and Apr. 21, 1894, 28 Stat. 62) enlarged it in respect to that office only so as to apply to fuel,. ice, stationery, and miscel- laneous supplies. 21 Op. 137. 8. Same. — The purchases by the Public Printer contemplated by the act of January 12, 1895 (28 Stat. 601), are paper and materials for printing and binding public documents and such as do not come within Revised Statutes, section 3709. lb. III. Bureau of Engraving and Printing. 9. Estimates. — The provisions of section 2 of the act of March 3, 1883 (22 Stat. 526), requiring the Chief of the Bureau of Engrav- ing and Printing to submit estimates of the cost of executing certain work for the Post- Office Department and to perform the work if his estimates be lower than the proposals of the other bidders, are mandatory. 20 Op. 132. 10. Same. — If, however, by reason of sub- sequent legislation or inadequate facilities, the statute has become impossible of execution, such facts may properly be considered in submitting the bids and also may properly be considered by the Postmaster-General in making the awards. lb. 1 1 . The use of steam plate-printing machines in the Bureau of Engraving and Printing is prohibited under the act of March 2, 1889 (25 Stat. 939, 945), except upon a compliance by the patentees with the requirements specified in that act. 20 Op. 33. 12. Postage stamps. — The Bureau of En- graving and Printing may compete for the work of engraving and printing United States post- age stamps. 22 Op. 40. 13. Leaves of absence. — Employees of the Bureau of Engraving and Printing are entitled to leaves of absence under the act of July 6, 1892 (27 Stat. 87), notwithstanding section 5 of the act of March 3, 1893 (27 Stat. 715). 21 Op. 338. 14. Same.— The act of July 6, 1892 (27 Stat. 87), relating to leave of absence to em- ployees of the Bureau of Engraving and Printing, contemplates a maximum leave of absence to pieceworkers of thirty days, with a continuance of average compensation; and a leave of absence, with pay during the same, to a pieceworker whose service and conse- quent earnings are less than the maximum, determined by the average amount of his work and of his pay therefor. 20 Op. 429. 412 PUBLIC PRINTING, IV— QTJAPAW ALLOTMENT LANDS. IV. Executive Departments. 15. Number of copies of Government publi- cations allowed a head of a Department. — The head of an Executive Department has no right under section 90 of the printing bill of January 12, 1895 (28 Stat. 623), to make a requisition upon the Public Printer for a greater number of copies of Government publications other than "bills and resolu- tions" than the number of bureaus in the Department and divisions in the office of the head thereof. 21 Op. 370. 16. Same — Additional copies. — The head of an Executive Department has, however, the right to make such requisition, provided the cost of the printing is to be charged against the printing appropriation for his De- partment, and the Public Printer has no authority to pass upon the character of pub- lications which he may deem essential for carrying out the work of his Department. lb. 17. Printing of special reports of Department bureau chiefs. — Section 89 of the act of Janu- ary 12, 1895 (28 Stat. 622), authorizes the printing of 2,500 copies of special as well as annual reports of Department bureau chiefs, when such printing is directed by the head of a Department. 25 Op. 377. 18. Illustrations, engravings, maps, etc., to accompany bulletins. — The Secretary of Agri- culture has authority to procure and furnish to the Public Printer the illustrations, engrav- ings, maps, and charts to accompany the bulletins and special reports prepared in his Department. 20 Op. 49. 19. Same. — Section 3706, Revised Statutes, which requires all binding for the Executive Departments to be done at the Government Printing Office, does not include illustrations and engravings, maps, or charts, lb. 20. Bulletins Department of Agriculture, Number of Pages. — Section 89 of the act of January 12, 1895 (28 Stat. 622), limits the number of pages of the bulletins of the De- partment of Agriculture to 100, and the maxi- mum size of the pages to octavo. 22 Op. 265. 21. Internal-revenue stamps. — The Com- missioner of Internal Revenue is authorized, by the act of July 7, 1884 (23 Stat. 172), to cause internal-revenue stamps for the payment of tax upon tobacco to be prepared elsewhere than in the Bureau of Engraving and Printing, provided the United States are at no expense thereabout beyond that for the provisional payment of the salaries of one stamp agent and one counter, "to be reimbursed by the stamp manufacturers." 18 Op. 62. See also the several Executive Departments. PURCHASE OF LAND. See. Public Buildings; Navigable Waters, II, a; Gettysburg Battlefield; United States, V. PURCHASE OP PATENTED ARTICLES. See United States, IX. PURCHASE OP SEEDS. See Department of Agriculture, VII. PURCHASE OP SUPPLIES. See Army, I, g; Navy, I, f; Executive De- partments, IV; Post-Office Department, 1-5. PURCHASE OF UNITED STATES BONDS. See Treasury Department, VI. "PUT." See Words and Phrases. PUYALLUP INDIAN RESERVATION. See Indians, 26. ftUAPAW ALLOTMENT LANDS. Sale of. See Indians, 92, 93. QUARANTINE— RAILROADS, I. 413 QUARANTINE. See Health and Quarantine. QUARTERMASTERS. See Akmy, II, a, 53. QUARTERMASTER'S VOLUNTEERS. See Civil Service, 125. QUASI-JUDICIAL ACTS. In writing — How undone. — An important quasi-judicial joint act in writing can be un- done only by another joint act in writing, and that also indorsed upon the original paper itself or upon one duly attached thereto. 18 Op. 5. QUESTIONS OF FACT. Whether persons crossing from the United States into Canada, buying clothes there, and immediately returning with the clothes, can introduce them free of duty under paragraph 752 of the act of Octoberl, 1890 (26 Stat. 611), involves, in any given case, a question of fact. 21 Op. 3. See also Attorney-General, II, m. RAILROADS. I. Generally, 1-9. II. Bond-Aided. a. Generally, 10-16. b. Northern Pacific Railway Com- pany, 17-20. c. Central Pacific Railroad Com- panies, 21-28. d. Union Pacific Railroad Company, etal., 29-39. e. Sioux City and Pacific Railroad Company, 40. III. Land Grants. a. Patents, 41-44. b. Timber, 45-48. c. Miscellaneous, 49-64. IV. Transportation, 65-70. I. Generally. 1. Right to carry letters and packets out- side the mails. — A railroad company has the right to carry outside of the mails and not in Government stamped envelopes letters and packets relating to the business of the railroad on which they are carried, but it has no right to transport letters for a third person. This right includes letters written and sent by the officers and agents of the railroad company which carries and delivers them, about its business, and these only. They may be let- ters to others of its officers and agents, to those of connecting lines, or to anyone else, so long as no other carrier intervenes. 21 Op. 395. 2. Letters of a company addressed to officers or agents of a connecting line on company busi- ness and delivered to an agent of the latter at the point of connection may be carried by the latter to any point on its line, because such letters become its own on receipt by any one of its agents. lb. 3. Any company, or any officer or employee thereof, carrying letters which are neither written by that company nor addressed to it, is liable to the penalties imposed by law. lb. 4. A railroad company may not carry letters from one of its connecting lines to another although they relate to through business over the lines of all. Such letters do not " relate to its business ' ' within the meaning of the postal regulations. lb. 5. The expression "private hands," in sec- tion '3992, Revised Statutes, was intended to cover all except common carriers on post routes. Neither the latter nor their employees can be considered as "private hands" under this section, and if they could be, the express or implied obligation of railroads to carry let- ters for each other to remotely connecting lines would amount to "compensation" within the meaning of the statute. lb. 6. The denial of the right of railroad com- panies to carry letters between other companies with whose lines their own connect applies also 414 RAILROADS, I, II, a. to the carrying of letters by railroad compa- nies for companies, corporations, or private individuals, operating car lines, transportation lines, hotels, restaurants, or any class of busi- ness that may either be connected with or not connected with the railroad proper. lb. 7. Railroad companies can not set np any " common right " against the conditions which the law incorporates in their contracts with the Government. lb.. 8. Great Falls Electric Railway over the Washington Aqueduct — Approval of Survey. — The Secretary of War is not authorized un- der the provisions of the act of July 29, 1892 (27 Stat. 326), to approve a survey of the Great Falls Electric Railway Company over the lands of the Washington Aqueduct where the inner rail of said railway will be less than the required distance from the point specified in said act. 21 Op. 294. 9. Annulment of right of way, and grants of land. — Where a railroad made application to the Secretary of the Interior with a view to securing the benefit of the said act of March 3, 1875 (18 Stat. 482), and its articles of incorporation and map of definite loca- tion were approved by the Secretary, but it afterwards appeared that the action of the Secretary was based upon a mistake of fact caused by the representation of the railroad company itself, and that the application was for a purpose not within the statute: Held that it is competent to the Secretary to recall and annul his action approving the line of definite location of the road and entering the same on the public plats. 19 Op. 547. II. Bond-Aided. a. Generally. 10. Payment of claims for freight. — It is .sufficient under sections 5260 and 5261, Re- vised Statutes, if, previous to the payment of claims for freight and transportation over the railroads of companies to which the United States have issued bonds, the law applicable thereto has been ascertained by a judgment of the Court of Claims, or, upon appeal, of the Supreme Court. Where the law is thus ascertained in one case, it may be acted upon in all similar cases without further litigation. 17 Op. 512. 11. Same. — " The expression ' is directed to withhold all payments' in section 5260 refers, in the first place, to the payments due to such companies at the time of the passage of the act, but, no doubt, includes also, equitably, all payments thereafter of like sort, the princi- ples governing which shall not previously have been ascertained by the Court of Claims or, upon appeal, by the Supreme Court. " lb. 12. Telegraph messages. — Where the Gov- ernment has the power to send telegraph mes- sages either by a bond-aided railway's tele- graph system or by an independent company system located over the bond-aided railway company's route, and delivers them to the independent company's system without re- questing that they be forwarded over the bond-aided railway route, payment must be made at the rate prescribed by the Post- master-General. 20 Op. 581. 13. Same. — It is not improper to delay pay- ment of the claim until the case involving the point now soon to be argued in the Supreme Court of the United States is decided. lb. 14. Transportation of enlisted men of the Navy. — The word ' ' troops ' ' as used in section 6 of the act of July 1, 1862 (12 Stat. 495), and section 10 of the act of July 2, 1864 (13 Stat. 356), relating to the transportation of mails, troops, and munitions of war, etc., by Gov- ernment-aided railroads, includes enlisted men of the Navy. 20 Op. 11. 15. Same. — Whether the whole amount of the contract price should be paid the West Shore Railroad Company of New York, for the transportation of enlisted men of the Navy from New York to California, a portion of the distance being over Government-aided railroads, the compensation for transporta- tion over such roads being applicable, under the acts of July 1, 1862 (12 Stat. 489), and March 7, 1878 (20 Stat. 56), to the payment of bonds issued by the United States to aid in building roads, held to be a judicial ques- tion, lb. 16. Same. — Advised that all compensation earned by the bond-aided railroads should be withheld until the questions of the rights of such roads in the premises are adjusted by agreement under the terms of the law or are judicially determined. 26. RAILROADS, II, b, c, d. 415 b. Northern Pacific Railway Company. 17. Selection and location of alternate sec- tions of land — Timber. — The Northern Pacific Eailway Company, which obtained a grant from the United States of every alternate section of the public land, not mineral, designated by odd numbers, to the amount of 20 alternate sections per mile on each side of its railroad, possesses no authority to select and locate its sections and to despoil the sec- tions it has selected. Any surveys made by the company are without legal effect and do not authorize the company to cut or remove timber. 20 Op. 542. 18. Patents to lands, — The Northern Pacific Railroad Company, having completed and put in operation the railroad and telegraph lines authorized by the act of July 2, 1864 (13 Stat. 365), the condition of the grant to said company of certain lands mentioned in said act has been fully performed, and the right to have the lands patented was perfect in said company. 21 Op. 486. 19. Transfer of bonds to purchaser in case of foreclosure.— By its consent to the issuing of bonds, secured by mortgage on the rail- way and telegraph lines, Congress necessarily consented to their transfer to the purchaser in case of foreclosure, who, however, by operation of law, whether a natural or artifi- cial person, and, if the latter, no matter how or by what authority created, would take the property subject to all the continuing rights of the Federal Government, just as the original company held it. lb. 20. Patents to be issued to the Northern Pacific Eailway Company. — The mortgages issued by the Northern Pacific Railroad Company having been foreclosed, and all of the property, rights, and franchises of the company sold at judicial sale to the Northern Pacific Railway Company, a Wisconsin cor- poration, and the latter having asked for the patenting to it, or to purchasers from it, of certain lands granted by the act of 1864, the Secretary of the Interior is not justified in refusing to issue such patents, but should act upon applications of the railway company for patents upon the same considerations which would govern in case there had been no foreclosure and the applications were made by the railroad company. lb. c. Central Pacific Railroad Companies. 21. Sinking fund — Lien. — Section 8 of the (Thurman) act of May 7, 1878 (20 Stat. 60), does not create a lien on the sinking funds of the Central Pacific Railroad companies prior to that of the United States in favor of the first-mortgage bondholders of those compa- nies. 21 Op. 104. 22. The entire sinking fund belonging to the Central Pacific, or its proceeds, may, if necessary be used to pay the indebtedness of the Central Pacific to the United States matur- ing in January, 1895. lb. 23. A demand upon the railroad company is not necessary to fix its liability to reimburse the United States for all sums paid by the lat- ter on account of principal and interest of subsidy bonds. lb. 24. Method of accounting in the matter of the accounts between the United States and the subsidized Pacific roads stated. lb. 25. The acts of July 1, 1862 (12 Stat. 489), and of July 2, 1864 (13 Stat. 356), construed in the light of the Thurman Act of May 7, 1878 (20 Stat. 56) , and sundry decisions of the Su- preme Court. 21 Op. 145. 26. The one-half of the earnings of the Cen- tral Pacific Railroad Company on Govern- ment business and its yearly payments of 5 per cent of its net profits can not be treated as hav- ing liquidated the whole or any part of the company's indebtedness on account of the prin- cipal of the subsidy bonds maturing January 16, 1895; but, on the other hand, must be re- garded as paying interest debts exclusively, lb. 27. The sums applicable in any one year to the payment of the company's interest debts for that year must be applied in the order in which such debts arise, and the fact that bonds have been issued at various times is of no consequence. lb. 28. The familiar rule is that in case of pay- ments by a debtor to a creditor upon distinct transactions for distinct accounts, when neither party makes an appropriation at the time, the payments are applied by law to the liabilities of earliest date. lb. d. Union Pacific Railway Company. 29. Allowance for transportation of mails, — The allowance made to the Union Pacific 416 RAILROADS, II, d. Railway Company for special service, to be paid out of the so-called "special facilities" appropriation, can not lawfully be paid to the company in cash, but must be retained and applied as directed by section 2 of the act of May 7, 1878 (20 Stat. 58). 17 Op. 393. ' 80. Sinking funds — Reinvestment. — Section 5 of the act of March 3, 1887 (24 Stat. 492), relating to the sinking funds of the Union Pacific and Central Pacific Railroad com- panies, applies to moneys belonging to those funds which are uninvested, and such moneys may be invested as therein provided. 18 Op. 598. 31. Same. — That section does not, however, authorize a sale of the United States bonds in which the funds are already invested for the purpose of reinvestment in the first-mortgage bonds of said companies. lb. 32. Same — How the fund may be invested. — Money paid into the sinking funds of said companies, under said act, may be invested (1 ) in United States bonds, as provided in act of May 7, 1878 (20 Stat. 56); (2) in any United States railroad subsidy bonds of any of the aided roads described in the act of July 1, 1862 (12 Stat. 489), and its supple- ments; and (3) in any of the first-mortgage bonds of said companies, such as are described in section 5 of the act of March 3, 1887 (24 Stat. 492). lb. 33. Sinking funds — Reinvestment. — The power conferred on the Secretary of the Treas- ury by section 5 of the act of March 3, 1887 (24 Stat. 492), to reinvest the ''sinking funds" of the Union Pacific and other rail- roads referred to in that section extends as much to the United States bonds then held by him as part of the sinking fund under the "Thurman Act" as to any money paid in from time to time for the purposes of that sinking fund. 19 Op. 491. 34. Same. — The United States bonds now in such sinking fund may be sold and the pro- ceeds thereof reinvested in the first-mortgage bonds of any of the railroad companies referred to in the said act of March 3, 1887, as having received aid from the Government in bonds. Opinion of Attorney-General Gar- land of March 31, 1887 (18 Op. 598), dis- sented from. lb. 35. Recovery of money paid for transmission of Government dispatches over. — The question whether, on the facts presented, an action could be maintained by the United States against the Union Pacific Railroad Company, the Central Pacific Railroad Company, and the Western Union Telegraph Company, to recover back certain moneys paid for the transmission of Government dispatches over the bonded lines of said railroad companies, considered and held that an action may be maintained against the Central Pacific for the money stated to be owing by that company, provided such money has not been paid or applied, and that as regards the Union Pacific the compensation paid constituted a trust fund which can be folio wed into the hands of the Western Union Telegraph Company and the Union Pacific Railroad Company, who as joint agents received it. 19 Op. 76. 36. Indebtedness of the Kansas Pacific. — The Government directors of the Union Pacific Rail- way Company are chargeable with no duties or obligations in respect to the proceedings for the enforcement of the claim of the United States in the matter of the indebtedness of the Kansas Pacific Railway Company. 22 Op. 289. 37. The United States not barred by sale of Central Branch Union Pacific Railroad. — While the United States is named as a defendant in the bill of complaint to foreclose the mort- gage on the Central Branch Union Pacific Railroad, no subpoena, citation, or other process was served upon it, nor did it appear as a party, and is, therefore, not barred by said decree of sale and might still redeem the property or cause its resale on account of its subsidy lien. 22 Op. 396. 38. Same. — This railroad, in accepting the assignment of the rights and franchises of the Hannibal and St. Joseph Railroad Company, and the grant of lands, bonds, etc., conferred by act of Congress in aid of its construction, succeeded also to, and had imposed upon it, all the obligations, limitations, and condi- tions with reference to the application of compensation for services for the Govern- ment toward the payment of these subsidy bonds. lb. 39. Same. — One-half of the compensation due from time to time for the services rendered by this road for the Government should be withheld and applied upon the bonds issued by the United States in aid of its construction, notwithstanding the foreclosure and sale of the same. lb. RAILROADS, II, e; III; a, b. 417 e. Sioux Oity and Pacific Railroad Company. 40. In the settlement of the accounts of the Sioux City and Pacific Railroad Company, whose road was in part constructed with the aid of subsidy bonds issued under the acts of July 1, 1862 (12 Stat. 489), and July 2, 1864 (13 Stat. 356), for Government transportation over the subsidized portion of its road, advised that the direction in section 2 of the act of March 3, 1873 (17 Stat. 508; sec. 5260, Rev. Stat), "to withhold all payments," etc., is now, November 12, 1886, no longer applica- ble thereto; that only one-half the amount of compensation due the company for such trans- portation should be withheld, to be applied as required by the act of July 2, 1864; and that the remaining one-half should be paid over to the company. 18 Op. 503. III. Land Grant, a. Patents. 41. Issuance of patents — Suspensions. — The Secretary of the Interior should continue the suspension of the issue of land patents to the New Orleans and Pacific Railway Company, heretofore made, and not issue any more patents until the proper tribunals, courts, or Congress definitely settle the rights of all parties in the premises. (Statement of facts contained in a communication accompany the request for an opinion, but not set forth in the opinion. ) 18 Op. 221. 42. Patents. — The Chicago, St. Paul, Min- neapolis and Omaha Bailroad Company (suc- cessor of the Chicago and Northwestern Rail- road Company) is entitled to patents to cer- tain lands under the land grants made by the United States to the State of Wisconsin by the acts of June 3, 1856 (11 Stat. 20), and May 5, 1864 (13 Stat. 66), for the purpose of aiding in the construction of said railroad, notwithstanding the road was not completed within the period prescribed by those acts, the United States Government not having taken advantage of that fact before its. completion or attempted to do so since, but, to the con- trary, having for many years been using the railroad and adjusting its accounts as a land- grant road. 19 Op. 522. 43. Issnance of patents to the Northern Pa- cific Railway Company. — The mortgages issued by the Northern Pacific Railroad Company having been foreclosed, and all of the prop- erty, rights, and franchises of the company sold at judicial sale to the Northern Pacific Railway Company, a Wisconsin corporation, and the latter having asked for the patenting to it, or to purchasers from it, of certain lands granted by the act of 1864, the Secretary of the Interior is not justified in refusing to issue such patents, but should act upon applications of the railway company for patents upon the same considerations which would govern in case there had been no foreclosure and the applications were made by the railroad com- pany. 21 Op. 486. 44. Same. — The Northern Pacific Railway Company, by virtue of the foreclosure pro- ceedings had in 1896 and the sale thereunder to it of all the property, rights, and franchises of the Northern Pacific Railroad Company, became the successor in interest of the latter company, and the Secretary of the Interior should continue to issue to the new company patents for lands granted by the Government to the old company, upon the same condi- tions which would govern in case there had been no foreclosure. and sale, and the appli- cations were made by the old company. 25 Op. 401. Opinion of February 6, 1897 (21 Op. 486), followed. lb. Army transportation over land-grant roads, see Army IV. See also 58. b. Umber. 45. Use of Government timber. — The use by the Union River Logging Railroad Company, a corporation formed under the laws of Wash- ington Territory, of Government timber standing along the line of its road was wholly unauthorized, and proper steps should be taken to secure indemnity to the Government and to bring to justice the individuals who have been concerned in violating the law for the protection of its property. 19 Op. 546. 46. Same — Purpose of grant. — The grant made by the actof March 3, 1875 (18 Stat. 482), of a right of way through the public lands, with the necessary land for stations, etc., was meant for railroad companies intending to operate roads as common carriers for the ben- 18456—08- -27 418 RAILROADS, III, b, c. efit and convenience of the public, and not for the benefit of the companies solely. 76. 47. Same — Annulment of grant. — Where a railroad made application to the Secretary of the Interior with a view to securing the ben- efit of the said act of 1875, and its articles of incorporation and map of definite location were approved by the Secretary, but it after- wards appeared that the .action of the Secre- tary was based upon a mistake of fact caused by the representation of the railroad company itself, and that the application was for a pur- pose not within the statute: Held that it is competent to the Secretary to recall and annul his action approving the line of definite loca- tion of the road and entering the same on the public plats, lb. 48. Selection and location — Removal of tim- ber. — A railway company which has obtained a grant from the United States of every alter- nate section of the public land, not mineral, designated by odd numbers, to the amount of 20 alternate sections per mile on each side of its railroad, possesses no authority to select and locate its sections and to despoil the sec- tions it has selected. Any surveys made by the company are without legal effect and do not authorize the company to cut or remove timber. 20 Op. 542. c. Miscellaneous. 49. Atlantic and Pacific Railroad Company's lines — Approval by President. — The recom- mendations of the Secretary of the. Interior as to the acceptance of certain sections oithe railroad and telegraph lines of the Atlantic and Pacific Railroad Company should be ap- proved by the President. 17 Op. 251. 50. Union Pacific Railroad — Eastern Division — Completion — Acceptance. — The last section of the Union Pacific Railroad, Eastern Division (formerly the Leavenworth, Pawnee and West- ern Railroad), was completed prior to the time fixed by statute, but was not accepted by the President until about four months after that time. 17 Op. 295. 51. Same — Issuance of patents. — There is no legal objection to the issue of patents to the company for lands lying along such section; but delay in this matter suggested in view of the fact that there is agitation in Congress in respect to railroad-land grants. 16. 52. New Orleans Pacific Railway Company — Transfer of land grant to — The assent of Con- gress to the transfer made by the New Orleans, Baton Rouge and Yicksburg Railroad Company to the New Orleans Pacific Railway Company of all the interest of the former company in the land grant contained in section 22 of the act of March 3, 1870 (16 Stat. 579), was not necessary to entitle the latter company to the benefit of such grant in aid of the construc- tion of the road projected by it. The grant, by its terms, is in prsesenti; the interest of the New Orleans, Baton Rouge and Vicksburg Railroad Company therein, at the time of the transfer, was assignable, and the New Orleans Pacific Railway Company was such a suc- cessor or assignee as is contemplated by said act. 17 Op. 370. 53. Same. — The New Orleans Pacific Rail- way Company can not claim any benefit under the grant by reason of said transfer, for the 68 miles of the New Orleans, Mobile and Texas Rail- road, if it was constructed prior to said act; nor, in case of such prior construction and the nonconstruction of any portion of the New Orleans, Baton Rouge and Vicksburg road, has the purpose of the grant failed and the grant lapsed. lb. 54. Same. — If the New Orleans, Mobile and Texas road was constructed subsequently to the date of said act, so much of its road as is now owned by the New Orleans Pacific Railway Company is such a road as is contemplated for acceptance by the President, and patents may issue to the latter company for lands op- posite to and conterminous with such con- structed portion of the road. lb. 55. Central Pacific Railroad — Lands with- drawn and selected by State for indemnity for school lands. — Certain lands within the 10- mile limits of the Central Pacific Railroad, being parts of odd-numbered sections granted thereto by the act of July 1, 1862 (12 Stat. 489), were, under section 7 of that act, ordered to be withdrawn, and this order was received at the land office at San Francisco on the 30th of January, 1865. The map showing definite location of line of said road was filed in Gen- eral Land Office February 13, 1873, and on May 12, 1874, said lands were selected by the railroad company as inuring to it under said grant. But the same lands were selected by the State of California June 13, 1865, as in- demnity for deficiency of school lands granted by acts of March 3, 1853, and February 26, 1859, and a list thereof was certified and ap- RAILROADS, III, c; IV. 419 proved to the State September 8, 1870. The railroad company applies for patents for these lands: Advised that the Secretary of the In- terior is not authorized by the general laws or the provisions of the act of July 1, 1862, to issue such patents to the company. 17 Op. 406. 56. St. Louis and San Francisco Railroad between St. Louis and Pacific not a land-grant road. — Upon the facts stated: Advised that so much of the road of the St. Louis and San Francisco Railroad Company as lies between St. Louis and Pacific (a distance of about 35 miles) should not be treated as a land-grant road. 18 Op. 47. 57. Sale of unclaimed lands. — The term "bona fide purchasers of said unclaimed land," as used in the third proviso of sec- tion 3 of the act of March 3, 1887 (24 Stat. 556), means those persons who, without knowledge of wrong or error, have purchased from the railroad company lands which had been previously entered by a preemption or homestead settler, where entry had been er- roneously canceled as described in the first clause- of that section, and which land the preemption or homestead settler did not elect to claim after the recovery by the proceedings prescribed by the second section of the act. 19 Op. 68. 58. Same — Issue of patents. — Patents, the issue whereof is provided for in the fourth section of the same act, are only intended to be issued after it shall have been legally de- termined, in the mode prescribed in the second section, that the certification or patent to the railroad company bad been erroneously issued. lb. 59. Same. — The word " grant," in the fifth section, should be construed to include (as it does in the preceding sections of the act) both the primary and the indemnity limits. lb. 60. Northern Pacific Railroad Company — Indemnity belts. — The joint resolution of May 31, 1870 (16 Stat. 378), added a second in- demnity belt to the land grant made to the Northern Pacific Railroad Company by the act of July 2, 1864 (13 Stat. 365), such grant thus having two indemnity belts. 19 Op. 88. 61. Same. — Indemnity selections within the first belt (i. e., that originally created by the act of 1864) are not restricted to the limits of the particular State or Territory in which the granted lands were lost, but may be made outside of those limits, lb. 62. Lands excepted from grant to Southern Pacific. — The proviso in section 23 of the act of March 3, 1871 (16 Stat. 573), excepts from the operation of the grant made by that section to the Southern Pacific Railroad Company of California all lands within the primary limits of the road of said company which also fall within the primary or in- demnity limits of the grant to the Atlantic and Pacific Railroad Company now forfeited, and such lands can be restored to settlement and entry under the general land laws. 19 Op. 134. " 63. Railroad land grant — Application of case of Sjoli v. Dreschel (199 TJ. S. 564).— The Secretary of the Interior, in the administration of the several land grants to railroads, is not bound to follow the broad principles quoted in the decision of the Supreme Court in the case of Sjoli v. Dreschel (199 U. S. 564), but may confine what is said therein to a state of facts similar to those then before the court. 25 Op. 632. 64. Lieu lands — Selection. — No title passes to lien lands before approval by the Secretary of the Interior of the company's list of selec- tions; and, when so approved, the lands are to be considered as fully selected as of the date of the listing, so as to give to the com- pany superiority over the right of homestead or preemption claimants settling after the listing by the company. lb. IV. Transportation. 65. Army transportation. — The payment of accounts of land-grant railroads (i. e., such as have not received aid in Government bonds) for army transportation, under the appro- priation act of September 22, 1888 (25 Stat. 481) , is not controlled by the proviso in the acts of June 30, 1882 (22 Stat. 120), and August 5, 1882 (22 Stat. 261), but is governed by the provisions of the act of 1888 alone; and under these provisions such accounts can be lawfully paid by a quartermaster with- out previous action thereon by the accounting officers of the Treasury. 19 Op. 264. 66. The transportation of an oflicer in the Corps of Engineers of the Army, while traveling over the Michigan Central Railway in the dis- charge of duties connected with river and harbor 420 RAILROADS, IV— RECIPROCAL COMMERCIAL AGREEMENTS. improvements to which he has been assigned, comes within the provisions of the Michigan land-grant act of June 3, 1856 (11 Stat. 21), and of the act of July 3, 1866 (14 Stat. 78), supplementary thereto, requiring the trans- portation of troops of the United States free from toll or other charge. • 19 Op. 572. 67. Transportation of Government em- ployees.— The provisions of the interstate commerce act of February 4, 1887 (24 Stat. 379), do not extend to the postal service of the United States, nor prohibit the transpor- tation by railroad companies, free of charge, of such officers or agents of the Government as are employed in that service. 18 Op. 587. 68. The provision in the act of March 3, 1877 (19 Stat.. 291), requiring certain con- tracts for the transportation of goods for Indian tribes, etc. , to be let to the lowest bidder after advertisement, does not supersede or repeal the act of March 3, 1875 (18 Stat. 453), and section 5260, Revised Statutes, touching pay- ments of land-grant railroads for services to the Government. 18 Op. 41 . 69. Transportation of live stock — Twenty- eight hour law. — The acceptance at St. Louis by the Terminal Railroad Association of St. Louis, or the St. Louis Merchants' Bridge Terminal Railway Company, of live stock consigned to the National Stock Yards, lying directly across the Mississippi River from St. Louis, in Illinois, and the carriage and de- livery there of live stock which has been con- fined in the cars of connecting railways for a period longer than twenty-eight hours without having been unloaded for rest, water, and feed, unless prevented by storm or other accidental causes, or unless the live stock is carried in cars in which it can and does have opportunity for feed, rest, and water, is a violation of the provisions of section 4386, Revised Statutes. 25 Op. 411. 70. Same. — Section 4386 is unambiguous, and is clearly designed to prevent any rail- road company within the United States, whose road forms any part of a line of road over which live stock is conveyed from one State to another, from transporting such ani- mals except in accordance with its pro- visions, lb. Railway Rates. See Interstate Commerce. Railroad Bridges. See Navigable Wa- ters, III, a. Trespass on Indian Lands. See Indians, 45-47. Obstruction of Mail Trains. See Mails. Transportation. See Railroads, IV, and 10-16, 29, 35, 38, 39. RAILWAY MAIL SERVICE. Clerks. See Postal Service, 52-55. RANGE FINDERS. See Porto Rico, 19. RANK AND PAY. See Army, II, d; Navy, II, d; III, d. REAPPOINTMENT. ! Civil Service, III, f. RE APPRAISEMENT. See Customs Laws, III, b; X. REBATE CHECK. A- See Internal Revenue, 15. RECEIPTS. See Internal Revenue, 115, and Words and Phrases. RECESS APPOINTMENTS. See Office and Officers, II; President, I. RECIPROCAL COMMERCIAL AGREEMENTS. See Customs Law, XIII. RECOGNIZANCE— REGISTRY. 421 RECOGNIZANCE. 1. Outside of the District of Columbia the President has no power to remit the for- feiture of a judgment on a recognizance. 21 Op. 494. 2. The power to compromise claims in favor of the United States, which includes judgments on recognizances, is vested by law in the Secretary of the Treasury with respect to all claims save those arising under the postal laws. 76. RECONSIDERATION. By President of Act of Predecessor in Ad- vancement of Naval Officer. See Navy, 36. RECORD AND PENSION DIVISION, CHIEF OF. See War Department, III. RECORDER OF DEEDS. See District of Columbia, III, 25. RECORDS OF THE POSTAL DEPARTMENT OF THE LATE CONFEDERATE STATES. See Post-Office Department. 12. REDEMPTION. See Banks, 16, 17; Treasury Department, 179-181; Internal Revenue, 126. REFINING. REENLISTMENT. See Army, I, b. REEXAMINATION. Of Retired Naval Officers. See Navy, II, c. Molasses in Bonded Customs Law, 120. Warehouses. See REFUND. Of Duties. See Customs Law, VI. Of Head Tax. See Shipping, 72; Immigra- tion, VI. Of Tonnage Tax. See Shipping, 62-65. Of Moneys Improperly Exacted and Paid by Owners of Vessels. See Shipping, 77. Of Fines Imposed Under the Shipping Act of 1884. See Fines, Penalties, and For- feitures, 6. Of Direct Taxes. See Direct Taxes. Of Internal-Revenue Taxes. See Internal Revenue, 125. Of Entrance and Clearance Fees. See Shipping, 80. REGISTER OF WILLS. See District of Columbia, 25. REGISTERS AND RECEIVERS OF LAND OFFICES. Use of Penalty Envelopes. See Postal Service, 133. Registration of Official Mail. See Pos- tal Service, 143. REGISTERED MAIL. See Postal Service, VII. REGISTRATION. Of Trade-Marks. See Trade-Marks. REGISTRY. Of Vessels. See Shipping, I, c 422 REGISTRY CLERK— REPRIEVE. REGISTRY CLERK. Detail op, to White House. See Civil Service, 60. REGULATIONS. See Army, VIII; Navy, VI; Treasury De- partment, IV; Executive Departments, III; Steamboat-Inspection Service, 17-20, 30; Department op Commerce and Labor, 3; Department of Agriculture, V; Postal Service, I; Seal Fisheries, HI. REID CLAIM. See Claims, 13-28. REIMPORTATION. See Customs Law, III, 1. REINSTATEMENT. See Civil Service, III, f ; Naval Academy, 9-13. REINSURANCE POLICIES. See Internal Revenue, 97. RELATIVE RANK. See Army, II, d ; Navy, II, d, and III, d ; Naval Academy, 2. RELEASE. Op the Cruiser Galveston. See United States, 23-26. Op Seized Vessel. See Seizure, 8. RELIQTJIDATION. Op Duties. See Customs Laws, V, c. REMISSION. Op Fines, Penalties, and Forfeitures. See Customs Laws, IX, g; Contracts, V; Treas- ury Department, II, VII; Immigration, VI ; President, 112-113. Of Taxes. See Porto Rico, 27-29. Op Tax on Sealskins. See Seal Fisheries, 1-3. RENTAL 07 SEAL FISHERIES. See Seal Fisheries, II. REOPENING. Op Settlement of Longevity Pay. See Army, 154. REPATRIATION OF SPANISH PRISONERS. See Treaties, 52-54. REPRESENTATIVES. See Congress, IV ; Contracts, 53-54 ; Naval Academy, 24-28. REPRIEVE. Guitean, Charles J. — Upon examination of the papers accompanying an application made to the President asking for the appointment of a commission to examine and consider the mental condition of Charles J. Guiteau, and praying for his reprieve pending the investi- gation: Advised, for reasons stated, that the application be not granted. 17 Op. 394 RES ADJUDICATA— RESERVATIONS AND PARKS, II. 423 RES ADJUDICATA. . The principle of res adjudicaia applies to departmental action of a final nature. 20 Op. 280. RESCISSION. Of Contract. See Contracts, IV. RESERVED PERCENTAGE FUND. See Contracts, 117. RESERVATIONS AND FARES. I. In General, 1-4. H. Military, 5-34. m. Naval, 35-36. TV. Forest, 37-43. V. Light-House, 44-47. I. Generally. 1. Restoration to public domain — Authority of Congress required. — Public lands once re- served by the President for military or other purposes, and no longer needed for such pur- poses, can not be restored to the public domain without authority from Congress. (16 Op. 123 ; 10 Op. 360. ) 17 Op. 168. 2. Hot Springs. — The Secretary of the In- terior has power, under the act of December 16, 1878 (20 Stat. 258), to lease sites upon the Hot Springs Reservation in Arkansas for the term of five years, and to relet the premises for the same term, from time to time, as the leases expire. 18 Op. 266. 3. Same. — Upon the facts stated: Advised that the Secretary may accept a surrender of a lease of a bath-house site heretofore made to S, and cancel the same, and then enter into a new lease of the premises with the same party for the term of five years. lb. 4. Same. — During the term of the lease, and while the tenant is in possession under the same, he may remove from the premises what- ever improvements he' has erected thereon for the purposes of trade, whether machinery or buildings; but if he leaves the premises without removing such improvements, and the Government should take possession, they would become the property of the latter, lb. II. Military. 5. Jurisdiction.— "Writs issued by the courts of Minnesota run into and upon the military reservation of Fort Snelling, in that State. 17 Op. 1. 6. Fort Brady — Title to site for. — Upon the facts submitted, which are set forth in the opinion: Advised that, under the deed of Thomas Ryan and wife, dated December 18, 1866, granting to the United States certain land at Sault Ste. Marie, Mich., selected for a new site for Fort Brady, the title to the premises has become vested in the United States. 19 Op. 137. Note. — An action of ejectment was subse- quently brought by the United States against Thomas Ryan, in the United States circuit court for the western district of Michigan, to recover the premises conveyed by the deed of said Ryan and wife referred to in the fore- going opinion, and verdict and judgment went in favor of the Government. The case was afterwards carried by writ of error to the Su- preme Court, which affirmed the judgment of the court below. (See Ryan v. United States, 136 U. S. 68.) 7. Fort Brown Reservation — Acquisition of title to. — The provisions of the act of March 3, 1885 (23Stat. 507), which appropriated a large sum of money "to enable the Secretary of War to acquire good and valid title for the United States to the Fort Brown Reservation, Tex., and to pay and_ extinguish all claims for the use and occupation of said reservation by the United States;" with a proviso that no part of said sum shall be paid "until a complete title is vested in the United States," and that "the full amount of -the price, in- cluding rent, shall be paid directly to the owners of the property," do not authorize acquisition of title by condemnation under the eminent domain power of the United States. 18 Op. 327. 8. Same. — Claims of ownership of the prop- erty, or some portion thereof, having been asserted by different parties, who propose to convey the same to the Government, their titles respectively, at the request of the Sec- 424 RESERVATIONS AND PARKS, II. retary of War, examined and considered by the Attorney-General, who indicates in his opinion the persons by whom and points out the mode by which a good and valid title* to the whole of the reservation can be conveyed to the United States and all claims for the use and occupancy thereof extinguished, as contemplated by the said act of 1885. lb. 9. Same — Title. — Deed of conveyance exe- cuted by James Stillman and Thomas Carson (the latter as administrator with the will an- nexed of Maria Josef a Cavazos, deceased), dated May 12, 1886, and deed of release exe- cuted bV Kate M. Combe and others, by their attorney in fact, James B. Wells, jr., dated April 17, 1886, not deemed sufficient to im- part a valid title to the whole of the Fort Brown Reservation, for reasons stated. 18 Op. 400. 10. Same. — The deed of conveyance to the United States from James Stillman and Thomas Carson, administrator, etc., dated October 14, 1887, which is offered for the ac- ceptance of the Government (together with the quitclaim deed of S. Josephine Allen, dated October 24, 1887, the quitclaim deed of Francis J. Hale et al., dated November 15, 1887, the quitclaim deed of William H. Hale, dated December 3, 1887, and the quitclaim deed of Thomas Carson, dated December 12, 1887, mentioned in the opinion) , are sufficient to pass a valid title to the tract of land known as the Fort Brown military reservation in Texas, and to extinguish all claims for the use and occupancy of said reservation by the United States. 19 Op. 83. 11. Tort Keogh. — The Northern Pacific Bail- road Company has no interest in any of the lands within the boundaries of the Fort Keogh mil- itary reservation, excepting the right of way therein granted to that company by the sec- ond section of the act of July 2, 1864 (13 Stat. 367), to the extent of 200 feet in width on each side of its road, including all necessary ground for station buildings, workshops, de- pots, etc. 18 Op. 357. 12. Fort Missoula Military Reservation. — The President had full authority to make the Executive order of August 5, 1878, adding 50 acres of land to the Fort Missoula Military Reservation in Montana, notwithstanding such reservation was originally within the territorial limits of Oregon, and notwithstanding also the act of February 14, 1853 (10 Stat. 158), which provided that all reservations thereafter made under the act of September 27, 1850 (9 Stat. 500), applicable only to Oregon, should, as to forts, be limited not to exceed 640 acres at any one place, and the further act of May 26, 1864 (13 Stat. 85), creating the Territory of Montana and declaring that all laws of the United States not locally inapplicable should have full force and effect within that Terri- tory as elsewhere in the United States. 19 Op. 370. 13. Same. — The act of 1864 was intended to give effect in Montana only to such general laws of the United States as were not inappli- cable to that Territory, and not to legislation of a special or local character, and did not make applicable to Montana the act of 1853, limiting the size of reservations. lb. 14. Same. — While the President's order remains unrevoked the land covered by it is not open to entry or settlement. 16. 13. Fort Selden, N. Mex. — License for con- struction of irrigating ditch through. — The Secretary of War may, under well-considered restrictions, grant a revocable license for the construction and maintenance of an irri- gating ditch through the military reservation at Fort Selden, N. Mex., the licensee to fur- nish free to the United States all water re- quired for military purposes. 19 Op. 628. 16. Fort Union — Removal and sale of build- ings. — The United States has a right to re- move or sell buildings or improvements erected or made on what was supposed to be the public domain, used as a military reserva- tion and known as Fort Union, but which afterwards proved to be covered by a Mexican land grant, and had been subsequently pat- ented by the owner, the laches or mistake of the Government officers in regard to the ownership of the land being no bar to the Government's right in the premises. 20 Op. 284. 17. Same. — An application should be made to Congress to authorize said disposition of the buildings, etc. , as neither the President nor the Secretary of War has authority to dispose of the same. lb. 18. Same. — Where land established as a military reservation includes the private claim of an individual, which was subse- quently discovered and the use of the reser- vation discontinued, and upon the land are erected some twenty-two buildings, but in RESERVATIONS AND PARKS, II. 425 the patent issued to the claimant there was a clause reserving to the United States its rights to ownership in the buildings: Held that the ownership of the buildings was in the United States. 20 Op. 603. 19. Tyhee Island Military Beservation — ■ Exclusive jurisdiction of the United States — Service of State process. — An act of the State of Georgia, passed December 22, 1808, pro- vided 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 they have acquired, or may hereafter acquire, for the purpose 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 pro- visions 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. 23 Op. 254. 20. 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 hav- ing been reserved, the grant of power to the United States was and is exclusive of all State authority. lb. 21. West Point. — The act of July 28, 1892 (27 Stat. 321), authorizing the Secretary of War to lease such property of the United States under his control as may not for the time be required for the public use, forbids an occupation which contemplates permanency or duration longer than five years. 21 Op. 537- 22. Same.— Soman Catholic chapel. — A rev- ocable license, without limitation as to time, by the Secretary of War to a Roman Catholic archbishop to erect and maintain a chapel on the military reservation at West Point transcends the statute. lb. 23. Same.— From the act of July 5, 1884 (23 Stat. 104), it may be regarded as certain that it was the view of Congress that an ex- plicit authority was necessary for even a trans- ient occupation of a military reservation for other than its special purpose. lb. 24. Same.— Sections 161 and 217 of the Re- vised Statutes do not authorize the granting of licenses for the occupation of parts of military reservations for the erection of hotels, church edifices, etc. lb. 25. Same. — Section 1331 has a special and partial purpose and gives no authority to dis- pose of the use of property. lb. 26. Ship Island — Bethel reading room. — The Secretary of War has no authority to grant permission for the erection of a bethel, read- ing room, and library within the army reser- vation on Ship Island. ( 21 Op. 537 followed. ) 21 Op. 565. 27. Fort Sill Military Beservation. — Such portion of the Fort Sill Military Reservation can be set apart as may be required for the erection of the necessary buildings to be used as a mission and school for the Apache prisoners of war. 22 Op. 303. 28. Same. — The Secretary of War may make such rules and regulations as shall be deemed suitable and necessary to control the methods and operations of the persons engaged in this work. lb. 29. Chickamauga and Chattanooga National Park — Acquisition by .condemnation only. — The provisions of section 3 of the act of August 19, 1890 (26 Stat. 334), entitled "An act to establish a National Military Park at the battlefield of Chickamauga," do not author- ize the acquisition of the lands described therein, which are to constitute the proposed national park, in any other mode than by condemnation proceedings instituted under the act of August 1, 1888 (25 Stat. 357). 19 Op. 673. 30. Same. — Neither the act of August 19, 1890 (26 Stat. 333), nor the appropriation in the sundry civil act of March 3, 1891 (26 Stat. 978), authorizes the purchase of land adjoining specified routes leading to a part of the Chickamauga and Chattanooga Military Park. 20 Op. 482. 31. Power to grant licenses to use Govern- ment reservations.— The open and notorious use of Government reservations by licenses for other than governmental purposes, and the long- continued exercise of the power to grant such use by the Secretary of War without legisla- tive objection, implies the tacit assent of Con- gress to this custom, but it can not be main- tained upon any ground except that of bene- fit to the public interests. 22 Op. 240. 426 RESERVATIONS AND PARKS, II, III, IV. 32. Kahauiki Military Reservation — Title to. — By the joint resolution of Congress of July 7, 1898 (30 Stat. 750), accepting the cession of the Hawaiian Islands and the trans- fer to the United States of the ownership of all public lands therein, and by acquiring by purchase from individuals the leases held by them covering the lands comprising the mili- tary reservation at Kahauikl, Oahu Island, the United States acquired complete title to that reservation. 25 Op. 225. 33. Los Banos Military Post — Title to. —The title acquired from Dona Saturnina Rizal y Alonzo to certain lands at Los Banos, La- guna, P. I., for a military post, will be good, the land in question having been made the subject of possessory proceedings under the royal order of February 13, 1894, and her title thereto in fee having been upheld by the decree of the court of land claims under act No. 627, Philippine Commission, which decree binds the land and quiets the title thereto, except as to liens, claims, or rights denned in section 39 of land-registration act No. 496, Philippine Commission. 25 Op. 238. 34. Same. — Under articles 2 and 42 of the mortgage law, articles 24-31 of the regula- tions thereunder, and the royal decree of November 14, 1885, etc., nearly everything that could possibly affect the title is required to be registered, and any governmental or public claim to the land would probably be notorious. lb. III. Naval Reservation. 35. Administration — Property of a decedent on naval reservation at Pensacola, Fla. — Where a resident on the naval reservation at Pensa- cola, Fla., died intestate, possessed of certain property which is in the hands of the com- mandant of the yard, the local probate court of the State may properly exercise jurisdic- tion over the case, and appoint an adminis- trator to whom the commandant should deliver the property in his hands belonging to the estate. 19 Op. 176. 36. Naval reservation, Porto Eico — Shore line. — By proclamation of the President of June 26, 1903, the following-described lands were reserved for naval purposes: "All pub- lic lands, natural, reclaimed, partly re- claimed, or which may be reclaimed in the island of Porto Rico, embraced within the following boundaries." The boundaries to the north and west are definitely described. On the south it was to be bounded by "the shore of the harbor, and to extend east 2,400 feet, more or less, to include 80 acres." The eastern boundary was not denned: Held that this area can not be made up in part of submerged lands or harbor areas which may, be reclaimed, but that the southern bound- ary should run along the present shore of the harbor, extending as far easterly as is neces- sary to include 80 acres within the area de- scribed. 25 Op. 172. Restoration to Public Domain. See Pub- lic Lands, XIV. IT. Forest. 37. A criminal prosecution will lie to punish a person who grazes sheep in a forest reserva- tion in violation of the regulations promulgated by the Secretary of the Interior pursuant to the provisions in the sundry civil act of June 30, 1898 (30 Stat. 35), applicable thereto. 22 Op. 266. 38. Same. — Congress has the right to place the control of the occupancy and use of forest reservations in the hands of the Secretary of the Interior for their preservation, and to provide that any occupancy or use in violation of the rules and regulations adopted by him shall be punished criminally, lb. 39. The right of forest supervisors and ran- gers to arrest persons violating the laws or the rules and regulations for the protection of forest reservations being doubtful, it is sug- gested that relief must be had through Con- gressional action. 22 Op. 512. 40. Prohibition of hunting. — 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 hunt- ing, killing, or capture of game thereon may be forbidden. 23 Op. 589. 41. Same.— 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 Inte- rior this power. lb. 42. Forest reserve, Alexander Archipelago, Alaska — Permit for use and occupancy. — The Secretary of Agriculture has authority under RESERVATIONS AND PARKS, IV— REVENUE LAWS. 427 the act of June 4, 1897 (30 Stat. 35), to grant a, permit for the use and occupancy of certain land within the Alexander Archipelago For- est Reserve, Dall Island, Alaska, for the pur- pose of conducting a fish saltery, oil, and fer- tilizer plant. 25 Op. 470. 43. Same. — The Secretary may grant such privilege for a longer period than one year, and may charge and collect a reasonable sum for the privilege granted. lb. See also Public Lands, VII, 26-30, and Let- ter of Attorney-General Knox to Hon. John F. Lacy (H. Doc. 321, 57th Cong., lstsess., Ser. No. 4337). V. Light-House. 44. A tunnel constructed in the manner pro- posed by the Staten Island Rapid Transit Railroad Company across a part of the light- house grounds at New Brighton, Staten Island, is within the provision of the act of February 9, 1881 (21 Stat. 324), granting right of way through said grounds. 18 Op. 76. 45. The Secretary of the Treasury has no authority to grant or lease a right of way through the light-house reservation at Cape May, N. J.,- to the Delaware Bay and Cape May Railroad Company for the consideration of free passage by such road to all officers and employees of the light-house establishment. 20 Op. 527, 537. 46. Same. — The "lease," as it is termed, operated only as a revocable license and did not carry any estate in the land in question. lb. 47 . Same. — The Secretary of the Treasury has power to revoke the license at pleasure and to remove the property of the company from the reservation upon its failure after reason- able notice to do so. lb. Indian Reservations. See Indians, II, a. Reservation op Public Lands for Irriga- tion Purposes. See Public Lands, 41. RESIDENCE. See Civil Service, 69, 70. RESIGNATION. See Army, II, c; Naval Academy, 14-16; Civil Service, 97. RESTORATION. Of Lands to the Public Domain. See Public Lands, XIV. RESURVEY. Of Patented Lands. See Public Lands, IV. RETAINED PAY. Of Soldiers. See Treasury Department, 131. RETIREMENT AND RETIRED OFFICERS. Army Officers. See Army, II, 67, 86, 92- 118, 160-163. Navy Officers. See Navy, II, c. Officers of the Marine Corps. See Navy, III, c. Of Judges. See Courts, 24. Of Circulation. See Banks and Banking, III. ~ RETURN CERTIFICATE. See Chinese, II, c. RETURN POSTAGE CLEARING COMPANY. See Attorney-General, 90; Postal Service, 123-129. REVENUE-CUTTER SERVICE. See Revenue Marine. REVENUE LAWS. See also Internal Revenue ; Customs Laws. 428 REVENUE MARINE, I, II. REVENUE MARINE. I. In General, 1-10. II. Officers, 11-21. I. In General. 1. Revenue-Cutter Service: — Not transferred to Department of Commerce and Labor. — The act of February 14, 1903 (32 Stat. 825), giving the Department of Commerce and Labor juris- diction and control of the seal fisheries does not transfer to that Department the Revenue- Cutter Service or any of its vessels or officers. 25 Op. 4. 2. The Secretary of the Treasury is not authorized by said act, or otherwise, to assign revenue vessels to the duty of seal protec- tion, lb. 3. Same. — Vessels assigned by authority of the President to the protection of the seal fisheries will henceforth, while so assigned, be subject to the direction of the Secretary of Commerce and Labor in respect to those duties, but their internal government and duties con- cerning the revenue while thus engaged will be under the Secretary of the Treasury. lb. 4. Same. — Appropriations for the Revenue- Cutter Service will continue to be expended by the Secretary of the Treasury, except such por- tions, if any, as may be applied to extraor- dinary business concerning seal protection, which latter will be under the control of the Secretary of Commerce and Labor. lb. 5. Revenue cutters cooperating with the Navy — Pension. — The revenue cutters em- ployed in carrying out the order issued by President Lincoln to the Secretary of the Treasury, dated June 14, 1863 (set forth in the opinion), were, while so employed, cooper- ating with the Navy by order of the Presi- dent; and if any of the officers or seamen thereof, during such employment, were wounded or disabled in the discharge of their duty, they became entitled to be placed on the Navy pension list at the same rate of pension and under the same regulations and restrictions as are provided by law for the officers and seamen of the Navy. 19 Op. 505. 6. Marine-Hospital fund. — Sick seamen of the Revenue-Cutter Service are entitled to the benefit of the Marine-Hospital funds pro- vided for sick and disabled seamen. 21 Op. 340. ' 7. Same. — The Treasury Department is obliged, under existing laws, to extend the ben- efits of the Marine-Hospital fund to the sick and disabled officers and seamen of the Revenue- Cutter Service.' 21 Op. 365. 8. Reimbursement of Navy Department for supplies furnished the Revenue-Marine Service. — No legal obstacle exists against reimbursing the appropriation for the Navy Department from the appropriation for the Revenue- Marine Service with the cost of such heavy ordnance and ordnance stores as may be fur- nished by that Department to be used in said service. 17 Op. 480. 9. Same. — Where one Department receives from another Department supplies which are within the scope of appropriations belonging to each, a reimbursement of the appropria- tion of the one from the appropriation of the other of the cost of such supplies is not a violation of section 3678, Revised Statutes; nor do the provisions of 3618, Revised Stat- utes, apply to .such case. , lb. 10. The question submitted as to whether the service of one Charles Whitman on the revenue steamer Johnson was that of a civilian employee or an enlisted man involves certain matters of fact in regard to which additional information is requested. 22 Op. 189. II. Officers. 11. Chief Engineers— Appointment — Pay. — The provision of the act of June 4, 1897 (30 Stat. 17), that certain chief engineers of the Revenue-Cutter Service "shall be eligible for appointment to the office of captain of engi- neers in said service, with the pay and emolu- ments of such captain," creates the office of captain of engineers, with the same pay as that of a captain of the revenue service. The appointment is to be made from the chief engineers who have held the office of engi- neer in chief, and be made by the President, by and with the advice and consent of the Senate. 21 Op. 551. 12. Same. — The word "such" ordinarily refers to the next immediate antecedent, but not necessarily; never when the purpose of the section in which it is used would thereby be impaired. lb. 13. Assistant engineers — Appointment, — Under the law at present in force, assistant EEVENUE MARINE, II— RIVERS. 429 engineers in the Revenue-Cutter Service should be appointed by the President with the concurrence of the Senate. 17 Op. 532. 14. Same. — It is a general rule that, where there is no express enactment to the con- trary, the appointment of any officer of the United States belongs to the President by and with the advice and consent of the Sen- ate, lb. 15. Same. — Section 2751, Revised Statutes, which declares that "the commissioned offi- cers of the Revenue-Cutter Service shall be appointed by the President, by and with the advice and consent of the Senate," is a re- enactment of a similar one contained in the act of 1863 (12 Stat. 639), and was probably intended to embrace all the officers of the Rev- enue-Cutter Service described in section 2749 other than those there classified as petty offi- cers, lb. 16. Permanent waiting orders — Restoration to service in former rank. — Under the act of Mrrch 2, 1895 (28 Stat. 910, 920), officers of the Revenue-Cutter Service who have been placed upon permanent waiting orders are withdrawn from the line of promotion, but may be restored to the service in their former rank when their disability ceases. 21 Op. 286. 17. Same. — There is no legal limitation of the number of officers who may be placed upon permanent waiting orders. lb. 18. Same. — An officer is "permanently in- capacitated" within the meaning of this act, as of the pension acts, when his disability appears to be chronic or of indefinite future duration. lb. 19. Mileage. — An officer of the Revenue- Cutter Service is not entitled to mileage for travel on duty, but may be allowed actual traveling expenses. 18 Op. 121. 20. Accounts of officers — Oath. — The Secre- tary of the Treasury has power, under section 161, Revised Statutes, to make a regulation which prescribes that the oaths to be taken by an officer of the Revenue-Marine Service, or an officer or employee in any branch of the customs service, to the correctness of his account for pay or salary, as required by sec- tions 1 790 and 2693, Revised Statutes, shall be taken before some person authorized to ad- minister oaths generally. 19 Op. 401. 21. Same. — The fee paid by the officer or employee in such case for administering the oath does not constitute a proper charge against the United States, and if charged in his account should not be allowed in the settlement thereof, lb. Merchant Marine. See Shipping, I, g. REVOCATION. Op License. See Steamboat-Inspection Serv- ice, 23-26; License. Op Power of Attorney. See Power op At- torney, 1, 4. REWAREH0TJSING. See Customs Law, 115,116. RHODE ISLAND. The State of Rhode Island is not a person, corporation, or association within the mean- ing of sections 4 and 5 of the river and har- bor act of September 19, 1890 (26 Stat. 453). Consequently the Secretary of War is not authorized to serve notice on the State of Rhode Island requiring it to alter the bridge over the Sakonnet River, Rhode Island, which bridge is the property of that State. 20 Op. 606. RIGHT OF WAY. See Indians, 47, 48. RIO GRANDE RIVER. See Navigable Waters, 165, 166; Mexico, 1-6. RIPARIAN RIGHTS. See Navigable Waters, 76, 78. RIVERS. Abandonment op Channel. See Indians, 36. See also Navigable Waters, II, III. 430 ROCK CREEK PARK— SAVINGS. BOCK CREEK PABK. See District of Columbia, V. BOCK ISLAND BBIDGE. See Navigable Waters, 137-139, and Bridges. BOYAITY. See Claims, 74, 75; Armament and Fortifi- cations. SAILORS. Preference in Civil Appointments. See Civil Service, V. ST. LOUIS BIVEB. See Navigable Waters, 167. ST. PAUL AND ST. GEORGE ISLANDS. See Seal Fisheries, 11-16. SALABIES. Of Agents Employed by the Department of Agriculture. See Department of Agriculture, 30. Of Inspectors of Immigration. See Immi- gration, 28. Of Federal Judges. See Courts, 3. Of Deceased Retired .Army Officers. See Army Officers, 68. SALE. Of Land in the District of Columbia, Con- veyance. See District of Columbia, 15. Of Materials, Supplies, and Equipment. See Isthmian Commission. Of Steam Tug "Elihu." See Hawaii 41. Of Windmill at Lynnhaven, Va. See De- partment of Commerce and Labor, 23. SAMOA. 1. The President may lawfully use such part of the appropriation of $500,000 provided in the act of February 26, 1889 (25 Stat. 699 ), > in making and executing contracts for the control of such property in Pago Pago Harbor, Samoa, whether by lease or purchase, as may in his judgment be necessary forthe protection, oi the interest of the United States. 20 Op. 484. 2. The construction of a pier, required in providing a naval and coaling station for the United States in the harbor of Pago Pago, is within the intent of Congress as expressed in the paragraph of the sundry civil appropri- ation act of August 5, 1892 (27 Stat. 349), containing the following provision: "For providing naval and coaling stations, $250,000, to be expended under direction of the President; " and such portion of the $250,000 as may be needed for building the pier may be lawfully used whenever the President shall so direct. 20 Op. 553. SAMPLE PACKAGES. See Contracts, 74. SAN PEDBO HABBOB. See Navigable Waters, 87-93. SAVANNAH BIVEB. See Navigable Waters, 50. SAVINGS. Of Enlisted Men. See Navy, 10. SOHOOL-FAEM LANDS— SEAL FISHERIES, I. 431 SCHOOL-FARM LANDS. Investment op Proceeds op Sale op. See Trust Funds. SCIENTIFIC APPARATUS. See Customs Law, 232. SCRAP TOBACCO. Duty qn. See Customs Law, 206. SEAL FOR CENSUS OFFICE. See Department of Commerce and Labor, 33. SEAL FISHERIES. I. In General, 1-10. II. Lease, rental, 11-24. III. Regulations, 25. I. In General. 1. Remission of forfeiture of a vessel con- demned. — Section 1958, Revised Statutes, does not confer upon the Secretary of the Treasury authority to remit the forfeiture of a vessel condemned by the United States district court for Alaska for being engaged in killing fur seals. 18 Op. 584. 2. Same. — Under section S293, Revised Statutes, fifth paragraph, he has power to re- mit in such case, but only where the forfeiture was imposed "by virtue of any provisions of law relating to fur seals upon the islands of St. Paul and St. George." lb. 3. Same.— Opinion of March 19, 1887 (18 Op. 584), namely, that the Secretary of the Treasury has no power to remit the forfeiture of a vessel condemned for being engaged in unlawfully killing fur seals (the case not arising in either of the islands St. Paul and St. George), reaffirmed. 19 Op. 5. 4. Assignment of revenue vessels — Seal pro- tection. — The Secretary of the Treasury is not authorized by the act of February 14, 1903 (32 Stat. 825), or otherwise, to assign rev-, enue vessels to the duty of seal protection. 25 Op. 4. 5. Same. — Vessels assigned by authority of the President to the protection of the seal fisheries will henceforth, while so assigned, be subject to the direction of the Secretary of Commerce and Labor in respect to those duties, but their, internal government and duties concerning the revenue while thus engaged will be under the Secretary of the Treasury. lb. 6. Same. — Appropriations for the Revenue- Cutter Service will continue to be expended by the Secretary of the Treasury, except such portions, if any, as may be applied to extra- ordinary business concerning seal protection, which latter will be under the control of the Secretary of Commerce and Labor. lb. Authority df the Secretary of the Treas- ury in Regard to Leases and Rentals. See II. 7. License. — Vessels engaged in fur-seal fish- ing in waters other than those covered by the award of the Paris Tribunal and the act of Congress of April 6, 1894 (28 Stat. 52), are not required to be licensed. 21 Op. 239. 8. Indian rights. — The Makah Indians are prohibited, as other persons generally, by the act of April 6, 1894 (28 Stat. 52), from killing seals at a time and in a certain part of the Pacific Ocean named in the act, and the only right they can claim is that of sealing in the particular manner and places permitted in ex- plicit terms by section 6 of the act to coast Indians generally. 21 Op. 466. 9. Remission of tax on skins taken from seals killed by natives for food. 20 Op. 407. 10. Administrative duty imposed upon the Secretary of the Treasury in regard to the pro- tection of fur seals. — A request for an opinion failing to state definite facts showing by what persons, in what manner, and during what period of the year fur seals are being killed in the passes of the Aleutian Islands, it is impossible to determine whether the ad- ministrative duty imposed upon the Secretary of the Treasury by section 1956, Revised Stat- utes, is or is not qualified by the provisions of the act of April 6, 1894. 21 Op. 583. 432 SEAL FISHEEIES, II. II. Lease,' Rental. 11. The Seoretary of the Treasury derives no authority, under section 1963, Revised Stat- utes, to make a new lease of the right to take fur seals on the islands of St. Paul and St. George, in Alaska, until the expiration of the existing lease. 19 Op. 432. 12. Same. — The donee of a statutory power can only make a valid execution of such power by a strict compliance with the statu- tory grant. lb. 18. North American Commercial Company — Seduction in yearly rentals. — The Secretary of the Treasury has the power under the existing lease by the United States to the North Amer- ican Commercial Company of the right of tak- ing fur-seal, skins on the islands of St. Paul and St. George, Alaska, to make a reduction of the yearly rental for the year ending May 1, 1891, proportionate to the reduction made by him below the limit named in the lease of the number of seals which said company has been permitted to kill on these islands. 20 Op. 51. 14. Same. — The Secretary of the Treasury is authorized to put such a construction upon a lease with the North American Commercial Company, in regard to taking fur seals on the islands of St. Paul and St. George, Alaska, as will give effect to the common intention of both of the parties thereto, even if such a con- struction is at variance with its strict legal interpretation. 20 Op. 62. 15. Same. — The Secretary of the Treasury may therefore treat the standard catch under said lease as 100,000 seals, and, in case of a reduction by him to 60,000 for the first year's catch, may make a corresponding reduction in the rent for that year. lb. 16. Same.— The Secretary of the Treasury has the same authority to make a reduction in the rate per skin to be paid by the lessee of the seal fisheries at the islands of St. George and St. Paul that he has in the case of the other stipulated rental in the lease. 20 Op. 510. 17. Same. — The Secretary of the Treasury has no power under the law now in force to abate the rent provided for in the lease of March 12, 1890, to the North American Com- mercial Company, nor has he the right to re- duce the amount of the bonus of $7. 623- provided for in said lease to be paid upon eaeh skin taken and shipped; the abatements hitherto made were without authority of law, and the bal- ance of the annual rental and of the bonus of I7.62J per skin not heretofore paid by the lessee, is still due to the United States and recoverable by it. (20 Op. 51, 62, and 510 dissented from). 20 Op. 634. 18. Same.— It is competent for the United States to recover by proper legal proceedings the difference between the amounts actually re- ceived as rent and bonus from the seal fisher- ies and the amounts called for by the terms of the lease as rent and bonus for the same years, notwithstanding the action of a prior Secre- tary of the Treasury in reducing sums due under the lease by what his estimate was of the lessee's claims for damage, inasmuch as it appears such claims were not legal and valid. Such action of 'the prior Secretary, even if it binds his successor, as to which qusere, does not conclude the United States. 20 Op. 732. 19. Same. — The tax of $2 prescribed by section 1969, Revised Statutes, can not be re- mitted to the North American Commercial Company upon skins taken from seals killed on the islands of St. George and St. Paul, Alaska, by the natives for food, and shipped by that company. 20 Op. 407." 20. Same — Security to amount of indebted- ness. — The Secretary of the Treasury can not rightfully require of the North American Commercial Company to furnish, in addition to the deposit of $50,000 in bonds of the United States already made pursuant to section 1963, Revised Statutes, security -to the amount of the indebtedness of the company for the years 1894 and 1895. 21 Op. 177. 21. Same. — The North American Commer- cial Company is liable to the United States for interest upon the several sums overdue for the years 1894-1897, inclusive, on account of taxes, rentals, and bonus under its lease of the Pribi- lof Islands from the United States. 22 Op. 172. 22. Same. — Where money is due and payable on a contract at a specified time and is with- held, the creditor is entitled to demand and receive interest at the rate prevailing in the forum where suit is brought except as against the Government of the United States and sovereign States, lb. 23. Same. — In an action for use and occu- pation or for mesne profits, where the recovery SEAL FISHERIES, III— SEAMEN. ii/O is of a sum in the nature of rent, interest is allowed on each annual sum from the end of the year. lb. 24. Same. — The claim of the United States against the North American Commercial Com- pany for interest, involving disputed questions of law and fact, is clearly one subject to com- promise. 23 Op. 631. III. Regulations. 25. A regulation of the Secretary of the Treasury prescribing that only a certain race or class of people shall have the privilege of kill- ing sea otter within a certain area would be a violation of section 1915, Revised Statutes, as being a grant of a special privilege. 21 Op. 333. Protection op Seals. See 4-6, Remission of Foefeituee. See 1-3. Seizure of Vessels. See Seizure. SEA OTTER. See Seal Fisheeies, 25. SEALED CARS. SEALED INSTRUMENTS. See Date. SEALS. See Contbacts, 166, 167. SEAMEN. 1. Alien seamen — Officer of an American vessel. — An alien seaman, though he has declared his intention to -become a citizen of the United States, and has served three years on vessels of the United States, is ineligible to the position of an officer of an American 18456—08 28 vessel. For that full citizenship is required. (Sec. 2174, Rev. Stat.). 17 Op. 534. 2. Seamen in the Coast and Geodetic Sur- vey. — The shipping commissioners' act of June 7, 1872 (17 Stat. 262), now embraced by Title 53, Merchant Seamen, Revised Statutes, has no application to seamen employed on vessels engaged in the service of the Coast and Geo- detic Survey. 19 Op. 182. 3. Payment of advance wages to seamen. — The provisions of section 10 of the act of June 26, 1884 (23 Stat. 55), prohibiting the payment of advance wages to seamen hired in our ports, in. so. far as those provisions apply to foreign., shipping, are not in conflict with the stipulations of article 8 of the consular convention with France of February 23, 1853. (10 Stat. 996). 18 Op. 253. 4. Same. — Nor do such provisions come in conflict with any rights which, upon princi- ples of international law, other nations are entitled to exercise within our ports as re- gards their merchant vessels. lb. 5. Same. — The provisions extend to French captains who hire French sailors in the ports of the United States. 16. 6. .The scale of provisions prescribed to be furnished seamen, as by section 23 of the act of December 21, 1S98 (30 Stat. 762), must be printed in the copy of shipping articles for coastwise steamers and posted. 22 Op. 349. 7. A shipping commissioner has no author- ity to ship seamen on ' ' sail or steam vessels en- gaged in'the coastwise trade," unless s"uch ves- sels come within the exceptions of the act of June 9, 1874 (18 Stat. 64); nor will the con- sent of the master and seaman operate to give such authority. 18 Op. 54. 8. Fees.— While he should not receive fees for shipping seamen on coasting vessels not with- in' said exceptions, yet he could not be prose- cuted under the' act of "June 7, 1872 (17 Stat. 262) , for so doing. lb. 9. Should such fees be received by him, they would not have to be accounted for to. the Secretary of the Treasury under section -27 of the act .of -June 26, 1884 (23 Stat, 59), lb. ... 10. Fees for providing employment for sea- men. — Section 4609, Revised Statutes, whieh forbids the demanding or. receiving.fr.om any seaman or other persons seeking employment as a seaman any remuneration for providing him with employment other than the -fees authorized by law, does not-, extend to : sear 434 SEAMEN. men employed on vessels engaged in the coasting trade generally. 21 Op. 284. • 11. Food and clothing furnished shipwrecked seamen. — Where a United States consul-gen- eral has provided shipwrecked, destitute sea- men with food, clothing, and passage to a port in this country, the amount so expended should not be deducted by a United States ship- ping commissioner in this country, from the wages of such seamen paid by the owners of the vessel. 21 Op. 25, 34. 12. Marine-Hospital fund. — Sick seamen of the Bevenue-Cutter Service are entitled to the benefit of the Marine-Hospital fund provided for sick and disabled seamen. 21 Op. 340. 13. Seamen born in the Philippines not citi- zens of the United States. — Seamen born in the Philippine Islands, being persons whose civil and political status isj by the treaty of peace with Spain (30 Stat. 1759), declared to be a matter for future determination by Congress, are not citizens of the United States within the meaning of any statute concerning sea- men, or any other statute or law of the United States. 23 Op. 400. 14. Same — Cuban seamen. — The same thing is true, in a more obvious way and with greater force, of Cuban seamen, lb. 15. Porto Bican seamen are American sea- men. — A Porto Eican engaged in the occupa- tion of a seaman in the American merchant marine, including that of Porto Eico, 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 Eico. lb. 16., Belief of American seamen — Who are entitled. — All persons shipped in the United States on an American vessel have been, ac- cording to the practice of the Government, treated as entitled to relief under the laws relating to seamen, lb. 17. Same. — 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 re- garded as a place such that a person domi- ciled 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, lb. 18. Section 4598, Eevised Statutes, with reference to seamen absenting themselves from vessels without leave from the proper officer, when their contract to perform the voyage is signed before a shipping commission, does not apply to seamen or vessels engaged in the coastwise trade unless, as under section 4520, Eevised Statutes, such vessel is of 50 tons burden or upward. 21 Op. 483. 19. Discharge by United States consul- general. — The Uriited States consul-general at Panama was justified in discharging a seaman where both master and seaman requested it, and where, although no unusual or cruel treat- ment was claimed, yet from the evident ill will displayed by the master he had reason to fear that such treatment would supervene. 22 Op. 212. 20. Same. — The master of the vessel had no legal right to impose and collect a fine of twelve days' wages because said seaman re- fused to work two days when he was intoxicated or ill from the effect of such intoxication. lb. 21. Same. — If the seaman was discharged because of unusual or cruel treatment, he is en- titled to the one month's extra wages allowed by statute, and in such cases the consul- general is authorized to exercise some reason- able discretion in determining this extra allowance, in reference to actual or anticipated ill treatment. lb. 22. When a consul intervenes in a contro- versy between master and seamen, by mutual consent of the disputants, he acts as an arbitrator and not as consul. 21 Op. 201. 23. Immigration laws.— Bona fide seamen have always been excepted from the opera- tion of our immigration laws, although not excepted therefrom by express language; their inclusion in the class of alien immi- grants can fairly be regarded as beyond the intention of Congress. 23 Op. 521. 24. Same. — Only such seamen are ex- cepted 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. lb. 25. Deserting seamen — Alien immigrants. — Aliens who become seamen for the purpose of securing an entrance into this country free from the barriers of the immigration statutes SEAMEN— SEEDS. 435 are none the less alien immigrants, and may be deported if within the prohibited classes. lb. 26. An "alien seamen" is one who, in pursuit of and as a necessary incident to 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 in it. lb. 27. Transfer of Chinese crew in port of the United States. — A Chinese crew which shipped at Hongkong on a vessel belonging to a com- pany chartered under the laws of the United States, for a trip to San Francisco and return by the same vessel, or any other vessel be- longing 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 in- jured, after having duly signed for that service before a United States shipping com- missioner. 24 Op. 111. 28. Same. — Such transfer would not be a violation of the alien contract labor laws. lb. 29. Same. — The landing of the crew, tempo- rarily, 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. lb. SO. Same. — The Chinese exclusion laws and the alien contract labor laws have no application to seamen who, in good faith, are engaged in navigation, and who are tempo- rarily within a port of the United States for that purpose. The transfer of the Chi- nese crew of the Danish steamer Arab to the Danish steamer Stanley Dollar, and of a Chi- nese crew from a vessel of the Pacific Mail Steamship Line to the steamer Siberia, of the same line, under the conditions named, would not involve a violation of either of those laws. 24 Op. 553. SEAECH WARRANTS. ; United States Commissionees, 7-9. SECOND-CLASS POSTAGE. See Postal Service, 120-122. SECRETARY OF AGRICULTURE. See Department of Agriculture, II. SECRETARY OF COMMERCE AND LABOR. See Departsient of Commerce and Labor., II. SECRETARY OF THE INTERIOR. See Department of the Interior, II. SECRETARY OF THE NAVY. See Navy, II. SECRETARY OF STATE. See Department of State, II. SECRETARY OF THE TREASURY. See Treasury Department, II. SECRETARY OF WAR. See War Department, II. SECRETARY TO THE ADMIRAL. See Navy, 25, 95. SECURITY. See Words and Phrases. SEEDS. See Department of Agriculture, VII. 436 SEIGNIORAGE— SENATE. SEIGNIORAGE. See Treasury Department, 165. SEIZOR. See Customs Law, 447. SEIZURE. 1. British sealing schooners, having on board prohibited and unsealed firearms, together with, a large number of sealskins, were seized by American cruisers in Bering Sea and the North Pacific Ocean for alleged violations of the laws for the preservation of fur seals passed in pursuance of the award of the tribunal of arbitration at Paris, and were delivered to British naval officers, with a written state- ment of the facts upon which the seizures had been made, but which did not specifi- cally assert that seals had been taken contrary to law, which officers, without in anywise invoking the action of the courts, released them, having reached the conclusion, after investigation and legal advice, that no case could be made out against them. The British Government presented claims for damages on account of such seizures. Held (21 Op. 234): 2. Formal charges not required of officer making seizure. — That nothing in the British statutes or in the orders and instructions is- sued for the due execution thereof requires any formal charge by officers making seizures. An indorsement of the grounds upon which they were seized on the certificate of the ves- sels is required to enable the vessels to pro- ceed to port for trial, lb. 3. The mode provided by the Bering Sea award act for dealing with vessels so seized is to subject them to legal proceedings in the British courts. Delivery to the naval authori- ties in place of the judicial authorities was merely for convenience, and not for the pur- pose of dispensing with legal proceedings or for a trial by such naval authorities instead. lb. 4. A naval officer to whom delivery is made of a vessel seized under the provisions of the treaty has no authority to investigate the seizure or release the vessel. lb. 6. There being nothing in the acts of either country about liability for wrongful seizures, if such liability exists it is governed by the well-settled principles of law common to both countries relative to such liability. lb. 6. The right to seize, conferred by the acts of both countries, was not limited to vessels caught in the act. In all other cases action must depend upon evidence and indications. In any case where reasonable grounds for the seizure are shown there is no liability for damages on account of such seizure. lb. 7. Section 1956, Revised Statutes, as amended by section 3 of the act of March 2, 1889 (25 Stat. 1009), applies to the Territory of Alaska and the waters thereof, and to all the dominion of the United States in the waters of Bering Sea. It is lawful for the Secretary of the Treasury, under said section, to direct captains of the fur-sealing fleet to seize all foreign vessels found hunting or to have hunted sea otter within said waters. 21 Op. 346. 8. The steamship Abbey, seized at Batan- gas, Philippine Islands, by Admiral Dewey, should be released to the American claimant upon stipulation that he waives all claims for damages against the United States for the seizure and detention. 22 Op. 390. 9. A threat to seize a vessel unless certain troops and ammunition are received and transported, resulting in the compulsory sub- mission of the master of the vessel, does not constitute an impressment within the meaning of section 3483, Revised Statutes. 17 Op. 90. Of Cattle in the Indian Territory. See Indians, 190. Of Property in the Indian Country by the Military Authorities for Violation of the Laws Relating to the Indians. See Indian Territory, 2, 3; Indians, 75, 76. Seizure and Destruction of Fur-Seal Skins. See Customs Law, 410, 411. SENATE. See Congress, III. SENTENCE— SHIPPING, I, a, b, c. 437 SENTENCE. See Court-Martial, IV; Army, VI. SERVICE OF PROCESS. See United States, 67, 68, 71, 72, 74. SET-OFF. Money paid by mistake to a person who after- wards became a postal clerk. — Where money was paid by a United States marshal, under a mistake of fact, to a person who subse- quently became an officer in the postal serv- ice: Held that the latter is in arrears to the United States for the amount so paid, and that it may be set off against his compensa- tion as such officer. 17 Op. 677. See Direct Taxes ; Courts, 3. SETTLEMENT OF ACCOUNTS. See Accounts. SHETENNE ISLAND. See Indians, 36. SHILOH BATTLEFIELD. A contract of option for the sale of certain lands to the officers of the Shiloh Battlefield Association, which purports to waive home- stead and dower rights, although the wives of the vendors are not parties to the agree- ment, and also purporting to have been ad- mitted of record, when, so far as appears on its face, it was never acknowledged or at- tested, etc., does not constitute a cloud upon the tit'D. 21 Op. 302. SHIPPING. I. Laws and Regulations Affecting Vessels. a. In General, 1. b. Ships' papers, 2. c. Registry, 3-27. d. License, 28. e. Anchorage, 29. f. Entry— Manifest — Clearance, 30- 32. g. Merchant Marine, 33-34. h. Title, 35-37. II. Officers, 38-43. III. Taxes, Penalties, Fees, etc. a. Penal Taxes, 44-48. b. Tonnage Taxes, 49-71. c. Head Tax, 72-76. d. Refund, 77. e. Fees, 78-80. I. Laws and Regulations, etc., Affecting Vessels. a. In General. 1. The expressions "vessel or ship of the United States," "American vessel of the United States," and "American vessels" are used synonymously in the Federal statutes and apply only to regularly documented vessels. 18 Op. 234. - b. Ships' Papers. 2. The masters of fishing vessels, enrolled but not registered, are not required by sections 4309 and 4310 of the Revised Statutes to de- posit their ships' papers with the United States consul when they arrive at a foreign port where there is such a consular officer. 21 Op. 190. c. Registry. 3. A vessel built in the United States, and owned wholly by citizens thereof, is entitled under sections 4132 and 4136, Revised Stat- utes, to be registered under the laws of the United States, although she may have at one time belonged to citizens of a foreign country. 17 Op. 286. 4. Employed under a foreign flag. — A regis- tered vessel of the United States, wholly and continuously owned by a citizen of the United States, does not forfeit her privileges as such 438 SHIPPING, I, c. by having been employed under a foreign flag since the rebellion. 17 Op. 443. 5. An American built vessel, wholly and tinuously owned by a citizen of the United States, but as yet unregistered, may be admit- ted to registry, although she has sailed under a foreign flag since the rebellion. lb. 6. Foreign-built registered American ves- sels.— The act of June 26, 1884, section 12 (23 Stat. 56), does not intend by the expression "American vessels " to include only "vessels of the United States" as defined by section 4131, Revised Statutes, but includes as well "foreign-built registered American vessels." 18 Op. 99. 7. A registered vessel of the United States which has been altered in form or burden in a foreign port may be registered anew on her arrival in the United States; but the new registry can not be made unless the ship and owners conform to the requirements necessary for an original registry. 18 Op. 560. 8. If the alteration amounts to such a sub- stantial rebuilding of the vessel as that the owner could not truthfully make oath that it was built in the United States it would not be entitled to registry. lb. 9. A foreign-built vessel wrecked in Ameri- can waters and repaired in an American ship- yard at an expense exceeding three-fourths of the cost of the vessel when repaired, and, after sailing under a foreign flag for several years, sold by her foreign owner to a citizen of the United States, may properly be reg- istered under section 4136 of the Revised Statutes, which section must be construed in connection with section 4132, Revised Stat- utes. 20 Op. 253. Iff. A British steamship, wrecked outside the limits of the United States, was finally towed to New York, and sank in or near Erie Basin. The vessel was repaired and afterwards pur- chased by an American citizen at three times the cost of the wreck: Held that the vessel was "wrecked in the United States," within the meaning of the Revised Statutes, section 4136; that the word "cost" in said section is to be construed literally, and that if the actual cost of the repairs is three times the actual pur- chase price of the wreck, it is entitled to registry. 21 Op. 143. 11. Same. — The word "cost" in said sec- tion is to be construed liberally, and if the actual cost of the repairs is three times the actual purchase price of the wreck, then the vessel is entitled to registry. lb. 12. Same. — In view of the express regulation and long-established practice of the Treasury Department, which have put a narrow con- struction on the clause "wrecked in the United States," an application, under section 4136, Revised Statutes, for registry of a foreign- built vessel wrecked and abandoned several hundred miles from the coast of the United States, and subsequently towed into the United States, where she was purchased and repaired by American citizens, the repairs amounting to more than three times the price paid for the wreck at marshal's sale, was properly denied. 21 Op. 198, reversing 21 Op. 143. 13. Same. — If any of the injuries which have made a vessel a wreck were received in the United States, in the absence of bad faith she should be held to come within the clause "wrecked in the United States," although others had been received elsewhere. lb. 14. Same. — The word "wreck" in section 4136, Revised Statutes, must be taken in a very comprehensive sense as applicable to a vessel which is disabled and rendered unfit for navigation, whether this state of the vessel has been caused by the winds or the waves, by stranding, fire, explosion of boilers, or by any other casualty. lb. 15. American registry — Repaired foreign- built vessel. — A foreign-built vessel, wrecked in the United States, repaired here by her foreign owners, and subsequently sold to a citizen of the United States, is entitled, under section 4136, Revised Statutes, to American registry, if the repairs made upon the vessel after the wreck equal three-fourths of the cost of the vessel when so repaired. 25 Op. 384. Opinion of September 29, 1891 (20 Op. 253), followed. lb. 16. Same. — To entitle a foreign-built vessel wrecked in the United States, repaired here by her foreign owners and sold to a citizen of the United States, to American registry it must appear that the repairs "equal to three- , fourths of the cost of the vessel when so re- paired ' ' were occasioned by one wreck, section 4136, Revised Statutes, not permitting the aggregating of the cost of repairs occasioned by different wrecks in making up that amount. 25 Op. 385. SHIPPING, I, e, d, e, f. 439 17. 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 enti- tled to registry under the laws of the United States (sec. 4132, Rev. Stat. ). 22 Op. 566. 18. Same. — The regulation of commerce and navigation being entirely within the con- trol 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 sub- jects. • lb. 19. Th e H a waiian authorities can not in any- wise 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. 22 Op. 578. 20. Same. — The registration laws of Hawaii have been abrogated as a necessary consequence of its annexation to the United States. lb. 21. Same. — 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. lb. 22. American registry — Condemned prize — Reversal of decree. — Under section 4132, Re- vised 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. 23 Op. 29. 23. Same. — 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. lb. 24. Registry of Hawaiian vessel owned by naturalized Chinaman. — 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, 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 Hawaiian 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. 23 Op. 352. 25. Certificates of registry of vessels. — The duty imposed upon the Secretary of the Treasury by section 4158, Revised Statutes, of transmitting to collectors of customs blank forms of certificates of registry of vessels was, by the act of February 14, 1903 (32 Stat. 825) , transferred to the Secretary of Com- merce and Labor. 25 Op. 49. 26. Same — Expense — Comptroller of the Treasury. — The question as to whether the expense of preparing such blank forms and furnishing them to collectors can be paid out of the appropriation for defraying the expenses for collecting the revenue from customs, is peculiarly one for the Comptrol- ler of the Treasury to decide (23 Op. 468) . lb. 27. American registry — Steamship Athos. — The nonaction of the American owners of the steamship Athos in failing to avail of the privilege of registry conferred upon that vessel by the act of Congress of January 16, 1895 (28 Stat. 625), and the subsequent transfer of the vessel to foreign owners, who for several years sailed her under foreign flags, must be taken as a waiver of the privi- lege conferred by Congress, and she is not now entitled to American registry although at present owned by American citizens. 25 Op. 551. d. License. 28. Vessels engaged in fur-seal fishing in waters other than those covered by the award of the Paris Tribunal and the act of Congress of April 6, 1894 (28 Stat. 52), are not required to be licensed. 21 Op. 239. e. Anchorage. 29. Matters arising under the acts of May 16, 1888 (25 Stat. 151), February 6, 1893 (27 Stat. 431), March 6, 1896 (29 Stat. 54), and June 6, 1900 (31 Stat. 682) , relating to anchor- age and anchorage grounds, have been trans- ferred by the act of February 14, 1903 (32 Stat. 825), from the Treasury Department to the Department of Commerce and Labor. 25 Op. 37. f. Entry — Manifest — Clearance. 30. American vessel from Philippine Islands — Entry — Manifest. — An American vessel in bal- last, 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 440 SHIPPING. I, f, g, h; II. entry and the sending of a copy of the mani- fest to the Auditor. 24 Op. 27. 31. Clearance denied because of incorrect manifest. — A collector of customs may law- fully refuse a clearance to a vessel whose master is alleged to be amenable to the penalty provided by section 2809j, Revised Statutes, for bringing into the United States merchandise not included in the manifest required and described in the preceding sec- tions. Such refusal is not a seizure, and the act of February 8, 1881 (21 Stat. 322), is in- applicable. 17 Op. 82. 32. Refund of entrance and clearance fees — Canadian veBsels. — The right to a refund of entrance and clearance fees improperly ex- acted by the collector of customs at Pembina, N. Dak., from Canadian vessels entering and clearing that port after the passage of the act of March 3, 1897 (29 Stat. 689), abolishing such charges, is governed by section 26 of the act of June 26. 1884 (23 Stat. 59). 25 Op. 376. g. Merchant Marine. 33. Enlargement of.— Section 14 of the act of June 26, 1884 (23 Stat. 57), "to remove certain burdens on the American merchant marine and to encourage the American carry- ing trade," etc*, considered in connection with the eighth article of the treaty of 1827 with Sweden and Norway. 18 Op. 382. 34. Same. — No warrant is found in the treaty for the claim that the shipping of that power is entitled to the benefits of the act without submitting to its conditions. lb. h. TMe. 35. The Spanish vessels wrecked in battle by the naval vessels of the United States dur- ing the war with Spain, and now lying along the coast of Cuba, are the property of the United States. 23 Op. 76. 36. Same. — That island being now tempo- rarily 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 dis- position of such wrecked vessels as he may deem necessary. lb. 87. Same. — Section 3755 applies as well to WTecks which are the property of the United States as to the vessels of private owners which have been wrecked, abandoned, or become derelict. lb. Vessels Disabled in a Foreign Poet. See Diplomatic and Consular Officers, 15-18. II. Officers. 38. Officers of American vessels. — An alien seaman, though he has declared his intention to become a citizen of the United States, and has served three years on vessels-of the Uni- ted States, is ineligible to the position of an officer of an American vessel. For that full citizenship is required (sec. 2174 Rev. Stat.). 17 Op. 534. 39. Class of aliens who, under peculiar cir- cumstances, might be officers of United States vessels for brief periods. — The act of June 5?6, 1884 (23 Stat. 33), amending section 4131, Revised Statutes, was obviously designed to make provision for a class of persons, who, though aliens, might be officers of United States vessels under peculiar circumstances and for brief periods. The provisions of that act are not in conflict or inconsistent with the act of April 17, 1874 (18 Stat. 30), en- titled "An act to authorize the employment of certain aliens as engineers and pilots.'' Both statutes are therefore to be regarded as in force. 21 Op. 166. 40. Masters of foreign vessels — Bight to shackle alien passenger in port of United States. — The-master of a foreign vessel has a right, under the laws of the United States, to put in irons an alien on board his ship who is not allowed by law to enter the United States, in order to prevent such person from unlawfully landing; butthis may be done only in exceptional cases and where nothing less will prevent the landing of such person. 24 Op. 531. 41. Same. — By the comity of nations, mas- ters are permitted to exercise the same pow- er practically, in port as at sea, so far as mat- ters within their vessels, and not disturbing the peace of the port, are concerned. lb. 42. Same. — Whether such officer should put irons upon an alien immigrant is a ques- tion of care and good faith. He must, in good faith, be careful to prevent the landing; but SHIPPING, II, III, a, b. 441 when he has exercised reasonable care to that end, he neither must nor may do more. lb. 43. Same. — What is care or negligence is a question which varies with the particular cases; it does not depend upon the master's discretion, but may be brought by the alien to the determination of the courts. lb. Abandonment. See Arenas Key Island. III. Taxes, Penalties, Fees, etc. a. Penal Taxes, Fines. 44. Trading without license. — A foreign vessel, i. e., one belonging wholly or in part to a subject of a foreign power, is not liabel to the penal tax prescribed in section 4371, Revised Statutes. This tax applies exclusively to vessels belonging to citizens of the United States which are capable of being, and should be, enrolled and licensed. 17 Op. 388. 45. Foreign vessels transporting passengers between ports in the United States. — Under section 8 of the act of June 19, 1886 (24 Stat. 81), a foreign vessel is liable to a fine of $2 for every passenger transported by it from one port in the United States to another port in the United States, though the con- tinuity of the voyage may have been broken by the vessel touching at an intermediate foreign port. 18 Op. 445. 46. Carrying passengers other than cabin passengers. — Masters of vessels become liable to a fine of $5 for each passenger, other than a cabin passenger, carried in violation of section 2 of the act of August 2, 1882 (22 Stat. 189), which provides that there shall not be in any compartment or space on a vessel occupied by "such passengers" (immigrant passen- gers) more than two tiers of berths, nor more than one person in a berth not double. 22 Op. 499. 47. Same. — The phrase "such passengers" in the concluding portion of section 2 of the act refers to steerage passengers. lb. 48. Trading without license. — Vessels used exclusively for pleasure, and not carrying freight or passengers for pay, are not liable to the penalty prescribed in section 4371, Re- vised Statutes, for trading without a license. 18 Op. 564. b. Tonnage Taxes. 49. Tax where any officer of a vessel is not a citizen of the United States.— The "tax of 50 cents per ton" imposed by section 4219, Re- vised Statutes, as amended by the act of Feb- ruary 27, 1877 (19 Op. 250)," upon any vessel any officer of which shall not be a citizen of the United States" is not a penalty capable of being remitted by the Secretary of the Treas- ury under sections 5292 and 5293, Revised Statutes. 17 Op. 120. 50. Same — Vessels used exclusively for pleas- ure, and not carrying freight or passengers for pay, are not, when navigating waters of the United States between district and dis- trict, or between different places in the same district, subject to the tonnage duties prescribed by section 4219, Revised Statutes. 18 Op. 564. 51. Same. — A tax imposed under section 4219, Revised Statutes, on a vessel employing an alien as mate should not be remitted because such alien had duly declared his inten- tion of becoming a citizen of the United States and had for more than three years continu- ously served on board American merchant vessels, but has never actually been admitted to citizenship. 21 Op. 412. 52. Suspension — The President. — Section 14 of the act of June 26, 1884 (23 Stat. 57) , does not subject to the discretion of the President the suspension of collection of portions J of tonnage tax mentioned in the first proviso of that section. 18 Op. 53. 53. Same. — The right to such suspensions arises upon the happening of the condition therein mentioned, i. e., the state of foreign law which in the opinion of the legislature warrants such suspensions. lb. 54. Same. — The phrase "government of the foreign country" in section 14 refers to the special government of such "country," as distinguished from that of the empire or other ultimate sovereignty of which it may be a member. Jb. 55. Same. — The question in each case of sus- pension is as to the tonnage and light-house dues exacted by the government at the par- ticular port from which the vessel arrives, irre- spective of those exacted at other ports of the same "country." lb. 56. The right to a reduction of tonnage duty under the first proviso of section 14 of the act of June 26, 1884 (23 Stat. 57), takes effect from the proclamation of the President, and not before. 18 Op. 197. 442 SHIPPING, III, b.' 57. Same. — By virtue of the third section of the act of July 5, 1884 (23 Stat. 119), the decision of the Commissioner of Navigation on questions involving a refund of the tonnage tax is final. That section supersedes or re- peals the previous law vesting the Secretary of the Treasury with appellate power in such cases. lb. 58. Same. — Section 26 of the act of June 26, 1884 (23 Stat. 59), authorizing the Secretary of the Treasury to, refund, in Gertain cases, "any fine, penalty, forfeiture, exaction, or charge arising under the laws relating to vessels or seamen" has no application to ton- nage duties. The words "exaction and charge" in this section, which might in some circumstances be held to comprehend tonnage duties, must, from their association with the terms "fine, penalty, forfeiture," be taken in an acceptation akin to that of these latter words. lb. 59. The discrimination as to tonnage duty in favor of vessels sailing from the regions mentioned in the act of June 26, 1884 (23 Stat. 57), and entered in our ports is purely geographical in character, inuring to the advantage of any vessel of any power that may choose to transport between this coun- try and any port embraced by the fourteenth section of that act. 18 Op. 260. 60. A vessel entered in a port of the United States from Bremen, via Southampton, is ex- empted under the proclamation of the President, made on the 26th of January, 1888, in pur- suance of the first proviso in section 11 of the act of June 19, 1886 (24 Stat. 81), from pay- ment of the tonnage tax imposed by said section, although the vessel may have taken on board cargo, passengers, and mails at the last-mentioned port. But if the vessel had entered at and cleared from Southampton it is liable to the duty. 19 Op. 128. 61. The Secretary of the Treasury is author- ized, under section 26 of the shipping act of June 26, 1884 (23 Stat. 59), to repay the ton- nage tax imposed on the steamer Cuba if, on investigation, he finds that it was "illegally improperly, or excessively imposed" and if the Commissioner of Navigation shall have first decided, under section 3 of the act of July 5, 1884 (23 Stat. 119), that such tax was erro- neously or illegally exacted. 19 Op. 660. 62. Tonnage tax is a charge upon the vessel itself and is expressly excepted from the operation of the customs-revenue act of June 10, 18.90 (26 Stat. 131) , by section 14 thereof. Section 21 relates to a rule of evidence only. lb. 63. Same. — Although section 29 of the act of 1890 (26 Stat. 131) repeals sections 2931, 2932, 3012$, and 3013, Eevised Statutes, said act makes no provision for the repayment of a tonnage tax illegally exacted, lb. 64. The President has no authority to re- verse the decision of the Commissioner of Navi- gation so as to adjust the claims of Sweden and Norway for the return of tonnage dues alleged to have been erroneously exacted. Any application for relief should be addressed to the legislative branch of the Government. 20 Op. 367. 65. Same. — The decision of the Commissioner of Navigation is final on all questions of inter- pretation relating to the collection of tonnage taxes and the refund thereof. lb. 66. Vessels from Hawaiian ports are still, notwithstanding the annexation of those islands to the United States, vessels from for- eign ports within the meaning, of the tonnage- tax law. 22 Op. 150i 67. 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. 24 Op. 122. 68. Tonnage tax on foreign cable ship. — A British cable construction steamship engaged in its legitimate business, arriving at Hono- lulu from a foreign port, is not a vessel en- gaged in trade within the meaning of section 11 of the act of June 19, 1886 (24 Stat. 81), and therefore is not subject to the tonnage tax provided for in that section. 24 Op. 597. 69. Tonnage tax — Light-money tax. — Through inadvertence no "light-money" tax was demanded of the Tarantula, a foreign- built American-owned steam yacht on her ar- rival in this country at Newport News, Va., but the tax was assessed and collected at her next port, New York, where the master pre- sented a bill of sale to an American owner, acknowledged before the United States con- sul at London: Held that since the Taran- tula was not a vessel of the United States, and, on entering the port of Newport News, did not carry "a sea letter or other regular SHIPPING, III, b, c, d, e— SHIPPING ACT. 443 document issued from a custom-house of the United States proving the vessel to be Amer- ican property," as provided by section 4226, Revised Statutes, she therefore became liable to the "light-money" tax of 50 cents per ton imposed by section 4225, Revised Stat- utes. 25 Op. 75. 70. Tonnage tax — Vessels from Guantanamo naval station. — A vessel coming to the United States from the United States naval station at Guantanamo, Cuba, with freight there- from or in ballast is not subject to the ton- nage tax imposed by section 11 of the act of June 19, 1886 (24 Stat. 81). 25 Op. 157. 71. Same. — A vessel, however, which loads at a foreign port and merely touches at the naval station en route is subject to the tonnage tax. 26. c. Head Tax. 72. The Secretary of the Treasury is author- ized, under section 26 of the shipping act of June 26, 1884 (23 Stat. 59), to refund the head tax levied in the case of the steamship Russia under the provisions of the act of August 3, 1882 (22 Stat. 214) , or so much thereof as he may think proper, if, upon investigation, he finds that the same was illegally, improperly, or excessively imposed. 19 Op. 660. 73. Same.— As sections 2932 and 3013 of the Revised Statutes were repealed before the date of the exaction under consideration, it does not appear that any power to refund the money illegally exacted exists, except under section 26 of the act of June 26, 1884 (23 Stat. 59). lb. 74. Same. — Assuming that the money was illegally levied and is unlawfully withheld from the rightful owner, a construction that will do justice may properly be adopted if it can be done in accordance with existing statutes. lb. 75. Same. — Head tax is not subject to the customs-revenue act of June 10, 1890 (26 Stat. 131) , any further than it may be affected by the repeals contained in section 29 thereof. Neither section 14 nor section 24 covers or includes this tax. lb. 76. Same. — Head tax is a lien upon the ves- sel as well as a debt against the owner thereof, and has no relation to the collection of cus- toms duties. lb. See also Immigration. d. Refund. 77. Moneys improperly exacted from and paid by vessels proceeding under section 29 of the act of June 26, 1884 (23 Stat. 59), to unlade at places other than a port of entry, may be refunded by the Secretary of the Treasury, without formal protest by the ap- plicant, in cases where application has been made within one year from such payment. 19 Op. 646. Op Tonnage Taxes. See 61-65. Of Head Tax. See 72-74. Of Entrance and Clearance Fees. See 80. Remission of Fines, Penalties, and For- feitures. See Treasury Department, ' 40-43. e. Fees. 78. Foreign-built American-owned vessels — Fees of consular officers. — Foreign-built ves- sels owned by citizens of the United States are not within the provisions of the act of June 26, 1884 (23 Stat. 53), forbidding the collection of fees by consular officers from American vessels. 18 Op. 234. 79. Same. — Foreign-built vessels owned by citizens of the United States are not ex- empted by the act of June 26, 1884 (23 Stat. 53), from the payment of fees for services of consuls. 18 Op. 111. 80. Refund of entrance and clearance fees — Canadian vessels. — The right to a refund of entrance and clearance fees improperly ex- acted by the collector of customs at Pembina, N. Dak., from Canadian vessels entering and clearing that port after the passage of the act of March 3, 1897 (29 Stat. 689), abolishing such charges, is governed by section 26 of the act of June 26, 1884 (23 Stat. 59) . 25 Op. 376. See also Coast and Geodetic Survey; Immi- gration, VI. SHIPPING ACT. (.O/JuTiese, 188L; 2S Stat. 53.) Refund of Fine. See Fines, Penalties, and Forfeitures, 6. Payment of Advance Wages to Seamen. See Seamen, 3-5. 444 SHIPPING ARTICLES— SMUGGLING. SHIPPING ARTICLES. See Seamen, 6. SHIPPING COMMISSIONERS. 1. Shipment of seamen. — A shipping com- missioner has no authority to ship seamen on "sail or steam vessels engaged in the coast- wise trade," unless such vessels come within the exceptions of the act of June 9, 1874 (18 Stat. 64); nor will the consent of the master and seaman operate to give such au- thority. 18 Op. 54. 2. Fees. — While he should not receive fees for shipping seamen on coasting vessels not within said exceptions, yet he could not be prosecuted under the act of June 7, 1872 (17 Stat. 262), for so doing. lb. 3. Same. — Should such fees be received by him, they would not have to be accounted for to the Secretary of the Treasury under section 27 of the act of June 26, 1884 (23 Stat. 59). lb. 4. The shipping commissioners, act of June 7, 1872 (17 Stat. 262), now embraced by Title 53, Merchant Seamen, Revised Statutes, has " no application to seamen employed on vessels engaged in the service of the Coast and Geodetic Survey. 19 Op. 182. 5. Offices for. — The duty of assigning suit- able offices and rooms in public buildings for the use of United States shipping commis- sioners, imposed upon the Secretary of the Treasury by the act of March 3, 1897 (29 Stat. 687) , was not affected by the act of Feb- ruary 14, 1903 (32 Stat. 825) , establishing the Department of Commerce and Labor. 25 Op. 117. SHOSHONE INDIAN LANDS. See Indians, 84-87. SIGNAL SERVICE. See Army, IV. SIGNATURE. Op the Assistant Secretary or Acting Head of a Department. See Department op the Interior, 21-22. Of the President. See President, 98. SILVER-BULLION ACT. (Act of July U, 1890; 26 Stat. 189.) See Tkeasury Department, V. SILVER CERTIFICATES. See Treasury Department, V. SILVER ORE. See Customs Law, 242. SINKING FUNDS. See Railroads, 30-34. SIOUX MIXED-BLOOD INDIANS. See Indians, I, b. SIOUX RESERVATION. See Indians, 36-38. SITES. For Public Buildings. See Public Build- ings. For Fort Brad-y. See Reservations and Pabks, 6. SJOLI v. DRESCHEL. (199 U.S., 564.) See Railroads, 63. SLAUGHTER OF INFECTED ANIMALS. See Health and Quarantine, 15-17. SMUGGLING. See Customs Law, 385, 386, 402-404, 418, 419, 429, 448. SOLDIERS— SOLDIERS' HOME. 445 SOLDIERS. Compensation — Extra Duty. See Army, 24-25. Preference is Civil Appointments. See Civil Service, V. SOLDIEES' HOKE. 1. The Soldiers' Home is not entitled to bounty land warrants belonging to the estates of deceased soldiers which remain unclaimed for the period of three years after their de- cease. 17 Op. 157. 2. Board of Commissioners of the Soldiers' Home — Approval of recommendations of. — The Secretary of War is vested with a discretion- ary power to approve or disapprove recom- mendations made by the Board of Commis- sioners of the Soldiers' Home under section 4816, Revised Statutes. 17 Op. 449. 3. The Board of Commissioners of the Sol- diers' Home can not delegate to the governor of the Home discretionary police authority for the preservation of good order within its limits. 20 Op. 514. 4. Same. — Nor can it empower the governor to arrest, detain, and deliver over to the civil authorities non-military persons committing crimes less than capital within the limits of the Home, except in the cases where any person may make an arrest without warrant or precept. lb. 5. Same. — The Board can, however, by regu- lation duly made invest him with authority to expel from the grounds persons not inmates of the Home offending against good order and decency. lb. 6. A person duly designated to take charge of the office of Judge- Advocate-General and to perform its duties pending the suspension from duty of the Judge-Advocate-General, is qualified under section 10 of the act of March 3, 1883 (22 Stat. 565), to act as one of the Board of Commissioners of the Soldiers' Home in the District of Columbia.. 20 Op. 483. 7. Who may perform duties of member of the Board during his absence. — 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. 23 Op. 473. 8. The Board of Commissioners of the Sol- diers' Home are authorized to permit the gov- ernor, deputy governor, and treasurer, who are retired officers of the Army and reside at the Home and have its affairs in charge, to make use of ordinary supplies of fuel, light, forage, milk, ice, or vegetables, produced at and obtained for use at the Home, provided they are not excessive in amount or value. 20 Op. 350. 9. Same. — The articles in question are not pay or emoluments received from the Govern- ment, but merely an indirect application of a small fraction of the trust funds to the benefit of cestuis que trust. lb. 10. Same. — The practice, acquiesence, and Congressional approval have established the construction of law which permit the allow- ances in question. lb. 1 1 . The Board is not prohibited from paying the treasurer, out of the funds of the Home, a reasonable salary for his services. Such compensation is not pay or emoluments re- ceived from the Government. lb. 12. Free withdrawal of spirituous liquors from bond. — Spirits purchased for the National Soldiers' Home at Washington, D. C. , are pur- chased "for the use of the United States" within the meaning of section 3464, Revised Statutes, and may be withdrawn from bonded warehouses . without payment of internal- revenue tax. 25 Op. 449. 13. Contract stipulations with regard to the erection of certain buildings — Penalty — Liqui- dated damages. — Two parties entered into con- tracts 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 446 SOLDIERS' HOME— SPANISH CONCESSIONS. time is to be treated as a penalty or as liqui- dated damages, must frequently depend upon facts and circumstances outside of the con- tract. 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. 23 Op. 105. 14. Same — General principles — Compensa- tion — Penalties. — In determining this ques- tion 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. lb. 15. Same — Liquidated damages. — 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 compensa- tion must not be violated by fixing a sum greatly in excess of any actual or fairly pre- sumable damage. 76. 16. Same. — Whether the stipulation is to be treated as a penalty or as liquidated dam- ages, the sum to be deducted or recovered is such as will compensate the party for the loss occasioned. lb. 17. Same — Secretary of War — Board of Com- missioners of the Soldiers' Home. — 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 dam- ages really sustained, the Board of Commis- sioners of the Soldiers' Home have ample authority to pay said contractors the full contract prices, less damages actually sus- tained by the delay, lb. SOLICITOR OF THE TREASURY. Connection with the Department of Jus- tice. See Department op Justice, II. Duties Connected with the Treasury De- partment. See Treasury Department,' 143-145. SOUTH BOSTON IRON WORKS. Upon the statement of facts submitted: Advised that the right of the South Boston Iron Works to the possession and use of cer- tain property (two lathes and a crane) be- longing to the United States, derived under an agreement with the latter, dated January 21, 1885, has terminated, and that the right to the possession of the property is now in the United States exclusively. 19 Op. 73. SOUTH CAROLINA. 1. Certain arms originally loaned the Wash- ington Light Infantry of Charleston, S. C, and afterwards charged to the State of South Caro- lina on its quota are held by that State for the use of the whole body of its militia in such manner and in accordance with such rules and regulations as the authorities of the State may prescribe. 21 Op. 54. 2. The dispensary law of South Carolina of 1893 is ineffective and inoperative as against distilled liquors held in a United States bonded warehouse under the control of the collector of internal revenue. 21 Op. 73. 3. Same. — That law does not authorize any officer of that State to tender the taxes due to the United States on such liquors. lb. SOUTH DAKOTA. University Land Grants. Lands, VI. See Public SOUTH PASS. Of the Mississippi River. See Navigable Waters, 66-70, b. SOUTHERN PACIFIC RAILROAD. Land Grant. See Railroads, 62. SPANISH CLAIMS. See Claims, 76-78. SPANISH CONCESSIONS. See Concessions. SPANISH LAWS— STATE POWDER OFFICER. 447 SPANISH LAWS. 1 . The laws of Spain concerning industrial property were contemplated by the framers of article 13 of the treaty with Spain (30 Stat. 1760) in providing protection for Spanish rights. 22 Op. 617. 2. The laws of Spain concerning industrial property explained. lb. See also Cuba; Porto Rico; Philippine Is- lands. SPANISH PRISONERS. See Prisons and Prisoners. SPANISH TREAT? CLAIMS COMMISSION. 1. Sight to call for certified copies of records instead of originals. — 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 certi- fied copies thereof, relating to any claims prosecuted before the Spanish Treaty Claims Commission, shall be furnished to the Com- mission 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. 23 Op. 470. 2. Same. — That section does not confer up- on the Commission an option to demand cer- tified copies of such papers or records instead of the originals. 76. SPANISH WAR VESSELS. Wrecked in Battle ofp the Coast of Cuba, Disposition of. See Treasury Depart- ment, 70; Vessels, 6-8. SPECIAL AGENTS. Of the Census Office. See Department of Commerce and Labor, 29, 30, 34. Of the Treasury. See Treasury Depart- ment, 18. SPECIAL DEPUTY MARSHALS. See Elections. SPECIAL DISBURSING AGENT. See Public Buildings, 26-37. SPECIAL EXAMINERS. See Department of the Interior, 32, 33, 35. SPECUIC PERFORMANCE. See Contracts, 131; Cuba, 33. SPEED PREMIUMS See Premiums. STAFF BUREAU CHIEFS. See Navy, 96, 97. STAMP TAX. See Internal Revenue, II, f. STATE DEPARTMENT. See Department of State. STATE OFFICE See Office and Officers, 75. STATE POWDER OFFICES At Norfolk, V a. — Jurisdiction. See United States, 5. 448 STATE PROCESS— STATES. STATE PROCESS. See Courts, 32; Public Buildings, 40; United States, 69-78. STATE TAX. 1. Where a State imposed a tax upon the registration of deeds, and a deed to the United States conveying land within such State was put on record by an agent of the Government: Advised that; there being no provision in the State law exempting the registration of deeds to the United States from the tax, the Govern- ment is properly chargeable therewith, and that it should be paid. 18 Op. 491. 2. The tax referred to is not, strictly speak- ing, a tax upon either the instrumentalities, agencies, or property of the United States, lb. 8. Toll on Government property — State har- bor commissioners of California.— 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. 23 Op. 299. 4. Wharfage charges on property of the United States. — The imposition of a toll or charge by such commissioners on merchan- dise, the property of the United States pass- ing 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. lb. 5. Southern Pacific Company's charge for State 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. lb. 6. Such a toll or charge is not a tax npon or in respect of interstate traffic, nor a tax upon the instrumentalities and agencies of the General Government, within the prohi- bitions of the Constitution, but is a charge for the use of property and facilities fur- . nished the Government by the State of Cali- fornia, lb. STATE, WAS AND NAVY BUILDING. 1. Appointment of superintendent — Former officer of the Engineer Corps. — The transfer of the Engineer Corps (steam) of the Navy to the line by the navy personnel act of March 3, 1899 (30 Stat. 1004) , does not preclude the appointment of a naval officer on the active list, formerly an officer of that corps and now restricted to the performance of engineer duty, to the superintendency of the State, War, and Navy building as provided in the act of March 3, 1883 (22 Stat. 553). 25 Op. 508. 2. Same.— The act of March 3, 1883, does not authorize the detail as superintendent of the State, War, and Navy building of a re- tired officer of the Navy, transferred from the Engineer Corps to the line for engineer duty only,, by the navy personnel act of March 3, 1899. lb. 3. Same.— The act of March 3, 1883, does not contemplate that an officer of the Corps of Civil Engineers of the- Navy shall be eligible for appointment as superintendent of the State, War, and Navy building. lb. Disbursement op Appropriations fob. See Public Buildings, 32-33. STATES. 1. The invasion of the State of Vermont in 1864 considered historically, and concluded to have been an attack on the United States by the Confederates. 20 Op. 134. 2. The State of Rhode Island is not a person, corporation, or association within the mean- ing of sections 4 and 5 of the river and har- bor act of 1890 (.26 Stat. 453). 20 Op. 606. Tax Liens upon Property Acquired .by Condemnation and Ceded to the United States. See United States, V, 75. State Bank Circulation. See Banks, III. State Board op Harbor Commissioners. See United States, 22. State Bond's. See United States, VIII. Cessions op Jurisdiction. JSee United States, V; Public Buildings, 38-40. , State Counts. See. Courts, III. State Militia. See Army, III. STATES— STATUTORY CONSTRUCTION. 449 Power over Navigable Waters. See Navi- gable Waters, I, b. See also the several States under their respec- tive titles. STATUTES INTERPRETED. See p. 531, Table of Statutes Construed, Cited, or Referred to. STATUTES OF LIMITATIONS. Statutes of limitations apply to the remedies and not to the rights of parties. 21 Op. 564. 2. The proviso of the appropriation act of March 3, 1873 (17 Stat. 500), bars claims for horses lost in the Indian war of 1855-56 and not presented until the year 1890. 20 Op. 152. STATES ISLAND RAPID TRANSIT RAIL- ROAD. See Reservations and Parks, 44. STATUTORY CONSTRUCTION. 1. Appropriations. — A statute should not be construed as making an appropriation, or authorizing the expenditure of money, un- less the language is sufficiently explicit to clearly justify it; authority for the use of the public money can not arise by inference without very clear terms requiring it. 18 Op. 176. 2. Appropriation. — Where an act of Con- gress, in making appropriation for the pay- ment of a claim, incorrectly stated an initial letter in the name of the claimant: Advised that the claim may be paid provided its identity with that provided for in the act be clearly established. 18 Op. 50. 3. Act amending an earlier act. — The ex- piess object of a later act being to amend an earlier act, a feature of the earlier act which was omitted from the later act was necessarily repealed. 21 Op. 253. < 18456—08 29 4. Addition to language of a statute. — No mere omission or failure to provide for con- tingencies, for which it might have been wise to provide specifically, justifies any judicial or executive addition to the language of a stat- ute. 22 Op. 405. 5. Approval. — 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. 23 Op. 371. 6. Appointment. — When a general law pre- scribes what persons may be appointed to any class or kind of office or place, the time or manner of their appointment, the tenure of their office, their qualifications, or the test of their qualifications and "fitness, any appoint- ment of the kind thereafter authorized must, unless otherwise provided, be made with ref- erence to and in conformity with the require- ments of such general law. 25 Op. 341. 7. Context. — In the construing of a doubtful passage in a statute resort may be had to the immediate context and the legisla- tion in pari materia. 21 Op. 124. 8. Light of circumstances under which an act was passed. — In construing a statute the language of the act may always be considered in the light of the circumstances under which it was passed. 19 Op. 491, 494. 9. Same. — Statutes, like other writings con- taining language admitting of doubt, should be read in the light of the circumstances under which they were made. 20 Op. 183. 10. Departmental construction — Tariff act. — Where a clear preponderance of evidence can not be adduced as to the meaning of an ex- pression in a tariff act departmental con- struction tacitly approved by Congressional recognition should turn the scale and be ac- cepted as sufficient evidence of the legislative intent. 18 Op. 533. 11. Departmental practice. — Contempora- neous construction given by an Executive De- partment, and continued through different administrations, though inconsistent with the literalism of an act, should be considered as decisive (142 U. S. 621). 20 Op. 406. 12. When the meaning of a statute is clear it can not be affected by departmental prac- tice. 20 Op. 592. 13. Departmental practice. — In case of am- biguity in a statute, departmental practice may affect its construction when long- 450 STATUTORY CONSTRUCTION. continued, uniform, and familiar, but not when merely recent and occasional. 20 Op. 746. 14. When an act of Congress has received for ten years a uniform departmental construc- tion, which was known to Congress, and a sub- sequent act in pari materia is enacted,' without change of language, there is a presumption of considerable force that the new language is intended to receive the same construction as the old. 21 Op. 338. 15. Uniform departmental practice should receive great, if not controlling, weight in statutory construction, especially where the statutory language was not modified when incorporated in the Revised Statutes. 21 Op. 349.' 16. When departmental practice, is not uni- form it affords no guide to the construction of the law. 21 Op. 363. 17. If a statute is ambiguous, a long-estab- lished construction thereof by the Department charged with its execution, if continuous and consistent, will be regarded as conclusive. 21 Op. 408. 18. Departmental practice clearly defeating the obvious purpose of a statute which is not ambiguous should not govern in its interpre- tation. 21 Op. 410. 19. Same. — The weight to be given de- partmental practice is greatly increased when Congress, in reenacting the law, fails to indi- cate in any way its disapproval of the settled construction to which it is thus regarded as giving an implied approval. lb. 20. If there be any ambiguity in a statute, a uniform departmental practice for a number of years should be regarded as having settled the law. 21 Op. 413. 21. Where the construction of an act is doubtful it is proper to resort to the construc- tion which has been placed upon it by the De- partment charged with its execution. 22 Op. 167. 22. The regulation of a Department of the Government is not to control the construction of an act of Congress when its meaning is plain; but when there has been a long acqui- escence in a regulation, and by it rights of parties for many years have been determined and adjusted, it is not to be disregarded with- out the most cogent and persuasive reasons (Robertson v. Downing, 127 U. S., 607, 613). lb. 23. Great weight should be given to a long and consistent construction given by an Ex- ecutive Department to a statute which it was its province to administer. 25 Op. 537. 24. The construction of astatute in depart- mental practice is entitled to great weight in its interpretation if that construction is fairly settled and uniform. 25 Op. 585. 25. The designation of one class of individ- uals as forbidden to do a certain thing raises a just inference that all other classes not men- tioned are not forbidden. 22 Op. 426. 26. Date. — The general rule is that laws speak from the date of their enactment, and where something remains to be done not inconsistent with a relation back when it is done the general rule may be applied. 25 Op. 299. 27. Absurd conclusions. — A statute must not be construed so as to lead to an absurd conclusion. 20 Op. 89. 28. A construction which would make the results of a law unreasonable should be avoided. 20 Op. 660. 29. Although a statute may have appar- ently unreasonable and extraordinary results, yet when there is no ambiguity there is no room for construction in order to avoid those results. 20 Op. 735. 80. Effect upon public welfare. — In meas- uring the legislative intent as to the scope to be given to a statute in its operation upon pre- vious statutes not specifically referred to, a consideration of the effect upon the public welfare must necessarily be taken in view (3 Op. 438; 2 Op. 260, cited). 21 Op. 181. 31. A practical effect of the law which would be undesirable can not be allowed to overcome its express terms. 17 Op. 36. 32. The actual intention of the framers or parties to a written document is generally to be determined by the meaning of the language used to express it. 22 Op. 363. 33. Where language is doubtful, and it is fairly susceptible of different meanings, the consequence of a particular construction may be considered in determining which construc- tion should be adopted, yet, where the lan- guage is plain, and when read in the light of existing facts and the object intended to be attained it fairly admits of but one meaning, the consequences must be serious to warrant a departure from such plain meaning. lb. STATUTORY CONSTRUCTION. 451 34. Construed in conformity with existing law. — In every statute authorizing or requir- ing a certain act there is implied, as if there written, the direction that such act shall be done with reference to, and in conformity with, existing lawsonthesubject. 25 Op. 341. 35. What is expressed in a statute is ex- clusive when it is creative of some right, power, or grant. 24 Op. 621. 36. Facts known to Congress. — In constru- ing an act it is proper to consider facts which have been known to Congress and to assume that it legislated having them in view. 21 Op. 372. 37. General words may be restrained so as to apply only to the subject within the pur- view of the act, though literally they would embrace a much larger class. 22 Op. 556. 38. A mistaken opinion of the legislature concerning the law does not make the law. 20 Op. 530. 39. The later expression of the lawgivers will replace preceding law if inconsistent or repugnant even if there is not an express re- peal. 23 Op. 545. 40. Lottery. — Any enterprise or scheme by which a person pays for a chance to ob- tain 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 the statute. 23 Op. 200.. 41. Legislative contracts or grants are to be construed strictly against the grantees, and nothing passes but what is conveyed in clear and explicit language. 19 Op. 117.- 42. The donee of a statutory power can only make a valid execution of such power by a strict compliance with the statutory grant. 19 Op. 432. 43. What is implied in a statute is just as much a part of it as if expressed. 23 Op. 445. 44. Implied authority. — Where rights of person and property are involved, an im- plied authority which is summary and might be used arbitrarily should not be lightly as- sumed. In such cases the inference should not only be persuasive but irresistible. 24 Op. 577\ 45. Intent. — The words of every law are to be taken in subordination to its intent, and where they are general their sense will be restricted if necessary to prevent an unjust and absurd consequence which it must be presumed the legislature could not have con- templated. 18 Op. 149. 46. The intent of the lawmaker is the law. 18 Op. 594. 47 . Probable intention of individual Members of Congress. — -Where the language of an act of Congress is ambiguous, the probable inten- tion of the individual Members of Congress would be sought as a guide to construction, but a clear omission from the statute can not be supplied upon any consideration of sup- posed oversight, inconsistency, or hardship. 21 Op. 416. See also 21 Op. 291. 48. History — Meaning. — The parliamentary history of an act is inadmissible to explain its meaning. 22 Op. 426. 49. Same. — The meaning attached to an act by its framers or by the members of either House of Congress can not control its con- struction, lb. See also 121. 50. While "may" in any statute is ordi- narily to be construed as "shall" or "must" when public rights or interests are concerned, yet the construction depends upon the con- text of the statute, the test being the intent of the legislature. 24 Op. 594. 51. While the word "may" in a statute is sometimes construed as imposing a duty rather than conferring a discretion, yet this rule of construction is by no means invariable. Its application depends on the context of the statute, and whether it is fairly to be pre- sumed that it was the intention of the legis- lature to confer a discretionary power or to impose an imperative duty. 21 Op. 420. 52. Language whose ordinary meaning is permissive only is sometimes held to be manda- tory when other parts of the law make it plain that it was intended to require and not merely authorize. 21 Op. 391. 53. Where public rights or duties are in- volved, words which ordinarily impart merely permission or authority are held to impose a duty or obligation. 19 Op. 325. 54. Words of authorization in a statute pro- viding for the exchange of gold bars for gold coin held to be mandatory upon the officers of the coinage mints, etc. 19 Op. -575. 452 STATUTORY CONSTRUCTION. 55. Whenever power is given to public offi- cers, to be exercised for the public interest, the language used, though permissive in form, is mandatory. 21 Op. 167. 56. Whenever a power is given by statute, everything for the making of it effectual, or requisite to attain the end, is implied. 22 Op. 665. 57. Legislature presumed to know the mean- ing of words. — The intent of the lawmaker is to be found in the language that he has used. He is presumed to know the meaning of words and the rules of grammar. 22 Op. 353. 58. It is to be presumed that the legislature means precisely what it says, and the effort of the interpreter should be to give force and effect to every word, paragraph, and section of the act. 22 Op. 426. 59. The meaning or construction of a stat- ute is that which the legislature intended, if that can be legitimately determined; and to this end not merely the provisions in ques- tion should be consulted, but also the whole act, and other acts in pari materia. 23 Op. 608. 60. A legislature is presumed to know de- cisions of the courts construing its language, so that if the tribunals have given a certain construction and the legislature in a new law uses the same or. practically the same lan- guage, without negativing the construction adopted by the courts, it will be presumed that the legislature means what the courts have said. 25 Op. 308. 61. Duty to construe a statute in the sense in which it appears to have been used. — Nothing would seem to be better established in reason or authority than that when the expounder of a statute or other instrument is satisfied that a term occurring in it is not to be taken in its normal or technical acceptation, but in some other, it becomes his duty to give it the sense in which it appears to have been used. 18 Op. 146. 62. Where words are sometimes used in different senses, their meaning in a statute must always be construed in reference to the subject-matter of the enactment. 22 Op. 178. 63. The ordinary meaning of the language in an enactment must be presumed to be in- tended unless it would manifestly defeat the object of its provisions. 21 Op. 420. 64. Words having a well-defined meaning will be presumed to have been used by the legislature to express that meaning and no other, unless a contrary intent is disclosed. 25 Op. 71. 65. No part of an act is to be regarded as meaningless or superfluous if a construction can be legitimately found which will preserve and make it effectual. 22 Op. 426. 66. The law looks at facts, not names. 20 Op. 660. 67. An act of Congress should not be treated as a nullity if it can by any reasonable construction be made operative. 21 Op. 372. 68. 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. 23 Op. 371. 69. Prospective. — Statutes are to be con- strued prospectively unless the contrary inten- tion is so clear as to admit of no other construction. 17 Op. 557. 70. Retrospective operations of words. — Words should not have a retrospective opera- tion unless they are so clear, strong, and im- perative that no other meaning can be annexed to them, or unless the intention of the legislature can not be otherwise satisfied. 21 Op. 411. 71. Previous statute. — When Congress adopts substantially the language of a previous statute, whether from the statute book of the United States or from that of any State, it is presumed to adopt therewith the judicial construction already placed upon the language of the act. 20 Op. 719. 72. Provisos do not always limit legislation with which connected. — While there is a gen- eral rule of construction to the effect that a proviso is to be construed as limiting legis- lation to the subject-matter with which it is immediately connected, this rule is by no means of universal application. 20 Op. 81. 78. Exceptions and provisos. — In constru- ing the main provisions of a statute too great weight should not be put upon exceptions and provisos which may have been inserted from excess of caution. 21 Op. 255. 74. Savings and exceptions are often intro- duced in a statute from excessive caution. It would sometimes pervert the intentions of an author of a writing if every other thing of the same general tenor as that excepted should be regarded as embraced in the gen- eral words. 21 Op. 597. STATUTORY CONSTRUCTION. 453 75. Phrases are governed by and do not govern the text of a statute. 22 Op. 295. 76. Preamble. — In construing the act of August 15, 1876 (19 Stat. 206), the preamble thereto may be resorted to for the purpose of ascertaining the meaning of the enacting clause. 18 Op. 316. 77. Power to sell land includes power to make conveyance. — The power under section 6 of the act of March 3, 1881 (21 Stat. 467), to sell at auction certain land of the United States in the District of Columbia carries with it the authority to make a conveyance to the successful bidder. 17 Op. 100. 78. All parts of an act relating to the same subject should be considered together and not each by itself. 22 Op. 556. 79. A penal statute is to be construed strictly and its provisions can not be ex- tended by construction, implication, or otherwise, beyond the plain meaning of its language. 22 Op. 475. 80. 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 pur- view. 23 Op. 531. 81. Violations subjecting to penalty. — The violation of the provisions of a statute that subject a person to a penalty, whether a for- feiture or otherwise, must be something more than an accidental or unwitting viola- tion. 22 Op. 390. 82. A clear omission from a statute can not be supplied upon any considerations of sup- posed oversight, inconsistency, or hardship. 21 Op. 291, 416. 83. No mere omission or failure to provide for contingencies, for which it might have been wise to provide specifically justifies any judicial or executive addition to the language of a statute. 22 Op. 405. 84. Where a repealing act expires of its own limitation, the act repealed is revived. 20 Op. 466. 85. Repeals by implication are not favored and are held to have taken place only when the provisions of the earlier and later statutes are irreconcilable and could not have been intended to be operative at the same time. 21 Op. 55, 181. 86. One statute should not be held to have been impliedly repealed by another, unless the inconsistency and antagonism between the two is such that they can not stand together. 21 Op. 119. 87. The conclusion that a statute is repealed by implication is only to be reached when there is irreconcilable conflict and when the two statutes can not by reasonable construction stand together. 21 Op. 181. 88. Repeals by implication are permitted only in cases of absolute inconsistency. 21 Op. 227. 89. Irreconcilable conflict is necessary for an implied repeal of a statute, and the presump- tion is stronger against implied repeals where provisions supposed to conflict are in the same act or were passed at nearly the same time. 21 Op. 597. 90. Implied repeals of laws are not favored. — Where the true construction of later legisla- tion is doubtful, the doubt should be resolved against any construction which revolutionizes existing systems of administration. 23 Op. 406. 91. A general act does not operate as a re- peal of a prior special act when there is no necessary inconsistency in their standing together. 21 Op. 338. See also' 94. 92. Repeals by implication are never favored. — There must be a positive repugnancy between the old and the new law to work an implied repeal. If possible, the two laws should stand together. 24 Op. 561. 93. Repeals by implication are not favored, and when two statutes cover in whole or in part the same matter, and are not absolutely irreconcilable, effect should be given, if possi- ble, to both ( U. S. v. Greathowe, 166 U. S., 605). 25 Op. 112. 94. A general act is not to be construed to repeal a previous particular act, unless there is ' some express reference to the previous legis- lation on the subject, or unless there is a necessary inconsistency in the two acts stand- ing together. 22 Op. 106. 95. A statute should receive a reasonable construction and one in consonance with its manifest object and intent. 21 Op. 546. 96. An act of Congress should receive a reasonable construction and be so enforced as to produce as little injury and inconvenience as may be consistent with its terms and ob- ject. 22 Op. 460. 97 . Ho mere regulation can defeat a statute. — So far as in any reasonable way is practicable, 454 STATUTORY CONSTRUCTION. effect is to be given to the very words of an act; but no method that is impracticable will be supposed to have been intended. 18 Op. 1. 98. Statutes ordinarily make no change in rights already acquired. — The ordinary pre- sumption applicable to every statute is that it lays down a rule of conduct for the future, but makes no change in rights already acquired or conditions already established. 21 Op. 21. 99. Bevised Statutes — Reference to the origi- nal acts in interpreting. — Where the meaning of the Revised Statutes is obscure or ambiguous, reference may be had to the original acts to assist in determining the revision, but when the meaning is clear and free from doubt, no such reference is necessary or permissible. 20 Op. 634. 100. Reference to original act. — Where there is doubt as to the construction of a re- vised statute, reference may always be had to the original act. 21 Op. 190. 101. The more specific provisions should gov- ern. — It is a general rule of statutory inter- pretation that in cases of apparent conflict the more specific provisions should govern, and this is especially the case when the spe- cific provisions follow the general one. 21 Op. 405. 102. It must be regarded as a well-settled principle in interpreting statutes that, if pos- sible, "no clause, sentence, or word shall be superfluous, void, or insignificant. " 18 Op. 145. 103. Order of passage. — Where two acts are passed on the same day, the order of their passage is not important if they can be recon- ciled. 21 Op. 597. 104. Same. — Two acts under legislative consideration at the same time should be con- strued as contemporaneous acts in arriving at the intent of the legislature. lb. 105. If ». technical usage is not definite, uniform, and general, it is entitled to no weight in statutory construction. 21 Op. 179. 106. Same. — Assuming that the term "mor- tar steel," as employed in section 2 of the fortifications appropriation act of March 2, 1895 (28 Stat. 707), has not a settled techni- cal meaning, it is properly construable as including any steel of such quality as is con- sidered by experts to be adapted for use in the construction of mortars. lb. 107. Same. — The assertion op behalf of a certain firm or corporation that the term in question refers to steel of their manufacture, and that the section of the statute contain- ing such term was introduced at the sugges- tion of their attorney, is not entitled to any consideration. lb. 108. A treaty duly ratified is as much a part of the supreme law of the land as a stat- ute. 23 Op. 545. 109. In custom laws, as in all others, the intent of the. lawmakers is the law. 18 Op 533. 1 10. Same. — Where, in the expression of that intent, a name is used describing an article which has a well-established commercial signification, that commercial signification should be adopted. lb. 111. Same.' — When the name is general and the tariff specific, it embraces the whole class, and questions of price, value, or accidental chemical components are immaterial. lb. 112. Same. — The commercial signification of a name is that which those engaged in foreign and domestic sale, purchase, and exchange generally adopt to describe the article. lb. 113. Same.— If it be disputed what this com- mercial designation embraces, it is to be deter- mined upon a clear preponderance of evi- dence, lb. 114. Same. — The ordinary rules of evidence are to be applied with reference to interest, character, and weight of testimony, to be re- ceived from those engaged in or familiar with commerce, trade, and traffic in the article lb. 115. Same. — Where a clear preponderance of evidence can not be adduced, departmental construction, tacitly approved by Congres- sional recognition, should turn the scale and be accepted as sufficient evidence of the leg- islative intent. 26. 116. If there is any doubt as to the meaning of a statute imposing a tax, the doubt must be resolved in lavor of exemption. 20 Op. 681. 117. The headings of tariff schedules in an act have little significance, they being intend- ed only for general suggestions as to the char- acter of the articles within the schedules. 21 Op. 66. 118. All doubts arising under paragraph 297 of the tariff act of 1894 (28 Stat. 66), are presumptively to be resolved in favor of the lower rate of duty, save where the act men- tions or describes the same article in two STATUTORY CONSTRUCTION— STEAMBOAT-INSPECTION SERVICE. 455 different places, when the higher rate governs. lb. 119. The appropriation of specific funds "to be immediately available ' ' ordinarily imposes the duty of expending them for the purpose named in the act. 21 Op. 420. 120. Revenue laws not to be strictly con- strued.— Sections 3985 and 3993, Revised Stat- utes, which impose penalties for carrying let- ters out of the mails over post routes unless in stamped envelopes bearing stamps of the proper denomination, are not in derogation of common right. They are reyenue laws and are not to be strictly construed, though they impose penalties. 21 Op. 394. 121. Fasthistory. — One of the surest meth- ods of interpreting a provision in a tariff law is by its past history. 21 Op. 541. 122. Same. — If a special meaning has been attached to certain words in a prior tariff act it is presumed that Congress intended that they should have the same signification when used in a subsequent act in relation to the same subject-matter. 21 Op. 541. 123. Tax laws — Exemption. — The rule of construction in tax laws is that if there is doubt as to the liability of any instrument to taxa- tion the construction is in favor of its ex- emption. 23 Op. 54. 124. "Chinese secretary." — The change of name from " Interpreter to legation to Chi- na" to, "Chinese secretary" in the appro- priation 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 ap- pointment to this position by the President does not require the confirmation of the Sen- ate. 23 Op. 136. STEAM ENGINEERS. See District op Columbia, 6. STEAM PLATE-PRINTING MACHINES. See Public Printing, 11. STEAM REGISTERS. See Steamboat-Inspection Service, 10. STEAMBOAT-INSPECTION SERVICE. 1. The inconvenience contemplated by sec- tion 4409, Revised Statutes, authorizing a supervising inspector of steam vessels, "in any district where, from distance or other cause, it is inconvenient to resort to the local board, to inspect any steam vessel and the boilers of such steamer, ' ' etc. , is such as grows out of the situation of the boat, or of the par- ties, viewed with reference to the location of the local board, whereby access to the latter is rendered difficult or expensive. 17 Op. 628. 2. Same. — Where such inconvenience ex- ists, the authority of the supervising inspector is, by virtue of that section, concurrent with that of the local board; and in cases acted upon by him under that authority there is no ap- peal, lb. 3. Same. — But where the supervising in- spector resides in the same city with the mem- bers of the local board, and they are not unable to act, and access to them is as easy and un- impeded as to any like board in the same locality, such inconvenience does not exist, and the supervising inspector would not be warranted in discharging the duties of the local board. lb. 4. Charter — Ferryboats. — The word "char- ter " as used in Rule VII, paragraph 2, of the " General Rules, etc., of the Board of Super- vising Inspectors of Steam Vessels," covers the case of boats licensed, under a general law, by a county court to traverse ferry routes es- tablished by such courts. 18 Op. 16. 5. Same. — "Charter" seems to be a proper word to express a power of granting to indi- viduals rights which otherwise belong to the public, whether such grant by the State is made directly or indirectly. lb. 6. Same. — By "chartered ferry" is intended any ferry established in accordance with law. 76. 7. Same. — Steam vessels plying regularly between Albany and Troy, in New York, for freight and passengers, would be ferryboats under the second clause of Rule VII, para- graph 2, above referred to. lb. 8. Assistant inspectors — Appointment. — The provision for assistant inspectors in section 4414, Revised Statutes, is not controlled by the details of section 4415 as to either the method of their appointment or the profes- 45ft STEAMBOAT-INSPECTION SERVICE. sional qualifications which may be required : by the appointing power. 18 Op. 30. 9. Same. — Should an inspection of life- preservers be found necessary, and in order to effect this some assistant to the local board must needs be appointed, the appointment of such assistant would be warranted by la w. lb. 10. The decision of the Board of Supervising Inspectors upon a matter properly submitted to it under section 4491, Revised Statutes, is not reviewable by the Secretary of the Treasury. 18 Op. 77. 11. Steam registers used on vessels pro- pelled by steam, in order to be the subject of approval under section 4419, Revised Statutes, must.be of a description which satisfies the • requirements of both section 4418 and section 4419. 18 Op. 365. 12. The term "persons engaged in navigating the vessel," as used in section 4419, Revised Statutes, comprehends the officers and crew, those who are in the service of the vessel, and employed in its management, the working of its machinery, etc., during the voyage. The register is not only to be taken from the control of all persons so employed, but to be secured from such control by the inspectors. lb. 13. An applicant for appointment as an inspector of boilers, under section 4415, Re- vised Statutes, Should have not only the tech- nical knowledge, but the actual professional experience of a practical engineer on a steam vessel. 19 Op. 632. 14. Inspectors of steam vessels — Filling va- cancy — Notice of meeting of " board of designa- tors." — In filling a vacancy occurring in any local board of inspectors of steam vessels the notice provided for in section 4415, Re- vised Statutes, for convening the "board of designators" should be such as to give each member a reasonable time to be present at the meeting and a knowledge of its object, although such notice is not required by the statute to be in writing, it would be advis- able to require written notice by regulation. 19 Op. 648. 15. Same. — The members should meet to- gether as a board, organize as a board, and act as a board in making the designation to fill the vacant or new inspectorship. lb. 16. The alteration of a license of an engineer of steam vessels issued under section 4441, Revised Statutes, is not an offense within sections 5418, 5479, or 5423, Revised Statutes. Revocation of the license, under section 4450, Revised Statutes, seems to be the only punish- ment provided by law for such case. 19 Op. 649. 17. Regulation in regard to issuing li- censes. — Section 14 of rule 5 of General Rules and Regulations, in regard to issuing licenses as master of steam vessels, which was adopted by the Board of Supervising Inspectors and approved by the Secretary of the Treasury, was within the authority conferred by sec- tion 4405, Revised Statutes, and the same has now the force of law. 20 Op. 212. 18. The regulations provided by Title 52 of the Revised Statutes do not apply to Amer- ican steam vessels while engaged in commerce beyond. the jurisdiction of the United States. 21 Op. 52. 19. Expired inspection certificates can not be extended by consular officers of the United States; and there is no authority of law for sending local inspectors out of the country to make inspection. lb. 20. The Board of Supervising Inspectors of Steam Vessels continue to have power to make regulations not inconsistent with the regulations in the act of August 19, 1890 (26 Stat. 320), for the prevention of collisions at sea. That Board is not a "local authority" within the meaning of article 30 of the act of August 19, 1890 (26 Stat. 320). 21 Op. 106. 21. Section 4415, Revised Statutes, so far as it prescribes the method by which vacancies on the board of inspectors of hulls of steam vessels shall be filled, was repealed by thecivil- service act of January 16, 1883 (22 Stat. 403). 21 Op. 393. 22. Same. — The board provided by said section can not act as a board of examiners under the civil-service act, unless its members are selected and appointed as such board of examiners under section 5, Rule IV. lb. 23. Compulsory testimony. — A licensed offi- cer of a steam vessel, duly summoned to give testimony in a hearing before a board of United States local inspectors of steam ves- sels, who refuses 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. 24 Op. 136. 24. Same — Contempt. — A refusal on the part of a witness to answer a proper question STEAMBOAT-INSPECTION SERVICE— STRONG, SAMUEL. 457 pertinent to the issue before a court is a con- tempt, and while this power may not be ab- solute in this special tribunal, which is not given the right to impose fines or imprison- ment for disobedience to its authority, never- theless the principle may be invoked so far as the special service and special discipline go. lb. 25. Same — Licensed officer may not refuse to answer on the ground that it may subject him to a penalty. — Such licensed officer when charged with a violation of section 4449, Re- vised 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. lb. 26. Same. — Section 4449, Revised Statutes, is a remedial, not a penal, statute and the revoca- tion 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 commit- ted, lb. 27. Same — May not withhold information and remain in the service. — Such licensed offi- cers are engaged in a special service, pecul- iarly related to the Government; they are endowed with certain privileges and subject to certain burdens, and paramount considera- tions of the good of the service require that such an officer shall not be permitted to with- hold any information material to an inquiry affecting the service and yet remain a mem- ber of that service. lb. (p. 137). 28. The Board of Supervising Inspectors of Steam Vessels alone is authorized, under sec- tion 4405, Revised Statutes, to determine what shall constitute ' ' a full complement of licensed officers and full crew," of steamers carrying passengers, before leaving port, as required by section 4463, Revised Statutes. This duty can not be delegated to the local inspectors of hulls and boilers. 25 Op. 56. 29. Called meetings of the Board of Supervis- ing Inspectors may be held at places other than Washington, within the judgment of the Sec- retary of Commerce and Labor, section 4405 specifying merely the place where the annual meeting of the Board shall be held. 25 Op. 67. 80. Modification of regulations. — The Secre- tary of Commerce and Labor is not authorized by section 4462, Revised Statutes, to amend, modify, or repeal existing regulations, or to adopt new regulations for the enforcement of the provisions of Title 52, Revised Statutes, entitled " Regulation of Steam Vessels, ' ' with- out prior action thereon by the Board of Su- pervising Inspectors. The Secretary has, therefore, no authority whatever in the mat- ter, except as conferred by section 4405, Re- vised Statutes. lb. STEAMBOATS. For regulations governing at yacht races, see Department op Commerce and Labor, 3. See also Vessels. STEEL CHAINS. See Customs Law, 272. STEEL SHAFT. See Customs Law, 197. STEVENS, BOBEBT L. Release op Mortgage — The ' ' Stevens Bat- tery " War Vessel. See Navy, 212. SOTJTH AEEICA. See Neutrality, 9. STIPTTLATION. 'ee Treasury Department, 15, 16; Depart- ment op Justice, 1; United States, 26. STRONG, SAMUEL. Claim op. See District op Columbia, IX. 458 STUDENT INTERPRETERS— SUPREME COURT OF UNITED STATES. STUDENT INTERPRETERS AT LEGATION TO CHINA. Appointment of. — The President is author- ized, 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. 24 Op. 52. SUBLETTING. Of Mail Contracts. See Postal Service, III, b. SUBPffiNA OE GOVERNMENT EMPLOYEE. See Executive Departments, 47. SUBSIDIARY COINAGE. See Treasury Department, 92. SUBSTITUTE CLERKS. See Civil Service, 108. SUGAR. See Customs Laws, 84-86, 204, 379. SUGAR BOUNTIES. See Bounty. SUIT. Authority to Discontinue. See Department op Commerce and Labor, 17. Institution op Proceedings Against a State. See Arkansas. SUMMARY COURTS. See Army, VI. SUNDAY. The branch post-office at the World's Pair of 1893 must be closed on Sunday. Act of April 25, 1890 (26 Stat. 62), section 4 of the act of July 13, 1892 (27 Stat. 148), and the provision in the act of August 5, 1892 (27 Stat. 168), relating to Sundays, considered in connection therewith. 20 Op. 598. SUNDAY MAGAZINE SECTIONS. Op Newspapers. See Postal Service, 120- 122. SUPERINTENDENT OE STATE, WAR, AND NAVY BUILDING. See State, War, and Navy Building. SUPERVISORS OE ELECTIONS. Supervisors of elections are entitled to per diem compensation where they have served any given number of days not exceeding ten, and the fact of such service duly shown. It is not for the Attorney-General to determine whether their period of service is reasonable or unreasonable. 18 Op. 102. SUPERVISING INSPECTOR OE IMMIGRATION. See Immigration, II, c. SUPERVISING INSPECTORS OF STEAM VES- SELS. See Steamboat-Inspection Service. SUPPLIES. See Army, I, g; Navy, I, b; Executive De- partments, IV. SUPREME COURT OE THE UNITED STATES. See Courts, II, c SURETY. 459 STJBETT 1. Uember of Congress. — The provisions of sections 3739, 3740, and 3741, Revised Stat- utes, considered, and field that, upon a fair construction thereof, a Member of Congress may be lawfully accepted as a surety on the bond of a contractor with the United States. 18 Op. 286. 2. A contract for ocean mail service for ten years can not be changed to one with the same party for five years, unless the party procure the same by new bidding, after due advertisement, and any change in the original contract releases the sureties from their liabil- ity thereunder. 20 Op. 321. 3. Discharge of sureties. — Section 2 of the act of August 8, 1888 (25 Stat. 387) , is abso- lute as regards the discharge of sureties if suit on the bond be not instituted "within five years after such statement of said ac- count" by the accounting officer of the Treasury. It makes no exception in case the accounting officer does not make such state- ment as early as he should, or when a defi- ciency is discovered by him. 22 Op. 612. 4. Same. — Whether the accounting officer makes the statement showing an indebtedness to the United States as early as he should, or does not, 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 indebt- edness to the United States, as provided in that section. 22 Op. 613. 5. When notification to sureties should be given. — It was not intended by the act of Au- gust 8, 1888, section 1 (25 Stat. 387), that the accounting officer should delay notice until it has become certain that there is a deficiency; nor, on the other hand, should he always re- port 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. "Whenever in the exercise of a sound judgment, and after a reasonable time allowed for expla- nation and correction, it appears to the account- ing officer that there is a probable deficiency, he should notify the head of the department, as provided in section 1 of the act. lb. 6. Liability of surety on bond of dishonest postal clerk. — 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 faith- fully discharge all duties and trusts imposed on him either by law or by the rules and regulations of the Post-Office of the United States, and shall faithfully account for and pay oyer 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. 23 Op. 476. 7. Same. — Extent of liability. — In such case the liability of the surety is fixed by the con- dition 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. lb. 8. Same. — 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 mor- ally bound to recover from a dishonest official or his surety the entire amount of his embez- zlement, and is equally bound in conscience, as the statute recognizes, to return to the owner of a registered letter the entire amount thus recovered. lb. 9. Surety companies. — The Secretary of the Navy may, in his discretion, under section 7 of the. act of August 3, 1886 (24 Stat. 216), au- thorizing proposals for certain work to be invited which shall be subject to "such pro- visions as to bonds and security for the qual- ity and due completion of the work as the Secretary of the Navy shall prescribe," ac- cept as surety (instead of an individual) a body corporate empowered to assume that re- lation. 19 Op. 57. 10. The American Surety Company of New York has power, under the laws of New York, to assume the relation of surety upon a bond to the United States conditioned for the faithful performance of a contract to furnish steel gun forgings to the latter. 19 Op. 66. 11. The Secretary of the Navy has power, under section 1383, Revised Statutes, to ap- prove a pay-officer's bond in which the sureties are corporations, or a corporation joined with 460 SURETY— SWAIN, DAVID G. a, natural person, if he deems such sureties sufficient. 19 Op. 175. 12. It is competent for the Secretary of State, under section 1697 of the Revised Stat- utes, to accept as sureties upon official bonds of United States consular officers, corporations organized under State or United States laws as surety or guaranty companies authorized by their charter to undertake such obligations. 20 Op. 16. 13. The act authorizing the acceptance of bonds and undertakings of surety and fidelity companies (28 Stat. 279) does not permit the imposition of conditions and regulations by Government officials relative to the percent- age of capital stock to liability on a single official bond, or the minimum rates to be charged for such insurance, etc. 22 Op. 421. 14. If the laws of a State under .which a surety company is incorporated limit the amount of liability to a certain percentage of the capital, which can be incurred on account of any one partnership or association, and if a greater amount of liability is incurred it is to be secured by a collateral agreement of indemnity, such provision is thereby made a part of its charter, and to that extent is it restricted in its dealings with the United States. lb. 15. Surety companies — Process agents. — A surety company authorized by the act of Au- gust 13, 1894 (28 Stat. 279), to transact a surety business, which has appointed an agent at Guthrie, Okla., upon whom all lawful process issued against it may be served, and has filed copies of such appointment at all places in that Territory where court is held, thereby consents to accept service upon such agent of a summons issued from any county in that Territory, and effectuates the purpose of sec- tion 2 of that act. 25 Op. 598, 16. Same. — Section 5 of that act does not so qualify section 2 thereof as to make the appointment of a process agent in the district only where the bond is returnable or filed a compliance with the statute. The purpose is also to require the appointment of an agent in the district where the contract is to be performed. lb. 17. Same. — The Government can enforce a contract between it and a surety company in Oklahoma, although the company has not made the deposit required by the territorial act of Oklahoma of March 15, 1905. lb. See also Contracts, 53-56; Postal Service, 28, 29, 96, 98; Treasury Department, 86-88, 90. SURETY COMPANIES. See Surety, 9-17. SURGEON-GENERAL. See Army, 36, 43-46; Marine-Hospital Serv- ice. SURVEY. See Public Lands, IV; Indians, 37, 38, 53. SURVEYOR OF CUSTOMS. If there be no collector of the port of Ga- lena, 111., and all the duties of that office are imposed upon the surveyor of customs, then his acts done in performance of the duties and functions of the office of collector of the port are as valid and effective as if done by a collector of the port. His certificate, in con- junction with that of the local inspector of steamboats, is sufficient to authorize the Sec- retary of War to draw his warrant as pro- vided in the act of Congress authorizing the city of Galena^ 111., to complete certain im- provements of the channel of the Galena River. 20 Op. 700. SUSPENSION. Op Officer. See Office and Officers, 48. Of Tonnage Taxes. See Shipping, III, b. Of Weigher. See Customs Law, II, h. SWAIN, DAVID G. (Judge- Advocate General.) See 18 Op. 113. SWAMP-LAND GRANTS— TELEGRAPHS AND TELEPHONES. 461 SWAMP-LAND OEANTS. See Public Lands, VII. TACOMA HABBOB .See Navigable Watkrs, 97. "TABANTTJLA," THE. See Shipping, 69. TABTFT. See Customs Law. TAXES. See Internal Revenue; Shipping, III; Immi- gration, V; Indians, III, g; Porto Rico; Philippine Islands; State Tax. On Bank Circulation. See Internal Rev- enue, 32-41. On Bills and Notes. See Internal Rev- enue, 78-86. On Retail Liquor Dealers and on Spiritu- ousLiquors. See Internal Revenue, II, e. On Property Ceded to the United States — Tax Liens. See United States, 75. Income Tax. &« Internal Revenue, II, i. TAX RECEIPTS. Tax receipts are sufficient evidence that the land is discharged and redeemed from a tax sale and taxes, and a deed to such land held sufficient to convey to the Government a valid title. 20 Op. 430. TEA BOABD OF THE GENERAL APFBAISEBS. See Customs Laws, 464. TELEGRAPHS AND TELEPHONES. 1. The Post-Office Department has no power, tinder existing laws, to make contracts for the transmission of intelligence by telegraph for the general public, as a part or branch of the postal service. 19 Op. 650. 2. Mail matter, as defined by statute, does not include telegraphic correspondence, as such; nor does the power given the Postmaster- General to contract for carrying the mail in- clude authority to contract for sending mes- sages by telegraph for the benefit of the peo- ple at large. lb. 3. Telegraph messages sent over bond-aided railway's telegraph system — Compensation. — Where the Government has the power to send telegraph messages either by a bond-aided railway's telegraph system or by an inde- pendent company system located over the bond-aided railway company's route, and delivers them to the independent company's system without requesting that they be for- warded over the bond-aided railway route, payment must be made at the rate prescribed by the Postmaster-General. 20 Op. 581. 4. Semble, it is not improper to delay pay- ment of the claim until the case involving the point now soon to be argued in the Supreme Court of the United States is decided. lb. 5. International agreement. — The United States have power, either alone or in cooper- ation with other countries, to impose con- ditions upon the operation of any wireless- telegraph system which conveys messages to or from the United States. 24 Op. 100. 6. Same — Herniation of commerce. — 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. lb. 7. Telegraph grants — Acceptance by an indi- vidual. — The mere filing by an individual with the Postmaster-General of an acceptance of the restrictions and obligations of the act of July 24, 1866 (14 Stat. 221), entitled "An act td aid in the construction of telegraph lines, etc.," and the acts amendatory thereto, neither confers upon such person the benefits and privileges, nor subjects him to the bur- dens and restrictions of that act, because he is not a telegraph company organized under the laws of one of the States. 24 Op. 603. 8. Same.— -The words "any telegraph com- pany organized under the laws of any State," used in the act of 1866, were used advisedly, 462 TELEGRAPHS AND TELEPHONES— TIME, CHANGE OE. and with a recognition that they did nqt in- clude a "person" or an individual. lb. 9. Telephone companies are not within the provisions of Title LXV of the Revised Stat- utes, or entitled to avail themselves of the privileges thereby granted. 19 Op. 37. See also Concessions 9-18; and Cables. TEMPORARY APPOINTMENT. See Office, and Officers II; and President, I. TEMPORARY CLERKS. TENNESSEE CENTENNIAL EXPOSITION. ■lee Expositions and Fairs, II. TENTJRE-OF-OFFICE LAW. See Office, and Officers, IV. TERM OF OFFICE. See Interstate Commerce, 1, 2. TERRITORIES. Legislature — Engrossing clerk. — The clause, "one enrolling and engrossing clerk, at $5 per day," in the act of June 19, 1878 (20 Stat. 193), relating to the government of Ter- ritories, which repeals section 1861, Revised Statutes, is to be construed as providing for the employment of but one clerk at the per diem mentioned. 18 Op. 540. - See also Alaska, Arizona, and Oklahoma. TESTIMONY. See Evidence; Witnesses; Courts-Martial, III; Executive Departments, 35. THTTRMAN ACT. (Act of May 7, 1878; 20 Stat. 56.) See 19 Op. 491; 21 Op. 105, 145. TICKETS. Issued by Ice Companies. Revenue, 83. See Internal TIDE-WATER LANDS. 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 session, have become a part of the public domain of the United States. 22 Op. 544. TIGER ISLAND, FLA. Condemnation — Title. — Under and by virtue of condemnation proceedings in the proper court for acquisition of certain lands on Tiger Island, Fla., in which the court directed the United States marshal, upon payment of amounts awarded and the sums taxed as costs, to make and deliver to the United States a good and sufficient deed of the prem- ises: Held that on compliance with this order a valid title to the lands will rest in the United States. 20 Op. 43. TIMBER DEPREDATIONS. See Public Lands, XIII; Indians, IV; Rail- roads, III, b; Navy Department, II, 19, 20. TIME, CHANGE OF. Must be done by legislation, not by Execu- tive authority. — A change of time at Washing- ton, D. C, by adopting the seventy-fifth meridian in lieu of the true meridian at that TIME, CHANGE OF— TRADE-MARKS. 463 place (being a change of eight minutes and twelve seconds), can not be effected by mere Executive authority. It can only be done by appropriate legislation. 17 Op. 619. TITIE. To Cabras Island. See Cabbas Island. To Guantanamo Naval Station. See Guan- tanamo Naval Station. To Kahauiki Military Reservation Ha- waiian Islands. See Reservations and Parks, 32. To Los Banos Military Post. See Reser- vations and Parks, 33. To Lot 144, City op Agana. See Guam, 6. To Miraflores Island. See Miraflobes Island. To Site for Fort Brady. See Reservations and Parks, 6. Of Retired Officers of the Volunteer Army. See Army, 223. Of Staff Bureau Chiefs. See Navy, 93-97. Of Army Officers. See Army, II, d. Of Naval Officers. See Navy, II, d. Seealso Battery Island, Md. ; Hospital Light Station; Point Peter, Ga.; Shilo Battle- field; and District of Columbia, VII. TOBACCO. See Customs Law, 206, 207. - TONNAGE TAX. See Shipping, III, b. TRADE DOLLAR. The United States Treasurer is not author- ized to receive "trade dollars" at par in ex- change for silver certificates under the third section of the act of February 28, 1878 (20 Stat. 25). Nor are such dollars receivable at par in payment of public dues. 18 Op. 417. TRADE-MARKS. 1. A foreigner simulating a trade-mark of a domestic manufacturer can not obtain the right to send fraudulently marked goods into the country merely by recording his fraudu- lent mark under section 6 of the act of August 27, 1894 (28 Stat. 547), before the domestic manufacturer has taken the steps necessary to protect himself. 21 Op. 260. 2. Registration of trade-marks — P o r t o Rico. — Porto Rico being an organized Terri- tory 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). 23 Op. 634. 3. Same. — The Philippine Islands not being organized Territories of the United States as contemplated by section 1891, Revised Stat- utes, the residents of those islands are not, as such, entitled to the privileges of the trader mark law. lb. 4. Same — Cuba. — 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. lb. 5. Entry of goods bearing foreign trade- mark. — The importation into the United States of an article bearing the genuine trade- mark of the maker, by an importer who is not the owner of the trade-mark, is not for- bidden by section 11 of the tariff act of July 24, 1897 (30 Stat. 207), although such trade- mark has been properly registered in the United States and all rights thereunder have been transferred and belong to another party. 24 Op. 551. 6. Same. — The purpose of that section is twofold — to protect the domestic manufac- turer against encroachment upon his trade- mark and the public from the imposition of imported articles assuming domestic names. It is the simulation or counterfeit, and not reality or genuineness, at which the section is aimed, lb. 464 TRADE-MARKS— TREASURY DEPARTMENT, I, a. 7. Owners of trade-marks who are residents of the Philippine Islands' are not entitled to obtain registration thereof nnder onr laws, for the reason they are not "domiciled in the the United States or located in any foreign country or bribes, etc.," as required by the act of March 3, 1881 (21 Stat. 502). Opinion of February 19, 1902 (23 Op. 634) , adhered to. 25 Op. 179. TRAMWAY. Under Spanish law a tramway is a railroad constructed on a public highway. 22 Op. 551. TRANSFER. Of Appropriations. See Appropriations, 27. Of Goods Through the United States. See Customs Law, III, j. Of Contracts. See Contracts, 97-100. Of Land from one Executive Department to Another. See Executive Depart- ments, 13. Of Volunteer Officers to Regular Navy- Rank. See Navy, 70. To Classified Service. See Civil Service, IV, b. Application for. See Civil Service, 67. TRANSPORTATION. Of Troops. See Railroads, II, IV. Of Live Stock. See Railroads, IV. Of the Mails. See Postal Service, III. Of Enlisted Men. See Navy, III, e; Rail- roads, 14, 15. Over Bond-Aided Roads. See Railroads, II. Over Land-Grant Roads. See Railroads, IV. Transportation Orders. See United States, 52. TRANSSHIPMENT. See Immigration, 71. TRAVELER'S CHECK. See Internal Revenue, II, e, 16. TRAVELING EXPENSES. See Army, 185; United States Marshals, 4. TREASURER OF THE UNITED STATES. See Treasury Department, II, b. • TREASURY DEPARTMENT. I. In General. a. Jurisdiction, 1-8. b. Payment, 9-16. c Miscellaneous, 17-19. II. Officers. a. Secretary of the Treasury, 20-84. b. Treasurer, 85. c. Assistant Treasurer, 86-91. d. Director of the Mint, 92-93. e. Comptroller of the Currency, 94-95. f. Comptroller of the Treasury, 96-120. g. Auditors, 121-126. h. Accounting Officers and Account- ing, 127-143. i. Disbursing Officers, 142. j. Solicitor of the Treasury, 143-145. k. Customs Officers, 146-148. HI. Bureaus, 149-151. IV. Regulations, Circulars, etc., 152-162. V. Treasury Certificates, Currency, Coinage, etc., 163-175. VI. Bonds, 176-181. VII. Fines, Penalties, and Forfeitures, 182-184. I. In General. a. Jurisdiction and Power. 1. Anchorage and anchorage grounds. — Matters arising under the acts of May 16, 1888 (25 Stat.' 151), February 6, 1893 (27 Stat. 431), March 6, 1896 (29 Stat. 54), and June 6, 1900 (31 Stat. 682) , relating to an- chorage and anchorage grounds, have been transferred by the act of February 14, 1903 (32 Stat. 825), from the Treasury Depart- ment to the Department of Commerce and Labor. 25 Op. 37. TREASURY DEPARTMENT, I, a, b. 465 2. Decisions of Board of General Apprais- ers. — While the Treasury Department may accept decisions of the Board of. General Ap- praisers as a" rule of action to be followed in the classification of other importations, it is not compelled by law to do so. 20 Op. 648. 3. Declarations. — The Treasury Depart- ment has no authority to insist that declara- tions upon goods obtained by purchase under section 3 of the act of June 10, 1890 (26 Stat. 131), shall contain the further clause declar- ing that the prices in the invoice represent the actual foreign-market value on the day of shipment, etc. 22 Op. 405. 4. Marine-Hospital fund. — The Treasury Department is obliged, under existing laws, to extend the benefits of the Marine-Hospital fund to the sick and disabled officers and sea- men of the Eevenue-Cutter Service. 21 Op. 365. 3. The Treasury Department may legally accept the revenue cutter Calumet, subject to a creditor's lien, and, after satisfying the lien, proceed against the contractor's bondsmen to recover a payment in excess of the require- ments of the contract. 21 Op. 70. 6. Return certificate of returning Chinese laborer. — The Treasury Department has no authority to issue a return certificate nunc pro tunc to a Chinese laborer, holding a certifi- cate 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 cus- toms 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), 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 Govern- ment officer in affixing to such application his certificate of departure. 23 Op. 619. 7. Jurisdiction in Chinese-exclusion cases. — 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 De- partment has no authority to issue instructions to United States commissioners as officers charged with the enforcement of these laws. 23 Op. 40. See afeoTBEASURY Department, 26-30,154- .156. 18456—08- — 30 8. False labeling or branding of dairy and food products. — The Treasury Department has no jurisdiction or power under the act of March 3, 1903 (32 Stat. 1157), to prevent or punish the false labeling or branding of dairy or food products after they have' passed the customs-house and are delivered to the owner or consignee. 24 Op. 675. Jurisdiction in Customs Matters. See ap- propriate headings under Customs Law. b. Payment. 9. Payment of claims. — A proper construc- tion of the last clause of the act of March 3, 1891 (26 Stat. 1445, 1456), for the allowance of certain- claims for stores and supplies taken and used by the United States Army as re- ported by the Court of Claims under the pro- vision of the act of March 3, 1883 (22 Stat. 485), known as the Bowman Act, does not war- rant the making of a Treasury draft payable or deliverable to any other parties than those named in the act or to their executors or admin- istrators. 20 Op. 115. 10. Payment. — When a balance is due a con- tractor and there are conflicting claimants the proper course is to keep the custody of the balance until the respective rights of claim- ants to it have been determined by a decree of the court. 20 Op. 578. 11. Payment of claim — Attorney's fees. — A contract between an attorney and a client for the collection of a claim against the United States, in which it is stipulated that the at- torney shall present, prosecute, and recover the claim as the agent and attorney of the client, is "a power of attorney, order, or other authority for receiving payment" of the money so recovered within the meaning of section 3477, Revised Statutes, and unless exe- cuted in accordance with the provisions of that section is absolutely null and void. 25 Op. 279. 12. Same — Warrants. — The practice of the Treasury Department of delivering warrants to attorneys who have prosecuted claims be- fore the Department, except under the safe- guards of section 3477, Revised Statutes, is not warranted by law. lb. 13. Same. — The Secretary of the Treasury may recall his action in delivering a warrant to an attorney not entitled under the law to re- ceive it, and may take necessary measures, 466 TREASURY DEPARTMENT, I, b, c; II, a. by issuing a new warrant or otherwise, to pay the money involved to the party for whom it was appropriated by Congress. lb: 14. Same. — In so recalling a warrant and issuing a new one, the Government does not become liable to the attorney for the amount of his fee for recovering the claim. lb. 15. Payment of judgment on stipulation. — If the right of appeal from judgments of the Court of Claims in the direct-tax cases be waived by both parties by stipulations on record, no legal objection would exist to the payment by the Treasury Department of such claims prior to the expiration of the ninety days within which appeals must be taken. 20 Op. 547. 16. Same. — It is, however, deemed unwise for the Department of Justice to adopt any general rule giving such stipulations. lb. See also Treasury Department, II, h (ac- counting officers); Claims, I, g; Direct Taxes; and Contracts, 92, 132-147, and VI, 3 (d). c. Miscellaneous. 17. Leaves of absence. — The operation of the act of March 3, 1893, with reference to leaves of absence in the Treasury Department, is confined to clerks and employees in the city of Washington. 21 Op. 338. See also Leaves op Absence. 18. The appropriation for contingent ex- penses, independent treasury, 1885 (23 Stat. 449) , is not applicable to the payment of ex- penses of special agents of the Treasury em- ployed to investigate the affairs of subtreas- urers. 18 Op. 232. 19. The disposition of useless papers which have accumulated in the office of the Auditor of the Treasury for the Post-Office Depart- ment is governed by the act approved Febru- ary 16, 1889 (25 Stat. 672). 21 Op. 151. II. Officers. a. Secretary of the Treasury. 20. Appointment. — The Secretary of the Treasury is authorized under the provisions of the act of March 2, 1895 (28 Stat. 911), relative to the proposed new Government building at Chicago, to make temporary ap- pointments of draftsmen and skilled service without certification from the Civil Service Commission. 21 Op. 261. 21. Appointment of special disbursing agents, public buildings. — The Secretary of the Treasury is given authority by section 3658, Revised Statutes, to appoint agents for the disburse- ment of moneys appropriated for the con- struction of public buildings where there is no collector of customs at the place of the lo- cation of such buildings. 25 Op. 536. 22. Same. — The words "the place of loca- tion of any public work," as used in that sec- tion, mean some place, city, or town within a collection district, and not the whole dis- trict, lb. 23. Same. — The doctrine announced by the Supreme Court of the United States in the case of Bartlett v. United States (197 U. S. 230) should not be extended beyond the par- ticular facts in that case. lb. 24. Same. — Sections 255, 8654, 3657, and 3658, Revised Statutes, and the acts of March 3, 1875 (18 Stat. 415), and of August 7, 1882 (22 Stat. 306) , relating to the appointment of disbursing agents for the payment of moneys appropriated for the construction of public buildings, are not inconsistent, and, except as one modifies another, may all stand together. 76. 25. The Secretary of the Treasury may defer the qualification of an assistant treasurer until a proper count can be made of the funds in the subtreasury under a predeces- sor, in accordance with the custom of the Treasury Department. 25 Op. 636. 26. Chinese. — Under section 7 of the act of May 5, 1892 (27 Stat. 25) , the Secretary of the Treasury may authorize the landing at a port in this country of Chinese sentenced to deporta- tion and their detention at said port until the vessel returns and is ready to proceed on her return voyage. 21 Op. 18. 27. Chinese — Certificate for reentry — Form. — The Secretary of the Treasury has power to require the production of a certifi- cate, in such form as he may prescribe, evidencing the right of certain subjects of China to enter the United States, and has authority to require that Chinese laborers leaving the United States temporarily shall return to this country only at the ports from which they depart. 21 Op. 68. . TREASURY DEPARTMENT, II, a. 467 28. Chinese. — The authority vested in the Secretary of the Treasury by the act of August 18, 1894 (28 Stat. 390), to determine finally and conclusively whether or not a Chinese person shall be admitted to this country, may be exercised in such manner as will keep faith and do no injustice to a Chinese who seeks to return. 22 Op. 324. 29. Chinese — Hawaiian Islands. — The Sec- retary of the Treasury has authority to admit to the Hawaiian Islands such Chinese persons as departed therefrom under regulations of the existing government allowing them to return, as they are not excluded by the extension to the islands of the law and regulations now operative within the United States. 22 Op. 353. SO. Chinese — Tennessee Exposition. — The Secretary of the Treasury has no authority to limit the number of Chinese to be admitted to the United States as participants in the Ten- nessee Exposition. 21 Op. 518. 31. The Secretary of the Treasury has no authority under section 3755, Revised Stat- utes, to enter into a contract with a private in- dividual for the recovery of money paid on a judgment which was subsequently set aside as fraudulent. 32 Op. 411. 32. Eminent domain. — The Secretary of the Treasury can not by contract bind the Govern- ment to exercise its power of eminent domain, to enable persons to sell to the Government land which they do not own. 19 Op. 269. 33. Investment of trnst funds derived from sale of school farm lands. — The investment of trust funds (money derived from the sale of school farm lands) made by the Secretary of the Treasury, under the provisions of the act of March 3, 1873 (17 Stat. 600), and sec- tion 3 of the act of May 7, 1878 (20 Stat. 58), in 5 per cent bonds of the United States, which have since been called for payment, may be continued by him in the same bonds at 3| per centum, in accordance with the cir- cular of the Treasury Department of May 12, 1881, or he is at liberty to pay off such bonds and invest the proceeds in any other bonds of the United States for the benefit of the trusts mentioned in the provisions aforesaid. 17 Op. 217. 34. Remission of forfeiture. — Section 5294, Revised Statutes, as amended by the act of December 15j 1894 (28 Stat. 595), applied to fines and penalties only, and does not author- ize the Secretary of the Treasury to remit a forfeiture. 21 Op. 291. 35. Remission of fine or penalty. — The Sec- retary is not authorized under Title 68 to remit a fine or penalty incurred for violation of the alien immigration laws. 20 Op. 705. 36. Same.— Section 5293, Revised Statutes, is liable to erroneous construction by reason of defective punctuation. It may be under- stood to mean " any person who shall have in- curred any fine, penalty or forfeiture, or dis- ability, or ["who"] maybe interested in any vessel or merchandise which has become subject to any seizure, forfeiture, disability, thus providing for two distinct classes of cases. By 1 reference to the original act (1 Stat. 506), it will be seen by the title that "any person" and "any fine, penalty," etc. , is limited to the ' ' certain cases therein mentioned." lb. 37. Remission of fines. — 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. 23 Op. 271. 38. Same. — Neither is the power of remis- sion in such cases conferred by section 5294, Revised Statutes, as amended March 2, 1896 (30 Stat. 39). 76. 39. Same — Return of deposit. — The Secre- tary 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. lb. The general doctrine expressed in the opinion of February 3, 1894 (20 Op. 705), concurred in. lb. 40. Remission of Penalties Illegally Im- posed. — The power of remitting fines, penal- ties, etc., arising under the laws relating to vessels or seamen, given by section 26 of the act of June 26, 1884 (23 Stat. 59), to the Sec- retary of the Treasury, does not extend to cases where a competent judicial tribunal shall have decided that such fines, penalties, etc., were legally imposed. 18 Op. 282. 41. Remission of internal-revenue penal- ties. — It is within the discretion of the Secre- tary of the Treasury, under section 5293, Re- vised Statutes, to remit a penalty imposed under section 3176, Revised Statutes, for 468 TREASURY DEPARTMENT, II, failure to render a return or list of taxable property, required by the internal-revenue laws (sec. 3173, Rev. Stats). 17 Op, 433. 42. Remission of penalty. — The Secretary pf the Treasury has authority, under section 5293, Revised Statutes, 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). 23 Op. 398. 43. Same. — 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. lb. * Opinion of Attorney-General Brewster of July28, 1882 (170p.433), concurredin. lb. Remission of Forfeiture fob Unlawful Killing of Seals. . See Seal Fisheries, I, Remission of Fines, Penalties, and For- feitures Incurred under the Customs Law. See Customs Law, IX, g. See also Immigration, VI. 44. Compromise. — In passing upon cases submitted to him for compromise, under sec- tions 3229 and 3469, Revised Statutes, the Secretary of the Treasury, while he is not at liberty to act from motives merely of compassion or charity, may consider not only the pecu- niary interests of the Government, but take into view general considerations of justice and equity and of public policy. 17 Op. 213. 45. Compromise of suit for taxes illegally col- lected. — 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 col- lected. 23 Op. 507. 46. Same — What suits lie may compromise. — The power' given the Secretary by- section 3229, Revised Statutes, to compromise cases arising under the internal-revenue laws, ex- tends only to suits commenced by the Govern- ment to recover taxes; while the ampler power of comprdmise given him by section 3469, Revised Statutes, is limited to claims in favor of the United States. lb. 47. Same — What suits the Attorney-General may compromise. — 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 neces- sarily under his control and subject to his di- rection, lb. 48. The Secretary of the Treasury has power under section 3469, Revised Statutes, to compromise a judgment rendered in the name of the United States for damages and penalties incurred under sections 3490-3493, Bevised Statutes, notwithstanding the fact that the prosecution was instituted and prosecuted to final judgment by an individual who there- by acquired an interest in the judgment. (See United States v. Morris, 10 Wheat, 246.) 18 Op. 72. 49. Compromise. — The Secretary of the Treasury is not authorized by section 3469, Revised Statutes, to remit or release any por- tion of a judgment indebtedness on considera- tions of hardship to particular individuals. The authority to "compromise" relates to claims of doubtful recovery or enforcement. (13 Op. 479, and 18 Op. 72, distmtinguished.) 21 Op. 50. 50. The Secretary of the Treasury has no power to compromise or release a judgment in favor of the United States from which there is no appeal and of whose collectibility in full there is no doubt. Opinion of July 11, 1894 (21 Op. 50), reaffirmed. 21 Op. 264.. 51. Compromise of collectible judgment, — The Secretary of the Treasury has no power, under section 3469, Revised Statutes, to. com- promise 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. 23 Op. 18. 52. Compromise of claim reduced to judg- ment and collectible. — 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. 23 Op. 631. 53. Same — Disputed questions of law and fact. — The claim of the United States against the North American Company for interest, involving disputed questions of law and fact, is clearly one subject to compromise. lb. TREASURY DEPARTMENT, II, a. 469 54. Compromise of judgment — Contract La- bor Law. — It is doubtful if the power given to the Secretary of the Treasury by section 3469, Revised Statutes, to compromise "any claim" extends to a judgment recovered by the United States against a corporation in a suit for a penalty for violation of the contract labor law of February 26, 1885 (23 Stat. 332). 19 Op. 344. 55. Same. — Neither section 2 of the act of March 3, 1891 (26 Stat. 1084), nor any other previous law referred to in that section, authorizes the Secretary of the Treasury, or any one, to settle or compromise judgments entered under section 3 of the contract-labor act of February 26, 1885 (23 Stat. 333). (19 Op. 345 adhered to. ) 20 Op. 530. 56. Compromise. — Claims in favor of the Oovernment, founded on judgments entered upon forfeited recognizances taken in the pros- ecution of offenses against the postal laws, may be compromised by the Secretary of the Treasury under the provisions and upon the considerations imposed by section 3496, Re- vised Statutes. 18 Op. 277. 57. Such claims do not arise under the postal laws, within the meaning of the excep- tion in that section. lb. 58. The power to compromise claims in favor of the United States which includes judgments on recognizances is vested by law in the Secretary of the Treasury with respect to all claims save those arising under the postal laws. 21 Op. 494. . See also Internal Revenue, II, b; Customs Law, IX, g; Claims, V; and Immigra- tion, 36. 59. Payment. — The Secretary has no discre- tion to pass upon the question whether the amount appropriated by the act of July 1, 1898 (30 Stat. 613), for the payment to a cer- tain individual, or any portion thereof, ought to be paid. The provision is mandatory. 22 Op. 295. 60. Payment— Burial expenses of deceased pensioner. — The Secretary of the Treasury is authorized by the act of March 2, 1895 (28 Stat. 964), to pay from the accrued pension of a deceased pensioner, of such sum as may be necessary to reimburse a municipal cor- poration for the expenses it incurred during the last sickness and for the burial of a de- ceased pensioner who died not leaving suffi- cient assets to meet such expenses. 23 Op. 428. 61. Payment — Assignment — French spolia- tion claims. — 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. ' ' That duty is not altered by reason of the receipt of certificates of the Court of Claims issued under the authority of that act. 23 Op. 179. Payments in Regard to World's Colum- bian Exposition. See Expositions and Fairs, I. See also Treasury Department, II, h. 62. Accounts — Settlement. — The Secretary of the Treasury can not legally, by depart- mental order, change a practice or course of office procedure prescribed by statute for the settlement of accounts. 19 Op. 176. 63. Pay accounts — Oath of officers of Reve- nue - Marine Service. — The Secretary of the Treasury has power, under section 161, Re- vised Statutes, to make a regulation which prescribes that the oaths to be taken by an officer of the Revenue-Marine Service, or an officer or employe in any branch of the cus- toms service, to the correctness of his account for pay or salary, as required by sections 1790 and 2693, Revised Statutes, shall be taken before some person authorized to administer oaths generally. 19 Op. 401. 64. The fee paid by the officer or employee in such case for administering the oath does not constitute a proper charge against the United States, and if charged in his account should not be allowed in the settlement thereof. lb. 65. Balances due on postal accounts. — Sec- tion 12 of the Dockery Act of July 31, 1894 (28 Stat. 162, 209), does not require the Sec- retary of the Treasury to report to Congress annually the balances due on postal accounts for the prior fiscal year. 21 Op. 296. 66. Warrants. — The First Comptroller has no revisory power over the decisions of the Secretary of the Treasury respecting the issuance of war- rants; such decisions are binding upon the former officer. 17 Op. 233. 67 . Warrants. — The Secretary of the Treas- ury may recall his action in delivering a warrant 470 TEEASURY DEPARTMENT, II, a. to an attorney not entitled under the law to receive it, and may take necessary measures, by issuing a new warrant or otherwise, to pay the money involved to the party for whom it was appropriated by Congress. 25 Op. 279. 68. The Secretary of the Treasury is em- powered by the act of August 3, 1882 (22 Stat. 214), to employ connsel for the purpose of advising and defending boards of immigra- tion and pay for such services out of the im- migrant fund. 18 Op. 108. 69. As a recourse to law on the part of the Secretary of the Treasury for the settle- ment and collection of certain bonds made and issued by certain States and owned by the United States would involve the very grave act of suing States, and as Congress has had this question repeatedly before it and has not directed such a course, the Secretary of the Treasnry should not institute any suit. 21 Op. 478. 70. Disposition of Spanish war vessels wrecked in battle off the coast of Cuba. — 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, and the Secretary of the Treasury has power, under section 3755, Revised Statutes, to make such provision for their sale or other dispo- sition as he may deem necessary. 23 Op. 76. 71. Internal-revenue regulations. — The Secretary of the Treasury has power to make a regulation under which distilled spirits may be permitted to remain in warehouse after the expiration of three years, upon the distiller or owner of the spirits filing a declaration of his purpose to export the same in good faith, and giving a bond to do so within a given period. 18 Op. 92. 72. Internal re venue. — The Secretary of the Treasury has the authority under section 3221, Revised Statutes, to abate the tax on whiskey which was accidentally destroyed by fire in a distillery warehouse with out any fraud, collusion, or negligence of the distillers and while the same remained under the custody of an internal-revenue officer, a portion of which whiskey had been in warehouse be- yond the bonded period of three years. 18 Op. 379. 73. Counterfeit coin — Forfeiture — Return of bullion therein contained. — 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 the counterfeiti or the value of the bullion it contained to the per- son from whom such coin was taken. 23 Op. 458. 74. , Same. — Under that section the Treas- ury Department has authority to seize coun- terfeit coin, to decide that it is counterfeit, to determine that it was unlawfully in pos- session of the party from whom taken, and to forfeit it; and, after forfeiture, to direct in what manner it shall be disposed of. No ju- dicial condemnation is necessary, lb. 75. Pictures of coins. — The Secretary of the Treasury is not authorized by law to seize pictures of coins. 20 Op. 210. 76. Silver certificates. — The Secretary of the Treasury has authority under section 3 of the act of July 14, 1890 (26 Stat. 289), and section 3 of the act of February 28, 1878 (20 Stat. 25), to issue silver certificates in ex- change for all standard silver dollars which have been properly coined and put into cir- culation and are offered at the Treasury for exchange in sums not less than $10, whether such silver represents profit or seigniorage is immaterial. 20 Op. 124. 77. Regulations in regard to requests upon National Bureau of Standards. — The Secretary of the Treasury is authorized under sections 3 and 9 of the act of March 3, 1901 (31 Stat. 1449), to provide by regulation what officer or officers of "State governments" shall be recognized by the National Bureau of Stand- ards in requests made upon it for the services specified in that act. 24 Op. 667. 78. Rulings or decisions — Reversal or modi- fication of. — Section 2 of the act of March 3, 1875 (18 Stat. 469), in regard to the reversal or modification adversely to the United States of a ruling or decision of the Secretary of the Treasury, by the same or a subsequent Secre- tary, is in force and its provisions must, of course, be obeyed. 25 Op. 81. 79. Reference of matter of disallowance to Court of Claims. — Where, upon an appeal to the Comptroller of the Treasury from certain disallowances made by the Auditor for the War Department in the settlement of the ac- counts of a disbursing officer of the Army, the Comptroller is unable, because of disputed' questions of fact, to determine the question TREASURY DEPARTMENT, II, a, b. 471 presented, and certifies such fact to the Sec- retary of the Treasury, the latter officer has no authority, under section 1063, Revised Statutes, to direct that the matter be referred to the Court of Claims for trial and adjudica- tion, it not being a claim within the meaning of that section. 24 Op. 545. 80. Sea otter. — A limitation by the Secre- tary of the Treasury of the right to kill sea otter within a certain area to a certain race or class of people would be granting a special privi- lege and would violate section 1956 of the Revised Statutes. 21 Op. 333. 81. Sea-otter hunting vessels. — The Secre- tary of the Treasury is authorized under sec- tion 1956, Revised Statutes, as amended by section 3 of the act of March 2, 1889 (25 Stat. 1009), to instruct captains of the fur-seal patrol fleet to seize all foreign vessels found hunting, or to have hunted, sea otter within the Territory of Alaska and the waters thereof and in all the dominion of the United States in the waters of Bering Sea. 21 Op. 346. 82. Boarding of vessels. — The execution of the act of March 31, 1900 (31 Stat. 58), en- titled "An act concerning the boarding of vessels," has been transferred by section 10 of the act of February 14, 1903 (32 Stat. 825), from the Secretary of the Treasury to the Secretary of Commerce and Labor. 25 Op. 51. 83. United States shipping commissioners. — The duty of assigning suitable offices and rooms in public buildings for the use of United States shipping commissioners, imposed upon the Secretary of the Treasury by the act of March 3, 1897 (29 Stat. 687), was not affected by the act of February 14, 1903 (32 Stat. 825), establishing the Department of Commerce and Labor. 25 Op. 117. 84. The Secretary of the Treasury has no authority to make distribution of the diplomas and medals directly to the exhibitors of the World's Columbian Exposition. 21 Op. 216. Authority and duty of the Secretary in the following matters: Accounts, Rendition of, by Officers Re- ceiving Advances of Public Moneys. See Treasury Department, II, h. Appointment of Agents for Disbursement of Public Buildings Appropriations. See Public Buildings, 26-37. Acceptance of Public Buildings. See Pub- lic Buildings, 18. Canned and Chopped Meats, Exclusion of. See Food Products, 9. Claim of Pennsylvania, Authority to Re- examine and Audit. See Claims, 44, 45. Compensation of United States Attorneys. See United States Attorneys. Contracts, Power to Modify. See Con- tracts, III, d. Copyright Matters. See Copyright, 10. Customs Matters. See Customs Law, II, a; and other appropriate headings under Customs Law. Direct Taxes Refund. See Direct Taxes. Ellis Island Contracts and Licenses. See Ellis Island. Exchange of Gold Bars for Gold Coin. See Treasury Department, 172. Immigration. See Immigration. Licenses or Leases for Temporary Occu- pancy of Public Parks and Reservations. See Licenses. Life-Saving Medals. See Life Saving. Medals of Honor. See Life Saving. Payment of Strong Award. See District of Columbia, IX. Payments in Regard to the World's Fair. ' See Expositions and Fairs, I. Public Buildings. See Public Buildings. Purchase of United States Bonds. See Treasury Department, VI. Quarantine Regulations. See Health and Quarantine, 4, 6, 8. Reinvestment of Sinking Fund, Union and Central Pacific Railroad Companies. See Railroads, II, c. Registry of Vessels. See Shipping, I, c. Refund. See Customs Law, VI, a; and Ship- ping, 77. Seal Fisheries, Leases, etc. See Seal Fish- eries. Remission of Fines, Penalties, and Forfeit- ures — In Customs Matters. See Customs Law, IX, g. Treasury Department, 34-43. In Immigration Matters. See Immigra- tion, VI. b. Treasurer of the United Slates. 85. Philippine land-purchase bonds. — There is no legal objection to the Treasurer of the United States receiving the principal and in- terest of the Philippine land-purchase bonds from the Philippine government, and dis- 472 TREASURY DEPARTMENT, II, b, c, d, e, f. tributing the same to the holders of the se- curities, nor to the Register of -the Treasury of the United States registering and record- ing said bonds, provided the officers in ques- tion are willing and the Secretary of the Treasury consents and approves;: but there is no specific provision of law authorizing the performance of such services. 25 Op. 98. See also Customs Law, 58. c. Assistant Treasurer. 86. The form of the bond required to be given by Assistant Treasurers of the United States under section 3600, Revised Statutes, whether the parties thereto are to be jointly and severally, or may be only jointly bound,^ and whether each surety is to bind himself for the full amount of the penalty, or may restrict his liability to a less amount, is not made the subject of statutory regulation, but is left to the determination of the officers by whom the bond is to be approved. 18 Op. 274. 87. Same. — But the form ordinarily made use of in practice is that wherein the principal and sureties are jointly and severally bound for the full amount of the penalty. lb. 88. Same. — This form being preferable to any other, and its use sanctioned by long practice, the adoption of a different form (though it might not be inconsistent with the terms of the statute so to do) would not be warranted unless the circumstances pf the particular case were such that the public in- terests could not otherwise be served. lb. 89. Holding over — Qualification of succes- sor. — An Assistant Treasurer of the United States may lawfully continue to perform the duties of his office after the expiration of his term of four years, and until the qualification of his successor, Congress having expressly provided in the acts of March 2, 1895 (28 Stat. 808, 844), for the continuance in office of all officers of the Treasury Department under similar conditions. 25 Op. 636. 90. Same. — The sureties on the bond of an Assistant Treasurer continue liable for his acts while continuing in office after the expiration of his term and until the qualification of his successor. lb. 91. Same. — The Secretary of the Treasury may defer the qualification of an Assistant Treas- urer until a proper count can be made of the funds in the subtreasury under a predecessor, in accordance with the custom of the Treas- ury Department. lb. d. Director of the Mint. 92. Purchase of bullion for subsidiary coin- age. — The Director of the Mint is authorized, with the approval of the Secretary of the Treasury, to purchase bullion for subsidiary coinage, and this authority, under the act of March 3, 1903 (32 Stat. 1109) , is without limi- tation, express or implied. 25 Op. 170. 93. The provisions of section 3510, Re- vised Statutes, do not authorize the Director of the Mint, with the approval of the Secre- tary of the Treasury, to accept and pay for new designs for existing coins. His authority thereunder, as regards the preparation of orig- inal dies, is limited to those intended for new coins. 19 Op. 16. e. Comptroller of the Currency . 94. Organization of national banks in Ha- waii. — The Comptroller of the Currency is authorized to grant permission for the organi- zation of national banks in Hawaii. 23 Op. 177. 95. Dividend paid to creditors of a national bank. — It is not within the province of the Comptroller of the Currency to inquire into the use the creditors of a national bank pro- pose to make of the dividend paid them. 20 Op. 269. f . Comptroller of the Treasury. 96. The First Comptroller has no revisory power over the decisions of the Secretary of the Treasury respecting the issuance of warrants; such decisions are binding upon the Wmer officer. 17 Op. 233. 97. Power of First Comptroller to direct action by Commissioner of the General Land Office. — The First Comptroller has no power to direct the Commissioner of the General Land Office forthwith to audit any particular account relating to the public lands, where in his opinion further delay would be injurious to the Government. 18 Op. 450. 98. Same. — The Commissioner, with re- spect to the discharge of his duties in such matters is subject only to the direction of the Secretary, of the Interior. lb. TREASURY DEPARTMENT, II, f. 473 99. The First and Second Comptrollers and the Commissioner of Customs have no legal statns as advisers of the Secretary of the Treas- ury upon legal questions. In form the Comp- troller is asked for legal advice; in fact, what is desired is information as to his future ac- tion. Their opinions on points of law not anticipatory of future decisions by themselves are purely extra official and rendered by courtesy only. 20 Op. 654. 100. The provisions of the act of March 2, 1895 (28 Stat. 776, 777), with reference to the positions of law clerk in the offices of the Comp- troller of the Treasury and of the Auditors of the Treasury, are not to be construed as subject- ing those positions to competitive examinations. That statute leaves the mode of their appoint- ment as fixed by the act of July 31, 1894 (28 Stat. 173). 21 Op. 187. 101. The Comptroller of the Treasury is not an "agent" within the meaning of section 3469, Revised Statutes. 21 Op. 361. 102. Same. — The "agent" referred to in that section is one who has special charge of a claim for the purposes of collection or en- forcement, in the same way that the district or special attorney has, though he need not possess their professional character. lb. 103. Questions with reference to the man- ner of drawing fnnds from the Treasury, and the administrative examination of the accounts of the officer disbursing them, is one which should be submitted to the Comptroller of the Treasury under section 8 of the act of July 31, 1894 (28 Stat. 208). 22 Op. 414. 104. Appropriation. — The question as to what appropriation the expense of printing the 760 copies of private laws in slip form, authorized by section 56 of the act of January 12, 1895 (28 Stat. 609) , is to be charged, is one which may be asked of the Comptroller of the Treasury, and should not be answered by the Attorney-General. 21 Op. 405. 105. Appropriation. — The question whether or not the Secretary of the Treasury is author- ized by the appropriation act for the fiscal year 1896 to purchase newspapers and other articles for use outside of Washington, in view of sections 192 and 3683, Revised Statutes, belongs to a class of questions which should, except in matters of great im- portance, be submitted to the Comptroller of the Treasury, under section 8 of the act of July 31, 1894 (28 Stat. 207). 21 Op. 178. 106. Payment, questions involving. — Sec- tion 8 of the appropriation act of July 31, 1894 (28 Stat. 207), makes it obligatory upon the Comptroller of the Treasury to render a decision upon any question involving a payment to be made by or under the head of any Execu- tive Department, and contemplates the con- struction by him of statutes. 21 Op. 181. Opinion of May 22, 1895 (21 Op. 178), reaffirmed. lb. 107., Payment. — The question as to the right to refund certain duties claimed to have been collected through mistake of law should be asked gf the Comptroller of the Treasury. 21 Op 188. 108. Payment. — Whether certain expenses of the Department of Agriculture are payable from a certain appropriation for that Depart- ment is a question which should have been addressed to the Comptroller of the Treasury. 21 Op. 221. 109. Payment.— The Comptroller of the Treasury is charged -frith the duty of rendering decisions upon questions involving payments to be made by or under the head of an Ex- ecutive Department, and his decision is final as to all executive officers. 23 Op. 468. 1 10. Payment. — The question as to whether the expense of preparing blank forms and fur- nishing them to collectors can be paid out of the appropriation for defraying the expenses for collecting the revenue from customs, is peculiarly one for the Comptroller of the Treas- ury to decide (23 Op., 468). 25 Op. 50. 111. Payments. — The question of the legal- ity of a payment presented to the Treasury Department is one exclusively for the Comp- troller, whose decision thereon is final as to all executive officers. 21 Op. 530. 112! Payment. — The decision of the Comp- troller of the Treasury upon any question in- volving a payment is final and binding. 22 Op. 581. 113. Payment— Refund. — The Comptroller of the Treasury, rather than the Attorney-Gen- eral, should pass upon the question of the power of refund and payment out of the Treas- ury of duty overpaid on an importation of merchandise. 24 Op. 553. 114. Payment — Attorney-General's opin- ion. — An opinion relating to refund of duties, which could have been asked of the Comp- troller of the Treasury, is, notwithstanding, given by the Attorney-General, it appearing 474 TREASURY DEPARTMENT, II, f, g, h. that the question is one of importance, and the Comptroller joins in requesting it. 21 Op. 224. 115. Same. — An important question as to refund, submitted at the request of the Comp- troller of the Treasury, is answered by the Attorney-General. 21 Op. 402. 116. Same. — Except in matters of great im- portance, 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. 23 Op. 1. 117. Same. — The Attorney-General will -not render an opinion upon questions which in- volve the payment of money by the Treasury Department. That duty, by section 8 of the act of July 31, 1894 (28 Stat. 208), i3 imposed upon the Comptroller of the Treasury. 23 Op. 431. See also, to same effect, 21 Op. 179, 183; 25 Op. 2, 86, 468, 586. 118. Payment. — The authority conferred upon the Comptroller of the Treasury by sec- tion 8 of the act of July 31, 1894 (28 Stat. 208) , to decide questions involving payments to be made from the Treasury is complete; but that act does not establish a rule which is universal and without exception. Congress did not, by that enactment, intend to shorten the reach of sections 354 and 356, Revised Statutes, or to repeal pro tanio those sections. 25 Op. 301. 119. Same. — Where a question is presented to the Attorney-General in accordance with law for decision, and he is of opinion that the nature of the question is general and important in other respects than disbursement, and there- fore conceives that it is proper for him to deliver his opinion, it is final and authorita- tive under the law and should be so treated by the accounting officers of the Treasury, even though the question involves a payment to be made from the Treasury. lb. 120. Same. — When the Comptroller of the Treasury waives his right to determine a matter involving disbursements within the scope of his authority under the law, and re- quests or suggests a ruling by the Attorney- General, the Attorney-General's opinion should be controlling upon the accounting officers of the Treasury and should be followed by them unless contrary to some authoritative judicial decision. lb. g. Auditors. 121. The Auditors of the Treasury are agents of the Government in the broad sense of the term, but are more properly called officers, and were not intended to be included within the meaning of the word "agent " in section 3469, Revised Statutes. 21 Op. 367. 122. Third Auditor— Claims.— The act of March 3, 1849 (9 Stat. 415), placed all claims presented under it within the exclusive juris- diction of the Third Auditor. It made him the sole tribunal and his awards, called judg- ments, final. 17 Op. 352. 123. Same.— The award made by the Third Auditor on the 10th of May, 1861, under that law, in favor of James'and Richard H. Porter, was binding upon all officers of the Govern- ment, lb. 124. Same.— The act of July 28, 1866 (14 Stat. 327), modifying said act of 1849, did not affect claims adjudicated by the Auditor before its passage, lb. 125. Sixth Auditor. — The accounts which the Sixth Auditor is required to audit under section 277, Revised Statutes, etc., are of a fiduciary character, dependent upon the dis- cretion of the Postmaster-General under au- thority of law, and generally refer to the postal service. 19 Op. 30. 126. Sixth Auditor.— The Auditor of the Treasury for the Post-Office Department is an officer of the Treasury Department and accounts of postmasters in his custody are to be regarded as in the Treasury Department within the meaning of section 1076, Revised Statutes. 20 Op. 677. History of the Auditor's office since 1789 reviewed. lb. h. Accounting Officers and Accounting. 127. Accounts — Rendition. — The first clause of section 3622, Revised Statutes, which re- quires officers and agents of the United States to render accounts monthly, is applicable to every officer who receives advances of public money to be disbursed, and also to every officer who collects and receives fees and revenues which it is his duty to account for. 19 Op. 557. TREASURY DEPARTMENT, II, h. 475 128. Same. — This requirement ia not subject to the direction of the Secretary of the Treas- ury, excepting in extraordinary cases, where he shall be of opinion that the statutory period ought to be enlarged to meet the special cir- cumstances of such cases. Opinion of Attor- ney-General Devens of December 2, 1878 (16 Op. 222), concurred in. lb. 129. Accounts — Settlement. — The Secretary of the Treasury can not legally, by depart- mental order, change a practice or course of office procedure prescribed by statute for the settlement of accounts. 19 Op. 177. See also 63. 130. Accounts settled between an army of- ficer and the accounting officers. — The settle- ments between Col. Wager Swayne and the accounting officers in the matter of his pay as a major-general of volunteers are conclu- sive upon the Executive Department of the Government, and can not be reopened by set- ting against his percentage increase so much of said pay as represents the excess of what he should have received as colonel. 17 Op. 448. 131. Accounts of paymaster — Credit for pay- ment of retained pay of soldiers. — The account- ing officers of the Treasury should allow a paymaster of the Army credit for payment made by him to a soldier of his retained pay under section 1281, Revised Statutes, where the latter has received an honorable dis- charge, although it may appear that after en- listing the soldier deserted, but was restored to duty without trial and served out the full term of his enlistment. 19 Op. 567. 132. Accounts. — The power to audit and adjust accounts for the last sickness and burial of deceased pensioners arising under section 4718, Revised Statutes, belongs solely to the proper accounting officer of the Treasury by , virtue of section 236, Revised Statutes. 17 Op. 440. Opinion of April 28, 1882 (17 Op. 339), dis- tinguished, lb. 133. Appropriations. — The allotment of the Public Printer's appropriation among the differ- ent departments is not actually passed upon by the accounting officers of the Treasury and is not within their jurisdiction. 21 Op. 423. 134. Payment for army transportation. — An army quartermaster may lawfully pay the accounts of land-grant railroads for army transportation without previous action thereon by the accounting officers of the Treasury. 19 Op. 264. 135. In the case of a claim under the act of March 3, 1885 (23 Stat. 350), for property lost in the military service, the question whether the loss happened under the circumstances de- scribed in the statute, and comes within the provisions thereof, is one for the determina- tion of the proper accounting officers of the Treasury, and so does not appertain to the ad- ministration of the War Department. 19 Op. 694. 136. The claim of the State of Massachu- setts for reimbursement of expenses incurred in the payment of State militia called out by the governor, at the request of the military authorities of the United States, to aid in suppressing the "draft riots" in the city of Boston is within the scope of the act of July 27, 1861 (12 Stat. 276), and the supplemental resolution of March 8, 1862, No. 16 (12 Stat. 615), providing for the indemnification of States for expenses incurred in the defense of the United States, and may properly be examined and adjusted by the accounting officers of the Treasury under the provisions thereof. 19 Op. 537. 137. Payment of claim authorized by stat- ute. — The provision in the act of March 2, 1889 (25 Stat. 921), for payment to the State of Kansas of $43,790.32 on, account of 5 per centum fund arising from the sale of public lands in said State, precludes all inquiry on the part of the accounting officers of the Treasury as to the legality and justness of the claim. It is their duty to allow and certify the claim for that amount, "as per decision of the First Comptroller of the Treasury of date May 6, 1880, and as stated by the Commissioner of the General Land Office." 19 Op. 362. 138. Pension agents— Payments made by. — The accounting officers of the Treasury have no power to disallow payments made by pen- sion agents pursuant to an order made and within the jurisdiction of the Commissioner of Pensions. 19 Op. 214. 139. Same. — It is not within their province, upon learning of any order made by the Com- missioner of Pensions to a pension agent for the payment of pensions, to notify such agent of what their decision will be upon his account when rendered. lb. 140. Pension laws — Construction. — It is not within the province of the accounting officers 476 TREASURY DEPARTMENT, II, i, j, k, III, IV. of the Treasury to construe the pension laws and give instructions to pension agents as to the payment of pensions. This properly belongs to the Commissioner of Pensions', whose duty it is, under the direction of the Secretary of the Interior, .to administer these laws. 17 Op. 339. 141. Pension appropriations. — The Treas- ury Department is bound by the rulings of the Department of the Interior in construing pen- sion appropriation acts. 20 Op. 178. i. Disbursing Officers. 142. A disbursing officer of the United States holding a Treasury draft payable to the order of certain contractors can not with pro- priety or safety be directed to turn it over to a receiver appointed by a State court in an action between contesting claimants. 21 Op. 75. For agents for the disbursement of pub- lic building appropriations, see Public Buildings, 26-37. j. Solicitor of the Treasury. 143. Status — Opinion. — The Solicitor of the Treasury is an adviser recognized by law and his opinion may be asked by the Secretary of the Treasury upon any question of pure law or of mixed law and fact arising in the Treas- ury Department, except questions involving the construction of the Constitution of the United States. His opinions have, however, no binding force. 20 Op. 654. 144. Questions purely of law actually aris- ing in the administration of the Treasury De- partment, and requiring the personal consid- eration of the Secretary, may be referred to the Solicitor of the Treasury or to the Attor- ney-General. If referred to the latter, how- ever, his answer should be regarded by the Department as law until withdrawn by him or overruled by the courts. lb. 145. Examination and approval of proposed rules and regulations. — The Solicitor of the Treasury is empowered to examine and ad- vise the Secretary of the Treasury in regard to proposed codes of rules or forms of appli- cations, permits, bonds, etc., to be adopted by the Treasury Department as such matters come up for consideration. 20 Op. 738. As to his relations as an officer of the De- partment of Justice. See Department of Justice, II.. k. Customs Officers. 146. The general appraisers appointed un- der the provisions of the act of June 10, 1890, are officers of the Treasury Department. 21 Op. 85. 147. Same. — If inefficiency, . neglect of duty, or malfeasance in office is charged against one of them, it is the duty of the Secretary of the Treasury to investigate the matter. lb. 148. The Commissioner of Customs and the Comptroller have no legal status as advisers of the Secretary of the Treasury upon legal questions. Their opinions on points of law not anticipatory of future decisions by them- selves are purely extra official and rendered by courtesy only. 20 Op. 654. Collectors of Customs. See Customs Law, II, b. ' III. Bureaus. 149. National Bureau of Standards — Serv- ices to State institutions. — Under section 8 of the act of March 3, 1901 (31 Stat. 1449), each State may properly demand and receive from the National Bureau of Standards all com- parisons, calibrations, tests, or investigations, free of charge, which are necessary or essen- tial for a State government in performing its lawful functions. 24 Op. 667. 150. Same. — State institutions may also call upon and receive from that Bureau, free of charge, such services, specified in section 8 of the above-named act, as State govern- ments would be entitled to have performed. lb. 151. Same. — The Secretary of the Treasury is authorized under sections 3 and 9 of said act, to provide by regulation what officer or officers, of "State governments V shall be recognized by the Bureau in requests made upon it for the services specified in the act. lb. Bureau of Engraving and Printing. See Public Printing, III. , IV. Begulations, Circulars, etc. 152. Customs regulations. — Article 309 of the Customs Regulations of 1892, providing TREASURY DEPARTMENT, IV. 477 ii* * * N or can liens be recognized for freight on merchandise intended for export," is inconsistent with section 2981, Revised Statutes, as amended. 21 Op. .38. 153. Customs— Ruling — Cows are household effects. — 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. 23 Op. 310. 154. Chinese laborers, readmission of — Opinion — Attorney-General. — 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 de- layed beyond one year from the date of his departure by reason of sickness or other, dis- ability beyond his control, the consular rep- resentative of the United States shall certify to such facts before the Chinaman shall be admitted into this country, not being a ques- tion actually or presently arising in the admin- istration of the Treasury Department, the Attorney-General declines to express his opinion thereon. 23 Op. 582. 155. Same. — Should this proposed regula- tion 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. lb. 156. Chinese Laborers — Treasury Depart- ment Circular No. 52. — 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. 24 Op. 91. 157. Immigration — Liability of steamship, companies. — Certain steamship companies dis- puted the validity of the Treasury Depart- ment's regulations, holding them liable under the immigration act of March 3, 1891 (26 Stat. 1084), for the maintenance and transportation to the seaboard of certain alien immigrants who had reached the interior of the country. Held, that as there was no way of enforcing the statute against the steamship companies ex- cept through the courts, the question is not one arising in the administration of that Department, the Attorney-General can not properly express his opinion thereon. 21 Op. 6. 158. Circular to passengers. — The provi- sions of a "Circular to Passengers" proposed to be issued by the Secretary of the Treasury regarding the right of residents of the United States returning from foreign countries to bring with them free of duty articles purchased abroad, and not intended for sale, of a total value not exceeding $100, etc., are in har- mony with paragraph 697 of the tariff act of July 24, 1897 (30 Stat. 202), and legal. 25 Op. 93. 159. Same. — The Attorney-General de- clines to express an opinion as to the pro- priety of a proposed instruction to customs officials to inquire into the bona' fides of the journey and the ownership of goods imported in such cases, as he is not authorized to ex- press his views upon matters of propriety involving executive judgment and discretion; neither may he express an opinion as to whether the above provision can be enforced on proof that the object of the journey was to purchase goods, as the latter is a hypo- thetical as well as a judicial question. The legality of such an instruction, however, can not be seriously questioned. 25 Op. 94. 160. In quarantine regulations against yel- low fever promulgated by the Secretary of the Treasury an exemption from disinfection, ete., of vessels bound to ports in the United- States north of the southern boundary of Maryland does not constitute a discrimination within the meaning of the act of February 15, 1893 (27 Stat. 449), providing, that regu- lations shall operate uniformly and in no manner discriminate against any port or place. .21 Op. 446. 161. Registration of foreign-built vessels. — The Secretary of the Treasury has the un- doubted right to change the regulation and practice of the Department and adopt a more liberal construction of the clause "wrecked in the United States," found in section 4136, Revised Statutes. 21 Op. 199. 162. Smelters and refiners— Lead bullion- Assay. — The application of assay to lead bul- lion under the current Treasury regulations 478 TREASURY DEPARTMENT, IV, V, VI. for bonded smelters and refiners is without warrant of law. 24 Op. 45. Same. — Reaffirmed. 24 Op. 569. V. Treasury Certificates, Currency, Coinage, etc. 163. Silver certificates are not lawful money within the meaning of section 4 of the act of June 20, 1874 (18 Stat 124), and section 9 of the act of July 12, 1882 (22 Stat. 164) . 20 Op. 725. 164. The Treasury notes authorized to be issued in payment for silver bullion by the act of July 14, 1890 (26 Stat. 289), are not United States notes within the meaning of the act of June 8, 1872 (17Stat. 336), and consequently are not receivable on deposit in exchange for the currency certificates authorized by that act. 20 Op. 317. 165. Treasury notes, of the character au- thorized by the act of July 14, 1890 (26 Stat. 289), directing the purchase of silver bullion and the issue of Treasury notes thereon to the amount necessary for such purchase, may not be issued on the gain or seigniorage arising from the coinage provided for in that act and paid into the Treasury. 20 Op. 124. 166. The Secretary of the Treasury has authority under section of the above-named act, and section 3 of the act of February 28, 1878 (20 Stat. 25), to issue silver certificates in exchange for all standard silver dollars which have been properly coined and put into cir- culation and are offered at the Treasury for exchange in sums not less than $10. Whether such silver represents profit or seigniorage is immaterial. lb. 167. Trade dollar. — The United States Treas- urer is not authorized to receive "trade dol- lars" at par in exchange for silver certificates under the third section of the act of February 28, 1878 (20 Stat. 25). Nor are such dollars receivable, at par in payment of public dues. 18 Op. 417. 168. Coin, deposit of, for redemption of cir- culation. — A nationalbanking association may , under section 3 of the act of June 20, 1874 (18 Stat. 123), deposit coin in the Treasury for the redemption of its circulation. 17 Op. 144. 169. Same. — TheTreasury, while privileged under sections 3 and 4 of that act to redeem such circulation in United States notes, has also the right to redeem the same circulation in coin. lb. 170. Same.— The act of 1874 was not in- tended to repeal or affect the general provisions of law making the coins of the United States a legal tender in all. payments (sec. 3585 et seq., Rev. Stats.), lb. 171. Exchange of gold bars for gold coins. — The words "are hereby authorized," in the act of May 26, 1882 (22 Stat. 97), providing for the exchange of gold bars for gold coin by the superintendents of the coinage mints and of the assay office at New York, are to be construed as mandatory upon those officers. 19 Op. 575. 172. Same. — It is not discretionary with the Secretary of the Treasury to refuse such ex- change, nor can he lawfully direct those officers so to do. lb. 173. Same. — A charge for the preparation of the bars can not be exacted on an exchange thereof for coin under said act. lb. Reaffirmed. 19 Op. 594. 174. Coins of the United States — Designs. — The provisions of section 3510, Revised Stat- utes, do not authorize the Director of the Mint, with the approval of the Secretary of the Treasury, to accept and pay for new designs for existing coins. His authority thereunder, as regards the preparation of original dies, is limited to those intended for new coins. 19 Op. 16. 175. Subsidiary coinage. — The Director of the Mint is authorized, with the approval of the Secretary of the Treasury, to purchase bullion for subsidiary coinage, and this authority, under the act of March 3, 1903 (32 Stat. 1109) , is without limitation, express or implied. 25 Op. 170. VI. Bonds. 176. Purchase of United States bonds — Com- mission for purchase. — The power given the Secretary of the Treasury by section 2 of the act of March 3, 1881 (21 Stat. 457), to pur- chase United States bonds with the surplus money in the Treasury not otherwise appro- priated, does not include the payment of commissions to private parties to purchase for the Government. 19 Op. 279. TREASURY DEPARTMENT, VI, VII— TREASURY WARRANT. 479 177. Same. — Only the market price of the bond at the time of the purchase should be paid; no commissions in addition to the par value of the bond and the premium thereon can be lawfully paid. lb. 178. Same — Contracts for future delivery. — The power conferred by the statute does not extend to the making of contracts for future delivery, but is limited to actual cash pur- chases, lb. (281.) 179. Redemption, order of — "Continued fives."— In calling for redemption the new bonds issued by the Secretary of the Treas- ury known as "continued fives," those which have the highest number, i. e., "the bonds of each class last dated and numbered," as provided by the third section of the act of July 14, 1870/(16 Stat. 274), should be called first. 17 Op. 349. 180. Redemption — Public notice. — Section 3 of the act of July 14, 1870 (16 Stat. 272), by taking away all authority from the Secre- tary of the Treasury to pay further interest after three months from public notice given of his intention to redeem certain of the bonds issued under that act, makes it imper- ative upon him to pay all of the bonds desig- nated in the notice. 20 Op. 127. 181. Same. — Notice that requests to continue at Si per cent will be granted. — Suggested that the precedent established in the case of the S per cent bonds might be followed and a state- ment be appended to the notice to the effect that if within defined limits some holders of the 4J per cent bonds requested to have them continued during the pleasure of the Govern- ment at 3J per cent interest, such request will be granted provided they are deposited before a certain day. lb. VH. Fines, Penalties, and Forfeitures. 182. Remission of. — Prior to the taking effect of the act of February 14, 1903 (32 Stat. 825), creating the Department of Commerce and Labor, the Secretary of the Treasury had no authority to remit a fine or penalty im- posed for a violation of the New York Harbor act of June 29, 1888 (25 Stat. 209), nor to dis- continue a suit instituted by the Government to recover a penalty under that act, and therefore the Secretary of Commerce and Labor has no authority to direct the discon- tinuance of such a suit. 25 Op. 220. 183. Same. — The word "vessels," as used in the New York Harbor act (25 Stat. 209), does not relate to vessels in the sense con- templated by sections 5292-5294, Revised Statutes, authorizing the remission of fines, penalties, and forfeitures by the Secretary of the Treasury. lb. 184. Same. — The Treasury Department has jurisdiction of the remission of fines, pen- alties, and forfeitures imposed by section 2809 Revised Statutes, upon masters of vessels for not presenting a correct manifest of merchan- dise imported, and also of the issuing of in- structions relating to the execution of sections 2779 to 2784, inclusive. 25 Op. 535. See also Treasury Department, 34-42; Cus- toms Law, IX, g; and Seal Fisheries, 1-3. Immigration. See Immigration, VI. Internal Revenue. See Internal Revenue, VI. Life-Saving Service. See Life-Saving Serv- ice. Light-House Board. See Light-Houses. Revenue-Cutter Service. See Revenue Ma- rine. Steamboat-Inspection Service. See Steam- boat-Inspection Service. Repayment of Direct Taxes. See Direct Taxes. Remission of Fine, Penalty, or Forfeiture. See Treasury Department, II, a, 34-43, VII; Customs Law, IX, g; Immigration, VI. Payment of Bonds. See Treasury Depart- ment, VI. TREASURY NOTES. See Treasury Department, V. TREASURY WARRANT. See Treasury Department, 13, 14. 480 TKEATIES AND CONVENTIONS, I, II, a, b. TREATIES AND CONVENTIONS. I. In General, 1-7. II. With Foreign Nations. a. Chile, 8. b. China, 9-27. c. France, 28. d. Germany, 29. e. Great Britain, 30-33. f. Greece, 34-36. g. Italy, 37-39. h. Mexico, 40-45. i. Prussia, 46-47. j. Spain, 48-60. k. /Sweden and Norway, 61 ni. With Indians. See Indians, XIV. IV. Conventions, 62-74. I. In General. 1 . Fisheries. — The United States has power to enter into treaty stipulations with Great Britain for the regulation of the fisheries in the waters of the United States and Canada along the international boundary. 22 Op. 214. 2. The regulation of fisheries in navigable waters within the territorial limits of the several States, in the absence of Federal treaty, is a subject of State rather than of Federal jurisdiction. lb. 3. The fact that a treaty provision annuls and supersedes the law of 'a particular State upon the same subject is no objection to the validity of the treaty. lb. 4. In case of conflict between a treaty and a' subsequent statute, the latter governs. 21 Op. 80. 5. A treaty, the provisions of which are self- executing, modifies the requirement of a prior statute with which it is in conflict. 21 Op. 347. 6. A treaty of the United States is the su- preme law of the land, but there is a class of treaties which, without legislation, does not become self-executing as a rule of municipal law. 19 Op. 274, 276. 7. When operative. — As respects perform- ance of conditions of a grant by a private grantee, the date of a treaty is the date of its final ratification; but so far as the treaty af- fects the relations of the sovereigns concerned, it operates, when ratified, from the date of its signature. 23 Op. 551. II. With Foreign Nations, a. Chile. 8. 1892, August 7 — Service of the American secretary or agent. — There is nothing in the treaty concluded by Chile with the United States on August 7, 1892, or in the appropria- tion for carrying it into effect, which prevents the President from requiring service under the treaty from the American secretary or agent, or from making compensation there- for at any time before the organization of the commission provided for in that treaty. 20 Op. 595. b. China. 9. 1894, December 8 (28 Stat. 1210).— The convention of 1894 between the United States and China is a treaty. Under its provisions a Chinese subject resident in a British colony, and belonging to one of the privileged classes, may be admitted here upon a certificate from the colonial government. 21 Op. 347. 10. Same. — A treaty, so far as its provisions are self-executing, repeals a prior statute with which it is in conflict, lb. 11. Same. — Failure to obtain return certifi- cate. — The Treasury Department has no author- ity to direct the admission of Chinese labor- ers who fail to obtain before departure from this country the certificate required by the treaty with China, although they have com- plied with all the requirements affecting Chinese who leave the United States, except the procuring of this certificate. 21 Op. 424. 12. Same. — A Chinese laborer who pro- poses to leave the United States and return, complies with the conditions necessary to de- mand a certificate if he file the required papers "with the collector of customs of the district from which he departs. ' ' Any rule directing him to file such papers with the collector of any other district, imposes a condition not warranted by the treaty. lb. 13. Same — Failure to return within one year — Detained by Canadian authorities. — The Secretary of the Treasury has no authority to permit the return to the United States of Chinese laborers who left for China after having received the necessary certificates en- titling them to return, and availed them- selves of the extension of one year provided by the treaty of 1894, and who, although they left China in sufficient- time to reach the TREATIES AND CONVENTIONS, II, b. 481 United States within the extended year, were delayed in quarantine by the Canadian au- thorities, so that in fact they did not reach this country until three days late. 21 Op. 575. 14. Same. — In the extension of one year the treaty has made the sole provision for delay, and in any event the laborer must return to the United States within the additional year. lb. • 15. Same. — Neither the Secretary of the Treasury nor the collector has discretion to inquire into causes of further delay or grant an additional extension. lb. 16. Same — Reentry — Return certificate — Noncompliance with treaty requirements. — A Chinese "laborer, holding a certificate of resi- dence 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 appli- cation 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. 23 Op. 619. 17. Same — Article II. — The return certifi- cate of Chinese persons entitled to return to the United States under the contingency contemplated by Article II of the treaty of 1894 with China must be accompanied by a certificate as to the facts, made by the Chinese consul at the port.of departure. 22 Op. 72. 18. Same — Article II. — The phrase "Chinese consul at the port of departure" used in Article II of the convention between the United States and China, proclaimed March 17, 1894, means the consul who represents the Chinese Government at the place where the laborer leaves the United States. 21 Op. 357. 19. Same. — The words "port" and "land," used in said treaty, do not limit the right to return to such Chinese as travel by sea. lb. 20. Same — From what ports Chinese should leave and at what ports return. — It is necessary for Chinese laborers to leave this country at a place which is a port and is within the jurisdiction of a Chinese consul, and that they should return to it at a port of entry where there is a collector, but as they have 18456—08 31 the right to go and return by land, these places need not be seaports. lb. 21. Same — Article II — Chinese return certifi- cates of disability — By whom issued. — Article II of the convention with China of December 8, 1894 (28 Stat. 1219), abrogates that portion of section 7 of the act of September 13, 1888 (25 Stat. 476), which requires a returning Chi- nese 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 oi 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 certifi- cate of disability shall b« issued by the Chi- nese consul at the port of departure from this country. 23 Op. 545. 22. Same — Article II — Certificate of disabil- ity. — As heretofore held by this Department (21 Op. 357; 23 Op. 545), Article II of the treaty with China of 1894 displaced the pro- visions of section 7 of the act of 1888 (25 Stat. 476), with regard to the certificate of disabil- ity which must be presented by a registered Chinese laborer returning to the United States after an absence of more than one year. 24 Op. 544. 23. Same — Article II — Returning Chinese la- borer. — The "additional period" of one year provided by Article II of the convention of December 8, 1894, between the United States and China (28 Stat. 1210) beyond the period in which a registered Chinese laborer is re- quired to return to this country, is only for such time as the disability therein mentioned continues, the extreme limit of such exten- sion under any circumstances being one year. 25 Op. 48. 24. Same. — The expiration of the treaty of December 8, 1894, with China will in no way affect the validity of the laws now in force relating to Chinese immigration. 25 Op. 137.. 25. Same.— The.act of April 29, 1902 (32 Stat. 176), reenacting, extending, and con- tinuing in force for a period of ten years all laws relating to the exclusion of Chinese not inconsistent with treaty obligations, must be construed with reference to treaty obligations existing between the United States and China at that time, and not with reference to treaty obligations which may exist at a future time. So construed, only such laws as were in con- 482 TEEATIES AND CONVENTIONS, II, b, c, d, e, f, g. flict with treaty obligations at the time of its passage, were not reenacted or extended. lb. 26. Same — Treaty of July 28, 1868 (16 Stat. 73$) — Chinese exclusion. — The treaty with China of 1868, as amended by the treaty of 1880, was in part suspended by the terms of the treaty of 1894 for a period of ten years, at the end of which time (China having given notice of its final termination) the treaty obligations between the United States and that Empire will be the same as they were immediately before the taking effect of that treaty. lb. 27. Same. — Only such obligations as arose out of the treaties with China were referred to s by the language used in the act of April 29, 1902. lb. c. France. 28. 1853, February 23, Article VIII.— The word "execution" in article 8 of the conven- tion with France of February 23, 1853 (10 Stat. 996), is obviously used in the sense of performance. 18 Op. 257. d. Germany. 29. 1871, December 11, Article XIV (17 Stat. 929) — Deserters from German vessels. — The question as to whether deserters, or alleged deserters, from German ships of war or merchant vessels must, under article 14 of the consular convention of 1871 between the United States and Germany (17 Stat. 929), be given up without the examination authorized by section 5280, Revised Statutes, upon the written request of a German con- sul, and the filing of certain papers named in that article, should be submitted to the proper court for a judicial determination. 25 Op. 77. e. Great Britain. 30. 1871.— Article XXIX of the treaty of Washington was terminated two years after the date of the giving of the notice provided for in Article XXXIII. 20 Op. 388. 31. Jurisdiction of offenses committed on the high seas. — No constitutional objection is per- ceived to a provision in the proposed consular convention between the United States and Great Britain, conferring upon the courts of each country jurisdiction of offenses commit- ted on vessels of the other on the high seas. 19 Op. 644. 32. Eegulation of fisheries. — The United States has power to enter into treaty stipula- tions with Great Britain for the regulation of the fisheries in the waters of the United States and Canada along the international boundary. 22 Op. 214. 33. The fact that such treaty provision an- nuls and supersedes the law of a particular State upon the same subject is no objection to the validity of the treaty. lb. i. Greece. 34. 1837, December 22, Article I.— The rights and privileges granted to the subjects of Greece by the first article of the treaty be- tween the United States and that country, of December 22, 1837, are guaranteed to them with all the force of law. 19 Op. 303. 35. The word "subjects," in the treaty, em- braces corporations, joint-stock companies, and other associations, commercial and industrial, constituted in conformity with the law of Greece. lb. 36. Corporations, — No legal objection exists to the Secretary of State instructing the United States minister at Athens to give the Government of Greece an assurance that such corporations and associations may exer- cise in the United States all the rights and privileges granted, as above, subject to the appropriate laws of the United States and those of the several States. lb. g. Italy. 37. 1871. — The tariff on statuary and other works of art (Rev. Stat., pp. 478, 479) consid- ered in connection with the treaty of 1871 between the United States and Italy. 17 Op. 223. 38. Same.; — That treaty makes no provi- sion, in letter or spirit, as regards the impor- tation, exportation, or prohibition of articles, the produce or manufacture of Italy, where dealt in by Italian citizens residing in Italy, excepting that such importations, etc., shall be upon as favorable a footing as like com- merce by English, French, German, or other foreign citizens whatsoever. lb. 39. Same. — In the administration of the tariff there has been due observance of the legal rights of Italian citizens, arising either under said treaty or under statute provisions of Congress. lb. . TREATIES AND CONVENTIONS, II, h, i, j. 483 h. Mexico. 40. 1848, February 2, Article VII— Guada- lupe Hidalgo. — Article VII of the treaty of February 2, 1848, between Mexico and the United States, known as the treaty of Guada- lupe Hidalgo, is still in force so far as it affects the Rio Grande. 21 Op. 274. 41. Same. — The taking of water for irriga- tion from the Bio Grande above the point where it becomes the boundary between the United States and Mexico is not prohibited by said treaty. lb. 42. Same. — Article VII is limited in terms to that part of the Rio Grande lying below the southern boundary of New Mexico, and ap- plies to such works alone as either party might construct on its own side. lb. 43. Same. — The only right the treaty pro- fessed to create or protect with respect to the Rio Grande was that of navigation. lb. 44. Same. — Claims against the United States by Mexico for indemnity for injuries to agri- culture alone, caused by scarcity of water re- sulting from irrigation ditches wholly within the United States at places far above the head of navigation, find no support in the treaty. lb. 45. Same — Article XXI. — A former citizen of the United States, who in 1889 expatriated himself and became a citizen of Mexico, can not invoke Article XXI of the treaty of Guada- lupe Hidalgo for an arbitration as against an act of this Government done while he was a citizen thereof. 20 Op. 118. i. Prussia. 46. 1828, May 1.— The "most-favored- nation clause " in the treaty of May 1, 1828, between the United States and the Kingdom of Prussia is not violated by paragraph 608 of the tariff act of August 27, 1894 (28 Stat. 544), which lays a discriminating duty on salt im- ported from a country which imposes a duty on salt exported from the United States. 21 Op. 80. 47. Same — When operative. — That treaty is to be taken as operative as respects so much of the German Empire as constitutes the Kingdom of Prussia, lb. j. Spain. 48. 1898, December 10— Article XIII (30 Stat. 1758). — 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, notwithstand- ing American law gives no identical rights. 22 Op. 617. 49. Same. — The laws of Spain concerning industrial property were contemplated by the framers of article 13 in providing protection for Spanish rights. lb. 50. Same — Return of Spanish soldiers cap- tured. — Under the treaty with Spain the United States obligated itself to convey from the Philippine Islands to Spain only such Spanish soldiers as were actually made pris- oners of war either by the United States or by the insurgents. 22 Op. 383. 51 . Troops remaining under arms, under the control and direction of Spanish officers, are to be removed at the expense of the Spanish authorities. lb. 52. Same — Articles V and VI — Repatriation of Spanish prisoners. — The treaty of Paris of December 10, 1898 (30 Stat. 1756), contem- plates and provides for the repatriation by the United States of all Spanish prisoners cap- tured and held by them, or held and released by the insurgents in Cuba and the Philip- pines — soldiers and civilians — men, women, and children, and whether their detention was originally voluntary as to them or other- wise. 23 Op. 9. 53. Same — Contract with Ceballos & Co. — 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. lb. 54. Same — Construction of treaty — Pay- ment. — The United States had the right to adopt, as against itself, as liberal a construc- tion of that treaty as it chose; and the com- pany 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 484 TREATIP;S AND CONVENTIONS, II, j, k, III, IV. United States exceeded his authority by ten- dering for transportation some persons who, as afterwards decided, did not come within the purview of that treaty. lb. 55. Same — Article IX — Citizenship of Span- iards in Cuba. — 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 ratifica- tion of that treaty, was, in contemplation of the treaty, a Spanish subject at the time of his death. 23 Op. 93. 56. Same — Article XI — Alien law — Admin- istration. — 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 ajiens 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 aSpanish subject, who died intestate at Baez, Santa Clara, Cuba, July 2, 1899. lb. 57. Same. — The coastal waters, harbors, and other navigable waters of the island of Porto Kico 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 ex- changed until after the passage of that act. 23 Op. 551. 58. Same. — The relinquishment of sover- eignty over and the cession of domain by Spain to the United States of the island of Porto Pico by the treaty of Paris of April 11, 1899 (30 Stat. 1754), must be regarded as im- mediate and absolute from the date of its sig- nature, subject only to the possibility of a failure of ratification, lb. 59. Same. — While as respects performance of conditions of a grant by a private grantee, the date of a treaty is the date of its final rati- fication, so far as it affects the relations of the sovereigns concerned, it operates, when rati- fied, from the date of its signature, lb. 60. Same— Article VIII (30 Stat. 1758) — Cession of Guam — Public domain. — Under Ar- ticle VIII of the treaty of peace with Spain of 1898, the United States acquired by"cession a valid title to lot 144, city of Agana, island of Guam, which at that time belonged to the Spanish Government. 25 Op. 242. k. Sweden and Norway. 61. 18£7, Article VIII— Shipping. — No warrant is to be found in Article VIII of the treaty of 1827 with Sweden and Norway, for the claim that the shipping of that power is entitled to the benefits of the act of June 26, 1884 (23 Stat. 57), "to remove burdens on the American marine and to encourage the American, carrying trade," without submit- ting to the conditions imposed by that act. 18 Op. 382. III. With Indians. See Indians, XIV. IV. Conventions. 62. With Great Britain — Jurisdiction of offenses committed on the high seas. — No con- stitutional' objection is perceived to a pro- vision in the proposed consular convention between the United States and Great Britain conferring upon the courts of each country jurisdiction,of offenses committed on vessels of the other on the high seas. 19 Op. 644. 63. Patents and trade-marks. — The second article of the convention entered into between the United States and certain other nations, in regard to patents and trade-marks, pro- claimed by the President on June 7, 1887, is not self-executing ; and Congress havingpassed no law for its execution, it can not be deemed to extend the privilege of filing caveats, pre- liminary to applications for patents, granted by said section 4902 to the subjects and cit- izens of the nations parties to said conven- tion. 19 Op. 274. 64. A treaty of the United States is the supreme law of the land, but there is a class of treaties which, without legislation, does not become self-executing as a rule of municipal law. lb. (276). 65. Postal conventions.— The postal con- vention with Canada and section 15 of the act o£ March 3, 1879 (20 Stat. 359), were not intended to affect existing tariff laws. 17 Op. 159. TREATIES AND CONVENTIONS, IV— TUTUILA. 485 66. Same. — Under section 398, Revised Statutes, the Postmaster-General has power, with the approbation of the President, to con- clude a postal convention with a foreign country for admission to and transmission through the mails exchanged with such foreign coun- try of parcels of mail matter of either class exceeding 4 pounds in weight. The limita- tion as to weight of mail packages'in section 3879, Revised Statutes, applies only to do- mestic mail service. 19 Op. 39. 67. Same. — Section 398, Revised Statutes, relates to foreign, and section 3879 to do- mestic mail service. 19 Op. 39, 42. 68. Same — Power of Postmaster-General to negotiate and conclude. — The provisions of section 398, Revised Statutes, authorizing the Postmaster-General, with the advice and consent of the President, to negotiate and conclude postal treaties and conventions be- tween the United States and foreign coun- tries, are not in conflict with that part of sec- tion 2, Article II, of the Constitution, giving the President ' ' power by and with the advice and consent of the Senate to make treaties," etc. 19 Op. 513. 69. Same — Constitutional Interpretation. — The Federal legislation and practice in this regard from 1792 to date sanction an inter- pretation of the Constitution different from that which might be reached by the ordinary rules of construction were the question a new one. lb. 70. Same. — The right of Congress to vest in the Postmaster-General power to conclude con- ventions with foreign governments for the cheaper, safer, and more convenient carriage of foreign mails may be derived from the au- thority given that body in the seventh clause of sectibn 8, Article I, of the Constitution, to establish post-offices and post-roads. lb. 71. Same. — Sections 396, 4012, and 4028, Revised Statutes, are constitutional and valid. lb. 72. Same. — Opinion of Attorney-General. Garland of June 30, 1887 (19 Op. 39), as to the power of the Postmaster-General to enter into conventions with foreign governments touch- ing the regulation of foreign parcels post, cited with approval. lb. 73. Same. — The registry provisions of the Postal Convention of Washington are not oper- ative in or as to the United States, but its lia- bility is only that imposed by the act of 1897 and the rules of the Post-Office Department made in pursuance thereof. 22 Op. 363. 74. Same. — Until Congress shall otherwise provide with reference to indemnity for lost registered mail the Postmaster- General may either pay the limited indemnity on foreign matter, as provided in the act of 1897, irre- spective of what other countries may do, or so amend the rules of the Department as to limit the indemnity to lost registered matter originating in and addressed to a place within the United States. lb. Treaty of Washington. See II, e. Treaty of Gaudalupe Hidalgo. See II, h. TE00PS. Employment of, in Enforcing the Laws. See Army, I, a. TRUST FUNDS. School farm lands — Power of the Secretary of the Treasury to invest proceeds of sale of, in other than United States bonds. — The in- vestment of trust funds (money derived from the sale of school farm lands) made by the Secretary of the Treasury, under the provi- sions of the act of March 3, 1873 (17 Stat. 600), and section 3 of the act of May 7, 1878 (20 Stat. 58), in 5 per cent bonds of the United States, which have since been called for payment, may be continued by him in the same bonds at 3£ per centum, in accordance with the circular of the Treasury Department of May 12, 1881, or he is at liberty to pay off such bonds and invest the proceeds in any other bonds of the United States for the benefit of the trusts mentioned in the provi- sions aforesaid. 17 Op. 217. See also Indians, V, c. TUTUILA. Duties on goods coming from that island. — 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 *486 TUTUILA— UNITED STATES, I. within the meaning of our tariff laws, and goods coming into the United States from that island are not subject to duty. 23 Op. 629. See also Guam, 7. TWENTY-EIGHT-HOUR LAW. See Railroads, 69, 70. TYBEE ISLAND, GA. See Contracts, 82; Reservations and Parks, 19. ULTRA VIBES. See Corporations, 3. UNGOMPAHGRE UTE INDIANS. See Indians, 32. UNEXPENDED BALANCES. Of Appropriations. See Navy, 23, 209. UNDERVALUATION. See Customs Law, 413-416. UNION PACIFIC RAILROAD. See Railroads, II, d; III, 50, 51. UNION AND CENTRAL PACIFIC RAILROAD COMPANY. Sinking Fund. See Railroads, II, d. UNION RIVER LOGGING RAILROAD COM- PANY. See Railroads, 45^47. ' U. S.' Device on Firearms. See Firearms. UNITED STATES. I. Authority, Jurisdiction, Power, 1-35,' II. Officers, 36H12. III. Rights and Duties, 43-46. IV. Obligations and Liabilities, 47-63. V. Lands of, 64-88. VI. Property of, 89-99. VII. Offenses Against, 100. VIII. Actions, 101-106. IX. Contracts and Supplies, 107. I. Authority, Jurisdiction, Power. 1. Protection of fishery rights. — The waters of Lake Champlain, within the limits of the United States, being partly in New York and partly in Vermont, the right to take fish therefrom depends solely upon the laws of the one or of the other of those States, accord- ing as the locus is within the boundaries of the one or of the other. The General Government can afford no relief where individual rights are interfered with. 17 Op. 74. See also Seal Fisheries. 2. Injunction — Injury to improvements in navigable waters. — The United States may avail itself of the remedy by injunction to protect from injury improvements in naviga- ble waters made under authority of Congress. 17 Op. 279. 3. Hours of labor. — Congress may fix the hours of labor upon all the works of the United States, wherever conducted, and make the law binding upon the officers of the United States and, through the agency of contracts, upon all contractors with the United States. 25 Op. 442. See also Panama, 9-11, 15, 16. UNITED STATES, I. 487 4. Exercise of official power — Authority for. — As a general rule, when it is sought to exercise any official power or function, ex- plicit authority must be found in the law; but the application of this doctrine is not neces- sarily universal, and depends upon the char- acter and relations of the particular power and all the germane circumstances. 25 Op. 98. 5. The powder officer for the harbor of Nor- folk, Va. , appointed under the act of March 3, 1880, of that State, has no authority over powder belonging to the, Federal Government, and the United States is not liable for any charge for services performed by him under the authority of that law. 25 Op. 234. 6. Voluntary or compulsory service. — The United States have the right to prescribe the rules and conditions under which voluntary or compulsory services are to be rendered by citizens. 21 Op. 327. 7. " The power to regulate commerce is one of the instances in which the Constitution oper- ates proprio vigore, and its effect as to the navigable waters of the Union was to estab- lish them as highways, open to the free and unrestricted use of all persons engaged in foreign or interstate commerce. To secure this great end was one of the inducements to the States to surrender control over their waters." 18 Op. 405. 8. "Whether, then, Congress has spoken or not spoken,_the duty of the United States towards commerce in its several departments of traffic, intercourse, and navigation is equally imperative." lb. 9. The power of the United States to regu- late commerce with foreign nations and among the several States includes the right to regulate the use of all the means and instrumentalities used in commerce, whether on sea, river, har- bor, or land, and entirely irrespective of whether a State has attempted to regulate the same matter or not. 22 Op. 501, 646. 10. Same. — This power 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. 22 Op. 646. 11. The regulation of commerce and naviga- tion being entirely within the control of Con- gress, there is no authority for an Executive Department to make or enofrce rules or regu- lations relative to the registry of vessels or kindred matters connected with such sub- jects. 22 Op. 566. 12. Wireless telegraphy — Regulation of commerce. — The transmission of messages by wireless telegraphy is commerce, and the power of the United States to regulate com- merce and to preserve the territorial integ- rity of this country does not depend upon the means employed, but upon the end attained. 24 Op. 100. 18. Same — International agreement. — 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. lb. 14. Cables. — No one has a right to land a foreign cable upon our shores and establish a physical connection between our territory and that of a foreign state without the consent of the Government of the United States. 22 Op. 13. 15. Same. — If a landing has been effected without the consent or against the protest of this Government, respect for its rights and compliance with its- terms may be enforced by applying the prohibition to the operation of the line unless the necessary conditions are accepted and observed. lb. 16. Same. — The President has the power, in the absence of legislation by Congress, to con- trol, the landing of foreign submarine cables on the shores of the United States. Ho may either prevent the landing or permit it on conditions which will protect the interests of this Gov- ernment and its citizens. lb. 17. Same. — The grounding of a cable upon the soil of the United States, with the intention of connecting our territory with foreign ter- ritory by that means, is a matter which is under the sovereign control of the Government, to be exercised by Congress, but in the absence of Congressional action to be regulated and controlled by the executive department of the Government. 22 Op. 408, 514. 18. Same. — The grounding of a cable upon the island of Cuba to connect it with a foreign country can not be done and maintained in opposition to the law of the Government, which exercises sovereign power in the is- land. 22 Op. 514. 19. Same. — The authorities of the United States have full power, in their discretion, to prevent by all necessary means the grounding 488 UNITED STATES, I. of a cable in Cuba intended to connect that is- land with the United States or with any other country. lb. 20. Same. — The Secretary of War is justified in using force to remove or disrupt any such cable which may be laid in disregard of his instructions and against his will. lb. See also Cables. 21. Military roads built by the United States under the authority of Congress, though within a State, are not subject to State, mu- nicipal, or private control or interference in any way. 23 Op. 283. 22. Jurisdiction of State harbor commis- sioners — United States Navy-Yard at Norfolk, Va. — The State of Virginia, through its legis- lature, 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 au- thority to require the submission to and ap- proval 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. 24 Op. 50. 23. Instrumentalities of the National Gov- ernment — Belease of cruiser Galveston from possession of State court. — The Attorney- General defers answering the question as to the right of the Secretary of the Navy, under the direction of the President, to employ the military forces of the Government to obtain possession of the cruiser Galveston, in course of construction under contract with the Wm. E. Trigg Company, of Richmond, Va., which company has gone into the hands of a receiver appointed by the chancery court of Virginia, for the reason that a method of procedure in such cases is provided for by section 3753, Revised Statutes, and occasion for the exer- cise of this power is not likely to arise if the stipulation authorized by that section is filed. 24 Op. 679. 24. Same. — No instrumentality of the Federal Government may be taken into custody and held under any adverse authority whatever. This applies as well to an instrumentality in process of creation as to one already com- pleted, lb. 25. Same. — The United States is entitled to the undisputed possession and control of its property and of property in which it is interested to the extent of that interest, and this possession and control are exempt from the process of every court. lb. 26. Same. — Theword "stipulation "as used in section 3753, Revised Statutes, denotes an undertaking in the nature of bail, and is analogous to the "stipulation for value," under present admiralty practice, the measure of the Government's obligation being limited in section 3754, Revised Statutes, to "the value of the interest of the United States in the property in question." lb. 27. Wharfage charges on property of the United States. — The imposition of a toll or charge by the State harbor commissioners of California on merchandise, 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 ren- dered, the Government is not entitled to such service free of toll. 23 Op. 299. 28. Such a toll or charge is not a tax upon or in respect of interstate traffic, nor a tax upon the instrumentalities and agencies of the Gen- eral Government, within the prohibitions of the Constitution, but is a charge for the use of property and facilities furnished the Gov- ernment by the State of California. lb. 29. Martello towers near Fort Taylor, Fla. — The United States can hold possession of the sites of the advanced martello towers, outworks of Fort Taylor, Fla., which were erected during the rebellion, and exclude all intru- ders therefrom, whether they claim to be owners or not, and no proceedings to oust the United States from such possession are main- tainable. 17 Op. 6. Note. — But see United States v. Lee (106 U. S. 196). 30. Same. — Advised, that if the title to such land has not been acquired by the Govern- ment, but is held by individuals, and it is deemed expedient to permanently retain pos- session thereof for military purposes, applica- tion be made to Congress by the War Depart- ment for authority to acquire the same, instead of forcing the owners to go there for relief. lb. 31. Property seized for war purposes. — The United States had authority to take possession of and use real estate during the period of the UNITED STATES, I, II. 489 war for war purposes, but they did not have authority or power, by any summary proceed- ing, to divest the title of the owner, nor the power to retain possession beyond the period during which the occasion for the taking con- tinued. 21 Op. 382. 32. Same. — A proceeding to ouster the Gov- ernment from such possession, while not main- tainable strictly against the United States, may be maintained against the individuals in possession of the premises. lb. 33. Same. — The United States having taken possession and still retaining the same, such possession can not be surrendered by the officers of the Government without authority from the Secretary of War. lb. 34. Same. — If the United States have aban- doned such real estate and the lawful owner has entered and taken possession, his posses- sion is lawful and can not be disturbed. lb. 35. Same. — If the United States is in posses- sion of land taken during the war for war pur- poses, and is forcibly ejected or ousted, even by the lawful owner, such possession is unlawful and should be restored to the United States. lb. Power op the United States over Naviga- ble Waters, etc. See Navigable Waters, I,b. II. Officers. 36. Additional compensation — Clerk desig- nated to take charge of erection of public build- ing. — It was competent for the Secretary of War, under the act of June 16, 1880 (21 Stat. 259, 260), providing for the construction of a building at the corner of Seventeenth and F streets, Washington, D. C, to designate a clerk from the office of the Chief of Engineers to take charge aud superintend the work, and to compensate him from the fund appro- priated, his salary and services as clerk hav- ing been suspended during the period. The case is not within section 1765, Revised Stat- utes, there being no "additional pay, extra allowance, or compensation" received by said clerk. 17 Op. 321. 37. Extra compensation. — The elements nec- essary to justify the payment of compensation to an officer of the Government for additional services are: That they shall be performed by virtue of a separate and distinct appoint- ment authorized by law; that such services shall not be services added to or connected with the regular duties of the place he holds, and that a compensation whose amount is fixed by law or regulation shall be provided for their payment. 19 Op. 121. 38. For preparation of the Postal Laws and Regulations.— The act of March 3, 1891 (26 Stat. 880), appropriating money for a new edition of the Postal Laws and Regulations does not authorize the Postmaster-General to make an allowance to an officer of his De- partment whom he may designate for the preparation of that volume. 20 Op. 221. 39. Same. — Section 1765, Revised Statutes, and section 3 of the act of June 20, 1874 (18 Stat. 109), prohibit an officer of any branch of the Government from receiving additional or extra compensation for any service ren- dered by him, if the service so rendered have any affinity or connection with the duties of his office, unless such compensation is " author- ized by law, and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation." 22 Op. 223. See also United States Attorneys; Office and Officers, VII; and Compensation. 40. Witness fees. — Government employees are not entitled to witness fees when sub- poenaed to testify in behalf of the United States, but are entitled to their expenses. When subpoenaed by a private party, they may demand and accept witness fees. 21 Op. 263. 41. Government employees — Influencing legislation in their own interests — President's order. — The order of the President of Janu- ary 31, 1902, forbidding all officers and em- ployees of the United States to influence leg- islation by Congress in their own interest, prohibits the Navy-Yard and Arsenal Em- ployees' Protective Association, of Washing- ton, 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 associa- tion. 23 Op. 637. 42. Compulsory jury duty. — The question as to the right of a State judge to compel an employee of the Federal Government to per- form jury duty, not decided, as no such serious occasion is shown to have arisen as 490 UNITED STATES, III, IV. would justify the Attorney-General reviewing the ruling of a State judge. 20 Op. 618. See also Executive Departments ; the sev- eral Executive Departments individually; Army; Navy; Office and Officers, and the various officers under their several titles. Official Bonds. See Bonds II; also Surety and Surety Companies. III. Bights and Duties. 43. The right of the United States in the manufacture of a patented breech mechanism under a license which reads "to manufac- ture * * * guns containing the patented improvements and to use and sell the same," is confined to the right to manufacture in its own shops, and does not include contracting with other parties therefor. 22 Op. 10. 44. Same. — From the right to use a patent the right to make or have made may be im- plied; but this implication can only be made when the right to use is unrestricted. lb. 45. Eetention of funds in dispute. — Where funds in the hands of the Secretary of War are involved in a controversy between par- ties, pending under different forms of proce- dure in different jurisdictions, they should be retained by him until a final adjudication of the whole matter by the tribunal to which • the parties may last resort. 21 Op. 447. 46. Bonds of indemnity required of certain officers. — Where loss may result to the Gov- ernment or its officers from the use by con- , tractors of patented inventions, or other prop- erty of third persons, a bond of indemnity should be required. 21 Op. 97. For rights and duties in regard to any par- ticular subject, see that subject. Contracts. See Contracts. Duty to Protect Indian Allottees. See Indians, III, a. IV. Obligations and Liabilities. 47. A canceled postage stamp is not an obli- gation or security of the United States within the meaning of section 5430, Revised Statutes. 20 Op. 691. ' 48. An uncanceled postage stamp is an obli- gation or security of the United States within the meaning of- section 5430, Revised Stat- utes. 20 Op. 697. 49. The board bills of Chinese boys remain- ing at Richford, Vt., after they are, by the authority of the Treasury Department, denied the privilege of coming within the United States, should not be paid by the United States pend- ing their subsequent arrest by the United States . marshal and a hearing thereafter under the Chinese exclusion acts, as they are neither under detention nor arrest. 22 Op. 51. 50. Same. — Detention by an officer is in ef- fect an arrest, and a person under detention or arrest must be furnished subsistence at the expense of the Government making the ar- rest, lb. 51. Not liable for recall of warrant issued to an attorney not entitled to receive it. — The Secretary of the Treasury may recall his ac- tion in delivering a warrant to an attorney not entitled under the law to receive it, and may take necessary measures, by issuing a new warrant or otherwise, to pay the money involved to the party for whom it was appro- priated by Congress. The Government does not become liable to the attorney for the amount of his fee for recovering the. claim. 25 Op. 279. 52. Transportation orders fraudulently is- sued — Liability of the United States. — 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 per- sons not entitled to them, and railroad com- panies 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. 23 Op. 161. 53. The owners of an American vessel wrecked on the South Pacific Ocean, whose master paid the United States consul at Apia for clothing supplied the crew, out of the wages due the crew, they having subsequently re- covered judgment for their wages in a United States court, have no valid claim against the United States for the money paid by the con- sul. The remedy, if any, is against the con- sul and the sureties on his bond. 19 Op. 22. UNITED STATES, IV, V. 491 54. Same. — The United States is not liable to its citizens for the consequences of the wrongs or shortcomings of its officers. 26. (24.) .55. Mechanic's lien. — Assuming that the title to the land on which a dry dock is built, and the exclusive jurisdiction over it, are in the United States, the mechanic's lien laws of South Carolina do not operate thereon, and claims under such laws may be ignored in settlements with contractors. 22 Op. 18. 56. The obligations of the United States with reference to Cuba are merely those which arise from the fact that it is a temporary mili- tary occupant. 22 Op. 384. 57. Same. — The United States Government is not the successor of the Government of Spain in Cuba, but merely an intervening power ar- ranging the succession, and as such it can not he held to have assumed the obligations aris- ing from or growing out of concessions grant- ed or contracts entered into by the Spanish Government in Cubapreviousto its surrender of sovereignty therein. lb. See also Cuba. 58. The ordnance and other stores belonging to the several States, taken or accepted by the Government for use in the war with Spain, should not be returned in kind, but should be paid for at the price agreed upon, or in the absence of an agreement, what they were worth. 22 Op. 372. 59. Same. — In the absence of any of the appropriation for the maintenance of the militia in the several States, or of arms, ord- nance stores, etc., purchased with it, the Government is not required or empowered to issue to the several States stores in kind to replace such arms, ordnance stores, etc., as were exhausted, consumed, or impaired by use in the war with Spain; nor can it make compensation for such stores, as they were the property of the United States, having been originally purchased by the Federal Government. lb. 60. The laches or mistakes of officers of the United States in regard to the ownership of land upon which Government buildings and improvements are erected, is no bar to the right of the United States to remove or sell such buildings, etc. 20 Op. 284. 61. Telegraph messages. — Where the Gov- ernment has the power to send telegraph messages either by a bond-aided railway's telegraph system or by an independent com- pany system located over the bond-aided railway company's route, and delivers them to the independent company's system with- out requesting that they be forwarded over the bond-aided railway route, payment must be made at the rate prescribed by ' the Postmaster-General. 20 Op. 581. 62. Same. — It is not improper to delay pay- ment of the claim until the case involving the point now soon to be argued in the Supreme Court of the United States is decided. lb. 63. Construction of levees along Mississippi Biver. — The United States will not render itself liable in damages to persons owning property along the Mississippi Eiver on whose land it proposes to build levees, for the reason that the State of Louisiana is the owner of a servi- tude or interest in the lands of all riparian owners along that river for the purpose of building levees to restrain its waters within definite limits during flood times, and has surrendered to the United States for that pur- pose its servitude in the lands in question. 20 Op. 625. Liability for Use of Article Patented by an Officer or Employee of the United States Government. See Patents, 6-8. Y. Lands of. 64. Jurisdiction of a portion of Holston street, Knoxville, Tenn. — No reason exists re- quiring the United States to disclaim the existence of any power or jurisdiction to in- terfere with the acts of a street railway com- pany in constructing and operating its lines on a portion of Holston street, Knoxville, Tenn. , which street the United States is sup- posed to control by virtue of certain expendi- tures authorized by the act of July 28, 1886 (24 Stat. 159), by an ordinance of that city, and by a grant, or attempted grant, by the county road commissioner of the county wherein said street is situated. 20 Op. 539. 65. Lands of the United States within the limits of a State are not subject to State laws, except there be in the act of its legislature, under which jurisdiction was ceded to the United States, a reservation of concurrent jurisdiction to the State. 21 Op. 18. 66. The jurisdiction of this nation within its own territory is necessarily exclusive and 492 UNITED STATES, V. absolute. It is susceptible of no limitation not imposed by itself. 22 Op. 13. 67. Cessions reserving concurrent jurisdic- tion. — The certificate of the governor of Wiscon- sin, in conformity to section 2, chapter 1, of the Revised Statutes of 1878 of the State, con- senting to the purchase of certain land by the United States, provided the State shall for- ever retain concurrent jurisdiction over any such place to the extent that all legal and military process issued under the authority of the State may be executed anywhere on such place or in any building thereon cr any part thereof, and that any offense against the laws of the State committed on such place may be tried and punished by any competent court or magistrate of the State, to the same extent as if such place had not been pur- chased by the United States, does not satisfy the provision of section 355, Revised Statutes of the United States. 20 Op. 611. 68. Same. — A State statute that the United States ' ' shall have the right of exclusive leg- islation and concurrent jurisdiction" is not a compliance with an act of Congress for the erection of a building which provides for ex- clusive jurisdiction save as to the administra- tion of the criminal laws of the State and the service of civil process therein. 20 Op. 242. 69. Same. — A State statute that the United States shall have over land to be taken for a public building "the right of exclusive legis- lation and concurrent jurisdiction together with the State of Louisiana" is not a compliance with the act of April 26, 1890 (26 Stat. 67), requiring a cession to the United States of jurisdiction over the site selected for all pur- poses except the administration of the crimi- nal laws of said State. 20 Op. 298. 70. Same — Land acquired by United States — Exclusive jurisdiction. — 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. 23 Op. 254. 71. Same — Service of State process. — An act of the State of Georgia, passed December 22, 1808, provided that from and after the pas- sage of that act the Congress of the United States shall have and maintain jurisdiction in and over all the lands they have acquired, or may hereafter acquire, for the purpose of erecting forts and fortifications in that State. In 1875 the United States acquired by pur- chase 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. lb. 72. Same. — The act of Georgia of March 2, 1874, can have no application to this reserva- tion, 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 exclu- sive of all State authority. lb. 73. Same — Reservations in State cessions of lands to the United States. — The act of Lou- isiana, approved June 30, 1892, ceding juris- diction to the United States over certain lands in that State for public purposes, and providing for the purchase and condemna- tion thereof, satisfies the requirements of section 355, Revised Statutes, and no further cession of jurisdiction is legally required. 24 Op. 617. 74. Same. — The settled construction of the Department of Justice is that the "consent" of the legislature of a State to the purchase of lands therein by the United States, required by section 355, Revised Statutes, must be free from any conditions or reservations inconsistent with the exercise by Congress of "exclusive legislation" thereover; but the reservation by a State of the right to serve and execute its civil and criminal process in the place ceded has always been held permissible. lb. 75. Land acquired by condemnation — Tax liens. — Where the title to land in Cincinnati, Ohio, was acquired by the United States by condemnation, and jurisdiction over the land so acquired was ceded to the United States by the State: Held, That taxes theretofore assessed upon the land by the city authorities, and remaining unpaid, ceased thereafter to be a lien on the land, and did not become a proper charge against the United States, the State having virtually relinquished its lien when it parted with jurisdiction. 17 Op. 44. UNITED STATES, V, VI. 493 76. Same. — Title to the additional ground authorized to be purchased by the act of July 10, 1886 (24 Stat. 141) , for the site of a public building to be erected in Williamsport, Pa., may be acquired by the institution of condemna- tion proceedings under the laws of the State of Pennsylvania, in case no agreement for the purchase thereof can be made with the owner. 18 Op. 484. 77. Same. — Under an act of the legisla- ture of New York, passed April 2, 1885, a valid title to certain lands situated in the cities of Troy and Auburn, in that State, which have heretofore been selected for the sites of Gov- ernment buildings authorized by Congress to be erected there, may be acquired by the United States by condemnation proceedings in- stituted in the State court pursuant to its provisions. 18 Op. 352. 78. Same. — The acts of Congress of March 8, 1885 (23 Stat. 348 and 382), providing for the purchase of such sites, may properly be taken to authorize the acquisition thereof in any mode which is in conformity to the laws of the State. Hence where, by a law of the State, the property may be condemned and title thereto acquired under the eminent do- main power of the State, recourse may be had as well to this mode of acquisition as to any other under the authority conferred by those acts. lb. 79. Land acquired by condemnation. — The Secretary of War is authorized by the act of March 3, 1893 (27 Stat. 600), and the laws of Pennsylvania of 1889 (pp. 106-108), to insti- tute condemnation proceedings to acquire cer- tain land, being a portion of the battlefield of Gettysburg, over which a trolley railroad is being constructed, and may apply to the court for an injunction to restrain the construction and operation of said proposed railroad. 20 Op. 628. 80. Same. — Under and by virtue of con- demnation proceedings in the proper court for acquisition of certain lands on Tiger Island, Florida, in which the court directed the United States marshal, upon payment of amounts awarded and the sums taxed as costs, to make and deliver to the United States a good and sufficient deed of the premises, held that on compliance with this order a valid title to the lands will rest in the United States. 20 Op. 431. 81. Lands acquired by donation. — The Sec- retary of the Treasury, without further au- thority than the act of March 3, 1891 (26 Stat. 1094), may accept a voluntary grant of land from the city of Saginaw, Mich., to be used for the purposes of a public building. 21 Op. 455. 82. Same. — Hn legislation of Congress is needed to enable the United States to take and hold land received through voluntary gift, devise, or grant. lb. 83. Same. — The United States in their sover- eign capacity have power to acquire and hold real property wherever and whenever such property is needed for the use of the Govern- ment in the execution of any of its powers. lb. 84. Same. — Such property may be acquired by any means by which natural or artificial per- sons may -acquire property subject in certain cases to the local laws of the States. lb. 85. Same. — The Secretary of War has no power to accept for the Government a donation of a building to be erected upon a military reser- vation, where the acceptance is accompanied by a limitation for its use in perpetuity by Roman Catholics. 21 Op. 537. 86. Title.— Tax receipts are sufficient evidence that the land is discharged and redeemed from a tax sale and taxes, and a deed to such land held sufficient to convey to the Govern- ment a valid title. 20 Op. 430. 87. — Title to lot 144, city of Agana, Guam. — Under Article VIII of the treaty of peace with Spain of 1898, the United States acquired by cession a valid title to lot 144, city of Agana, island of Guam, which at that time belonged to the Spanish Government. 25 Op. 242. 88. Disposal of Dragoon Barracks lot, St. Au- gustine, Fla. — The piece of land known as the Dragoon Barracks lot, in St. Augustine, Fla., and the buildings thereon, being the property of the United States, may be appraised and disposed of in the manner provided by the second and third sections of the act of July 5, 1884 (23 Stat. 103). 18 Op. 543. See also Public Buildings; and Public Lands. VI. Property of. 89. Stone taken from bed of Lake Huron, Michigan, in front of private property and de- livered on Government works. — Semble that the 494 UNITED STATES, VI, VII, VIII. proprietors of land adjacent to Lake Huron, Michigan, have no legal right to stone taken from the bed of that lake, in front of their property, by other persons, and delivered by the latter on the Government works, the ownership of such bed being apparently in the State. Under the circumstances pre- sented, the claim of such proprietors for the stone so taken and delivered may properly be resisted by the United States officer in charge of the works. 17 Op. 59. 90. The United States has aright to remove or sell buildings or improvements erected or made on what was supposed to he the public domain, but which afterwards proved to be covered by a Mexican land grant, and had been sub- sequently patented by the owner, the laches or mistake of the Government officers in re- gard to the ownership of the land being no bar to the Government's right in the prenr- ises. 20 Op. 284, 420. 91. Same. — An application should be made to Congress to authorize said disposition of the buildings, etc., as neither the President nor the Secretary of War has. authority to dispose of the same. lb. 92. Same. — Where the Government ex- pends large sums of money on improvements erected on what is supposed to be the public domain, but which proves to be the subject of a prior grant, the title to the buildings so erected vests in the United States. 20 Op. 284, 603. 93. The Secretary of War is not authorized by the joint resolution of March 3, 1891 (26 Stat. 1 116) , to construct a portage railway at the Cascades, Oregon, and turn the same over after completion to the State of Oregon for operation on certain conditions. 20 Op. 93. 94. Same. — Snch an act would give the State of Oregon not merely a revocable license, but a vestage right to operate the railway and de- rive revenue therefrom, and consequently is beyond the power of the Secretary of War, not having been authorized by the resolution in question. lb. 95. The Secretary of War has no power to turn over Government property to States or in- dividuals, to be used for any purpose not au- thorized by some act of Congress. 20 Op. 96. 96. Public property can be subject to claims against it only when it is in the possession of the courts, by act of the Government, seeking to have its rights established. 21 Op. 19. 97. Goods imported by the United States — Free list. — Paragraph 385 in the free list of the act of August 27, 1894 (28 Stat. 537), ap- plies to articles purchased by the United States in foreign markets and thence imported for its own use, and does not cover articles in bond purchased from importers. Duties on such articles must be paid before delivery. 21 Op. 243. 98. A mechanic's lien can not be acquired upon property of the United States. 21 Op. 78. 99. Certain lathes and a crane. — Upon the statement of facts submitted : Advised that the right of the South Boston Iron Works to the possession and use of certain property (two lathes and a crane) belonging to the United States, derived under an agreement with the latter, dated January 21, 1885, has terminated, and that the right to the possession of the property is now in the United States exclu- sively. 19 Op. 73. See also Licenses. VII. Offenses against. 100. There are no common-law offenses against the United States. 20 Op. 590. For violations of the Customs Law, see ■ Customs Law VIII and IX. For violations of other laws, see appropriate headings. VIII. Actions. 101. The United States does not suffer itself to be sued without its consent. 21 Op. 19. 102. No injunction or action for damages for the infringement of a patent will lie against the Government. 21 Op. 96. 103. Proceedings to oust the United States from possession of real estate taken possession of and used during the war for war purposes, while not maintainable directly against the United States, may yet be maintained against the individuals in possession of the premises. 21 Op. 382. 17 Op. 6 concurred in. lb. 104. Suing a State for collection of certain bonds. — As a recourse to law on the part of the Secretary of the Treasury for the settle- ment and collection of certain bonds made and issued by certain States and owned by UNITED' STATES, VIII, IX— UNITED STATES ATTORNEYS. 495 the United States would involve the very grave act of suing States, and as Congress has had this question repeatedly before it and has not directed such a course, the Secretary of the Treasury should not institute any suit. 21 Op. 478. 105. Employment of counsel. — The Secre- tary of the Navy is not authorized in view of section 189, Revised Statutes, to employ special counsel in foreign countries to insti- tute suits in behalf of the United States for the purposes of recovering damages caused to war vessels of the United States, but should refer the matter to the Department of Justice for attention. 21 Op. 195. 106. Restoration to United States of title to public land erroneously certified. — The act of March 3, 1887 (24 Stat. 556), is mandatory, and makes it the duty of the United States, in case of an erroneous certification of land already covered by a homestead or preemp- tion entry, to bring a suit to restore title to the United States if the party to whom the land was erroneously certified after a prior certification does not give or procure a relin- quishment or reconveyance, 20 Op. 224. IX. Contracts and Supplies. 107. Purchase of.patented articles — Bond of indemnity. — When articles are to be bought for the Government, and it is doubtful whether officers of the United States in using them will or will not be exposed to suits for the infringement of a patent: Advised that a bond of indemnity to the Government be taken from parties who offer to furnish such articles, for the protection of the officers. 17 Op. 33. See also Contracts; Executive Departments, IV; The Several Executive Departments; Eight-Hour Law. Prosecution of Claims Against the United States by Former Officer of an Executive Department. See Executive Depart- ments, II, d. Officers and Employees. See Executive Departments. Quarantine. See Health and Quarantine. Railroads, Interest of United States in. See Railroads, II, a — Bond- Aided. Public Lands. See Public Lands. Reservations. See Reservations and Parks. Islands of. See Each Individual Island. Charitable Institutions, District of Colum- bia. See District of Columbia, V. United States Courts. See Courts, II. Claims of or Against the United States. See Claims. Notes, Currency, Coinage, etc. See Treas- ury Department, V. Bonds. See Treasury Department, VI. Interest. See Interest. Importations for the United States. See Customs Law, XII. Laches. See United. States, 60. Navigable Waters. See Navigable Waters. Concessions in Freight Rates to United States. See Interstate Commerce, 8. UNITED STATES ATT0ENEYS. 1. Compensation .for appearing in suits against officers of the United States. — In de- termining the allowances which a district attorney should receive under section 827, Revised Statutes, as compensation for appear- ing by direction of the Secretary of the Treasury, or of the Solicitor of the Treasury, in suits against officers of the United States for acts done by them, or for the recovery of money received by them and paid into the Treasury, the Secretary of the Treasury may, in his discretion, properly consider what com- pensation such attorney otherwise annually receives from the Government, and limit the amount to be received by him for the services mentioned, including what he thus otherwise receives, to a sum not exceeding $10,000 per annum. 15 Op. 277. Concurred in. 17 Op. 479. 2. Compensation of United States attorneys for services rendered under section 827, Revised Statutes. — Sections 299 and 824 of the Revised Statutes have no application to services ren- dered by United States attorneys under sec- tion 827 of the Revised Statutes, compensa- tion for which is to be fixed and allowed in the manner prescribed by the provisions of the latter statute. 20 Op. 709. 3. Salary United States attorney for southern district of New York. — Section 770, Revised Statutes, fixing the salary of the United States attorney for the southern district of New 496 UNITED STATES ATTORNEYS. York, and section 836, Revised Statutes, pro- viding for the expenses of his office, do not conflict with each other. 18 Op. 192. 4. Same. — Section 770, Revised Statutes, which provides a ' ' salary for all his services, ' ' has been interpreted to mean all official serv- ices directed by statute, lb. 5. Same. — The statutes which fix the sal- ary and fees for official services required by law do not regulate in any way the payment for unofficial services rendered. Of this char- acter are the services rendered by virtue of section 827, Revised Statutes, which allows to the attorney a sum in addition to his sal- ary, lb. 6. Same. — The employment of clerks in the district attorney's office for services not di- rected by the judiciary act, as far as the amount of payment is concerned, is a matter within the discretion of the Secretary of the Treasury, lb. 7. Same. — Whether, in addition to the salary mentioned, the Secretary of the Treas- ury approves an account taxed in favor of the attorney by the court in the sum of $4 or $6 is not a question of legality. lb. 8. Same, — Under section 824, Revised Stat- utes, he has a legal right to increase the pay by $4,000, and again by $2,000, and the ex- tent to which he shall exercise that right is a matter of discretion alone. lb. 9. Compensation of United States attorney for southern New York for appearing in cases mentioned in section 827, Revised Statutes. — The Secretary of the Treasury is authorized under section 827, Revised Statutes, to allow reason- able and proper compensation to the United States attorney at New York when he appears in the cases mentioned in that section by the direction of the Secretary or Solicitor of the Treasury. 19 Op. 354. 10. Same. — The allowance so made under section 827 is in addition to the annual salary provided by section 770, Revised Statutes, for the ordinary official services of the district at- torney, lb. 11. The United States attorney for the southern district of New York is entitled to com- pensation under section 827, Revised Statutes, for appearing in customs cases, in addition to his salary of $6,000, which is provided "for all his services" by section 770, Revised Stat- utes. ( 18 Op. 192, and 19 Op. 354, followed. ) 20 Op. 654. • 12. Certain fees claimed by a United States attorney and allowed by the court for special services in defending the Secretary of the Treas- ury and the Postmaster -General held to be "compensation allowed by law" within the meaning of the third section of the act of June 20, 1874 (18 Stat. 109), and therefore not pre- cluded by that section from being paid. 18 Op. 121. 13. Compensation in internal - revenue cases. — Section 838, Revised Statutes, does not authorize an allowance to be made by the Secretary of the Treasury to a district attor- ney for services in internal-revenue cases reported to the latter wherein no judicial pro- ceedings have been instituted. 18 Op. 126. 14. A United States district attorney is entitled to receive as compensation for making inquiry and examination under section 838 of the Revised Statutes in a seizure case reported by the collector and afterwards tried or dis- posed of before the court, such sum as the Secretary of the Treasury shall deem just and reasonable, upon the certificate of the judge; and the receipt of such sum will not pre- clude him from recovering those rf-gular fees under section 824, Revised Statutes, to which he would otherwise be entitled for service in court. 20 Op. 399. 19. Suits against the United States under section 15 of the customs administrative act of June 10, 1890 (26 Stat. 131), are directly in the line of duty of the district attorneys and fall within section 824, Revised Statutes, and the compensation of district attorneys for their services in defending such suits against the United States, in their respective dis- tricts, is limited to the fees prescribed by section 824, Revised Statutes. 20 Op. 228. 16. Prosecution of frauds upon the rev- enue. — The Attorney-General has no proper authority and should refrain from interferring by directions to district attorneys in the matter of the prosecution and punishment of frauds upon the revenue. 20 Op. 715, note. 17. Accounts for services in instituting pro- ceedings in national-bank cases. — Where a dis- trict attorney instituted proceedings for the forfeiture under section 5239, Revised Stat- utes, of "all the rights, privileges, and fran- chises" of a national banking association, by direction of the Solicitor of the Treasury, agreeably to section 380, Revised Statutes: Advised that the account of the district attor- 17. S. ATTORNEYS— U. S. COMMISSIONERS. 497 ney for his services, upon approval thereof by the Attorney-General, may properly be paid out of the appropriation for the payment of miscellaneous expenses authorized by the Attorney-General. 19 Op. 152. 18. The expenses of proceedings instituted by the Comptroller of the Currency for the forfeiture of the charter of a national banking association, including the fee of the United States attorney for his services in such pro- ceedings, should be defrayed out of the funds or assets of the association. 19 Op. 633. 19. What would be a reasonable fee for the services of the district attorney depends upon the circumstances of the particular case. lb. 20. The compensation of a United States attorney appearing for the receiver of a failed national bank is not regulated by the fee bill prescribed by statute, nor should it be paid by the Government, but out of the funds of the trust. 20 Op. 476. 21. Same. — The amount of fees to be al- lowed a United States attorney in any given case is a matter to be adjusted by the Comp- troller in the exercise of a legal discretion under the advice of the Solicitor of the Treasury. lb. 22. Same. — Suits and proceedings instituted by the receiver of a failed national bank to en- force the payment of a debt which may be maintained in a State court as well as in a United States court, fall witliin the provi- sions of section 380, Revised Statutes, and are therefore to be conducted by district attorneys under the direction of the Secretary of the Treasury. 20 Op. 476. 23. The fee of a United States attorney for services in defending suits brought against cer- tain naval officers is not payable out of the appropriation for "costs of suits" in the act of June 30, 1890 (26 Stat. 189), which re- lates to the ordinary taxed costs of suits and not to fees of counsel. 20 Op. 49. 24. Same. — Such fees must be fixed by the Attorney-General and paid out of the appropri- ation for the payment of United States attor- neys for special services not covered by salary or fees (26 Stat. 409). lb. 25. Same.— The authority of the Attorney- General or Department of Justice to employ and pay United States attorneys for services not covered by their salaries and fees is ex- pressly recognized by Congress in section 3 of the act of June 30, 1874 (18 Stat. 109), and section 299, Revised Statutes, and in the annual appropriations made by Congress for that purpose. lb. 26. Same. — District attorneys are entitled to special compensation for their services in examining titles to lands purchased by the United States. 19_Op. 63. 2 7 . The Attorney-General is invested with sole authority to employ and fix their compensation where the performance of such services by them is called for. lb. 28 . Same. — Expenses thus arising, including office fees for searches, copies of record, etc., being incidental to the purchase of the land, are ordinarily to be paid out of the appropria- tion made for the purchase. lb. 29. It is not the duty of a United States attorney to advise or defend boards of immigra- tion; but the Secretary of the Treasury is empowered by the act of August 3, 1882 (22 Stat. 214), to employ counsel for those pur- poses and pay him out of the immigrant fund. 18 Op. 108. 30. District attorneys are not required under the Indian appropriation act of March 3, 1893 (27 Stat. 612, 631), to represent Indians in suits brought by them in States where they do not reside, founded on claims of inheritance from white persons not members of their tribes. 20 Op. 620. 31. The Attorney-General has no authority to give an opinion upon the reasonableness of fees demanded by persons proposing to act as attorneys for Indian litigants. lb. 32. United States attorneys are not author- ized, and can not be required by the Navy De- partment to make examination into the suffi- ciency of sureties upon official bonds provided for in section 5 of the act of March 2, 1895 (28 Stat. 807). 21 Op. 154. UNITED STATES BONDS. Purchase of. See Treasury Department, VI. UNITED STATES COMMISSIONERS. 1. Use of penalty envelopes. — United States commissioners are "officers of the United States" within the meaning of section 29 of the act of March 3, 1879 (20 Stat. 362), and 18456—08- -32 498 U. S. COMMISSIONERS— U. S. MARSHALS. as such are entitled to use the penalty en- velope provided for by sections 5 and 6 of the act of March 3, 1877 (19 Stat. 335), in the transmission to the Departments at Wash- ington of mail matter relating to their ac- counts for fees payable by the Government and other official business. 17 Op. 183. 2. The United States court for the Indian Territory is not invested with authority to ap- point commissioners ; and hence the accounts of commissioners thereby appointed, for issuing writs for the arrest of persons charged with offenses, are inadmissible. 19 Op. 443. 3. Further hearing before. — The Secretary of the Treasury may return the findings in pro- ceedings for remission of penalties under sec- tions 17 and 18 of the act of June 22, 1874 (18 Stat. 189), to the United States commis- sioner for a further hearing before him upon a claim of newly discovered evidence. 21 Op. 289. 4. The Secretary of the Treasury has no right, in case of an application for a remission of penalty under section 17 of the act of June 22, 1874 (18 Stat. 189), to prosecute » further inquiry into the facts after the United States commissioner has reported his findings in the case under section 18 of that act. 21 Op. 549. 5. United States commissioners are not required to administer oaths to pensioners and their witnesses in the execution of pension vouchers free of charge, the fee for which service is ten cents. 22 Op. .86. 6. Jurisdiction in Chinese-exclusion cases. — 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 De- partment has no authority to issue instruc- tions to United States commissioners as offi- cers charged with the enforcement of these laws. 23 Op. 40. 7. Compensation — Issue of search warrants. — Although no compensation is provided there- for, it is the duty of United States commis- sioners to issue search warrants in internal- revenue cases when properly applied for. 24 Op. 685. 8. Same. — Section 3462, Revised Statutes, providing for the issue of these warrants, does not state all that must be included in the application therefor. The fifth amend- ment to the Constitution provides that " no warrant shall issue but upon probable cause supported by oath or affirmation, and particu- larly describing the place to be searched and the person or thing to be seized. ' ' lb. 9. Same. — If a United States commissioner refuses, on proper application, to issue a search warrant, the facts may be brought by petition or otherwise to the attention of the court ap- pointing such recusant officer for such action as it deems proper. lb. UNITED STATES COURTS. See Courts, II. UNITED STATES DISTRICT ATTORNEYS. See United States Attorneys. UNITED STATES EXPRESS COMPANY. See Internal Revenue, 72-77. UNITED STATES MARSHALS. 1 . Tees of witnesses in pension cases. — The fees of witnesses subpoenaed under section 184, Revised Statutes, on application of the Pension Bureau, to testify before a United States commissioner, and also the fees of the commissioner by whom their testimony is taken, may properly be allowed out of the judiciary fund (21 Stat. 454). The former should be paid by the United States marshal of the district on the certificate or order of the commissioner; the latter, as in ordinary course, on settlement of the commissioner's accounts at the Treasury. 17 Op. 247. 2. Use of penalty envelope. — A marshal, upon the expiration of his term, ceases to be an officer of the United States, and is not entitled to use the "penalty envelope" in executing process (under section 790, Rev. Stats. ) then in his hands. 17 Op. 529. 3. Eviction from the public lands of the Dis- trict of Columbia.— The marshal of the District of Columbia has no discretion in the per- formance of the duty imposed upon him by U. S. MARSHALS— U. S. NAVAL ASYLUM AT PHILADELPHIA, PA. 499 section 1797, Revised Statutes, as amended by the act of April 28,1902 (32 Stat. 152), authorizing summary proceedings against persons unlawfully occupying public build- ings or grounds in the District, and in so do- ing has the same right to summon assistance that he has in executing other lawful proc- ess. 25 Op. 18. 4. Allowances for travel by United States marshals, provided by section 829, Revised Statutes, are "fees" within the meaning of section 833, Revised Statutes, and should be included in the emolument returns required by the latter section to be made by those officers. 8 Op. 123. 5. In the adjustment of a marshal's emolu- ment account, he may be allowed credit for expenses of travel incurred by himself while serving process. 18 Op. 290. 6. Same. — A deputy marshal may be reim- bursed for expenses incurred while serving process, and also be allowed three-fourths of the profits arising from his services. lb. 7. A United States marshal, appointed an agent in pursuance of section 5276, Revised Statutes, to bring back a fugitive criminal from a foreign country, is entitled to receive compen- sation for this service out of the fund ap- propriated ' ' for bringing home fugitive crim- inals," where the amount of the compensa- tion is fixed by regulation before his appoint- ment ; otherwise he is entitled to be paid his expenses only. 19 Op. 121. 8. The elements necessary to justify the pay- ment of compensation to an officer of the Govern- ment for additional services are, that they shall be performed by virtue of a separate and dis- tinct appointment authorized by law, that such services shall not be services added to or connected with the regular duties of the place he holds, and that a compensation whose amount is fixed by law or regulation shall be provided for their payment. lb. 9. Powers of the marshal for the Indian Ter- ritory. — The marshal appointed under the act of March' 1, 1889 (25 Stat. 783), providing for the organization of a court in the Indian Ter- ritory, has the same powers in that Territory which a sheriff in Arkansas has in his own county, and his power to appoint deputies is limited only by the necessity of the case. 19 Op. 293. 10. Same — Posse comitatus. — He may call to his assistance, in the execution of the law, civilians, but not the military forces of the United States, the use of the latter as a posse comitatus being forbidden by section 15 of the act of June 18, 1878 (20 Stat. 152). lb. 1 1 . Same . — It is competent for the President, under section 5298, Revised Statutes, to direct the military forces to render the marshal such aid as may be necessary to enable him to maintain the peace and enforce the laws of the United States in that Territory. lb. 12. Writs issued by commissioners ap- pointed by the United States court for the In- dian Territory are no protection to the marshal for anything he may do under them, nor is he entitled to compensation for serving them. 17 Op. 443. 13. Deputy marshals. — An Indian agent is not prohibited by statute from acting as a deputy marshal. 20 Op. 494. UNITED STATES MILITABY ACADEMY. See Military Academy, West Point. UNITED STATES NAVAL ACADEMY. See Naval Academy. UNITED STATES NAVAL ASYLUM AT PHILA- DELPHIA, FA. Administration of estate of an inmate — Juris- diction of State of Pennsylvania. — A beneficiary and resident in the United States Naval Asy- lum at Philadelphia died in the asylum in August, 1888, intestate, leaving personal ef- fects, which were turned over to the proper officer at the asylum agreeably to regulations prescribed by the Secretary of the Navy un- der section 4811, Revised Statutes. Letters of administration were granted on the estate under the law of Pennsylvania by the State court ; and an inquisition in proceedings in escheat was had in the State court, whereby his estate purported to be escheated to the Commonwealth of Pennsylvania. The State in 1834 ceded to the United States jurisdic- tion over the land occupied by the asylum: Advised that the proceedings of the State 500 U. S. NAVAL ASYLUM AT PHILADELPHIA, PA.— UTAH. court granting administration of the estate, and escheating the same, were void for want of jurisdiction, and that neither the adminis- trator nor the escheator has any right to the possession of such estate. 19 Op. 247. UNITED STATES NOTES. See Treasury Department, VI. UNITED STATES PENSION AGENTS. See Postal Service, 145. UNITED STATES REPOETS. Distribution. See Courts, 7-16. UNITED STATES SENATE. See Congress, III. UNITED STATES SHIPPING COMMISSIONERS. See Shipping Commissioners. UNIVERSAL POSTAL UNION CONGRESS. The fund appropriated by the act of July 5, 1884 (23 Stat. 157.), to defray the expenses of delegates to the Universal Postal Union Congress at Lisbon, Portugal, is subject to the restrictions as to advances contained in section 3648, Revised Statutes. 18 Op. 93. UNMAILABLE MATTER. See Lottery. UNOFFICIAL SERVICE. See Diplomatic and Consular Officers, 19. USELESS PAPERS, DISPOSAL OF. See Treasury Department, 19. UTAH. 1. Qualification of registration and election officers. — Persons appointed under section 9 of the bigamy act of March 22, 1882 (22 Stat. 32), to perform the duties of the registration and election offices, thereby declared vacant, have authority to administer all oaths which the former incumbents of these offices were authorized to administer in the performance of the duties thereof. 17 Op. 314. 2. The Utah Commission, appointed under the act of March 22, 1882 (22 Stat. 30), have no duties or powers as regards the school meet- ings in Utah Territory. 18 Op. 94. 3. Voting at meetings of taxpayers called to fix the rate of taxation for school purposes is not voting at an " election ' ' within the meaning of that act. Hence, polygamistsmay vote at such meetings, provided they are property taxpayers and residents of the school district in which the meeting is held. lb. 4. The superintendent of district schools, auditor of public accounts, and treasurer of Utah Territory should, in conformity to the organic law of the Territory, be appointed by the governor, with- the advice and consent of the legislative council. The Territorial stat- utes, in so far as they require such officers to be elected, are in conflict with the organic law and void. 18 Op. 193. 5. The commissioners to locate university lands, created by the Territorial legislature under the powers given by the act of Con- gress of February 21, 1855 (10 Stat. 611)', should be elected in the manner prescribed by the Territorial statute. lb. 6. Officers in the Territory of Utah who were commissioned and holding office previous to the passage of the act of March 8, 1887 (24 Stat. 635), are not required to take the oath pre- scribed by the twenty-fourth section of that act. 18 Op. 595. 7. The provision of that section making such oath a "condition precedent to hold office in or under said Territory" applies as well to officers thereafter appointed by the General Government UTAH— VESSELS. 501 as to those thereafter appointed by the Terri- torial government or elected in the Territory. lb. TJTE INDIANS. Depredation Claims. See Claims, 32. Reservation. See Indians, 32, 39, 40. VACANCY IN OFFICE. ! Office and Officers, II. VERMONT. The invasion of the State of Vermont in 1864 was really an invasion of the United States. 20 Op. 134. See also Direct Taxes, 5, 6. VESSELS. 1. Tugboat not a passenger vessel. — A tug- boat used for towing vessels to and fro which is accustomed to take on board the masters of the vessels thus towed and sometimes one or more of the crew and carry them from the shore to their vessels, or vice versa, is not a "passenger vessel" or "a vessel carrying passengers" within the provisions of sections 4464 to 4469, Revised Statutes. 17 Op. 599. 2. The owner or consignee of a vessel arriv- ing from a foreign port is entitled under section 2981, Revised Statutes, to a lien for freight on merchandise imported on such vessel, even though the merchandise is intended for ex- portation. 21 Op. 38. 3. Fees from seamen. — Section 4609, Revised Statutes, which forbids the demanding or re- ceiving from any seaman or other persons seeking employment as a seaman, any remu- neration for providing him with employment other than the fees authorized by law, does not extend to seamen employed on vessels en- gaged in the coasting trade generally. 21 Op. 284. ' 4. Classification of certain passengers as im- migrants.— Under the act of March 3, 1893 (27 Stat. 569), immigrants can not be .classed as such according to the parts of the vessel they occupy, as the word "immigrant" undoubt- edly embraces persons who may be, and some- times are, in the cabins. 22 Op. 460. 5. Same. — The list of immigrants required by section 1 of this act, should be made before departure from a foreign country. lb. 6. Spanish war vessels wrecked in battle off the coast of Cuba. — 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. 23 Op. 76. 7. Same — Disposition. — That island being now temporarily within the jurisdiction of the United States, the Secretary of the Treas- ury, under section 3755, Revised Statutes, has power to make such provision for the sale or other disposition of such wrecked ves- sels as he may deem necessary. lb. 8. Same. — 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. lb. 9. Naval vessels— Materials and labor. — The act of August 13, 1894 (28 Stat. 278), entitled "An act for the protection of persons fur- nishing materials and labor for the construc- tion of public works," relates to contracts for the construction of public buildings, for- tifications, river and harbor improvements, etc., which can only be erected upon land, and are commonly understood under the des- ignation "public works." The act does not refer to contracts for the construction of naval vessels. 23 Op. 174. 10. Nationalization of Porto Rican Vessels. — Section 12 of the act of June 26, 1884 (23 Stat. 56), which provides that consular offi- cers rendering official services to American vessels and seamen shall furnish the master of every such vessel with an itemized state- ment of such services performed and make a report thereof to the Secretary of the Treas- ury, and for such services shall receive from the Treasury Department the same compen- sation that they would have received prior to the passage of that act, applies equally to services rendered to nationalized Porto Rican vessels. 23 Op. 414. 11. Same. — The ninth section of the Porto Rican organic act of April 12, 1900 (31 Stat. 502 VESSELS— VOLUNTEER PENSION BRANCH. 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. lb. 12. Boarding of vessels — Secretary of Com- merce and Labor. — The execution of the act of March 31, 1900 (31 Stat. 58), entitled "An act concerning the boarding of vessels," has been transferred by section 10 of the act of February 14, 1903 (32 Stat. 825), from the Secretary of the Treasury to the Secretary of Commerce and Labor. 25 Op. 51. See also Shipping; Steamboat-Inspection Service; Liens, 4, 5. Clearance Denied for Violation op Cus- toms Laws. See Customs Law, 449-450. Unseaworthy in a Foreign Port. See Diplomatic and Consular Officers, 15-18. VETO. See President, 84. VIRGINIA. 1. State harbor commissioners — Jurisdiction. — The State of Virginia, through its legislature, having duly relinquished jurisdiction over the lands belonging to the United States at the navy-yardat 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 re- quire 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 har- bor is paramount and absolute. 19 Op. 50. 2. The powder officer for the harbor of Nor- folk, Va., appointed under the act of March 3, 1880, of that State, has no authority over powder belonging to the Federal Government, and the United States is not liable for any charge for services performed by him under the authority of that law. 25 Op. 234. 3. Release of cruiser Galveston from posses- sion of State court. — The Attorney-General defers answering the question as to the right of the Secretary of the Navy, under the di- rection of the President, to employ the mili- tary forces of the Government to obtain possession of the cruiser Galveston, in course of construction under contract with the Wm. R. Trigg Company, of Richmond, Va., which company has gone into the hands of a receiver appointed by the chancery court of Virginia, for the reason that a method of procedure in such cases is provided for by section 3753, Revised Statutes, and occasion for the exer- cise of this power is not likely to arise if the stipulation authorized by that section is filed. 24 Op. 679. 4. Same. — No instrumentality of th« Gov- ernment may be taken into custody and held under any adverse authority whatever. This applies as well to an instrumentality in proc- ess of creation as to one already completed. lb. 5. Same. — The United States is entitled to the undisputed possession and control of its property and of property in which it is in- terested to the extent of that interest, and this possession and control are exempt from the process of every court. lb. 6. Same. — The word "stipulation," as used in section 3753, Revised Statutes, denotes an undertaking in the nature of bail, and is analogous to the "stipulation for value" un- der present admiralty practice, the measure of the Government's obligation being limited in section 3754, Revised Statutes, to "the value of the interest of the United States in the property in question." lb. VOLUNTEER ARMY. See Army, III. VOLUNTEER OFFICERS OF THE NAVY. Transferred to the Regular Navy. S Navy, 70. VOLUNTEER PENSION BRANCH. See War Department, 108. VOUCHER— WAR DEPARTMENT, 1. 503 VOUCHER. See Indian Agents, 7, 8. WAKEFIELD, VA. (Birthplace of George Washington.) Construction of wharf at.— The Secretary of State can not lawfully under the terms of the joint resolution of Congress approved Feb- ruary 25, 1893 (27 Stat. 756), authorize the construction of a wharf at Wakefield, Va., different in character from that specified in the resolution, even if from a change of cir- cumstances the construction of that sort of wharf with that appropriation has become impracticable. 20 Op. 653. "WANDERER" (Vessel.) See Claims, 80. WAR. 1. The United States had authority to take possession of and use real estate during the period of the war for war purposes, but had not the authority to divest the title of the owner. They had not the power to retain possession of real estate originally taken for war pur- poses beyond the period during which the occasion for the taking continued. 21 Op. 382! 2. Notwithstanding the signing of the pro- tocol and the suspension of hostilities, a state of war still exists (August 24, 1898) between this country and Spain, as peace can only be declared pursuant to the negotiations be- tween the authorized peace commissioners. 22 Op. 190. 3. The suspension of hostilities provided for by the protocol of agreement between the United States and Spain signed August 12, 1898, is not tantamount to the termination of the war, but creates only an interval in the war and supposes a return to it. 22 Op. 258. 4. Hostilities between nations suspend inter- course and deprive citizens of the hostile nations of rights of an international character previous- ly enjoyed. 22 Op. 268. 5. So long as a state of war exists between Spain and the United States, Spanish subjects have no right to the privilege of copyright con- ferred upon Spanish citizens by proclamation prior to the declaration of war. lb. 6. Property of a neutral, permanently situ- ated within the territory of an enemy, is, from its situation, liable to damage from the lawful operations of war, and no compensation is due for such damage. 22 Op. 315. WAR DEPARTMENT. I. In General, 1-7. II. Officers. a. Secretary of War. 1. Generally, 8-36. '. ^ 2. Contractors, 37-39. 3. Courts Martial, 40^2. 4. Reservations, etc.— License — Use, 43-50. 5. Dock and Harbor Lines, 51-53. 6. Navigable Waters — Obstruc- tions, etc., 54-60. 7. Bridges, Canals, 61-86. 8. River and Harbor Improve- ment, 87-95. b. Chief Clerk, 96, 98. c. Generally, 99. III. Bureaus or Divisions, 101-113. IV. Clerical Force, 114-116. I. Generally. 1. Appropriationforartiflciallimbs— Expend- iture.— The appropriation of $175,000 for arti- ficial limbs, etc., made by the act of March 3, 1881 (21 Stat. 435, 447), should be ex- pended under the direction of the War Department. 17 Op. 233. 2. Contracts. — A clause contained in con- tracts of the War Department providing for future modifications of the contract, set out, and held to be reasonable and proper, and that a modification of such a contract, which does not prejudice the interests of the Government or violate any statutory provision, is not such a new contract as must be preceded by an advertisement for proposals from bidders. 21 Op. 207. 3. Correction of records — Title to land. — Claimant having furnished the War Depart- ment sufficient proof that, for a period of more 504 WAR DEPARTMENT, I, II, a. 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. 23 Op. 21. 4. Maintenance of telegraph line — Infring- ment. — 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. 23 Op. 425. 5. Same — War power. — In the mainte- nance 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. lb. 6. Government for Philippine Islands — A branch of the War Department. — Under the instructions of the President to the Philip- pine Commission of April 7, 1900, and the Executive order of June 21, 1901, the powers and duties thereby conferred upon the Com- mission and the civil governor were to be exercised under the direction and control of the Secretary of War, and the act of July 1, 1902 (32 Stat. 691), in ratifying and approv- ing the instructions and order referred to, continued this relation. The reasonable in- ference is, therefore, that until otherwise provided, Congress intended that the govern- ment for the Philippine Islands should be regarded as a branch of the War Department. 24 Op. 534. 1. Same — Penalty envelopes. — The penalty envelopes used for the transmission of official mail from those islands should, accordingly, bear the indorsement of the War Depart- ment. 76. See also Secretary of War; II. Officers. a. Secretary of War. 8. Assignments to cavalry or infantry. — The Secretary of War is authorized to assign to cavalry or infantry recent graduates, non- commissioned officers, and civilians, although "additional" second lieutenants remain in the engineers and artillery, and no vacancies exist in the last-named branches. 20 Op. 149. 9. Bids and bonds — Waiver of formal de- fects. — In specific cases the Secretary of War is authorized to waive formal defects in bids and bonds in order to secure the public ad- vantage resulting from competitive bidding. 21 Op. 469. 10. Breakwater at San Pedro, Cal. — The Secretary of War is authorized to award a contract for the construction of a breakwater at San Pedro, Cal., in accordance with the recommendation and the plans and specifica- tions adopted by the board of engineers ap- pointed under the provisions of that portion of the river and harbor act of June 3, 1896 (29 Stat. 213), which provides for a deep- water harbor for commerce and refuge at Port Los Angeles or San Pedro, Cal., the lo- cation of the harbor to be determind by the board. 22 Op. 139. 11. Same. — The Secretary of War is not called upon to make farther plans, specifica- tions, or estimates for other work not included within the plans and specifications adopted by the board. lb. 12. Building line, Georgetown. — The ap- proval of the Secretary of War is required for projections beyond the building line in that part of the city of Washington formerly known as Georgetown, and this notwith- standing the fact that the ownership of the fee in the streets is not in the United States. 22 Op. 9. 13. International cables. — The Secretary of War is justified in using force to remove or disrupt any cable which may be laid between the United States and any other country without Congressional authority therefor, and in disregard of his instructions and against his will. 22 Op. 515. 14. Claims of officers, etc. — Private property destroyed in military service. — The duty of the Secretary of War in the case of a claim under the act of March 3, 1885 (23 Stat. 350), pro- viding for the settlement of claims of officers and enlisted men of the Army for loss of pri- vate property destroyed in the military serv- ice, is limited to the determination of whether the property was "reasonable, useful. WAR DEPARTMENT, II, a. 505 necessary, and proper" for the claimant. 19 Op. 693. 15. Same. — Whether the loss happened un- der the circumstances described in the statute, and comes within the provisions thereof, is a question for the determination of the proper accounting officers of the Treasury, and so does not appertain to the administration of the War Department. lb. 16. Customs. — The discretion committed to the Secretary of War with reference to the admission of certain materials free of duty by the act of June 6, 1896 (29 Stat. p. 260, first paragraph), is sufficiently broad to embrace and assume such purchases abroad made by contractors as appear to him to be proper. 22 Op. 98. 17. Designation of clerk to superintend con- struction of building — Additional compensa- tion. — It was competent for the Secretary of War, under the act of June 16, 1880 (21 Stat. 260), providing for the construction of a building at the corner of Seventeenth and F streets, Washington, D. 0., to designate a clerk from the office of the Chief of Engineers to take charge and superintend the work, and to compensate him from the fund appropri- ated, his salary and services as clerk having been suspended during the period. The case is not within section 1765, Revised Statutes, there being no "additional pay, extra allow- ance, or compensation" received by said clerk. 17 Op. 321. 18. Employment of an attorney, prior to the act of June 20, 1870 (16 Stat. 162), to de- fend certain parties against whom suits were brought, in the result of which the Govern- ment was interested. 18 op. 124. 19. The Secretary of War is not authorized under the provisions of the act of July 29, 1892 (27 Stat. 326) , to approve a survey of the Great Falls Electric Railway Company over the lands of the Washington aqueduct, where the inner rail of said railway will be less than the required distance from the point specified in said act. 21 Op. 294. 20. Medals of honor — Surrender of old med- als. — It is not within the authority of the Secretary of War, in replacing the medals issued to officers and privates for gallantry in action, under the joint resolution of July 12, 1863 (12 Stat. 623), and section 6 of the act of March 3, 1863 (12 Stat. 751), as provided in the act of April 23, 1904 <33 Stat. 274) , to allow a particular grantee, who is entitled to a new medal, to receive it and at the same time retain the old medal in his possession. 25 Op. 529. 21. Same. — It is optional with the holder of a medal whether he shall surrender his old medal for the new. lb. 22. Portage railway at the Cascades, Ore- gon. — The Secretary of War is not authorized by the joint resolution of March 3, 1891 (26 Stat. 1116), to construct a portage railway at the Cascades, Oregon, and turn the same over after completion to the State of Oregon for operation, on certain conditions. 20 Op. 93. 23. Same. — Such an act would give the State of Oregon not merely a revocable license, but a vested right to operate the railway and derive revenue therefrom, and consequently is be- yond the power of the Secretary of War, not having been authorized by the resolution in question. lb. 24. Government property — Use of. — The Secretary of War has no power to turn over Government property to States or individuals to be used for any purpose not authorized by some act of Congress. 20 Op. 93, 96. 25. Boat railway at The Dalles Bapids — Con- demnation of land needed. — The Secretary of War has full authority under the river and harbor act of August 18, 1894 (28 Stat. 359) , and the act of April 24, 1888 (25 Stat. 94), to condemn whatever land may be needed for the construction of the boat railway provided for in the former act. 21 Op. 221. 26. Same. — If a change in the location of an existing railway is a necessity in the building of said boat railway, the acquisition by the Secretary of War of the necessary land to make such change is merely an incident to the enterprise intrusted to him. lb. 27. Payment. — Where funds in the hands of the Secretary of War are involved in a con- troversy between parties, pending under dif- ferent forms of procedure in different jurisdic- tions, they should be retained by him until a final adjudication of the whole matter by the tribunal to which the parties may last resort. 21 Op. 447. 28. Pneumatic gun carriage. — The Secre- tary of War is not authorized by the act of August 1, 1894 (28 Stat. 214), providing for the purchase of a 10-inch pneumatic disappear- ing gun carriage upon the same conditions relative to payments, etc., as are embodied 506 WAR DEPARTMENT, II, a, 2. in the contract for the Gordon carriage — to enter into a supplemental contract for the pay- ment of a bonus or premium for each shot per hour the carriage is capable of sustaining above the number required by the original contract, for the reason that the whole amount appropriated for the pneumatic car- riage was expended in the original contract, and there is no authority to contract for fur- ther expenditures. 21 Op. 495. 29. Post traders— Appointment — Removal. — While under section 3 of the act of July 24, 1876 (19 Stat. 100), a post trader can not be appointed by the Secretary of War excepting on the recommendation of a council of ad- ministration appointed by the commanding officer of the post, yet he may be removed by. the Secretary without the concurrence of the council of administration and command- ing officer. 17 Op. 517. 30. Promotion of an enlisted man who holds certificate of eligibility. — The Secretary of War has no authority to make a regulation limiting to a specific time, expiring on a given date, the right of promotion of an enlisted man who holds a certificate of eligibility provided for by the act of July 30, 1892 (27 Stat. 336). 22 Op. 54. 31. Same. — A regulation can not be promul- gated requiring a successful candidate who holds such certificate of eligibility to undergo a second examination after a specified time, the proviso in section 3 of the act (27 Stat. 336) relative to two examinations being intended to give a nonsuccessful competitor an oppor- tunity to retrieve himself by a reexamina- tion, lb. 32. Same. — The Secretary of War is the regular constitutional organ of the President for the administration of the military estab- lishment of the nation, and as such the rules and orders publicly promulgated through him must be received as acts of the Executive, and are binding upon all within the sphere of his legal and constitutional authority. lb. 33. Soldiers' Home — Approval of recommen- dations of the Board of Commissioners of. — The Secretary of War is invested with a discre- tionary power to approve or disapprove rec- ommendations made by the Board of Com- missioners of the Soldiers' Home under sec- tion 4816, Eevised Statutes. 17 Op. 449. 34. The Secretary of War is charged with the custody, care, and protection of the Wash- ington Monument. 21 Op. 215. 35. Yukon Eiver region appropriation. — The Secretary of War has power to settle and pay from the appropriation for the relief of peo- ple in the Yukon Eiver region, act of De- cember 18, 1897 (30 Stat. 226), the claims of certain contractors entered into pursuant to that act, for the transportation of supplies, the expedition having been abandoned by the Sec- retary because found to be unnecessary. 22 Op. 437. 36. Same. — Unless authorized by Congress the head of a Department has no power to adjust and pay claims for unliquidated damages, even when arising from the breach of a con- tract, except where such claims are for work and labor done or materials furnished under a contract silent as to price and the amount thereof unliquidated. lb. Authority to Approve ok Disapprove Location or Plans for Bridges. See Navigable Waters, III, a. Authority to Grant License to Construct Irrigating Ditch Through a Military -Reservation. See Reservations and Parks, 15. Extension of Time for Completion of Washington Aqueduct Tunnel. See District of Columbia, 54. 2. Contractors. 37. Release of, because of unforeseen difficul- ties. — The Secretary of War has no authority to discharge a dredging company from, the performance of its contract with the United States to remove and deposit dredged matter in such places as the United States engineer officer shall direct, because of unforeseen dif- ficulties in selling or even in disposing of the material excavated, which an officer of the Engineer Corps had represented could be disposed of at a stated price per cubic yard. 17 Op. 368. 38. Remission of penalties. — Where penal- ties are imposed under the terms of a contract between the War Department and a con- tractor for delay in completing the work, but the contract was performed in all other re- spects and no actual damage has resulted from the delay, the Secretary of War may remit the forfeiture and order the sum with- held paid to the contractor. 21 Op. 27. 39. Continuance of employment after appro- priation is exhausted — The Secretary of War is without authority to continue the employ- WAR DEPARTMENT, II, a, 2, 3, 4, 5. 507 ment of certain contractors, or to supervise their work, after the' appropriation under which they are employed is exhausted, and their contract with the Government, so far as authorized by Congress, has been ex- hausted. 21 Op. 244. 3. Courts-Martial. 40. Admissibility of evidence. — It is not the official duty of the Secretary of War to give to the judge-advocate, and thus to the court- martial, an opinion as to the admissibility of certain evidence in the trial of a case before the court, nor as to the construction of a statute. Such questions should be left to the decision of the'court-martial itself. 17 Op. 54. 41. Amendment of record. — 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. 23 Op. 23. 42. Same. — This power is inherent in a court-martial; but such correction or amend- ment 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 pres- ence of the judge-advocate. lb. 4. Reservations, etc., Licenses or Permission to Use. 43. Roman Catholic chapel at West Point. — The Secretary of War has no power to accept for the Government a donation of a building to be erected upon a military reservation for its use in perpetuity by Roman Catholics. 21 Op. 537. 44. Bethel reading room, army reservation on Ship Island. — The Secretary of War has no authority to grant permission for the erection of a bethel, reading room, and library within the army reservation on Ship Island. (21 Op. ,637 followed). 21 Op. 565. 45. Fort Sill Military Reservation. — The Secretary of War may set apart such portion of the Fort Sill Military Reservation as may be required for the erection of the necessary "buildings to be used as a mission and school for the Apache prisoners of war, and may make such rules and regulations as shall be deemed suitable and necessary to control the methods and operations of the persons engaged in that work. 22 Op. 303. 46. Licenses.— Long-continued exercise by the Secretary of War of the power to grant revocable licenses for the temporary occupation of portions of Government reservations for a quasi public use, and the open and notorious use of such reservations by such licensees without legislative objection from Congress, or the adoption of any legislative rule on the subject, implies the tacit assent of Congress to this custom. 22 Op. 240. 47. Same. — The right to issue such a license can not be maintained upon any ground ex- cept the benefit to the public interests, and can not be used as a basis for granting, under the guise of a temporary license, a permanent right to maintain a railroad. It confers no contractural right upon the licensee. lb. 48. license for construction of wharf at San Juan, P. E. — Prior to the passage of the Porto Rican act of April 12, 1900 (31 Stat. 77), the 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 J3an Juan, P. R. , and the rules imposed by section 3 of the resolu- tion "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. 23 Op. 552. 49. Same. — Operative until revoked. — 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. lb. 50. Public lands of Porto Rico — Temporary use of. — The grant of a right or privilege to make temporary use of a portion of the public lands in Porto Rico, to exist in per- petuity, or as long as the conditions of the grant are fulfilled, is beyond the power of the Secretary of War, and ought not to be made. 22 Op. 545. 5. Dock and Harbor Lines. 51. Dock line — Proceedings to enjoin con- struction of. — It is the duty of the War De- partment to direct proceedings to be taken to enjoin the construction of a "dock line" which will obstruct, encroach upon, or inter- fere with harbor improvement. 17 Op. 279. 508 WAE DEPARTMENT, II, a, 5, 6, 7. 52. The Secretary of War has the power to establish a harbor line for the Tacoma Harbor or modify the existing one in the harbor of Seattle, as he shall determine, if in his opin- ion the interests of commerce and navigation so require. 22 Op. 501. 53. Harbor lines — Establishment. — The de- termination of the question as to whether the establishment of a certain harbor line is es- sential to the preservation and protection of a harbor rests, under section 12 of the act of September 19, 1890 (26 Stat. 453), in the dis- cretion of the Secretary of War alone, and his judgment in the matter is final and conclu- sive until subsequently modified by himself. 20 Op. 740.. 6. Navigable Waters — Obstructions, etc. 54. Navigable waters of the United States. — The control and supervision of the navigable waters of the United States is placed in the Secretary of War. 21 Op. 518. See also Navigable Waters, I, b. 55. Hudson River near Troy and Albany. — The authority conferred upon the Secretary of War by the act of June 29, 1888 (25 Stat. 209), does not extend to the waters of the Hudson Eiver as far distant from New York Harbor as Troy, -Albany, and New Baltimore. 19 Op. 317. 56. Deposit of ballast in New York Har- bor. — The Secretary of War has no power to prevent the deposit of ballast in New York Harbor at a distance of more than 3 miles from the shore at low-water mark. 20 Op. 293. 5 7 . Depositing of refuse matter into a river — Duty to designate portion of river. — It is the duty of the Secretary of War to act upon a petition to have designated the portion of a river within which refuse matter may be dis- charged, in accordance with the provisions of section 6 of the act of August 18, 1894 (28 Stat. 363), although the navigability of the river will not be affected. 21 Op. 305. 58. Same. — The Secretary of War, in de- ciding this question, should be governed only by considerations affecting the navigation of the river, or which may affect future naviga- tion, lb. 59. Bar forming in Flushing Creek opposite mouth of sewer. — Although the Attorney- General can not determine without consider- ing questions of fact whether or not a bar in Flushing Creek formed' opposite the mouth of a sewer and offering an obstruction to navigation is such a case as comes within the exception provided in section 6 of the act of August 17, 1894, the Secretary of War is not precluded from taking such action inviting the attention of the town authorities of Flushing to the matter as may be advisable. 21 Op. 594. 60. Obstructions to navigation — Removal of wrecks.— 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. 23 Op. 76. 7. Bridges, Canals. 61. The question as to whether a bridge over a navigable water of the United States is an "unreasonable" obstruction to naviga- tion must be determined in the first instance by the Secretary of War, whose decision is probably subject to review by the courts. 19 Op. 676. 62. Bridges — Disapproval of plans. — The Secretary of War has power under the pro- visions of the acts of December 17, 1872 (17 Stat. 398), and February 14, 1883(22 Stat. 414), authorizing and regulating the construction of bridges over the Ohio River, to disapprove of the plans of such bridges where he is of the opinion that they would unduly obstruct the navigation of the river. 18 Op. 512. , 63. Disapproval of plans. — The Secretary of War should not approve the plans for the bridge authorized by the act of March 3, 1887 (24 Stat. 501), to be built across the Mis- souri River between the cities of Omaha and Council Bluffs, unless they provide for a struc- ture of sufficient strength to bear trains of cars drawn by locomotives. 19 Op. 29. 64. Bridges not authorized by Congress. — The authority conferred upon the Secretary of War by section 7 of the river and harbor act of 1890 (26 Stat. 454), to approve or disapprove of the location and plans of bridges, not au- thorized by an act of Congress, over naviga- ble waters of the United States, is limited to the cases of bridges authorized by State law to WAR DEPARTMENT, II, a, 7. 509 be erected over waters the navigable portions of which lie wholly within the limits of the State. 20 Op. 488. 68. Same. — He is not authorized to approve or disapprove the location and plan of the bridge proposed to be erected over the Mononga- hela Biver at Bessemer, Pa. lb. 66. The Secretary of War is authorized by section 3 [7] of the river and harbor act of 1892 (27 Stat. 110) to approve or disapprove the location or plans of a bridge duly authorized by a State legislature over waters wholly within the limits of a State. 20 Op. 479. 67. Where a State has granted authority to construct a bridge over a navigable river and the location and plan has been approved by the Secretary of War, the question whether the purchasers of such right are authorized to proceed is one which does not concern the Government. 21 Op. 293. 68. The Mississippi Eiver in Minnesota, both above and below the Falls of St. Anthony, is a navigable river, not wholly within the limits of any particular State, and can not be bridged without the permission of the United States, expressed through the approval of the plans by the Secretary of War. 22 Op. 52. Opinions of November 19, 1892 (20 Op. 488), and January 18, 1896 (21 Op. 293), approved. lb. 69. Approval of plans and location. — The Secretary of War would not be prohibited from approving the plan and location of a bridge across boundary waters if acts of au- thorization were passed by the legislature of the States interested. 22 Op. 332. 70. Same. — Clause 2 of the proviso to sec- tion 3 of the act of July 13, 1892 (27 Stat. 100), does not limit the authority of the Secretary of War to grant permission for the construction of a work of this character to navigable waters which lie wholly within the limits of one State. lb. 71. Bock Island Bridge — Power to grant revocable license. — The Secretary of War has no authority under existing legislation to grant a revocable license to the Davenport and Suburban Street Railway Company, or to any other street railway company, to use jointly with the Tri-City Railway Company the lower portion of the Government bridge across the Mississippi River, connecting the cities of Rock Island, 111., and Davenport, Iowa. 25 Op. 389. 72. Same. — Suggested, that since the ques- tion is not free from doubt such permission might be granted in order that the matter may be brought before the courts for judicial determination. lb. 73. Bridge across Potomac — Approval of location. — It is not the duty of the Secretary of War under the act of February 28, 1891 (26 Stat. 789), incorporating the Washington and Arlington Bailroad Company, to select or approve of the exact location of the bridge to be built across the Potomac River, but rather to approve the plans, specifications, and materials used and the manner of construc- tion of such bridge. 20 Op. 549. 74. Same. — It is his duty to refuse to ap- prove the plans for the construction of a bridge at a place so far removed from the point indicated in the act as to be plainly beyond its scope. lb. 75. Same. — He has authority, however, to relocate the bridge as requested by the com- pany, provided the place designated is a reasonable compliance with the terms of the act. lb. 76. Bepairs. — In expending the appropria- tion in the act of March 2, 1889 (25 Stat. 963) , "for repairs to draw pier of the Bock Island Bridge," the Secretary of War is not required to use all of the money appropriated or more than is necessary to do the work properly, bearing in mind that temporary repairs are not always most economical or expedient. 19 Op. 375. 77. Same. — In case of doubt as to the neces- sity of any expenditure, due weight should be given to the judgment of the law-making power as expressed in the appropriation. lb. 78. Same. — The refusal of the Chicago, Rock Island and Pacific Railroad Company to contribute to the expense incurred any sum in excess of one-half of what would be neces- sary to place the existing pier in as nearly as practicable the condition it was in when the bridge was completed, does not relieve the Secretary of War of his duty to make the repairs directed by the above-named act. lb. 79. Alteration of. — It is the duty of the Secretary of War, under section 4 of the act of September 19, 1890 (26 Stat. 453), to as- certain whether, in his judgment, the Canal street bridge across the south branch of the Chicago Biver is an unreasonable obstruction to the free navigation of that river, and, in 510 WAR DEPARTMENT, II, a, 7, 8. case he decides that it is, to proceed as di- rected by that statute and require such an alteration of the bridge as will render navi- gation through and under it safe, easy, and unobstructed. 20 Op. 101. 80. Same. — Inasmuch as the plans for the proposed excavation in said river have not as yet been submitted to the Secretary of War for his approval and authorization, he is not now required by law to give the proceedings consideration. lb. 81. Can not require change without compen- sating owner. — The Secretary of War is not authorized under the provisions of section 4 of the' act of September 19, 1890 (26 Stat. 453), to require changes to be made in the bridge of the Baltimore and Ohio Railroad Company over the Ohio River at the expense of the owner without compensation, as this act applies only to such bridges as are con- structed under the authority of an act of Con- gress which expressly reserved to Congress the right to require changes or modifications in the structure. 22 Op. 343. 82. Same — New bridge. — If the company itself voluntarily prostrates its bridge with the intention of constructing another in its place, the Secretary of War has the right to prescribe conditions as to height, length of span, etc. lb. 83. Alterations. — The authority conferred upon the Secretary of War by section 18 of theact of March 3, 1899 (30 Stat. 1153), to re- quire any bridge constructed over any navi- gable water of the United States which is an unreasonable obstruction to navigation to be so altered as to render navigation under it reasonably free, easy, and unobstructed, ap- plies to bridges constructed under the au- thority of acts of Congress, provision having been made in the previous sections of that act for the case of structures of that nature unau- thorized by Congress. 25 Op. 195. 84. Same. — The power conferred upon the Secretary of War by section 18 of the act of March 3, 1899, is administrative in character and is a lawful delegation of power. lb. 85. Same. — The obstructions to navigation which the Secretary of War by section 18 of the act of March 3, 1899, is authorized to prevent or to remove at the expense of the owner, without compensation, are "material" obstructions. lb. 86. The Secretary of War is authorized under the act of July 13, 1892 (27 Stat. 110), to permit the construction of a canal connect- ing Port Arthur, Tex., with Sabine Pass, a navi- gable water improved at the expense of the Government, provided such canal is one of the works provided for in section 3 [7] of said act. 21 Op. 531. 8. River and Harbor Improvement. 87. Contracts for completion. — The Secre- tary of War is not required by the river and harbor act of June 3, 1896, providing that con- tracts may be entered into by him for the completion of improvements named, to make such contracts, but he has a discretion to de- cline to make them in all cases where he is convinced that the public interest would not be subserved by making them. 21 Op. 420. 88. Discretionas to making improvements. — The river "and harbor act of June 3, 1893, making an appropriation for the protection of the east bank of the Mississippi River oppo- site the mouth of the Missouri River, leaves it to the discretion of the Secretary of War whether he shall make such expenditure or not. 21 Op. 391. 89. Payment. — The Secretary of War is authorized under the river and harbor act of September 19, 1890 (26 Stat. 426, 448), to draw his warrant in favor of the city of Ga- lena, 111., in payment for the improvement of the Galena River contemplated by that act, notwithstanding the fact that the certificate of such work is signed by the surveyor of cus- toms for that port, instead of the collector of the port, as directed by that act, it appearing that there is no collector of the port at Ga- lena, and that all the duties of that office are imposed upon the surveyor of customs. 20 Op. 700. 90. Power to suspend. — The Secretary of War has discretionary authority, under the act of June 3, 1896 (29 Stat. 213), and subse- quent acts, making appropriations for the construction of a tidal canal in Oakland Har- bor, 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. 23 Op. 504. WAR DEPARTMENT, II, a, 8, b, c. 511 91. Same — Suspension because of doubtful expediency. — 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 delib- erate and continuing expression of the will of Congress, and respected as such. lb. 92. Work in excess of appropriation. — Under section 5 of the river and harbor act of June 3, 1896 (29 Stat. 235), which limits the amount that the Secretary of War can obligate the Government for in any fiscal year to $400,000, the contractor may perform in one year the work for which the contract allows him three years to perform, and although he may thus earn a larger sum than the amount stated he may not receive full payment there- for under three years. 21 Op. 379. 93. Same. — Where the total amount au- thorized to be expended is less than $400,000, contractors may be allowed to earn the amounts authorized to be expended in ad- vance of the appropriation by Congress for such work. lb. 94. Use of appropriation for improvement otherwhere than directed by statute. — The Sec- retary of War has no authority to use any por- tion of the $170,000 appropriated by the river and harbor act of March 3, 1899 (30 Stat. 1147), for the improvement of the Missouri Biver above Sioux City, for improvements at or in front of that city. 22 Op. 519. 95. Eads' contract. — If in the judgment of the Secretary of War justice either to the Government or to the contractors on the works at the South Pass channel of the Missis- sippi Biver requires him to determine the actual height of average flood tide as a datum of measurement, he has the right to determine such height, and to require the expenses in- curred to be provided for by the representa- tives of James B. Eads, the contractor. 21 Op. 308. 96. The words "is authorized" contained in that provision of the river and harbor act of June 13, 1902 (32 Stat. 342), which con- fers upon the Secretary of War the power to purchase or build a dredge for use in harbor improvement and maintenance in Lake Erie, while equivalent to the word "may,'' are used in a mandatory sense and are binding upon the executive, whose duty it is to carry them into effect. 24 Op. 594. 97. The authority conferred upon the Secretary of War by the river and harbor act of June 13, 1902 (32 Stat. 371), to prose- cute or complete, "by contract or other- wise," all river and harbor improvements which theretofore or therein were authorized to be constructed or completed under con- tract, vested in that officer the power to con- struct the dredge now nearing completion, for use on Lake Michigan, and to pay the cost of the same by allotment from the sums appro- priated for the improvement of the various harbors of that lak§. 25 Op. 145. 98. The fact that Congress has in other instances made specific appropriations for dredging plants, can not be held to limit the meaning of the words "by contract or other- wise," as used in the act of 1902, by restrict- ing the Secretary to the hiring of a dredge as the only alternative of a contract, nor to for- bid that officer from using such dredge upon improvements other than those authorized by appropriations from which the moneys for its construction have been taken, lb. b. Chief Clerk. 99. Authority to sign requisitions. — The act of March 4, 1874 (18 Stat. 19) , authorizing the Secretary of War, when temporarily absent f rom the Department because of illnessorfrom other cause, to direct his chief clerk to sign requisitions on the Treasury Department, is not superseded by the act of March 5, 1890 (26. Stat. 17), which provides for an Assistant Secretary of War. 24 Op. 646. 100. Same. — Duringthe temporary absence from the Department of both the Secretary of War and his assistant, the Secretary is em- powered, under the act of 1874, to authorize the chief clerk of the Department to sign requisitions, etc. , that act being still in force, at least within the limited scope here stated. lb. Chief of the Record and Pension Office. See Wae Department, III. c. Generally. 101. Aprisoner sentenced by a court-martial to confinement in a penitentiary of the United States should be conducted to the prison by the proper officer of the War Department. 21 Op. 204. 512 WAR -DEPARTMENT, III, IV. III. Bureaus or Divisions. 102. Record and Pension Office, Chief of — The acceptance of an appointment as Chief of the Record and Pension Office of the War Department, with the rank, pay, and allow- ances of a colonel by a surgeon of the United . States Army creates a vacancy in the former office. 20 Op. 427. 103. Same— Effect of the act. — Section 8 of the act of March 2, 1899 (30 Stat. 979), did not create a new. office, but had the effect to change the rank, pay, and allowances of the Chief of the Record and Pension Division of the War Department to that of a brigadier- general. 22 Op. 480. 104. Same. — The acceptance or nonaccept- ance by the chief of the new commission, with the added rank, under the above-named act, will not change his official status or in any manner affect him. lb. 105. Same. — Upon the approval of the act the chief of such division became entitled to the increased rank and pay without the neces- sity of a nomination by the President and confirmation by the Senate. lb. 106. Same. — This act did not affect the office as a separate and distinct official posi- tion, but it remained the same as when established, to be filled in the same manner and with the same duties and obligations. lb. 107. Same. — When a vacancy occurs in this office, then the increase of rank, pay, and allowances provided by the act of 1899 will cease, and the person succeeding to said of- fice will be entitled only to the rank, pay, and allowances of a colonel, unless there should be further legislation upon the sub- ject, lb. 108. The volunteer pension branch of the War Department was not within the classified service, and positions therein can not now be' classified, as that branch no longer exists, having been merged into the Record and Pen- sion Division of that Department. 22 Op. 6. 109. Inspector-General's Department — Pro- motion. — Where a right to an appointment or promotion in the Inspector-General's Depart- ment existed on a certain date but the ap- pointment was not actually made until later, the office can not be held to have vested until the appointment was actually made. 25 Op. 591. 110. Same — The fact that such officer is allowed to pay for the higher grade from the date of the vacancy to the date of commission does not alter the situation, lb. 111. Same— Bank and office are not identi- cal. — The former is an incident of office and is used as a designation or distinction con- ferred upon an officer in order to fix his rela- tive position with reference to other officers, or to determine his pay and emoluments. lb. 112. Same. — Such practice in the War De- partment rests upon the immemorial custom of that Department and not upon statutory au- thority, lb. 113. Same. — A complicated chain of events considered and held that under the act of February 2, 1901 (31 Stat. 748), the office of lieutenant-colonel in the Inspector-General's department vested in Major Chamberlain on March 11, 1901, and that he was not entitled to be appointed to the office left vacant by the retirement of Colonel Knox on April 13, 1903. lb. IV. Clerical Force. 114. An army officer detailed for duty in a clerical position can not be considered as a member of the "classified service," and after separation therefrom can not be reinstated under Rule IX. 22 Op. 6. 115. Reinstatement of former clerk. — A soldiers' widow, formerly employed in the War Department under an appropriation for emergency clerical work made necessary by the war with Spain, who resigned from her posi- tion on December 31, 1900, which position was covered into the classified service by sec- tion 3 of the act of April 28, 1902 (32 Stat. 171), is eligible, under rule 9 of the Civil Service Regulations, to reinstatement in that Department. 25 Op. 618. 116. State. — Rule 9, as amended, which provides for the reinstatement of a person separated, without delinquency or miscon- duct, from a "competitive position," means the separation from a position "competitive " at the time of the request for reinstatement, and' not that the position must have been competitive at the time of such separation. lb. Opinions of June 23 and August 27, 1902 (24 Op. 81, 103), approved. lb. WAR EMERGENCY EMPLOYEES— WATCHMEN. 513 WAK EMERGENCY EMPLOYEES. See Civil Service, 114, 116. WAR-REVENUE ACT. (Act of June 13, 1898, 30 Stat. 448.) See Internal Revenue. WAREHOUSE. See Customs Law, III, e; Internal Revenue, 59-64, 115. WARRANT. Recall of. See Treasury Department, 13, 14, WARRANT MACHINISTS. See Navy, 89, 92. WASHINGTON AQUEDUCT TUNNEL. i District of Columbia, VI. WASHINGTON, D. C. Matters Pertaining to. See District of Columbia. WASHINGTON, GEORGE. Birthplace of. See Wakefield, Va. WASHINGTON AND ARLINGTON RAILROAD COMPANY. Bridge. See Navigable Waters, 115-117. WASHINGTON AND GLEN ECHO RAILWAY. See Licenses, 18. 18456—08 33 WASHINGTON AND IDAHO RAILROAD COM- PANY. See Indians, 47, 48. - WASHINGTON HOSPITAL FOR FOUNDLINGS. See District of Columbia, 32. WASHINGTON LIGHT INFANTRY OF CHARLESTON, S. C. See South Carolina, 1. WASHINGTON MONUMENT. Congress has made provision for the pro- tection of the Washington Monument from chipping vandals by section 1 of the act of July 20, 1892 (27 Stat. 322), which provides "a penalty of not more than $50 for each and every such offense," and in the act of October 2, 1888 (25 Stat. 505, 533), whereby the Sec- retary of War is "charged with the custody, care, and protection of the Monument," and an appropriation is made for a custodian and other employees necessary for its care. 21 Op. 215. WASHINGTON NAVY- YARD. See Navy- Yard. WASHINGTON STATE. See Penitentiaries, 2. WASHINGTON TERRITORY. Indian War Claims. See Claims, 34-35.. WATCHMEN. In Public Squares and Parks, District of Columbia. See District of Columbia, 26. 514 WATERS— WISCONSIN . WATERS. See Navigable Waters. WEATHER BUREAU. i Department of Agriculture, III, b. WEST POINT. See Military Academy, West Point. WEST VIRGINIA. Section 3481, Revised Statutes, makes it the duty of the Secretary of the Treasury to insist upon the right of set-off against the demands of the State of West Virginia for refund of the direct tax to the extent of the equitable proportion of the debt of Virginia to the United States for which West Virginia is liable. 20 Op. 240. WESTERN UNION TELEGRAPH COMPANY. Claim of. See Railroads, 35. WHARFAGE CHARGES. See State Tax, 4-6. WHARVES. See Army, 37; Wakefield, Va. WHEAT. Imported, Drawback on. See Customs Law, 374, 377, 378. WHITE HOUSE. Detail of Registry Clerk to. See Post-, Office Department, 13. WILSON ACT. (Act of August 27, 1894, 28 Stat. 509. ) WINDMILL. See Department of Commerce and Labor, 23. WINNEBAGO AND CROW CREEK RESERVA- TION. See Indians, 31. WIRELESS TELEGRAPHY. See Telegraphs, 5. WISCONSIN. Purchase of land by the United States — Juris- diction. — The certificate of the governor of Wisconsin, in conformity to section 2, chap- ter 1, of the Revised Statutes of 1878 of the State, consenting to the purchase of certain land by the United States provided the State shall forever retain concurrent jurisdiction over any such place to the extent that all le- gal and military process issued under the au- thority of the State may be executed any- where on such place or in any building there- on or any part thereof, and that any offense against the laws of the State committed on such place may be tried and punished by any competent court or magistrate of the State, to the same extent as if such place had not been purchased by the United States, does not sat- isfy the provisions of section 355, Revised Statutes of the United States. 20 Op. 611. Railroad Land Grants. 42. See Railroads, WITHDRAWAL FROM BOND— WITNESSES. 515 WITHDRAWAL FROM BOND. ? Customs Law, III, f ; Internal Revenue, WITHDRAWAL OF BIDS. See Contracts, 31. WITHDRAWAL OF PUBLIC LANDS. i Public Lands, 5. WITHHOLDING PAT. Of Mail Contractor. See Postal Service, 96, 97. WITNESSES. 1. Government employees are not entitled to witness fees when subpoenaed to testify in behalf of the United States, but are entitled to their expenses. When subpoenaed by a private party, they may demand and accept witness fees. 21 Op. 263. 2. Where a civilian witness is brought before a court-martial but refuses to testify, the court is not invested with any inherent power to punish the witness in such case, either sum- marily or otherwise, as for a contempt. Such power can only be exercised by it when given by the positive terms of some statute. 18 Op. 278. 3. Same. — Section 1202, Revised Statutes, arms the court with authority to compel the witness to appear and testify, so far as this can be done by process ; but in securing his testimony the court is restricted to the means which it is thus authorized to employ. It can not inflict any punishment where the power to impose it is not clearly conferred by Con- gress, lb. 4. A naval court-martial, or judge-advocate thereof, has no power to compel a civilian who is not subject to the articles for the govern- ment of the Navy to appear and testify before such court. 19 Op. 501. 5. Same. — Neither article 42 nor article 57 in section 1624, Revised Statutes, gives the power to compel the attendance of civilian witnesses, lb. 6. Same. — The provisions of section 1202, Revised Statutes, apply only to military (i. e., Army) courts. lb. 7. Witness fees must be first paid or ten- dered — Army court-martial. — The act of March 2, 1901 (31 Stat! 950), which provides that a person who, being duly subpoenaed to appear as a witness before a general court- martial of the Army, wilfully neglects or re- fuses to appear, or refuses to qualify as a wit- ness, 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 witness shall be first duly paid or tendered in order to lay the foundation for a prosecution under that act. 23 Op. 424. 8. Same. — A mere statement in the subpcena, signed by the judge-advocate of the court- martial to the effect that the United States tenders or guarantees the payment of the au- thorized fees is not a sufficient compliance with that act to support a prosecution there- under. 76. 9. Compulsory testimony — Licensed officer of steam vessel. — 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 refuses to answer questions which are, in the opinion of the board, material and proper, may be com- pelled to answer, under the penalty of sus- pension or revocation of his license, or other- wise. 24 Op. 136. 10. Same — Contempt. — A refusal on the part of a witness to answer a proper question pertinent to the issue before a court is a con- tempt, and while this power may not be ab- solute in this special tribunal, which is not given the right to impose fines or imprison- ment for disobedience to its authority, never- theless the principle may be invoked so far as the special service and special discipline go. lb. 11. Same — May not refuse to answer on the ground that it may subject him to a pen- alty. — 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 516 WITNESSES— WORDS AND PHRASES. him to the penalty provided in that section. lb. 12. Same. — Section 4449, Ee vised 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. lb. 13. Same — May not withhold information and remain in the service. — Such licensed officers are engaged in a special service, peculiarly related to the Government; they are endowed with certain privileges and sub- ject to certain burdens, and paramount con- siderations 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. lb. (p. 137). WORDS AND PHRASES. 1. "Accepted for transportation." — The term "accepted for transportation," as used in the paragraph entitled "Express and freight" in the war-revenue act (30 Stat. 459), means goods received from a shipper or consignee other than the carrier itself, and is intended to apply to goods received for trans- portation in the usual manner by common carriers. 22 Op. 252. 2. "Accrued pensions." — The terms "ac- crued pensions," as used in section 4718, Re- vised Statutes, mean the amount of money unpaid by the Government to which a pen- sioner, or a person who had a valid claim for pension pending, was entitled at the time of his death. 1-9 Op. 1. 3. "Actual, bona fide residence." — See "Living and residing and having his or her place of abode." 4. "Actual subscribers thereto." — By "ac- tual subscribers thereto," in section 11 of the act of March 3, 1879 (20 Stat. 359), is meant those who have in fact subscribed for a paper, and who, in subscribing, have dealt directly with the agency, or whose subscriptions have been obtained for or in behalf of the agency, the subscription list being in all cases owned by the news dealer. 17 Op. 165. 5. " Actually served." — Theterm "actually served," employed in section 1219, Revised Statutes, is used ex industria, arid is intended to prevent any service purely constructive in its character from affecting the relation be- tween officers of the same date. 17 Op. 52. 6. "Adjournment." — See "Recess of the Senate." 7. "Advanced." — The word "advanced" in section 3739, Revised Statutes, which requires the return of money advanced by, the United States on any contract wherein a member of Congress is benefited, is used in its ordinary legal meaning, and does not apply to contracts that have been fully executed and payment thereon fully made. 25 Op. 71. 8. "Agent."— The "agent" referred to in section 3469, Revised Statutes, is one who has special charge of a claim for purposes of collection or enforcement in the same way that a district or special attorney has, though he need not possess their professional char- acter. 21 Op. 361. 9. "Agent."— The Comptroller of the Treasury is not an "agent" within the mean- ing of section 3469, Revised Statutes, lb. 10. "All employees of the Census Office." — 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 tempo- rarily assigned to service in the Census Office. 24 Op. 78. 11. "All other ores."— The words "all other ores," as used in the proviso of para- graph 199 of the act of October 1, 1890 (26 Stat. 581), mean all ores other than those known commercially as lead ores . 19 Op. 690. 12. "American vessels." — The expression "American vessels," in section 12 of the act of June 26, 1884 (23 Stat. 56), includes not only "vessels of the United States" as de- fined by section 4131, Revised Statutes, but "foreign-built registered American vessels" as well. 18 Op. 99. 13. An "alien seaman" is one who, in pursuit of and as a necessary incident to his calling, temporarily enters this country and is awaiting his departure; while an "alien immigrant" is one who enters this, country with the intention of remaining in it. 23 Op- 521. 14. "Amnesty." — The word "amnesty" in the Edmunds Act of March 22, 1882 (22 Stat. 30), was used advisedly with intent to indi- WORDS AND PHRASES. 517 cate that the President might, by act of Ex- ecutive clemency, embrace a whole class of offenders, instead of dealing with each case separately. 20 Op. 668. 15. "Any revenue laws." — The words "any revenue laws," found in section 5293, Revised Statutes, authorize the remission of a penalty under the internal-revenue laws as well as under the customs-revenue laws. 23 Op. 398. 16. "Any right accruing." — Thewords "any right accruing," etc., used in section 13 of the act of March 3, 1887 (22 Stat. 488), do not include such taxes accruing at the date of •the repeal, there being, as to them, no right in esse. It is the accruing right, not the accruing tax, that is saved. 17 Op. 539. 17. ' 'Any telegraph company organized under the laws of any State." — The words "any telegraph company organized under the laws of any State," used in the act of July 24, 1866 (14 Stat. 221), entitled "An act to aid in the construction of telegraph lines," etc., were used advisedly, and with a recognition that they did not include a "person" or an individual. 24 Op. 603. 18. "Appear." — The word "appear," as used in section 30 of the tariff act of July 24, 1897 (30 Stat. 21.1), does not require that the imported materials should appear in the sense of being seen in the completed articles, but only in the sense of being proven to be present in the completed articles. 25 Op. 344. 19. "Appoint."— See "Employ." 20. "Appointment" — "Nomination." — There is no distinction between an appoint- ment and a nomination other than the fact that the President nominates for appoint- ment when the Senate is in session, and ap- points when he fills a vacancy temporarily during the recess of the Senate. 23 Op. 599. 21. "Appointment." — The word "appoint- ment," as used in section 1219, Revised Stat- utes, applies only to the original entry of an officer of the Army, into the regular service or his subsequent appointment by selection, and does not include his appointment on pro- motion thereafter made. Opinion of Attor- ney-General Devens, of February 21, 1881 (17 Op. 34), dissented from. 17 Op. 196. 22. "Appointment." — 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 the law or the regu- lations to be filled by promotion according to seniority. 17 Op. 197. 23. "Apollinaris water."— In the light of the information presented, apollinaris min- eral water is regarded as an artificial mineral water, and dutiable as such. 17 Op. 176. 24. "Appraisers." — The term ' 'appraisers " in the act of March 2, 1883 (22 Stat. 452), does not embrace ' ' assistant appraisers. " 17 Op. 585. 25. "Are hereby authorized." — The words "are hereby authorized," in the act of May 26, 1882 (22 Stat. 97), providing for the ex- change of gold bars for gold coin by the su- perintendents of the coinage mints and of the assay office at New York, are to- be construed as mandatory upon those officers. 19 Op. 575. 26. " Armament.' ' — See ' ' Exclusive of arma- ment." 27. "Armory" comes literally within the definition of an arsenal, it being "a place where arms and instruments of war are de- posited for safe-keeping." 23 Op. 443. 28. "Arsenal" in its generic meaning is "a place for the storage, or for the manufacture and storage, of arms and all military equip- ment, whether for land or naval service." 23 Op. 443. 29. "Arsenals of the United States Govern- ment " include powder and ordnance depots, the Gun Factory, and the National Armory. 23 Op. 443. 30. "Ascertained." — The word "ascer- tained, ' ' as used in the proviso to section 30 of the tariff act of July 24, 1897 (30 Stat. 211) , is obviously used to describe knowledge which is obtained from evidence, and not merely that which is obtained from the exercise of the senses. 25 Op. 344. 31. "Assigns." — The word "assigns" in the said acts of 1894 (28 Stat. 342) and 1896 (29 Stat. 208) is intended to point out the party or parties who took over by formal assignment all rights to or interest in a con- tract, or such measure of rights and interest as carve out a complete share in the under- taking itself, with all its risks and incidents. The assignee recognized must take in accord- ance with the method and formalities pro- vided by section 3477, Revised Statutes. 22 Op. 156. 32. "Assistant appraisers." — See "Apprais- ers." 518 WORDS AND PHRASES. 33. "Assistant or deputy of such chief." — The phrase "assistant or deputy of such chief," etc., in section 178, Revised Statutes, is to be construed as including an assistant or deputy only whose appointment is specifically provided for by statute. 19 Op. 503. 34. "Because of." — See "By reason of." 35. "Bicycles." — Bicycles are "personal effects ' ' within the meaning of our tariff acts, and therefore exempt from duty under the act of ~1890 (26 Stat. 611). 17 Op. 679, ad- hered to. 20 Op. 648, 719. 36. "Bill of lading." — In maritime juris- prudence a " bill of lading ' ' signifies a memo- randum 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, cer- tain goods therein specified, which he promises to deliver in. good order, the dan- gers 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. 23 Op. 3. 37. "Bond." — A bond is an obligation in writing and under seal, binding the obligor to pay a sum of money to the obligee. It is sometimes denominated a specialty, being under seal, as distinguishdd from a simple promise to pay not sealed. 22 Op. 369. 38. "Book.'?— The term, "book" as con- strued by the courts under the copyright laws, includes a musical or other composi- tion, though printed on but one sheet. 22 Op. 29. 39. "Broker." — The. word "broker" has now no definite legal signification. 21 Op. -255. 40. "Broker." — A broker is one who nego- tiates 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, promis- sory notes, and other securities. 23 Op. 139. 41. "By reason of ahsence from his com- mand." — The phrase "by reason of absence • from his command at the time he became en- titled to his discharge," as used in the first section of the act of August 14, 1888 (25 Stat. 442), is to be regarded as equally applicable to the date when the term of enlistment of the applicant expired and to the date when he would have received his discharge along with other enlisted men with whom he served had he been present. 19 Op. 221. 42. "By reason of." — The words "by rea- son of," found in section 2, Rule IX, of the Civil-Service Rules, has the force and mean- ing of the phrase "because of." 23 Op. 91. 43. "By the shore." — The expression "by the shore" in the grant to the Government of the site of the Hospital Point Light Station in Massachusetts, which is bounded by a line running to the. shore and thence by the shore, etc., does not include the shore. 19 Op. 20. 44. "By the shore." — Had the site been bounded in the deed on or by the sea instead - of by the shore, the result would have been different, lb. 45. "Casualties." — The word "casualties" in section 9 of the navy-personnel act of March 3; 1899 (30 Stat. 1006,) refers, as ordinarily understood, to death, resignation or dismissal, and does not include promotion. 25 Op. 452. 46. "Cattle." — Sheep are " cattle" within the meaning of section 2117, Revised Stat- utes, which imposes a penalty for driving any stock, etc., to range and feed on Indian lands without theconsent of the tribe. 18-91. 47. A charitable or eleemosynary institution is one created or existing for the relief of the poor, or for the purpose of conferring any gratuitous benefit. 23 Op. 287. 48. "Charter" seems to be a proper word to express a power of granting to individuals rights which otherwise belong to the public, whether such grant by the State is made di- rectly or indirectly. This word, as used in Rule VH, paragraph 2, of the General Rules, etc., of the Board of Supervising Inspectors of Steam Vessels, covers the case of boats li- censed, under a general law, by a county court to traverse ferry routes established by such courts. 18 Op. 16. 49. "Charter party."^-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. 23 Op. 4. 50. "Chartered ferry." — By "chartered ferry" is intended any ferry established in accordance with law. 18 Op. 16. 51. "Chief."— The word "chief," as used in the provision of section 1 of the act of February 8, 1875.(18 Stat. 307), imposing a duty of 60 per cent ad valorem on all goods, WORDS AND PHRASES. 519 wares, and merchandise made of silk or of which silk is -a component material, of chief value, etc., means greater than either of the other materials; not greater than their aggre- gate. 17 Op. 337. 52. "Chief officer of customs." — 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 au- thorizes the payment of a reward for original information leading to the discovery of any fraud upon the customs revenue. 24 Op. 61. 53. "Chinese consul at the port of depart- ure." — The phrase "Chinese consul at the port of departure" used in Article II of the convention between the United States and China, proclaimed March 17, 1894,- means the consul who represents the Chinese Govern- ment at the place where the laborer leaves the United States. 21 Op. 357. 54. "Cost." — The word "cost" in section 4136, Revised Statutes, is to be construed literally, and if the actual cost of the repairs on a wrecked vessel is three times the actual purchase price of the wreck then she is enti- tled to registry. 21 Op. 143. 55. "Costs, charges, and expenses." — An export tax levied by a foreign government is not one of the " costs, charges, and expenses ' ' referred to in section 19 of the customs ad- ministrative act of June 10, 1890 (26 Stat. 139). 21 Op. 108. 56. " Costs of suits."— The words " costs' of suits" in the appropriation act for the Navy Department of June 30, 1890 (26 Stat. 189), relate to the ordinary taxed costs of suits and not to fees of counsel. 20 Op. 49. 57. "Cows," when kept for household use, are to be considered " household effects " as that term is used in paragraph 504 of the act of July 24, 1897 (30 Stat. 196). 23 Op. 310. 58. "Country of production." — The words " place of manufacture," as used in the act of March 3, 1903 (32 Stat. 1158), do not mean merely the "country of production," but refer to the particular locality or district in which the goods are produced or manufac- tured. 25 Op. 142. 59. "Custom-house broker." — The term "custom-house broker" in section 23 of the tariff act of 1894 (28 Stat. 552) includes per- sons dealing in drawback matters exclusively as well as those who combine all branches of custom-house work. Such a broker, when his license has been revoked, can not there- after deal directly with the customs officials, except when acting for themselves as princi- pals. 21 Op. 255. 60. "Departmental service." — The words "departmental service" and "the service;" as used in the proviso in the appropriation act of July 11, 1890 (26 Stat. 235), requiring certifi- cates of residence of applicants for examina- tion before the Civil Service Commission, mean the classified civil service as established by section 163, Revised Statutes, and section 6 of the act of January 16, 1883 (22 Stat. 405). 19 Op. 624. 61. "Dependent upon lot or chance. 1 ' — These words, as used in section 3894, Revised Statutes, as amended by the act of September 19,1890 (26Stat. 465), exclude estimates which are based upon mental calculation, even though the factors which enter into such calculation may be uncertain and matter of conjecture. 23 Op. 492. 62. "Design" refers to manufactures as well as to the fine arts, and the test of a designer's industrial character may depend upon the nature of his designs or the con- ditions and methods of its application to " manufacture. 23 Op. 381. 63. "Document."— The word "document" in the joint resolution of July 7, 1882, "to provide forthe printingof public documents," etc., applies to everything that is a document, no matter by what kind of legislation ordered, whether by special act or otherwise, so that such legislation does not actually forbid the printing of the "usual number" of the document. 18 Op. 51. 64. A "Draftsman" who is described as a "lace maker," seems to be one who is so closely connected with that 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. 23 Op. 382. 65. "Dramatic composition." — May be a book. 23 Op. 353. 66. Drawback moneys are duties repaid to the importer or the person to whom he has transferred his rights. 21 Op. 255. 67. " Due process of law " does not necessa- rily mean a judicial proceeding. When prop- erty is of trifling value, and its destruction is necessary to effect the object of a valid law, 520 WORDS AND PHRASES. it is within the power of the legislature to order its summary destruction without ob- taining a forfeiture by judicial proceedings. 22 Op. 70. See also Constitutional Law, 5. 68. "Duty" referred to in section 2932, Revised Statutes, means import duty. 23 Op. 419. 69. "Employ." — The word "employ" is sometimes used in our legislation in a sense equivalent to "appoint." 17 Op. 504. 70. "Employ." — In section 169, Revised Statutes, this word is regarded as the equiva- lent of "appoint." 21 Op. 355. 71. "Employ."— The word "employ" in section 169, Revised Statutes, has always been regarded as the equivalent of "appoint." 21 Op. 363. 72. "Errorsof fact."— The " errors of fact" referred to in section 1 of the act of March 3, 1875 (18 Stat. 469), are mistakes of fact within the meaning of the common law — that is, mutual mistakes of facts. 21 Op. 226. 73. "Event of a lottery."— The phrase " event of a lottery," in section 2 of the act of July 1, 1902 (32 Stat. 714), was not in- tended by Congress to refer to a drawing ■ alone, but to any scheme or plan whereby the value of the certificate is made to depend upon lqt or chance 25 Op. 266. 74. "Examiner." — The term "examiner," as used in sections 2, 3, and 4 of the act of March 2, 1883 (22 Stat. 452), signifies any officer authorized by the fifth section to act in that capacity, and nothing more. 17 Op. 585. 75. "Exceptional." — The word "excep- tional" in section 5 of the act of March 3, 1893 (27 Stat. 715 )„ relating to sick leave of departmental clerks, raises a question of fact upon which the Attorney-General can not advise. 20 Op. 716. 76. "Exclusive of armament."— The words ' ' exclusive of armament, ' ' as used in the first section of the act of August 3, 1886 (24 Stat. 215), with reference to armored vessels, are not to be understood as excluding the offen- sive armament, such as guns, torpedoes, etc., only; the term "armament" comprehending besides those articles, such shields and pro- tections as are directly and necessarily con- nected with the efficient and safe working thereof. 19 Op. 235. 77. "Execution." — The word "execution" in article 8 of the convention with France of February 23, 1853 (10 Stat. 996), is obviously used in the sense of performance. 18 Op. 257. 78. " Expedited service." — ' ' Expedited serv- ice," referred to in section 3961, Revised Statutes, relative to -the carriage of mails, means a speedier performance of each trip than was originally stipulated for. 17 Op. 166. 79. "Export."— The word "export," inite earliest sense, meant the carrying out of goods from one country into a foreign coun- try by means of a ship. 23 Op. 4. 80. , "Foreigner." — The word "foreigner," in section 2134, Revised Statutes, is used in its ordinary signification — meaning one who is born out of the United States and is not naturalized, or who owes allegiance to any other government than that of the United States. 18 Op. 555. 81. "Foreign built registered American ves- sels." — See "American vessels." 82. "Forgings of iron and steel." — The phrase "forgings of iron and steel," as used in clauses Nos. 163 and 167 (T. I., new), of the act of March 3, 1883 (22 Stat. 498), in- cludes forgings made of iron and forgings made of steel, and is not limited to articles composed of both iron and steel combined in the same forging. 19 Op. 157. 83. "Goods."— The term "goods," as used in the paragraph entitled " Express and freight," Schedule A of the war-revenue act of June 13, 1898 (30 Stat. 459), includes money. 22 Op. 178. 84. "Goods."— The terms "goods," "goods and chattels," and "goods, wares, and mer- chandise" have no invariable fixed meaning in legal construction. 22 Op. 178. 85. "Government." — The phrase "govern- ment of the foreign country," in section 14 of the act of June 26, 1884 (23 Stat. 57), re- fers to the special government of such "coun- try," as distinguished from that of the empire or other ultimate sovereignty of which it may be a member. 18 Op. 53. 86. " He shall be retired with the rank to which his seniority entitled him to be pro- moted." — The phrase " he shall be retired with the rank to which his seniority entitled him to be promoted," in the proviso to sec- tion 6 of the act of October 1, 1890 (26 Stat. WORDS AND PHRASES. 521 562), is not a mandatory pro vision for the retirement of the disabled officer, but is for the purpose of fixing the rank with which he should be retired. 21 Op. 385. 87. "Household effects." — This term, as used in paragraph 504 of the act of July 24, 1897 (30 Stat. 196), properly includes cows when kept for household use. 23 Op. 310. 88. "Immigrant." — It will be safer and better practice not to attempt a definition of the word " immigrant," but to decide each case with reference to its particular circum- stances. 20 Op. 371. 89. "Immigration" means the act of immi- grating, and to immigrate is to come into a country of which one is not a native, and in which one has not acquired a residence or domicile. 22 Op. 353. 90. "Impressment." — A threat to seize a vessel unless certain troops and ammunition are received and transported, resulting in the compulsory submission of the master of the vessel, does not constitute an impressment within the meaning of section 3483, Revised Statutes. 17 Op. 90. 91. "Imported."— The word "imported" in section 3433, Revised Statutes, is used gen- erally, and includes ''reimported." 18 Op. 82. 92. "Increase of service." — "Increase of service," mentioned in section 3960, Revised Statutes, relative to the carriage of mails, means an additional number of trips above that originally contracted for. 17 Op. 166. 93. "Incurred." — The word "incurred" as employed in section 4751, Revised Statutes, denotes a condition of liability to the penalty and forfeiture; the meaning of the clause "all penalties and forfeitures incurred" being the same as if it read "all penalties and forfeit- ures to which any person has become liable under the provisions," etc. The penalty or forfeiture is "incurred" in the sense in which that word is used in the first clause of that section before any proceedings for the recovery thereof have been commenced. 17 Op. 283, 284. 94. "Iron ore." — In determining the mean- ing of " iron ore," as used in the provision of the act of March 3, 1883 (22 Stat. 497), which imposes a duty thereon, regard should be had to the commercial signification ot the term, as Congress must be understood to have used the same in its commercial sense. 18 Op. 466. 95. "Iron ore." — The term "iron ore," as used in the act of March 3, 1883 (22 Stat. 497), is generic, embracing all the different species of iron ore, regardless of their price, value, oraccidental component chemical ingredients. It is the iron ore of commerce. 18 Op. 530. 96. "Is authorized." — The words "is au- thorized" contained in that provision of the river and harbor act of June 13, 1902 (32 Stat. 342), which confers upon the Secretary of War the power to purchase or build a dredge for use in harbor improvement and maintenance in Lake Erie, while equivalent to the word "may" are used iu a mandatory sense and are binding upon the executive whose duty it is to carry them into effect. 24 Op. 594. 97. "Jeopardy." — The jeopardy of the law means real peril, originally of life or limb, and always of substantial punishment or penalty. There must be a trial upon an indictment for an offense, or upon some equivalent charge and presentment, as by court-martial, submitting a definite issue and involving conviction or acquittal. 25 Op. 623. 98. " Laborers and mechanics." — The words "laborers and mechanics" as used in the eight-hour law of August 1, 1892 (27 Stat. 340), apply to all persons who may fairly come within the description of laborers and me- chanics, whether they are paid by the year, by the month, or by the day. 25 Op. 465. 99. "Land."— The words "land" and "port," used in Article II of the treaty of 1894 with China, do not limit the right to re- turn to such Chinese as travel by sea. 21 Op. 357. 100. "Laws of the Land." — A "city ordi- nance" is within the expression "laws of the land" as used in the fifty-ninth article of war, and a soldier violating such an ordinance and escaping to a military reservation should be surrendered upon demand to the civil author- ities for trial. 21 Op. 88. 101. "Legal representatives." — The phrase "legal representatives" in the act of 1896 (27 Stat. 208), refers to those who may be charged with the administration of the con- tractor's estate, or as equivalent to the "as- signs" of the contract as an integral thing. 22 Op. 156. 522 WORDS AND PHRASES. 102. "Liquors." — The word " liquors " in paragraph 10 of the tariff act of October 1, 1890 (26 Stat. 614), does not include whisky. 20 Op. 699. 103. "Living and residing and having his or her place of abode." — If the words ' ' living and residing and having his or her place of abode" used in the order of the Civil, Service Com- mission of March 7, 1893, are construed by the Commission as equivalent to the words "actual, bona fide residence," found in the act of July 11, 1890 (26 Stat. 235), then the order is a lawful regulation; but if they are given a more restrictive construction, the order is to that extent unauthorized. 20 Op. 649. 104. "Lottery." — The name "lottery" covers any determination of gain or loss by the issue of an event which is merely con- trived for the occasion. 21 Op. 313. 105. "Magnums" are only bottles of an especially large size and are as clearly em- braced in theexpression"bottlesorjugs," in the second proviso of paragraph 296, as in the expression "other vessels," in paragraph 295 of thetariff act of July24, 1897 (30 Stat. 174). 23 Op. 48. 106. "Manufactures of wool." — The phrase "manufactures of wool" in paragraph 297 of the tariff act of 1894 (28 Stat. 531 ) does not in- clude articles of which wool is a component material, but of which it is not the material of chief value. 21 Op. 66. 107. "May." — While theword "may" in a statute is sometimes construed as imposing a duty rather than conferring a discretion, yet* this rule of construction is by no means invariable, and its application depends on the context of the statute, and whether it is fairly to be presumed that it was the intention of the legislature to confer a discretionary power or to impose an imperative duty. 21 Op. 420. 108. "May." — The word "may" in rule 9 of the Civil Service Regulations vests a dis- cretion in that Commission. The question of reinstatement is one of administrative dis- cretion, and is not to be granted except when consistent with the interests of the public service. 24 Op. 103. 109. "May."— While -"may" in any stat- ute is ordinarily to be construed as "shall" or "must" when public rights or interests are concerned, yet the construction depends upon the context of the statute, the test being the intent of the legislature. 24 Op, 594. 110. " May be."< — The various provisions in the river and'harbor act of June 3, 1896, that contracts "may be" entered into by the Sec- retary of War for the completion of certain improvements, to be paid for out of future appropriations, are not mandatory but dis- cretionary, and he may decline to make con- tracts in all cases wherj he is convinced that the public interests, will not be subserved by making them. 21 Op. 420. 111. " Members of said organizations in their own right." — These words, 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. 23 Op. 454. 112. "Merchandise." — The word "mer- chandise " is a word used in different senses in different parts of said legislation. In Revised Statutes, sections 2766, 3111, it covers any tangible personal property; in sections 2795, 3113, it means property imported into the country, whether for sale or not. In section 1 of the act of March 3, 1875 (18 Stat. 469), it has a narrower meaning, but still includes all personal property not imported for the use or enjoyment of the importer himself. 21 Op. 92. 113. "Merchant." — A Chinese person is not a "merchant" within the meaning of section 2 of the act of March 3, 1893 (28 Stat. 8), un- less he conducts his business either in his own name or in a firm name of which his own is a part. 21 Op. 5. 114. "Meritorious." — Theword "meritori- ous" in section 5 of the act of March 3, 1893 ( 27 Stat. 715 ) , relating to sick leave of Depart- ment clerks, is surplusage. 20 Op. 716. 115. " Mile."— The word " mile," as used in section 5 of the act of March 3, 1891 (26 Stat. 832), to provide. for ocean mail service between the United States and foreign ports, WORDS AND PHRASES. 523 etc., means a mile of 5,280 feet, and not a geographical mile. 20 Op. 98. 116. "Miscellaneous." — Theword "miscel- laneous" in section 2 of the act of April 21, 1894 (28 Stat. 62), refers to that class of com- modities which must be purchased on a con- siderable scale and used alike by many or all of the various departments and Government establishments in the city of Washington, 21 Op. 59. 117. "Mistakes of fact." — See Errors of fact. 118. "Modification."— To change slightly, as in the form or in the external qualities of a thing, or to change somewhat the form or qualities of. 21 Op. 207. 119. "Mortar steel."-^ Assuming that the term " mortar steel, " as employed in section 2 of the fortifications appropriation act of March 2, 1895 (28 Stat. 707), has not a settled techni- cal meaning, it is properly conatruable as in- cluding any steel of such quality as is consid- ered by experts to be adapted for use in the construction of mortars. 21 Op. 179. 120. "Municipal legislation." — The term ' ' municipal legislation ' ' is Jimited to that class of laws that relates solely to the internal affairs of the country and the relations of the people to each other. 22 Op. 627. 121. "Mutual mistakes of fact." — See " Er- rors of fact." 122. "Nationals." — Seamen born in the Philippine Islands, being persons whose civil and political status is by the treaty of Paris, 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 mean- ing of any statutes concerning seamen or any other Btatute or law of the United States. From the standpoint of our Government they are not citizens of the United States in any sense. They are persons who are not sub- jects 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." 23 Op. 402. 123. "Navigable depth." — " Navigable depth" is a depth sufficiently wide to be navigated by vessels either moved by sails or steam and to permit them to pass each other. 21 Op. 29. 124. "No money shall be expended except in accordance with appropriations made by Congress."— The phrase "no money shall be expended except in accordance with appro- priations made by Congress," as used in the act of December 21, 1905 (34 Stat. 5), means nothing more than that no money shall be expended in excess of appropriations made by Congress. 25 Op. 557. 125. "No person appointed to a place." — The phrase "no person appointed to a place," as used in the civil-service rule sub- stituted by the President November 2, 1894, for section 4 of departmental Rule II, affects those holding places at that time as well as those thereafter'appointed. 21 Op. 91. 126. Nomination. — See "Appointment." 127. "Not specially enumerated or provided for." — The words "not specially enumerated or provided for in this act," used in Schedule N of the act of March 3, 1883 (22 Stat. 511), in the clauses fixing a duty upon "bonnets, hats, and hoods for men, women, children, composed of chip, grass," etc., and "upon braids, plaits, flats, laces, etc. , used for mak- ing or ornamenting hats, bonnets, hoods," etc., apply to articles of the description mentioned, and not to the material out of which such articles are made. 17 Op. 672. 128. "Notes in circulation." — Notes of a national banking association, signed by the proper officers, are not ' ' notes in circulation' '. within sections 5213: and 5215, Revised Stat- utes, so long as the bank has never parted with any interest in or control over them, and may either issue them or cause them to be canceled or destroyed at its option. 20 Op. 695. 129. "Now receiving." — The words "now receiving" in section 1 of the act of June 16, 1880 (21 Stat. 281), should be construed to mean now entitled to receive. 17 Op. 327. 130. " Obligation or other security of the United States." — The definition given to the words "obligation or other security of the United States," in Revised Statutes, section 5413, is not intended to be general, but is limited in its application. 22 Op. 40. 131. "Offenses." — The word "offenses," in section 730, Revised Statutes, means of- fenses against the United States. 20 Op. 590. 132. "Or other works." — The words "or other works," in clause 2 of|the proviso to section 3 [7] of the act of July 13, 1892 (27 Stat. 110), are not to be interpreted accord- ing to their natural and usual sense, but are 524 WORDS AND PHRASES. restricted to things of the same kind as those just enumerated. 22 Op. 332. 133. "Order."— The word "order," in the clause in the public printing and binding act of January 12, 1895 (28 Stat. 621) , providing "that no order for public printing shall be acted upon after the expiration of one year, unless the entire copy and illustrations shall be furnished within that period," was not intended to include a joint resolution of Congress for the printing of a " history of international arbitrations," digest, etc. 21 Op. 427. 134. "Original invoice." — Thewords "origi- nal invoice, ' ' found in section 2900, Revised Statutes, were intended to refer only to the consular invoice. 18 Op. 259. 135. " Other duties." — Thewords "other duties," found in section 1494, Revised Stat- utes, refer to duties other than duties at sea. 23 Op. 324. 136. . " Other persons." — The phrase "other persons," in the act of March 2, 1837 (5 Stat. 153), now section 1416, Revised Stat- utes, includes all persons over 18 years, whether of age or not. 21 Op. 327. 137. "Parade." — The term "parade," as used in section 49 of the act of March 1, 1889 (25 Stat. 779), does not include rifle practice. 20 Op. 669. 138. "Pardon." — A person pardoned be- comes "a new man," endowed with "a new credit and capacity;" his guilt has been "blotted out," and he becomes "as innocent as if he had never committed the offense." 18 Op. 149. 139. "Pardon." — A pardon is' a gracious act of mercy resting on any ground which the Executive may regard as sufficient to call for its exercise. 20 Op. 332. 140. "Payment." — The word "payment," as used in the proviso to section 3 of the act of June 20, 1874 (18 Stat. 109), signifies to fix or determine the compensation for the services referred to; and the proviso is a virtual recognition of the practical construc- tion given the act of June 22, 1870 (sec. 189, Rev. Stat.). 19 Op. 65. 141. " Penalties and forfeitures incurred." — See "Incurred." 142. "Pending settlement" may mean more than "pending payment;" it may include ascertainment. 24 Op. 637. 143. "Perils of the sea" means all losses which occur from maritime ventures. 21 Op. 124. 144. "Perils of the sea." — Theterm "perils of the sea," as used in the act of June 20, 1874 (18 Stat. 127), includes all perils ou water caused by the sea, or which are such by reason of the sea. 23 Op. 78. 145. "Permanently, incapacitated. " — An of- ficer is "permanently incapacitated " within the meaning of the act of March 2, 1895 (28 Stat. 910, 920), as of the pension acts, when his disability appears to be chronic or of in- definite future duration. 21 Op. 286. 146. " Person. " — Transportation com- panies conducting the business of transporta- tion, either by land or water, are included within the term "person, " as used in section 6 of the act of March 3, 1891 (26 Stat. 1085). 22 Op. 122. 147. "Person." — The word "person," as used in the act of March 2, 1895 (28 Stat. 964), includes a municipal corporation. 23 Op. 428. 148. "Persons engaged in navigating ves- sels." — The terms "persons engaged in navi- gating the vessel," as used in section 4419, Revised Statutes, comprehend the officers and crew, those who are in the service of the ves- sel and employed in its management, the working of its machinery, etc., during the voyage. 18 Op. 365. 149. "Place of location of any public work."— The words "place of location of any public work," as used in section 3658, Re- vised Statutes, mean some place, city, or town within a collection district and not the whole district. 25 Op. 536. 150. "Place of manufacture." — Thewords "place of manufacture," as used in the act of March 3, 1903 (32 Stat. 1158), do not mean merely the "country of production," but re- fer to the particular locality or district in which the goods are produced or manufac- tured. 25 Op. 142. 151. "Places." — The word "places," as used in the proviso in section 9 of the act of June 18, 1878 (20 Stat. 151 ), relating to com- mutation for quarters, comprehends only military posts and stations. 17 Op. 169. 152. "Policy of insurance." — The term "policy of insurance," as used in the act of June 13, 1898 (30 Stat. 448), is a technical phase, and ordinarily applies to the specific- WORDS AND PHRASES. 525 instrument by which the company agrees to pay a certain amount upon conditions therein stated. 23 Op. 210. 153. "Port."— The words "port" and "land," used in Article II of the treaty of 1894 with China, do not limit the right to re- turn to such Chinese as travel by sea. 21 Op. 357. 154. "Port." — Theterm "porfmaycom- prehend the city or town occupied by the importers, merchants, and others, but it is not confined in its extent or its limits to the town. It includes the harbor, roadstead, and shores, and all other natural and local incidents which go to make up a locality which comprises both land and water. 22 Op. 306. 155. "Powder and ordnance depots" are but convenient departmental designations, of depositories of certain specific kinds of mili- tary equipment. 23 Op. 444. 156. "Private hands." — The expression "private hands," in section 3992, Revised Statutes, was intended to cover all except common carriers on post routes. Neither the latter nor their employees can be con- sidered as "private hands" under this sec- tion, and if they could be the express or im- plied obligation of railroads to carry letters for each other to remotely connecting lines would amount to "compensation" within the meaning of the statute. 21 Op. 395. 157. "Profit" is the gain made upon any business or investment when both the re- ceipts and payments are taken into account. 22 Op. 320. 158. "Promissory note." — A promissory note is an unconditional promise to pay to another's order, or bearer, a stated sum of money at a specified or implied time. 22 Op. 369. 159. "Promotions." — Promotion is the ad- vancement of officers already in the Army, according to seniority, to vacancies happen- ing in the different arms of the service and according to rules prescribed by law or by regulations having the force of law. 17 Op. 198. 160. "Promotion or appointment in other branches of the Go vernment . ' ' — The words "pro- motion or appointment in other branches of the Government," in the exception to the proviso in the appropriation act of July 11, 1890(26Stat. 235), which requires certificates of residence of applicants for examination before the Civil Service Commission, signify promotion or appointment in the classified service of some other Department than that to which the applicant may belong. 19 Op. 624. 161. "Public warehouses," referred to in section 2932,- Revised Statutes, means bonded warehouses. 23 Op. 419. 162. "Quantity."— The terms "quantity" and "whole quantity," as employed in Schedule M (Rev. Stat., 2d ed., p. 476), are not to be understood as covering all the fruit imported in any one vessel shipped to one consignee, if coming from different consign- ors. Each consignment, not only from one party, but of each separate kind of fruit speci- fied in the statute, is to be considered as the "quantity," and as the "whole quantity," therein specified. 17 Op. 203. 163. "Keceipt." — A receipt is a writing acknowledging the taking of money or goods, and may or may not be negotiable, as the party by whom it is given may choose to make it or local law may provide. 22 Op. 283. 164. " Becess of the Senate — Adjournment." — 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 adjourn- ment of Congress for the session and before the next session begins; while an adjourn- ment 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. 23 Op. 599. 165. "Keimported."— See "Imported." 166. "Replace."— The word "replace," as used in the act of April 23, 1904 (33 Stat. 274), relating to medals of honor, implies the loss, destruction, or surrender of the old medal. 25 Op. 529. 167. " Saving persons from drowning." — See "Succoring the shipwrecked." 168. "Sea stores." — "Sea stores" in our tariff legislation are the stores contained in incoming vessels which are necessary for their use for the purposes of the voyage; articles which, brought into port aboard ship, are to be consumed aboard or carried off again in the outward voyage, or, if put ashore at all, landed only for the convenience of the ship. 21 Op. 92. 526 WORDS AND PHRASES. 169. "Seashore." — The "seashore," in the United States, is that space of land on the border of the sea which is alternately covered arid left dry by the rising and falling of the tide ; the space of land between high and low- water mark. 25 Op. 173. 170. "Securities." — When the word " secu- rities" is used in the 'property sense it refers to bonds, mortgages, certificates of deposit, certificates of stock, etc. In this sense post- age stamps are not investments or securities. 22 Op. 40. 171. "Security." — The word "security" as used in article 4 of the act of 1877 (19 Stat. 344) is an evidence of public debt, as a bond, or a certificate of deposit, or other subject of investment. 22 Op. 40. 172. "Seizure." — A seizure implies an act- ual caption of the thing seized; open, visible possession taken and maintained. 17 Op. 82. 173. "Sessions." — The word "sessions" in section 1852, Revised Statutes, as amended by the act of December 23, 1880 (21 Stat. 312), limiting the sessions of the Territorial legislatures to sixty days, includes the whole period between the time fixed by law for the meeting of the legislative assemblies and their sine die adjournment, Sundays and in- termediate adjournments not excepted. 19 Op. 259. 174. "Sheep."— See "Cattle." 175. "Settlement."— The word "settle- ment" in legal use embraces both ideas — the idea of discharging an obligation by pay- ment and the idea of arriving at its amount by ascertamment and adjustment. 24 Op. 637. 176. "Shipwreck." — The word "ship- wreck," as used in the act of June 18, 1878 (20 Stat. 165), 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. 23 Op. 78. 177. "Shore." — The word "shore," in Spanish law, means that space of land which the waters in the movement of the tide alter- nately coveT and uncover, the limit of the inner or land line being at the point of the highest equinoctial tides. Where the tides are perceptible, the shore line begins on the land side at the line reached by the waters in storms. 25 Op. 173. 178. Smuggling is the actual passage of dutiable goods through the lines of the cus- toms-house without paying or securing the payment of the duties thereon. 24 Op. 583. 179. Smuggled goods are to be associated with prohibited goods and are not liable to duty. The Government should, therefore, limit its action to forfeiture of the goods and prosecution of the offender, lb. 180. "Special privilege," — A "special privilege" is one which is not open to all persons alike who comply with terms and conditions fairly within the power of all. The limitation of a right to people of a speci- fied race or class is necessarily a " special privilege." 21 Op. 333. 181. "Specifically required by law."— 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 rea- son of a reduction of force specifically required by law may be reinstated," etc., mean that the reduction of force must have been spe- cifically required, not that the removal of the particular individual must have been specific-; ally required by law. 23 Op. 87. 182. "Stationery." — The word "station- ery" has no special legal definition, but is ordinarily defined as the "articles usually sold by stationers; the various materials em- ployed in writing, such as paper, pens, pen- cils, and ink." 21 Op. 59. 188. "Stipulation."— The. word "stipula- tion, ' ' as used in section 3753, Revised Statutes, denotes an undertaking in the nature of bail, and is analogous to the "stipulation for Value" under present admiralty practice, the measure of the Government's obligation be- ing limited in section 3754, Revised Statutes, to "the value of the interest of the United States in the property in question." 24 Op. 679. 184. "Subjects."— The word "subjects" is used in treaties and international awards chiefly because the inhabitants of monarchies are called subjects instead of citizens; yet in the act of April 6, 1894, it was intended to embrace Indians. 21 Op. 466. 185. "Succoring the shipwrecked."— The expressions "succoring the shipwrecked," and "saving persons from drowning," for WORDS AND PHRASES. 527 which, by section 12 of the act to organize the Life-Saving Service, approved June 18, 1878 (20 Stat. 165), the 'Secretary of the Treasury is authorized to bestow the life- saving medal of the second class, has reference to the rescue of persons who are subjected to the perils of the sea in any of the waters of the United States and in the vicinity of any life-saving station, lifeboat station, or house of refuge, either by shipwreck, or from being upon or connected with any vessel in distress. 21 Op. 124. 186. "Such." — The word "such" ordi- narily refers to thenextimmediate antecedent, but not necessarily; never when the purpose of the section in which it is used would thereby be impaired. 21 Op. 551. 187. "Such arms or corps." — The words "such, arms or corps," in the act of May 17, 1886 (24 Stat. 50), refer to the "arm or corps," the duties of which the graduate has been adjudged competent to perform. 20 Op. 149. 188. "Such passengers." — The phrase "such passengers" in the concluding portion of sec- tion 2 of the act of August 2, 1882 (22 Stat. 189), refers to steerage passengers. 22 Op. 500. 189. "Supplies." — The term "supplies," as employed in section 16 of the act of June 26, 1884 (23 Stat. 57), includes coal. 19 Op. 687. 190. "Surplus." — The term "surplus," as applied to banks in section 2 of the war- revenue act of 1898 (30 Op. 448), includes not only the amount set apart as a minimum surplus under the national banking act, but also such an amount as has been set apart by a vote of the directors or other authorized action of the bank to strengthen the capital, and is thus held out to the public as a part of its banking capital. 22 Op. 320. 19 L "Term" or "Terms."— The word "term," or "terms," in section 1 of the act of June 11, 1878 (20 Stat. 103) , providing for the appointment of three Commissioners for the District of Columbia, means "term of service." 17 Op. 158. 192, "The service." — See "Departmental Service." 193. " To be immediately available." — The appropriation of specific funds " to be imme- diately available" ordinarily imposes the duty of expending them for the purposes named in the act. 21 Op. 420. 194. "To enable."— The phrase "to en- able," in the act of July 1, 1898 (30 Stat. 613), making appropriation "to enable the Secretary of the Treasury to pay" a cer- tain individual claim, is in words only per- missive and is governed by and does not govern the context. 22 Op. 295. 195. "Tramway." — Under Spanish law a tramway is a railroad constructed on a public highway. 22 Op. 551. 196. "Treasury notes." — Theterm "Treas- ury notes " has been generally employed by Congress from an early period to designate interesMsearing notes of the United States, something intermediate between the currency and the funded debt of the United States. 20 0p- 319. 197. "Troops." — The word "troops" as used in section 6 of the act of July 1, 1862 (12 Stat. 493), providing for the transportation of mails, troops, and ammunitions of war, etc., by Government-aided railroads, includes enlisted men of the JTavy. 20 Op. 11. 198. "Troop." — The word "troop" as used in the Michigan land-grant act of June 3, 1856 (11 Stat. 21), and the supplemental act of July 3, 1866 (14 Stat. 78), includes an officer of the Engineer Corps of the Army.in the discharge of his duties connected with river and harbor improvements. 19 Op. 572. 199. " Vacancy. " — The word "vacancy," used in the act of May 17, 1886 (24 Stat. 50) , contemplates a vacancy in the arm of the service in which an additional second lieu- tenant is then employed. 20 Op. 149. 200. "Vessels." — The word "vessels," as used in the New York Harbor act (25 Stat. 209), does not relate to vessels in the sense contemplated by sections 5292-5294, Revised Statutes, authorizing the remission of fines, penalties, and forfeitures by the Secretary of the Treasury. 25 Op. 220. 201. "Vessels of the United States." — See ' ' American Vessels. ' ' 202. "Vested" — "Vested in possession or enjoyment." — There is no distinction in the meaning of the terms "vested" in the first paragraph, and " vested in possession or en- joyment," 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, 528 WORDS AND PHRASES— WORLD'S COLUMBIAN EXPOSITION. etc., under the act of June 13, 1898 (30 Stat. 464). 24 Op. 98. 203. "Vested in possession or enjoyment." — The two expressions should be given then- technical legal significance in each paragraph. The words "vested in possession or enjoy- ment" do not imply an actual physical pos- session, but mean merely that the contin- gency had been removed prior to July 1, 1902. lb. 204. "Warehouse." — A warehouse is a place for storing goods, not for selling them at retail. The place of business of a retail dealer in any commodity can not properly be termed a warehouse. 22 Op. 279. 205. "Warehouse receipts." — A warehouse receipt is nothing more nor less than the written statement of the warehouseman that certain goods, merchandise, or property are deposited in his warehouse and held on storage for some particular person or persons. 22 Op. 283. 206. "Which the remitter may select." — The words "which the remitter may select" in the act of March 3, 1883 (22 Stat. 526), are substantially the ones used in section 4028, Revised Statutes, which authorizes the issue of the ordiuary postal money orders; and while many reasons may exist why the designation of place of payment need not be contemporaneous with the issue where no letter of advice is sent, they do not seem to have been accepted by Congress, and the intention of the law is express that the remitter and not the payee should select the place of payment. 17 Op. 621. 207. "Whole quantity."— See "Quantity." 208. "Wines."— The word "wines," as used in the second proviso to paragraph 296 of the tariff act of July 24, 1897 (30 Stat. 174) , being used without limitation, the provisions of that paragraph are applicable to cham- pagnes, notwithstanding the special cham- pagne provisions contained in paragraph 295 of that act. 23 Op. 48. 209. '"Wool."— The word "wool," as used in paragraph 297 of the tariff act of 1894 (28 Stat. 531), refers to hair of the sheep only, and the new duties upon articles made of the hair of other animals went immediately into effect upon the passage of the act. 21 Op. 66. 210. "Wool," within dictionary defini- tions, includes the hair of the alpaca and of the angora goat, but never is used to include all goat's hair, nor yet camel's hair, cow hair, or horse hair. lb. 21 1. "Works of art." — Picture frames, con- taining oil paintings which are imported into this country for exhibition purposes, are not to be treated as parts of " works of art " and therefore are not entitled to entry free of duty under paragraph 702 of: the tariff act of July 24, 1897 (30 Stat. 203). 25 Op. 276. 212. "Wounds received in battle."— An ag- gravation of a disease from jolting in a saddle during active service is not " wounds received in battle," within the meaning of section 32 of the -act of July 28, 1866 (14 Stat. 337), which provides for the retirement of army officers upon the full rank of the command held by them at the time such wounds were received. 17 Op. 7. 213. "Wounds received in the line of his duty." — This expression, found in section 1494, Revised Statutes, which provides for the pro- motion of officers of the Navy whose physi- cal 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 partic- ular part of that duty, as to wounds received in battle or in some hazardous enterprise. 23 Op. 324. 214. " Wrecked."— The word "wrecked," in section 4136, Revised Statutes, must be taken in a very comprehensive sense * * * as applicable to a vessel which is disabled and rendered unfit for navigation, whether this state of the vessel has been caused by the winds or the waves, by stranding, by fire, by explosion of boilers, or by any other casualty. 21 Op. 199. 215. "Wrecked in the United States."— If any of the injuries which have made a vessel a wreck were received in the United States, in the absence of bad faith, she should be held to be embraced in the clause "wrecked in the United States," although other injuries had been received elsewhere. 16. WORKS OF AST. See Treaties, II — Italy. WORLD'S COLUMBIAN EXPOSITION. See Expositions and Fairs, I. WRECK- ZOOLOGICAL PARK COMMISSION OF D. C. 529 WRECK. Section 2928, Revised Statutes, in regard to appraisal of merchandise taken from a wreck, applies only to goods wrecked while on the voyage to the United States. 21 Op. 121. See Customs Law, 92-93; Shipping, 9-16; Vessels, 6-8. WRITING. See Quasi Judicial Act. WRITS. See Courts, 32. 18456—08 34 YACHT BACES. Regulations Governing Steamboats, etc. See Department op Commerce and Labor, 3. / YAKIMA INDIAN RESERVATION. Dam Across. See Indians, 25. YELLOW FEVER. See Health and Quarantine, 7-10. ZOOLOGICAL PARK COMMISSION, DISTRICT OF COLUMBIA. See District op Columbia, V. ACTS AND RESOLUTIONS OF CONGRESS CITED OR REFERRED TO IN VOLUMES IT TO 25, OPINIONS. [Where an act is referred to twice in the same opinion the first reference only is usually indicated.] 1789, July 27, ch. 4 (1 Stat. 28) .' 18—58 sec. 2 (IStat. 29) 21—356 1789, July 31, ch. 5 (1 Stat. 29) 20—676 sec. 17 (1 Stat. 4-1). 17—635 1789, Aug. 7, ch. 7 (1 Stat. 49 ) 17—19; 18—58 sec. 2 (IStat. 50) 21—356 1789, Sept.2, ch. 12(1 Stat. 65) -. 18—58; 20—679 1789, Sept. 11, ch. 13, sec. 2 (IStat. 68) 21—356 1789, Sept. 22, ch. 16, sec. 1 (1 Stat. 70) 21—356 1789, Sept. 24, ch. 20, sec. 35 (1 Stat. 92) . : 20—233 1790, Apr. 2, ch. 6 (1 Stat. 106) 23—570 1790, May31,ch. 15 (IStat. 124) 23—357 1790, July 16, ch. 28(1 Stat. 130) 18^441 1790, July 20, ch. 29 (IStat. 131). 18—256; 21—486 1790, July 22, ch. 33, sec. 4 (1 Stat. 137) 18—236 1790, Aug. 4, ch. 35, sees. 13, 16 (IStat. 157, 158) .: 20—676 sec. 22 (IStat. 161).. 21—94 sec. 39 (1 Stat. 167) 17—635 sec. 53 (1 Stat. 172) 19—421 1792, Feb. 20, ch. 7 (1 Stat. 232) 19—516 sed 26 (1 Stat. 239) 19—516 1792, Mar. 1, ch. 8 (1 Stat. 239) 20—522 1792, Apr. 2, ch. 16 (IStat. 246) 18—419 1792, Apr. 14, ch.24, sec.2 (1 Stat. 255) 19—197; 21-191 1792, May 8, ch. 36, sec. 3 (IStat. 276) 18—123 1792, Dec. 31, ch. 1, sec. 2 (IStat. 288) 18—560 1793, Feb. 18, ch. 8, sees. 2, 8 (1 Stat. 305, 308) 21—191 sec. 32 (IStat. 316) 24—599 1793, Mar.l, ch.19, sec. 8 (1 Stat. 330) 18—236 1794, May 8, ch.23, sec. 26 (1 Stat. 354, 365) 19—517 1795, Jan.29,ch.l7, sec. 3 (1 Stat. 411) 17—635,636 1795, Feb. 28, ch. 36, seel (1 Stat. 424) 24—654 1796, May 19, ch. 30, sec. 12 (1 Stat. 472) 18—236 1797, Mar. 3, ch. 13 (1 Stat. 506) .: 17— 284; 18— 585; 19— 5, 6; 20— 661, 708; 21—289; 22—493 1798, Apr. 30, ch. 36, sec. 2 (1 Stat. 553) - 21—356 1798, May 3, ch. 37 (1 Stat. 554) 17—258 1798, July 16, ch. 77 (1 Stat. 605) 21—365 1799, Feb. 25, ch. 12 (IStat. 619) 20—471 1799, Feb. 29, ch. 19 (1 Stat. 624) 18—124 531 532 ACTS AND RESOLUTIONS CITED. 1799, Mar. 2, ch. 22(1 Stat. 627) 20—309, 662 sec. 22 (1 Stat. 644) 20—677 sees. 24, 25 (1 Stat. 646) 25— 535 sec. 28 (1 Stat. 648) 20—258; 22—180 sec. 32 (IStat. 651) 20—200 sees. 33, 35 (1 Stat. 652-654) 20—200; 25—535 sec. 45 (1 Stat. 661) 21—94; 20—200 sec. 59 (1 Stat. 672) 17—613 sec. 60 (1 Stat. 672) , . . . 20—198, 200 sec. 61 (IStat. 673) 17—635,636 sec. 69 (1 Stat. 678) 18—546 sec. 93 (1 Stat. 698) .: 17—83. sec. 99 (1 Stat. 700) 17—533 1799, Mar. 3, ch. 46, sec. 12 (I Stat. 746) 18—237 1800, May 10, ch. 54 (2 Stat. 72) :....„..„... 18—283 , 1801, Feb. 27, ch. 15 (2 Stat. 103) 18—442 1802, Mar. 30, ch. 13 (2 Stat. 139)..:..;.: :... .... 19—479 sec. 12 (2 Stat. 143)..:..; 18—237 1802, Apr. 14, ch. 28 (2 Stat. 153) : ; ,. 21—37 1802, May 1, ch. 41 (2 Stat. 175) ,.... 18—441 1803, Feb. 28, ch. 9, sec. 2 (2 Stat. 203) '. : 21—191 1804, Feb. 24, ch. 14 (2 Stat. 254) ;..:. 18—442 1806, Apr. 10, ch. 20, art. 65 (2 Stat. 367)...'.....'. 17—299, 399, 438 1806, Apr. 21, ch. 35 (2 Stat. 390) 19—172 1806, Apr. 21, ch. 41, sees. 2, 4 (2 Stat. 396) 21—356 1806, Apr. 21, ch. 48 (2 Stat. 402) 1.7—258 1808, Apr. 21, ch. 48 (2 Stat. 484).. .:...... 18-287; 24-560; 25—71 1808, Feb. 23, ch. 55 (2 Stat. 490) 19—61; 20—144 1809, Mar. 3, ch. 28 (2 Stat. 535) 21—185 sec. 2 (2 Stat. 536) 18—450 1809, June 14, ch. 2 (2 Stat. 547) „..' 17—258 1810, Apr. 30, ch. 37 (2 Stat. 592) 20—680 sec. 32 (2 Stat. 602) 19—517 1812, Apr. 25, ch. 68, sec. 9 (2 Stat. 717) 18-^51 1812, May 4, ch. 75 (2 Stat. 721) 18—442 1812, June 17, ch. 100 (2 Stat. 752) 21—495 1812, June 26, ch. 108, sec. 5 (2 Stat. 764) '. 17—66 1813, July 22, ch. 16 (3 Stat. 22) 20—450 1814, Mar. 30, ch. 37, sec. 12 (3 Stat. 114) 17—66 1814, Apt. 16, ch. 58 (3 Stat. 124) 17—571 1814, Apr. 18, ch. 82, sec. 4 (3 Stat. 134) 18—280 1815, Mar. 3, ch. 94, sec. 3 (3 Stat. 232)... 17—506 1815, Mar. 3, ch. 101, (3 Stat. 244) ........".■..... 21—554 1816, Apr. 24, ch. 69 (3 Stat. 297) . l.l 17—390, 462; 18—159 1816, Apr. 27, ch. 107, sec. 1 (3 Stat. 310) :... 17—635 1816, Apr. 29, ch. 150 (3 Stat. 324) ." 18—441 1816, Apr. 29, ch. 160 (3 Stat. 330) 17—596 1817, Mar. 1, ch. 22 (3Stat. 347) .' 17—284 1817, Mar. 3, ch. 45 (3 Stat. 366) 17—353; 18—452; 19—386; 20—679 sec. 3 (3 Stat. 366) '.' 17—442 1817, Mar. 3, ch. 50 (3 Stat. 369) .' 17—635 1817, Mar. 3, ch. 86 (3 Stat. 378). ...7..... .......... 17—596 1817, Mar. 3, ch. 109, sec. 7 (3. Stat. 397) 18—98 ACTS AND RESOLUTIONS CITED. 533 1818, Apr. 20, ch. 79, sec. 4 (3 Stat. 434) 17—635 sees. 11, 25 (3 Stat. 436, 438) 20—662 1818, Apr. 20, ch. 109 (3 Stat. 463) 17—596 1819, Mar. 2, ch. 45 (3 Stat. 488) ; 18—202; 20—18, 19 1820, May 15, ch. 102 (3 Stat. 582) 17—11 1820, May 15, ch. 104 (3 Stat. 583) 18—442 1821, Mar. 2, ch. 13 (3 Stat. 615) 18—24 1823, Mar. 1, ch. 21, sec. 5 (3 Stat. 732) .' 17—270, 635 sec. 7 (3 Stat. 733) 22—75 sec. 13 (3 Stat. 734) 20—663 sec. 16 (3 Stat. 735) 23—243, 599 sec. 25, cl. 1 (3 Stat. 737) . _ < 20—312 1823, Mar. 3, ch. 35 (3 Stat. 768) 17—644, 680 1824, May 22, ch. 136, sec. 2 (4 Stat. 29) 21—602 1824, May 26, ch. 186 (4 Stat. 69) -. 21—37 1825, Mar. 3, ch. 64, sees. 1, 31 (4 Stat. 102, 112) 20—680 sec. 34 (4 Stat. 112) 19—517 1825, Mar. 3, ch. 106 (4 Stat. 132) 17—597 1826, May 13, ch. 39 (4 Stat. 161) 17—597 1826, May 20, ch. 77 (4 Stat. 175) 17—597 1826, May 22, ch. 151 (4 Stat. 192) 17—597 1827, Jan. 24, J. Res. (4 Stat. 2-15) 23—570 1827, Mar. 3, ch. 79 (4 Stat. 240) 17—597 1828, Jan. 25, ch. 2 (4 Stat. 246) 17—31 1828, May 19, ch. 55 (4 Stat. 270) 20—663 sec. 8 (4 Stat. 273) 17—635 sec. 9 (4 Stat. 274) 20—664 1828, May 23, ch. 73 (4 Stat. 289) 25—147 1828, May 24, ch. 119 (4 Stat. 312) 24—599 1828, May 24, ch. 121 (4 Stat. 313) 17—49 1829, Mar. 2, ch. 41 (4 Stat. 359) 25—78 1830, May 28, ch. 147, sec. 2 (4 Stat. 409) 23—243 1830, May 28, ch. 148, sec. 3 (4 Stat. 412) 19—44 1830, May 29, ch. 179 (4 Stat. 417) 17—439 1830, May 29, ch. 208 (4 Stat. 421) 17—259; 19—374 1831, Feb. 3, ch. 16 (4 Stat. 436) 23—357 1831, Mar. 2, ch. 66 (4 Stat. 472) '. 17—284 , 1831, Mar. 2, ch. 99 (4 Stat. 487) 23—635 1832, Mar. 22, ch. 51 (4 Stat. 499) 17—597 1832, June 28, ch. 152 (4 Stat. 550) 18—544 1832, July 9, ch. 174 (4 Stat. 564) , 17—260; 25—417 1832, July 11, ch. 194 (4 Stat. 572) 17—285 1832, July 13, ch. 199 (4 Stat 574) 18—301 1832, July 14, ch. 227, sec. 9 (4 Stat. 592) 23—243 sec. 15 (4 Stat. 592) 17—635 1833, Mar. 2, ch. 96(4 Stat. 666) 18—301 1834, June 19, ch. 57 (4 Stat. 679) 18—301 1834, June 19, ch. 58 (4 Stat. 680) 18—302 1834, June 26, ch. 87, private (6 Stat. 569) 17—645, 681 1834, June 30, ch. 161 (4 Stat. 729) 19—479; 22—233 sec. 6 (4 Stat. 730) 18—556 sec. 12 (4 Stat. 730) .-. 18—237 sees. 20, 21 (4 Stat. 732) . , 25—417 sec. 25 (4 Stat. 733) 17—567 §34 ACTS AND EESOLUTIONS CITED. 1834, June 30, ch. 162, seca. 13, 14 (4 Stat. 738) 17—260 1835, Mar. 3, ch. 27, sec. 1 (4 Stat. 757) 17—49 1835, Mar. 3, ch. 43 (4 Stat. 778) 18—301 1836, June 14, J. Res. No. 7 (5 Stat. 133) 24—668 1836, July 2, ch. 270, sec. 8 (5 Stat. 81) 20—680 sec. 13 (5 Stat. 82) 18—113 sec. 21 (5 Stat. 84) 20—680 1836, July 4, ch. 353 (5 Stat. 112) 25—40 1837, Jan. 18, ch. 3 (5 Stat. 136) 18—419 1837, Mar. 2, ch. 21 (5 Stat. 153) 21—329. 1837, Mar. 3, ch. 33 (5 Stat. 163) 20—681 1838, July 5, ch. 162, sec. 15 (5 Stat. 258).. 17—94;. 19—440 sec. 27 (5 Stat. 260) 19—428 1838, July7, ch. 194 '(5 Stat. 308) 19—429 1839, Mar. 3, ch. 82, sec. 3 (5 Stat. 349) 19—121, 284; 21—345 1840, Apr. 4, ch. 6, sec. 2 (5 Stat. 370) 21—192 1841, Sept. 4, ch. 16, sec. 8 (5 Stat. 455) 23— 568 'sec. 10 (5 Stat. 456) 17— 259; 19— 374 1841, Sept. 11, ch. 25 (5 Stat. 465) 17—104 1841, Sept. 11, J. Res. 6 (5 Stat. 468) 18—356; 19—64; 20—613; 23—570 sec. 3 (5 Stat. 468) 24—619 1842, Apr. 14, ch. 22 (5 Stat. 472) 17—281 1842, Aug. 11, ch. 127 (5 Stat. 504) 17—597 1842, Aug. 16, ch. 178 (5 Stat. 506) 17—597 1842, Aug. 23, ch. 183 (5 Stat. 508-510) 19—284 sec. 2 (5 Stat. 510) 19—122 1842, Aug. 26, ch. 202, sees. 1, 11 (5 Stat. 523, 525) 21—356 sec. 12 (5 Stat. 525) 19—122 1842, Aug. 30, ch. 270, sec. 16 (5 Stat. 563) * 17—270, 635; 23—243 sec. 17 (5 Stat. -564) 17—434; 20—248, 664 sec. 23 (5- Stat. 566) 23—243 sec. 26 (5 Stat. 566) 20—664 1842, Aug. 31, ch. 279 (5 Stat. 577)....:: 20—360 1843, Mar. 3, ch. 84 (5 Stat. 618) 19—651 1844, Apr. 30, ch. 15 (5 Stat. 656) 21—409,454 1844, June 15, J. Res. 15 (5 Stat. 718)..... 19—517 1845, Mar. 1, J. Res. 8 (5 Stat. 797, 798) 23—350 1845, Mar. 3, ch. 69 (5 Stat. 748) 18—249 1845,'Mar. 3, ch. 71 (5 Stat. 752,757) 19—651 1845, Mar. 3, ch. 77, sees. 4, 7 (5 Stat. 794) 17—532; 19—172 1845, Dec. 29, J. Res. 7 (9 Stat. 108) 23—350 1846, Feb. 11, ch. 7 (9 Stat. 3) 20—664 1846, July 29, ch. 66 (9 Stat. 41) 17—546 ' 1846, July 30, ch. 74, sec. 8 (9 Stat. 43) 17—269, 270, 434; 20—664; . 23—243 1846, Aug. 6, ch. 84, sec. 2 (9 Stat. 54) ,. 20—310 1846, Aug. 6, ch. 90 (5 Stat. 59) 18—233 sec. 16 (9 Stat. 63) 22—186 1846, Aug. 10, ch. 175, sec. 2 (9 Stat. 96) 23—243 1847, Feb. 11, ch. 8, sec. 9 (9 Stat. 125) 17—157 1847, Feb. 22, ch. 17, sec. 8 (9 Stat. 130) 17—645 1847, Mar. 2, ch. 35 (9 Stat. 149) 20—352 1847, Mar. 3, ch. 61, sec. 13 (9 Stat. 185) 17—11 sec. 17 (9 Stat. 186) 24—128 ACTS ASTP RESOLUTIONS CITED. 535 1848, May 17, ch. 42 (9 Stat. 223) 18—444 1848, June 2, ch. 60 (9 Stat. 236) 17—597 1848, July 29, ch. 118, sec, 4 (9 Stal. 264) "_„[ 17—72 1848, Aug. 3, ch. 121, sec. 12 (9 Stat. 272) 17—103 1848, Aug. 7, ch. 141, sec. 2(9 Stat. 274) 18—565 1848, Aug. 14, ch. 177 (9 Stat. 323) 19—371; 20—43 1849, Jan. 26, ch. 25 (9 Stat., 344) 17—597 1849, Mar. 2, ch. 80 (9 Stat. 350) 17—11 1849, Mar. 2, ch. 87 (9 Stat. 352) 18—522 1849, Mar. 3, ch. 108 (9 Stat. 395) 18—453 sec. 11 (9 Stat. 396) 21—356 1849, Mar. 3, ch. 129, sees. 1-7 (9 Stat. 414) 20—153 sec. 3 (9 Stat. 415) 17—353 1850, Sept. 9; ch. 49 (9 Stat. 446) 19—67,478 sec. 16 (9 Stat. 452) 19—531 1850, Sept. 9, ch. 51 (9 Stat. 453) 18—408; 19—323 sec. 7 (9 Stat. 455) 18—194 1850, Sept. 20, ch. 61 (9 Stat, 466) 17—27, 28 " "" ,t ' 1850, Sept. 27, ch. 76, sec. 14 (9 Stat. 500) 19—371; 23—567 1850, Sept. 28, ch. 84 (9 Stat. 519) , 17—28; 18-170, 522; 28-627 1851, Mar. 3,ch. 20 (9 Stat. 587) , 19—517 * sec. 2 (9 Stat. 589) 19—518 1851, Mar. 3, ch. 21, sec. 3 (9 Stat. 593) 19—347, 348 1851, Mar. 3, ch. 25 (9 Stat. 595) 17—450 sec. 3 (9 Stat. 595) 20—353 sec. 7 (9 Stat. 596) 17—157; 20—352 1851, Mar. 3, ch. 35 (9 Stat. 626) 17—597 1851, Mar. 3, ch. 38 (9 Stat. 629)..... „ 17—270, 635; 23—243 1851, Mar. 3, ch. 41 (9 Stat. 631) 21—14 1852, Aug. 30, ch. 104 (10 Stat. 56, 58) 25—147 1852, Aug. 30, ch. 106 (10 Stat. 61) 17—507 sec, 9 (10 Stat. 63) 18—348 sec. 22 (10 Stat. 71) 17—629 1852, Aug. 31, ch. 108, sec. 18 (10 Stat. 100) 18—305 1852, Aug. 31, ch. 112 (10 Stat. 112) 18—345 sec. 8.(10 Stat. 119) ...' 18—345 sec, 13 (10 Stat. 120) 18—347 1853, Feb. 3, ch. 41 (10 Stat. 154) 17—221 1853, Feb. 14, ch. 69, sec. 9 (10 Stat. 159) 19—371; 23—567 1853, Feb. 21, ch. 79 (10 Stat. 160) 25—170 1853, Feb. 26, ch. 80 (10 Stat. 161) 20—400; 21—196 sec. 3 (10 Stat. 165).. 18—124; 18—125; 19—64,159 1853, Feb. 26, ch. 81 (10 Stat. 170) .... 17—420; 22—643 1853, Feb. 26, ch. 90 (10 Stat. 172).. 19—372; 20-44, 48 sec. 2 (10 Stat. 173) 17—420,545 sees. 3, 6 (10 Stat. 173, 175) 17—420 1853, Mar. 3, ch. 97 (10 Stat. 189) 17—622 sec. 3 (10 Stat. 209) 19—554; 21—364 1853, Mar. 3, ch. 98, sec. 9 (10 Stat. 219) 17—571 1853, Mar. 3, ch. 143 (10 Stat. 244) 17—133 1853, Mar. 3, ch. 145, sees. 6,7 (10 Stat. 246,247) 17—407 1853, Mar. 3, ch. 152 (10 Stat. 258) 19—189 1854, Mar. 27, ch. 25 (10 Stat. 269)... 18—573 1854, Mar. 28, ch. 30, sec. 5 (10 Stat. 272) 20—309 1854, May 30, ch. 59 (10 Stat. 277) 19—67 536 ACTS AND RESOLUTIONS CITED. 1854, June 22, ch. 61 (10 Stat. 298) 17—661 1854, July 17, ch. 83 (10 Stat. 304) ..... 20—742 1854, July 17, ch. 84, sec. 4(10 Stat. 305) .'... 19—636 sec. 6 (10 Stat. 306) 19—372 1854, July 22, ch. 103 (10 Stat. 308) 80—118, 122, 285 sec. 8 (10 Stat. 309) 19—8 1854, Aug. 4, ch. 247, sec. 6 (10 Stat. 576) 18—203; 20—18, 19 1855, Feb, 21, ch.,117, sec. 3 (10 Stat. 611) 18—195 1855, Feb. 24, ch. 123 (10 Stat. 614).......-..........,., 25—78 1855, Feb. 28, ch. 127 (10 Stat. 616) 17—127 1855, Mar. 1, ch. 133, sec. 12 (10 Stat. 623) 19—226 sec. 22 (10 Stat. 626) 19—197 1855, Mar. 2, ch. 147 (10 Stat. 634) 17—27, 28; 18—522 1855, Mar. 3, ch. 173, sec. 3 (10 Stat. 642) 17—78 1855, Mar. 3, ch. 175 (10 Stat. 643) 17—622 sec. 4 (10 Stat. 669) 19—555 1855, Mar. 3, ch. 199 (10 Stat. 682) 17—212 1856, June 3, ch. 43 (11 Stat. 20) ■.. 19—522 1856, June 3, ch. 44 (11 Stat. 21) 19—572 1856, Aug. 18, eh. 127, sec. 33 (11 Stat. 65) 19—226 1857, Feb. 7, ch. 36 (11 St.. 157) 17—212 1857, Feb. 16, ch. 46 (11 Stat. 161) 21-349; 22»-2; 23—294 1857, Feb. 21, ch. 57 (11 Stat. 164) 19—478 1857, Mar. 3, ch. 97 (11 Stat. 191).., 18—355 1857, Mar. 3, ch. 101 (11 Stat. 199) 17—270 1857, Mar. 3, ch. 106 (11 Stat. 200) = .... 17—10 1857, Mar. 3, ch. 117 (11 Stat. 251) 18—170, 522 1858, May ,29, ch. 49 (11 Stat. 293) 22—2; 23—294 1858, June 3, ch. 85 (11 Stat. 309) 17—221 1858, June 12, ch. 154, sec. 17 (11 Stat. 327) 19—394 1858, June 12, ch. 155, sec. 3 (11 Stat. 332) 17-414 1858. June 14, ch. 164, sees. 4, 5 (11 Stat. 364, 365) 18—249 1859, Feb. 26, ch. 59 (11 Stat. 385) 17—407 1859, Mar. 3, ch. 76, sec. 2 (11 Stat. 407) 20—361 - 1859, Mar. 3, ch. 78 (11 Stat. 408) 18—555' 1859, Mar. 3, ch. 83, sec. 7(11 Stat. 434)'. 20—352 1860, Mar. 12, ch. 5 (12 Stat. 3) '. 25—626 1860, June 13, ch. 120(12 Stat. 30), 22—3 1860, June 15, ch. 131, sec. 4 (12 Stat. 39) 18—249 1860, June 21, ch. 167 (12 Stat. 71)....- 20—285 1860, June 22, ch. 181, sec. 5 (12 Stat. 83) 19—53 1861, Jan. 29, ch. 20 (12 Stat. 126) '. 17—1 sec. 3 (12 Stat. 127) 17—117, 364 1861, Feb. 21, ch. 49 (12 Stat. 147)....: 17—127 sec. 3 (12 Stat. 150) 17—178 1861, Feb. 28, ch. 59 (12 Stat. 172) 19—67 1861, Mar. 2, ch. 68, sec. 28 (12 Stat. 197) 17—635 1861, Mar. 2, ch. 70 (12 Stat. 198) 20—152, 153 sec. 2 (12 Stat. 199) 20—153 1861, Mar. 2, ch. 84, sec. 10 (12 Stat. 220) 17—351, 385; 21—185, 216 1861, July 17, ch. 6 (12 Stat. 261) 19—538 1861, July 25, ch. 20, seci 6 "(12 Stat. 276)' 17—532 1861, July 27, ch. 21 (12 Stat. 276) 17—595, 598; 19—538; 20—136, 145, 365 ACTS AND RESOLUTIONS CITED. 537 1861, Aug. 2, ch. 37 (12 Stat. 285) 20—715 1861, Aug. 3, ch. 42 (12 Stat. 287) 17—127; 20—688 sec. 16 (12 Stat. 289) 17—8 sec. 17 (12 Stat. 289) 17—8, 208 sees. 21, 22 (12 Stat. 290) 17—180 sec. 23 (12 Stat. 291) :... 17—182 1861. Aug. 5, ch. 45 (12 Stat. 292) 20—364, 413, 701 sec. 8(12 Stat. 294) 17—229; 20—134, 147, 413, 701; - ■ ■ 21—109 1861, Aug. 6, ch. 65 (12 Stat. 327).: "20—715 1861, Dec. 21, ch. 1, sec. 1 (12 St*. 329) 17—128, 182 1861, Dec. 24, ch. 3 (12 Stat. 330) 17—439 1862, Feb. 25, ch. 33 (12 Stat. 345) 20—318 1862, Mar. 8, J. Res. 16 (12 Stat. 615) 19—539 1862, May 15, ch. 72 (12 Stat. 387) 25—555 1862, June 2, ch. 93 (12 Stat. 411) 20—499 1862, June 7, ch. 98 (12 Stat. 422) 20^14 1862, July 1, ch. 120 (12 Stat. 489) 17—295; 18—504, 603; 19—78; 21—145 sec. 1 (12 Stat. 489) 22—289 sec. 3 (12 Stat. 492) 17—130, 406 sec. 4 (12 Stat. 492) 17—407 sec. 6 (12 Stat. 493) 20—12; 21—105 sec. 7(12 Stat. 493) 17—130, 406 sec. 9 (12 Stat. 494) 17—130 sec. 13 (12 Stat. 495) 17—377; 22—396 sec. 17 (12 Stat. 497) 17—296 sec. 19 (12 Stat. 497) 20—581 1862, Julyl, ch. 119, sec. 77, Schedule A (12 Stat. 467) 23—7 sec. 86, Schedule A (12 Stat. 472) 21—113 sec. 110, Schedule A (12 Stat. 483) 22—284 1862, July 2, ch. 130 (12 Stat. 503) 17—129; 22—470 sec. 5 (12 Stat. 504) 17—129,133 1862, July 5, ch. 134 (12 Stat. 510) 22—47 1862, July 12, ch. 142 (12 Stat. 532).. 20—318 sees. 1, 2 (12 Stat. 532) 19—279 1862, July 12, J. Res. No. 52 (12 Stat 623) 24—581; 25— 530 1862, July 14, ch. 163, sec. 5 (12 Stat. 549) 17—106 sec. 21 (12 Stat. 559)..... 17—655 1862, July 14, ch. 166, sees. 1,2 (12 Stat. 566) 18—40 sec. 12 (12 Stat. 569)' 19—172 1862, July 14, ch. 167 (12 Stat. 569) 22—344; 25—196 1862, July 16, ch. 183 (12 Stat. 583) 17—117; 22—621 . ch. 184 (12 Stat. 587) 17—344 1862, July 17, ch. 195, sec. 13 (12 Stat. 592) 20—334 1862, July 17, ch. 196 (12 Stat. 592) 21—559 1862, July 17, ch. 200, sec. 12 (12 Stat. 596) 20—688 sec. 17 (12 Stat. 596) 17—19; 19—206 1862, July 17, ch. 201 (12 Stat. 597) , 17—4 1862, July 17, J. Ees. No. 66 (12 Stat. 628) : 17—281 1863, Feb. 4, ch. 20 (12 Stat. 639) 17—533 1863, Feb. 9, ch. 25 (12 Stat. 642) 20—22 1863, Feb. 20, ch. 45 (12 Stat. 656) 25—259 1863, Feb. 21, ch. 53 (12 Stat. 658) 18—141 538 ACTS AND RESOLUTIONS CITED. 1863, Feb. 24, ch. 56 (12 Stat. 664) 19—336 1863, Feb. 25, ch. 58 (12 Stat. 665) 17—289 sees. 7, 9, 11, 15-17(12 Stat. 667-669) , 17—290 sees. 5, 6, 11, 12 (12 Stat. 668) 17—288 sec. 55. (12 Stat. 680) 20—477 1863, Mar. 3, ch. 73 (12 Stat. 709)., 20—318; 21—559 1863, Mar. 3, ch. 74, sec. 18 (12 Stat. 725) 17—504 1863, Mar. 3, ch. 75, sec. 16 (12 Stat. 734) 19—538,539 sec 25 (12 Stat. 735) 19—539,540 sec. 30 (12 Stat. 736) 28—122 sec. 35 (12 Stat. 736) 18—203; 20—18 1863, Mar. 3, ch. 76, sec. 1 (12 Stat. 737) 19—227 sec. 2 (12 Stat. 739) 20—715 sec. 10 (12 Stat. 740) .« 18—61; 20—706 1863, Mar. 3, ch. 78 (17 Stat. 743) 17—571; 20—155 1863, Mar. 3, ch. 79, sec. 6 (12 Stat. 751) : 20—421; 24—130, 581; 25—530 sec. ,16 (12 Stat. 753) 18—98 sec. 25 (12 Stat. 754) 18— 279; 19— 501 , 1863, Mar. 3, ch. 117 (12 Stat. 808) 20—44 1863, Mar. 3, ch. 119 (12 Stat. 819) 18—141 1864, Mar. 1, ch. 46, sec. 2 (13 Stat. 39) 20—22 1864, Mar. 14, ch. 31 (13 Stat. 28)' 19—636 1864, Mar, 15, ch. 33 (13 Stat. 29) 25^17 1864, Apr. 1, ch. 45, sec. 2 (13 Stat. 39) 18—203; 20—22 1864, Apr. 8, ch. 52 (13 Stat. 45) 23—293 1864, Apr. 21, ch. 63 (13 Stat. 53)-. 17—118; 20—360 1864, May 5, ch. 80 (13 Stat. 66) 19—522 1864, May 12, ch. 85 (13 Stat. 74) 19—377 1864, May 26, ch. 95 (13 Stat. 85) 19—372 sec. 13 (13 Stat. 91) 19—372 1864, June 3, ch. 106, sec. 12 (13 Stat. 102) 17—290 sec. 56 (13 Stat. 116) ..«• 20—477 1864, June 15, ch. 124 (14 Stat. 126) 20—23 1864, June 25, ch. 150 (13 Stat. 182) 20—155 1864, June 25, ch. 152 (13 Stat. 183) ,. 17—182 1864, June 27, ch. 164, sec. 2 (13 Stat. 197) 20—27,28 sec. 3 (13 Stat. 197) 20—29 1864, June 30, ch. 171 (13 Stat. 202) 17—336 sec. 3 (13 Stat. 206) 19—691 sees. 11, 12 ( 13 Stat. 212) 21—542 sec. 22 (13 Stat. 216) 20—665 sec. 23 (13 Stat. 216) 17—270, 635; 20—665 sec. 24 (13 Stat. 217) 17—271, 635 1864, June 30, ch. 172 (13 Stat. 218-222) 22—42 1864, June 30, ch. 173, sec. 14 (13 Stat. 226) .'. 17—433, 434 sec. 56 (13 Stat. 243) 17—502 sec. 57 ( 13 Stat. 243-244) 17—502 sec. 61 (13 Stat. 245) 17—503 sec. 110 (13 Stat. 278) 17—433; 21—559 sec. 100, Schedule A (13 Stat. 274) .... 23—7 sec. 119 (13 Stat. 283) 17—470 1864, July 1, ch. 197 (13 Stat. 335) 17—658; 18—17 sec. 2 (13 Stat. 336) 17—665 ACTS AND RESOLUTIONS CITED. 539 1864, July 2, ch. 216 (13 Stat. 356) 18—504; 18—60X5 21—145, 487 sec. 5 (13 Stat. 358) 20—12; 21—105: 22—400 sec. 10 (13 Stat. 360) 20—12 sec. 13 (13 Stat. 361) 22—289, 400 1864, July 2, ch. 217 (13 Stat. 365) 18—358, 571; 19—88, 92, 93; 25—402, 632 sees. 2, 3 (13 Stat. 367) 18^358 sec. 6 (13 Stat. 369) 18—572 1864, July 4, ch. 247 (13 Stat. 387) 18—172 sec. 5 (13 Stat. 387) 18—41 1865, Feb. 17, ch. 39 (13 Stat. 431) 25—208 1865, Feb. 23, ch. 50 (13 Stat. 436) , 22—3; 23—294 1865, Mar. 3, ch. 78, sec. 6 (13 Stat. 484) 21— 560 1865, Mar. 3, ch. 79, sec. 12 (13 Stat. 489) 17—19, 20 1865, Mar. 3, ch. 80, seC. 7- (13 Stat. 493) 17—271, 635; 20—665 1865, Mar. 3, ch. 84 (13 Stat. 499) , 17—506 sec. 3 (13 Stat. 499) 18—41 1865, Mar. 3, ch. 88, sec. 2 (13 Stat. 504) 17—377 1865, Mar. 3, ch. 89, sec. 9 (13 Stat. 506) 18—249 1865, Mar. 3, ch. 90 (13 Stat. 507) 28—292 1865, Mar. 3, ch. 98, sec. 2 (13 Stat. 516) 17—506 1865, Mar: 3, J. Res. No. 27, sec. 1 (13 Stat. 571) 17—195; 24—64 1865, Apr. 9, ch. 31 (14 Stat. 27) 18—184 1866, Apr. 12, ch. 40 (14 Stat. 32) 19—385, 386 1866, May 5, ch. 74 (14 Stat. 44) 22—15 1866, May 16, ch. 84 (14 Stat. 48) 19—590 1866,June6, ch. 106 (14 Stat. 56)... , 25—87 sec. 1 (14 Stat. 56) 18—41 1866, June 12, ch. 114 (14 Stat. 59) 17—658 sec. 8 (14 Stat. 60) 17—663; 18—17 1866, June 27, ch. 140, sec. 2 (14 Stat. 75) 22—44 1866, July 3, ch. 158 (14 Stat. 78) 19—572 1866, July 3, ch. 159 (14 Stat. 79) 17—131 1866, July 13, ch. 176, sec. 5 (14 Stat. 92) 17—20, 22 sec.7 (14 Stat. 93) 18—203 1863, July 13, ch. 184 (14 Stat. 98, 138) 17—470 sec. 9 (14 Stat. 146, 147) 17—434; 20—535; 21—560 1866, July 18, ch. 201, sec. 4 (14 Stat. 179) 20^400 sec.7 (14 Stat. 179) 18—127 sec. 11 (14 Stat. 180) 23—380 sec. 16 (14 Stat. 182) 23—399 sec. 23 (14 Stat. 183) 18—562 1866, July 23, ch. 208, sec. 5 (14 Stat. 191) 17—506 1866,July 24,ch.230 (14 Stat. 221) 24—604 1866, July 25, ch. 231 (14 Stat. 222) . I .... 17—56; 22—621 sec. 2 (14 Stat. 222) 17—560 sec.6 (14 Stat. 223) 19—590 1866, July 25, ch. 235 (14 Stat. 230) 25-87 1866, July 26, ch. 368 (14 Stat. 368) 23—411 1866, July 27, ch. 278 (14 Stat. 292) >. 17—252; 19—135 sec. 3 (14 Stat. 294) 19—136 sec. 11 (14 Stat. 297) 23—303 1866, July 28, ch. 297, sec. 8 ( 14 Stat. 327) 17 —354 ; 20—155 540 ACTS AND RESOLUTIONS CITED. 1866, July 28, ch.298 (14 Stat. 328) 17—106; 18—45 sec.9 (14 Stat. 329) 17—272, 635 1866, July 28, ch. 299 ( 14 Stat. 332) 17—4, 53, 197, 362, 402, 612; 20—288 sec. 17 <14Stat.334) 17—404 sec.22 (14 Stat. 336) 17—148 sec. 32 (14 Stat. 337) 17—8, 60; 22—482 sec. 37 (14Stat.337) 17—462, 463 1866, July 28, ch. 302 (14 Stat. 341) 19—394 1867, Jan. 21, ch. 8 (14 Stat. 377) 20—334, 337 1867, Feb. 21, ch. 57 (14 Stat. 397) 20—588 1867, Feb. 22, ch. 61 (14 Stat. 401) 18—335; 19—83 1867, Feb. 25, ch. 79 (14 Stat. 410) 17—4 1867, Mar. 2, ch. 145, sec. 9 (14 Stat. 423) 17-94 1867, Mar. 2, ch. 154 (14 Stat. 430) 18—320 1867, Mar. 2, ch. 159, sec. 1 (14 Stat. 434) 17—11,35, 53, 196, 363, 403; 24—75 sec. 2 (14 Stat. 435) 17—11, 403 1867, Mar. 2, ch. 167 (14 Stat. 457) 18—441; 23—294 sec. 7 (14 Stat. 466) 19—159 1867, Mar. 2, ch. 170 (14 Stat. 486) 23—292 1867,.Mar. 2, ch, 172, sec. 1 (14 Stat. 490) 17—126 1867, Mar. 2, ch. 174 (14 Stat. 515) 25—87 sec. 1 (14 Stat. 516) 19—590 sec. 3 (14 Stat. 516; 17—556, 559 sec. 5 (14 Stat. 516) 17—414 sec. 9 (14 Stat. 517) 17—36, 496 1867, Mar. 2, J. Res. No. 48 (14 Stat. 571) .,18—421 1867, Mar. 26, ch. 8 (15 Stat. 6) 21—560 1867, Mar. 29, ch. 14 (15 Stat. 9) 20—365 1867, Mar. 29, ch. 15 (15 Stat. 10) 22—18 1868, Feb. 25, ch. 13 (15 Stat. 37) : 17—616 1868, Mar. 3, ch. 37 (15 Stat. 55) 18—216 1868, Mar. 12, J. Ees. No. 20 (15 Stat. 250) 18—356 1868, Mar. 30, ch. 38 (15 Stat. 56) 19—611, 613 seq. 2 (15 Stat. 58) 19—204, 612 1868, June 25, ch. 72 (15 Stat. 77) , 17—342; 18—389; 19—686; 20—462 1868, July 20, ch. 186, sec. 4 (15 Stat. 126) 18—45 sec. 61 (15 Stat. 153) 17—646 sec. 107 (15 Stat. 167) 19—307 1868, July 20, J. Res. No. 60 (15 Stat. 258) .'. 25—391 1868, July 23, ch. 227 (15 Stat. 168) 18—50; 20—10; 24—648; 25—259 1868, July 27, ch. 262 (15 Stat. 232) 22—3 1868, July 27, ch. 273 (15 Stat. 240) 19—700 sec. 8 (15 Stat. 242) 18—585 1868, Dec. 15, ch. 2 (15 Stat. 265) , 17—102 1869, Mar. 1, J. Ees. No. 15 (15 Stat. 346) 21—488; 25—403 1869, Mar. 3, ch. 122, sec. 1 (15 Stat. 301,306) 19.-394 1869, Mar. 3, ch. 123 (15 Stat. 312) 17—219, 429 1869, Mar. 3, ch. 126 (15 Stat. 323) 18—216 1869, Mar. 3, ch. 127, sec. 1 (15 Stat. 324) ... 17—377 ACTS AND BESOLUTIONS CITED. 541 1869, Mar. 3, ch. 152, sec. 3 (15 Stat. 342) 19—13 1869, Mar. 3, J. Ees. No. 21 (15 Stat. 347) 25— 199 1869, Apr. 10, ch. 20 (16 Stat. 44) 17—4 1870, Feb. 9, J. Ees. 12 (17 Stat. 369) 17—147 1870, Jan. 21, ch. 9 (16 Stat. 62) 20—353, 688 1870, Feb. 1, ch. 11 (16 Stat. 63) 25— 46 1870, Mar. 25, ch. 30 (16 Stat. 77) 18—581, 583 1870, Apr. 6, ch. 47 (16 Stat. 82) 18—444 1870, Apr. 6, J. Ees. 32 (16 Stat. 372) 17—450; 20—353 1870, Apr. 12, J. Ees. 35 (16 Stat. 663)...! 17—390 1870, Apr. 22, ch. 61 (16 Stat., 92) 23—292 1870, May 31, J. Ees. 67 (16 Stat. 378) 19—89,92; 25—402 1870, May 4, ch. 69 (16 Stat. 95) 17—378 1870, June 17, ch. 132, sec. 2 (16 Stat. 153) 17—235 1870, June 22, ch. 150 (16 Stat. 162) 18—136; 20—656, 716; 21—196^ sec. 4 (16 Stat. 162) 20—659, 722 sec. 14 (16 Stat. 164) 18—60 sec. 17 (16 Stat. 164) 18—125, 136; 19— 64 1870, June 23, J. Ees. 81 (16 Stat. 667) 17—316 1870, June 28, ch. 167 (16 Stat. 168) 25—43 1870, June 29, ch. 169(16 Stat. 169) 21—340, 366 1870, July 1, ch. 189 (16 Stat, 180) 19—432; 20—52, 635 sec. 5 (16 Stat. 181) 20—83 i sec. 7 (16 Stat. 182) 18—586; 19—6 1870, July 1, ch. 202 (16 Stat. 646) 19—11; 20—119,122 1870* July 1, J. Ees. 95 (16 Stat. 383) 17—281 1870, July 7, ch. 210, sec. 4 (16 Stat. 189) 18—191 1870, July 8, ch. 230, sec. 86 ( 16 Stat. 212) . . •. 28—357 1870, July 11, ch. 241 (16 Stat. 228) 18—216 1870, July 11, J. Ees. 102 (16 Stat. 385) 23—411 1870, July 12, ch. 251, sees. 5, 6 (16 Stat. 251) 18—569 sec. 7 (16 Stat. 251) 18—216, 569 1870, July 14, ch. 254, sec. 7 (16 Stat. 256) .1 21—37 1870, July 14, ch. 255, sec. 21 (16 Stat. 265) 21—109 sec. 22 (16 Stat. 266) 21—243 sec. 15 (16 Stat. 260) 17—470 sec. 21 (16 Stat. 262) 17—613 1870, July 14, ch. 256, sec. 1 (16 Stat. 272) 20—127 sec. 3 (16 Stat. 272) 17—349; 20—128 1870, July 15, ch. 294, sec. 3 (16 Stat. 317) . . '. 18—311 sec. 17 (16 Stat. 319) 17—14,19,20 sec. 20 (16 Stat. 319) 17—462 sec. 23 (16Stat.-320) 20—688 sec. 24 (16 Stat. 320) ,- 17—94, 170 1870, July 15, ch. 295 (16 Stat. 321) 17—320 sec. 3 (16 Stat. 330) 17-126,556,559 sec. 4 (16 Stat. 332) 17—559 sec. 5 (16 Stat. 333) 17-178, 182, 496 sec. 7 (16 Stat. 333) 17—497 1870, July 15, ch. 296, sec. 12 (16 Stat. 362) 21—132 1871, Feb. 21, ch. 62 (16 Stat, 419) 17—489 sec. 5 (16 Stat.' 420) 17—494 1871, Feb. 25, ch. 72 (16 Stat. 432) 20—657 542 ACTS AND RESOLUTIONS CITED. 1871, Feb. 28, ch. 99, sec. 14 (16 Stat. 438) 18—102 1872, Feb. 28, ch.l00,sec. 13 (16 Stat. 445) 23—274 sec. 23 (16Stat. 449) 18—17; 25—68 sec. 27 (16 Stat. 449) 17—629 sec. 64 (16 Stat. 458.) 28—274 sec. 65 (16 Stat. 458) ..' 25—68 1871, Mar. 3, ch. 113, sec. 2 (16 Stat. 494) 19—426 1871, Mar. 3, ch. 114 (16 Stat. 495, 500) ...'. 22—4 (16 Stat. 506) 23—292 sec. 9 (16 Stat. 514) 17—195 1871, Mar. 3, ch. 115 (16 Stat. 515) 18—356 1871, Mar. 3, 'ch.'116, sec. 2 (16 Stat. 524) 18—302 1871, Mar. 3, ch. 117, sees. 5-7 (16 Stat. 535-536) 17—37 sec. 7 (16 Stat. 536) . 20—360 :? ' '* ,r ' ; " ' sec. 9 (16 Stat. 536) ..: '. 17— 126; 19— 171 sec. 10 (16 Stat. 536, 537).: 17—50, 58; 20—360; 22-^7 1871, Mar. 3, ch. 120 (16 Stat. 544)...... 23—255 (16 Stat. 566) .". 20—712 sec. 2 (16Stat.'570)......V..-. 20—712 1871, Mar. 3, ch. 121, sec. 5 (16Stat. 572).........'...-. 25—200 1871, Mar. 3, ch. 122, sec. 22 (16 Stat. 579)-......: -. 17—371, 373, 376 sec. 23 (16 Stat. 579) 19—135 1871, Dec. 21, ch. 5 (17 Stat. 24) ......... 17—509 1872, Mar. 5, ch. 30 (17 Stat. 35)..........:.:.... 19—378 1872, Mar. 18, ch. 57 (17 Stat. 41) :..::::..:.:..:... 24—613 1872, Mar. 27, ch. 65 (17 Stat. 43)....:...:.-.::......: 17—510 1872, May 2, ch. 132 (17 Stat. 59) .....:::::::.. 17—372 1872, May 18, ch. 172, sec. 2 (17 Stat. 122)...:: 17—342 1872, June 1, ch. 256 (17 Stat. 200) : : .:.:.:::::.::.::::... . 18—216 sec. 5 (17 Stat: 202) .:::.:..::•.:.'.':... 26'— 696 1872, Junel, ch. 263 (17 Stat. 2U):. .:.::.-.;-.. ;...'.;'J::.:L 28—570 1872, June 5, ch. 296 (17 Stat. 225):.:::. •.::-.;:. :....„. -j,'. 17—497 1872, June5,ch. 306 (17 Stat. 226)-.::-..::. :.:::...:: ".'.' 17—320,497" 1872, June 6, ch. 315 sec. 5 "(17 Stat. 234> ::::::........:... 21—244 sec. 36 (17Stat. 256) .v.. ........ . 22—570 1872, June 7, ch. 322 (17 Stat. 262)::::. ::.::.::.. ,..18— 55; 19— 182; 21—285 sec. 7 (17 Stat; 263) ::...:...:,. . ; : ; ."'.'. '. 18—56 1872, June 8, ch. 335 (17 Stat. 283):.:.. ::...:.. ..:.... 19—519 ' sec. 102' (17 Stat; 297).-...-. 17^-78 sec. 103 (17 Stat/ 297) :: ._..:... . ; . 19—518 ■ sec. 126 (17 Stat. SOO)- :.::.;.:..;„.... 22—291 sec. 134 (17 Stat. 301).::. -.L..'. 19-^-41 sec. 149 (17 Stat. 302)::.::..'.:..'.. 17— 79', 81 > sec. 167 (1? Stat. 304) ::.:.: L 19^-41; 19—518 sec. 267 (17 Stat. 316).:.:.:.....-.:.... 18—250 sec. 269 (17 Stat. 316) :.:::.......:'.... 18—250 sec. 273(17 Stat.S16). ..;.:. ...:...'... 19—518 sec. 300 (17 Stat: 822)....... ; 17—78 sec. 316 (17Stat.-325):::.::: 19—348 1872, June 8, ch. 342 (17 Stat. 335) .:::.:..::....... 18—41 1872, June 8, ch. 346 (17 Stat. 336)....:..::....: 20—318 ' ■ 1872, June 8, ch. 362 (17 Stat. 342) ::.:...::...: .....18—356 1872, June 10, ch. 415 (17 Stat 347) 18—121 ACTS AND RESOLUTIONS CITED. 543 18*2, June 10, ch. 419 (17 Stat. 378) 17—60 1872, Dec. 17, ch. 4 (17 Stat. 398) 18^126,512; 22—344; 25—196 1873, Feb. 1, ch. 88 (17 Stat. 422) 18—204 1873, Feb. 12, ch. 131, sec. 8 (17 Stat. 425) 19—17 sec. 15 (17 Stat. 427) 18—418 sec. 28 (17 Stat. 428) 22—85" 1873, Mar. 1, ch. 213, sec. 4 (17 Stat. 482) 20—389 1873, Mar. 3, ch. 226 (17 Stat. 500) 20—153,156 sec. 2 (17 Stat. 508) 18—504; 20—15 1873, Mar. 3, ch. 227 (17 Stat. 511) 18—121 1873, Mar. 3, ch. 228, sec. 3 (17 Stat. 542) 20—224 1873, Mar. 3, ch. 230 (17 Stat. 547) 17—179,182 sec. 1 (17 Stat. 555) 17—180 1873, Mar. 3, ch. 231 (17 Stat. 556) 18—217 1873, Mar. 3, ch. 234, sec. 3 (17 Stat. 568, 569) 18—41 sec. 4 (17 Stat. 569) 17 — 401; 18 — 41 sec. 22 (17 Stat. 573) 19—191 sec. 25 (17 Stat. 574) 17—191,442 1873, Mar. 3, ch. 236 (17 Stat. 577) 18—302 1873, Mar. 3, ch. 244 (17 Stat. 580) 18—127; 20—100, 402 1873, Mar. 3, ch. 260, sec. 6 (17 Stat. 600) ."... 17—217 1873, Mar. 3, ch. 268 (17 Stat. 602) 18—323 18*73, Mar. 3, ch. 296 (17 Stat, 614) 23—570 1873, Mar. 3, ch. 311 (17 Stat. 621) 17—510 1873, Mar. 3, ch. 332, sec. 4 (17 Stat. 632) 17—382, 415 1874, Mar. 4, ch. '44 (18 Stat. 19) 24—646 1874, Mar. 5, ch. 46 (18 Stat. 19) 18—182 1874, Mar. 24, ch. 64 (18 Stat. 24) 20—52 1874, Mar. 24, ch. 65 (18 Stat. 2'4) 21—474 1874, Apr. 17, ch. 107 (18 Stat. 30) 21—167,413 1874, May 11, ch. 165, sec. 3 (18 Stat. 44) 18—190 1874, May 18, ch. 182 (18 Stat. 47) 17—169 1874, June 6, ch. 216 (18 Stat. 58) 23—578 1874, June 9, ch. 259 (18 Stat. 64) 17—580; 18—246 1874, June 9, ch. 260 (18 Stat. 64) 18—55; 21— "285 1874, June 9, ch. 261 (18 Stat. 65) 17—169 1874, June 11, ch. 275, sec. 3 (18 Stat. 70) 24—52 1874, June 16, ch. 285 (18 Stat. 72) ! 17—147,148 1874, June 18, ch. 298 (18 Stat. 78) 17—327,401; 18—41,75 1874, June 19, ch. 323 (18 Stat. 85) 17—169 1874, June 20, ch. 328, sec. 1 (18 Stat. 109) 26—41 sec. 3 (18 Stat. 109) 17—684; 18—122; 19—58, 65, 153; 20—50, 222, 235 sec. 5 (18 Stat. 110) 20—600 1874, June 20, ch. 337, sec. 2 (18 Stat. 116). 17—354,490,494 sec. 3 (18 Stat. 117)... 17—477 sec. 7' (18 Stat. 120) 25— 102 1874, June 20, ch. 343, sec. 3 (18 Stat. 123) : 17—144 sec. 4 (18 Stat. 124):. 17—121,144,409; 20—725 sec, 7 (18 Stat. 124) 17—123 1874, June 20, ch. 344 (18 Stat. 125) 21—126 sec. 7 (18 Stat. 127) 23—78 1874, June 22, ch. 388 (18 Stat. 133, 135).... 19—320 544 ACTS AND RESOLUTIONS CITED. 1874, June 22, ch. 391 (18 Stat. 186) 20—89, 592; 21—292 sec. 1 (.18 Stat. 186) 19—227 sec. 2 (18 Stat. 186) 20—592; 24—623 sec. 4 (18 Stat. 186) 18—70; 20—592, 675, 690, 754; 22—582; 24—61 sec. 6(18 Stat. 187) 24—61 sec. 7 (18 Stat. 187) 20—592 sec. 9 (18 Stat. 188) 17—683; 18—260; 19—227 sec. 10(18 Stat. 188) 18—260 sec. 12 (18 Stat. 188) 18—260,326 sec. 14(18 Stat. 189) 17—275,638; 18—469; 19—543, 606 sec. 15 (18 Stat. 189) 20—402,690 sec. 17 (18 Stat. 189) 20—660, 727 ; 2 1—102, 284, 289, 549; 24—587,590 sec. 18 (18 Stat. 190) 20— 660, 727; 21— 101,287; 24— 587, 590 sec. 19(18 Stat. 190) 19—348; 20—660; 21—101 sec. 20 (18 Stat. 190) 20—660,727; 21—101,320 sec. 21 (18 Stat. 190) 21—252, 334; 24—36 sec. 25 (18 Stat. 191) 20—36; 21—262 1874, June 22, ch. 392(18 Stat. 191) 17—495,497; 23^0 sec. 1 (18 Stat. 191) 17—331; 18—394 1874, June 22, ch. 395 (18 Stat. 193) 20—155,158 1874, June 22, ch. 415 (18 Stat. 201) 17—169 1874, June 22, ch. 419 (18 Stat. 202) 19—595 1874, June 23, ch. 453 (18 Stat. 203) 18—292,376,508; 25—544,581 1874, June 23, ch. 455 (18 Stat. 204,208) 17—85 1874, June 23, ch. 456 (18 Stat 231) 25—358 sec.'l2 (18 Stat. 235) 20-^297 1874, June 23, ch. 457 (18 Stat. 237,240) 21—442 1874, June 23, ch. 458 (18 Stat. 244) 17-466; 20—428 sec. 2 (18 Stat. 244) 19—502 1874, June 23, ch. 459 (18 Stat. 245) .•. 18—299 sec. 1 (18 Stat 245) , 18—299 sec. 2 (18 Stat. 246) 18—299 sec. 8 (18 Stat. 246) 18—300 1874, June 23, ch. 465 (18 Stat. 251)..... 17—212 1874, June 23, ch. 469, sec. 6 (18 Stat. 255) 19—444 1875, Feb. 8, ch. 36 (18 Stat. 307) 17—337 sec. 2 (18 Stat. 307) 17—613 sec. 7 (18 Stat. 308) 20—630 sec. 19 (18 Stat. 311) 19—98; 20—534, 681; 21—336, 558 sec. 20 (18 Stat. 311) 20—534: 21—336,558 1875, Feb. 18, ch. 80 (18 Stat. 317) 19—160 (18 Stat. 318) '. 21—37; 24—613 1875, Feb. 19, ch. 90 (18 Stat. 330) 18—238, 487 1875, Feb. 20, ch. 94 (18 Stat. 332) 25—102 1875, Feb. 22, ch. 95, sec. 1 (18 Stat. 333) '.. 19—178 1875, Mar. 1, ch. 115 (18 Stat. 337).. '. 17^*62 1875, Mar. 3, ch. 128 (18 Stat. 342) 21—596 sec. 4 (18 Stat. 343). 19—31 1875, Mar. 3, ch. 130 (18 Stat. 391) ....'.'...'. 19—426 ACTS AND BESOLUTIONS CITED. 545 1875, Mar. 3, ch. 131 (18 Stat. 415) 17—219; 19—429; 25—538 sec. 15 (18 Stat. 420) 18—559; 19—162, 166 1875, Mar. 3, ch. 132 (18 Stat. 420) 19—561 (18Stat.447) 17—73 1875, Mar. 3, ch. 133 (18 Stat. 452) 17—148 (18 Stat. 453) 18—41; 19—265 sec. 3 (18 Stat. 455) 20—145 1875, Mar. 3, ch. 134, sec. 2 (18 Stat. 463) 18—605 sec. 4 (18 Stat. 463) 17—138; 21— 29, 309; 23— 144 1875, Mar. 3, ch. 136 (18 Stat. 469) 21—225, 455 sec. 1 (18 Stat. 469) 17—658; 21—93, 252, 404; 23— 469; 24—36 sec. 2 (18 Stat. 469) 18—140,480,483,516; 19—105, 334,401; 20—622; 23—311; 25—83 1875, Mar. 3, ch. 139, sec. 9 (18 Stat. 475X- 21—462 1875, Mar. 3, ch. 141 (18 Stat. 477) 21^38 sec. 5 (18 Stat. 477) 18— 239; 22— 124 1875, Mar. 3, ch. 149 (18 Stat. 481) 17—229; 20—135, 146,364,626 1875, Mar. 3, ch. 152. sec. 4 (18 Stat. 483) 19—547 1875, Mar. 3, ch. 156 (18 Stat. 485) 21—340, 366; 23—292 1875, Mar. 3, ch. 178 (18 Stat. 512) 19—204; 25—315 sec. 2 (18 Stat. 512).. 19—610 1875, Mar. 3, ch. 180 (18 Stat. 513) 18—50 1875, Dec. 24, ch. 1 (19 Stat. 1) .'...: 18—300 1876, Mar. 23, ch. 30 (19 Stat. 8) 17—235 1876, Apr. 27, J. Res. 9 (19 Stat. 212) 21—54 1876, Apr. 21, ch. 72, sec. 1 (19 Stat. 35) 18—574 1876, Mayl, ch. 89 (19 Stat. 49) 20—5 sec. 1 (19 Stat. 49) 17—683; 20—5 sec. 2, 3 (19 Stat. 49) 20—5 1876, June 10, ch. 122 (19 Stat. 58) 17—104; 18—582 1876, June 20, ch. 136 (19 Stat. 60) .. 20—311 1876, June 26, ch. 146 (19 Stat. 61) 17—466 1876, July 12, ch. 179, sec. 5 (19 Stat. 80) 18--271 . sec. 6(19 Stat. 80) 18—272 sec. 12 (19 Stat. 82) 18—273 1876, July 12, ch. 180, sec. 14 (19 Stat. 82) 25—359 1876, July 12, ch. 181 (19 Stat. 88) 22—569 1876, July 12, ch. 183 (19 Stat. 89) 19—378 1876, July 12, ch. 186 (19 Stat. 90) 18—307 sec. 2 (19 Stat. 90) 17—79,81 1876, July 21, ch. 220 (19 Stat. 94) 17—169 1876, July 22, ch. 225 (19 Stat. 96) 18—300 1876, July 22, J. Ees. 17 (19 Stat. 215). . ., 18^18; 22—85 sec. 3 (19 Stat. 215) , 18—420; 25—171 1876, July 24, ch. 226 (19 Stat. 97) 17—148,463 sec. 3 (19Stat. 100) 17—517 1876, July 29, ch. 239 (19 Stat. 102) 17—42 1876, July 31, ch. 246 (19 Stat. 105) '. 19— 159; 21— 138 ^ (19 Stat. 121) 20—545 1876, Aug. 11, ch. 260 (19 Stat. 130).., - 20—296 1876, Aug. 14, ch. 266 (19 Stat. 132) 17—169 18456—08 35 546 ACTS. AND RESOLUTIONS CITED. 1876, Aug. 15, ch. 287 (19 Stat. 143,152) 18—399; 23—317 sec. 3 (19 Stat. 169) . 24—65 sec. 6 (19 Stat. 169) 17— 419,421 1876, Aug. 15, ch. 289 (19 Stat. 197) 17—73 sec. 5 (19 Stat. 200) 20—215 1876, Aug. 15, ch. 290 (19 Stat. 200) 19—277 1876, Aug. 15, ch. 300 (19 Stat. 203) 17—234,235 1876, Aug. 15, ch. 302 (19 Stat. 204) 17— 495, 499' 1876, Aug. 15, ch. 305 (19 Stat. 206) 18—316 1877, Jan. 31, chv,41 (19 Stat. 230). 19-444 . 1877, Feb. 27, ch. 69 { 19 Stat. 243) 17—127; 20—353; 2S— 450 (]9Stat. 244) 17—50 (19 Stat. 245) 18—275,458 (19 Stat. 250) 17—120 (19 Stat. 251) 17—257 (19 Stat: 252, 253. 21—102; 23—399 1877, Feb. 28, ch. 72 (19 Stat. 254) 20—744 1877, Feb. 28, ch. 74 (19 Stat. 264) 17—169 1877, Mar. 3, ch. 101 (19 Stat. 271) 17—73 (19 Stat. 291) 18—41 1877, Mar. 3, ch. 103, sec. 5 (19 Stat. 335) 17—184,255,631; 21—515; 23— 318; 24—540 sec. 6 (19 Stat. 336) 17—184,255,631 1877, Mar. 3, ch. 105, sec. 4 (19 Stat. 344) 22—41 1877, Mar. 3, ch. 106 (19 Stat. 363, 370) 17—88, 89 1877, Mar. 3, ch. 108 (19 Stat. 377) , 18—264,268 sec. 19 (19 Stat. 380).' 20—307 1877, Mar. 3, ch. 110 (19 Stat. 384) 22—663 1877, Mar. 3, ch. 129(19 Stat. 406) 17—169 1877, Mar. 3, ch. 130 (19 Stat. 407) 17—199 .1877, Mar. 3, ch. 133 (19 Stat. 408) 17—61 1877, Mar. 3, ch. 161 (19 Stat. 541) 17—319 1878, Feb. 28, ch. 20, sec. 1 (20 Stat. 25) , 17—123; 18—418; 20—125 sec. 3 (20 Stat. 26) 18—417; 20—126,725 1878, Mar. 7, ch. 96 (20 Stat. 58) 20—12 sec. 2 (20 Stat. 58) " 20—15 1878, Mar. 9, J. Ees. 14 (20 Stat. 248) 21—54 1878, Apr. 10, ch. 58 (20 Stat 36) 21—471 1878, Apr. 29, ch. 66(20 Stat. 37) 20—467, 472 sees. 2-6 (20 Stat. 37) 20—472 1878, Apr. 30, ch. 76, sec. 2 (20 Stat. 46) 17—592, 593; 18—435; 25—611 1878, May 7, ch. 96 (20 Stat. 56) 18—506, 599; 19— 491; 21—148 sec. 2 (20 Stat. 58) 17—394; 20—12; 22—404 sec. 3 (20 Stat. 58) 17—217 sec. 7 (20 Stat. 60) - 21—148 sec. 8 (20 Stat. 60)...: 19—494; 21—104 1878, May 17, ch. 107 (20 Stat. 61) 17—245 sec. 2 (20 Stat. 62) 17—515; 24—542 sec. 5 (20 Stat. 62) 18—250 1878, June 3, ch. 150, sec. 3 (20 Stat. 88) 18-435 1878, June '3, ch. 151, sec. 4 (20 Stat. 90) 18—435 sec. 5 (20 Stat. 90) 17—592,594 1878, June 7, ch. 162, sec. 5 (20 Stat. 101) 19—81 1878, June 10, ch. 179 (20 Stat. 541) 18—226 ACTS AND RESOLUTIONS CITSD. 547 1878, June 11, ch. 180 (20 Stat. 102) 17—158, 354, 490; 20-60 sec. 2 (-20 Stat. 103) 17—476; 23—138 sec. 3 (20 Stat. 103) 17—470, 495 sec. 4 (20 Stat. 105) ; 17—575 sec. 5 (20 Stat. 105) 18—137 sec: 6 (20 Stat. 107) 17—491 1878, June 11, ch. 181 (20 Stat. 108) 20—149 1878, June 14, ch. 188 (20 Stat. 112) 18—251 1878, Junel7, ch. 259 (20 Stat. 141) 25—359 1878, June 18, ch. 263 (20 Stat. 145) 20—149 (20 Stat. 146) 17—148 sec. 3 (20 Stat. 150) 17—151; 21—492; 22—56 sec. 4 (20 Stat. 150) 17—151; 22—56 sec. 7 (20 Stat. 150) 17—95, 422, 560; 22—200 sec. 8 (20 Stat. 150) 17—390 sec. 9 (20 Stat. 151) .....17—170 sec. 15 (20 Stat. 152) 17— 71, 243, 335; 19—295, 571 1878, June 18, ch. 264 (20 Stat. 152) 21—245 (20 Stat. 159) 18—190 (20 Stat. 160) 20—498 1878, June 18, ch. 265, sec. 12 (20 Stat. 165) 21—65, 124; 23—79 1878, June 18, J. Res. 37 (20 Stat. 588) 19—208, 210 1878, June 19, ch. 312 (20 Stat. 167) 18—413 1878, June 19, ch. 313 (20 Stat. 168) 17—138; 21—29,30; 28—144 1878, June 19,' ch. 316 (20 Stat. 169) 25—585 1878, June 19, ch. 329 (20 Stat. 183) 17—305 (20 Stat. 193) 18—540 1878, June 20, ch. 359 (20 Stat. 216) 19—160 (20 Stat. 219) 18—202 (20 Stat. 240) 18—131 1878, June 20, ch. 367 (20 Stat. 243) 18—252 1878, Dec. 12, ch. 2 (20 Stat. 257) 17—2 1878, Dec. 16, ch. 5 (20 Stat. 258) 18—266 1879, Jan. 30, ch. 36 (20 Stat. 276) 17—169 1879, Jan. 31, ch. 38 (20 Stat. 277) 25—43 1879, Mar. 1, ch. 125 (20 Stat. 327) 17—580, 646; 18—276 sec. 17 {20 Stat. 349) 22—568 sec. 18 (20 Stat. 351) 17—111, 113, 115 1879, Mar. 3, ch. 180 (20 Stat. 356) 19—593; 20—224 sec. 7 (20 Stat. 358) 25—595 sec. 9 (20 Stat. 358) 25—363 sec. 10 (20 Stat. 359) 20—384; 25—595 sec. 11 (20 Stat. 359) 17—165; 20—384 sec. 14 (20 Stat. 359) 20—384; 25—595 sec. 15 (20 Stat. 359) 17—159 sec. 16 (20 Stat. 359) 25—596 sec. 17 (20 Stat. 360) 17—188 sec. 20 (20 Stat. 360) 18—308 sec. 25 (20 Stat. 361) 17—165 sec. 29 (20 Stat. 362) 17—184, 255, 530, 632; 25—319 sec. 32 (20 Stat. 362) 25—362 1879, Mar. 3, ch. 181 (20 Stat. 367, 369) 18—190 (20 Stat. 370) 21—245, 425 sec. 9 (20 Stat. 376) 17-138; 21—29, 310; 23—144 548 ACSTS AND RESOLUTIONS CITED. 1879, Mar. 3, ch. 182 (20 Stat. 377) 17—510; 21—177 (20 Stat. 383) 20—538; 25—498 (20 Stat. 386) 28—582 (20 Stat. 389) 17—424,518 (20 Stat. 390) 19—265 (20 Stat. 394) 17—89 1879, Mar. 3, ch. 183 (20 Stat. 414) 17—685 (20 Stat. 420) . . 21—297 1879, Mar. 3, ch. 187, sec. 2 (20 Stat. 470) 17—356; 19—191, 192 1879, Mar. 3, ch. 189 (20 Stat 470) 1 17—169 1879, Mar. 3, ch. 195, sec. 18 (20 Stat. 479) 25—233 1879, Mar. 3, ch. 290 (20 Stat. 665) 17—401,416; 18—73 1879, May 12, ch. 5 (21 Stat. 3) 21—327 1879, June 2, ch. 11 (21 Stat. 5) 20—467 1879, June 18, ch. 26 (21 Stat. 21) 17—510 1879, June 21, ch. 34 (21 Stat. 23) 17—86, 88 1879, June 23, ch. 35, sec. 1 (21 Stat. 30) 17—170 sec. 2 (21 Stat. 34) 17—463 1879, June 28, ch. 43 (21 Stat. 37) 18—464 1880, Apr. 1, ch. 40 (21 Stat. 69) 17—169 1880, Apr. 1, ch. 41 (21 Stat. 70) 17—104; 20—517 1880, Apr. 7, ch. 48 (21 Stat. 71) 17—241 sec. 2 (21 Stat. 72) 17—166 1880, May 4, ch. 81 (21 Stat. 110) ; 17—148 1880, May 11, ch. 85 (21 Stat. 131) .'..* 17—531 1880, May 18, ch. 95 (21 Stat. 141) 18—190 1880, May 27, chl 105 (21 Stat. 142) , 20—613 1880, May 28, ch. 108, sec. 4 (21 Stat. 145, 146) 17—579; 18—247, 380 1880, June 4, ch. 123 (21 Stat. 544) 18—67 1880, June 10, ch. 187 (21 Stat. 172) ~ 17—169 1880, June 10, ch. 190 (21 Stat. 173) 20—726; 21—304, 369- sec. 3 (21 Stat. 173) 20—674 sec. 7 (21 Stat.. 174) 18—120 1880, June 14, ch. 211 (21 Stat. 181) 21—245 (21 Stat. 188,189) 18—190 (21Stat. 193) 20—300 sec. 4 (21 Stat. 197) 23—76 1880, June 14, ch. 214 (21 Stat. 198) 20—87 1880, June 15, ch. 221 (21 Stat. 198) 17—169 1880, June 15, ch. 223 (21 Stat. 199) 17—367 sec. 3 (21 Stat. 203) 1 17—262 sec. 5 (21 Stat. 204) 21—132 1880, June 15, ch. 225 (21 Stat. 210) 17—86 (21 Stat. 226) 24—622 1880, June 16, ch. 235 (21 Stat. 260) 17—321 (21 Stat. 267) 17—147 (21 Stat. 274). 17—88 1880, June 16, ch. 236 (21 Stat. 281) 17—327, 401 ; 18—40, 41, 74, 75 1880, June 16, ch. 243 (21 Stat. 284) 18—304 1880, June 16, ch. 248(21 Stat. 290) 19—636 1880, Dec. 23, ch. 7 (21 Stat. 312) 19—260, 319 1881, Jan. 18, ch. 23 (21 Stat.. 315) 19—162,168,561 1881, Jan. 20, ch. 24 (21 Stat. 317) 17—103 1881, Jan. 21, ch. 25 (21 Stat. 317) 21—596 1881, Jan. 31, ch. 32(21 Stat. 604) 24—117 ACTS AND KESOLTJTIONS CITED. 549 1881, Feb. 8, ch. 34 (21 Stat. 322) 17—82 1881, Feb. 9, ch. 41 (21 Stat. 324) 18—76 1881, Feb. 18, ch. 61(21 Stat. 326) 19—636,637 1881, Feb. 23, ch. 73 (21 Stat. 331) 17—495,499 sec. 2 (21 Stat. 338) 21—327 1881, Feb. 24, ch. 79 (21 Stat. 346) 17—93,148, 560; 19-439 (21 Stat. 348) 19—265 1881, Mar. 2, ch. 108 (21 Stat. 378) 21—352 1881, Mar. 3, ch. 130 (21 Stat. 385, 412) 17—85 1881, Mar. 3, ch. 132 (21 Stat. 414, 428) 17—229 (21 Stat. 433) 17-383 1881, Mar. 3, ch. 133 (21 Stat. 435, 447) 17—234 (21 Stat. 448) 17—63; 19—50 (21 Stat. 454) 17—248 sec. 2, (21 Stat. 457) 19—280 1881, Mar. 3, ch. 134 (21 Stat. 460) 23—297 sec. 4 (21 Stat. 467) 17—102 sec. 6 (21 Stat. 467) 17—100 1881, Mar. 3, ch. 135 (21 Stat. 468) 17—252 1881, Mar. 3, ch. 136 (21 Stat. 470) 17—456; 21—245 (21 Stat. 471) 18—482 (21 Stat. 474) 17—109 (21 Stat. 475) 19—34 (21 Stat, 481) 20—301 1881, Mar. 3, ch. 138 (21 Stat. 502) 23—634; 25—183 1881, Mar. 3, J. Res. 26(21 Stat. 521) 24—668 1882, Mar. 9, ch. 28 (22 Stat. 28) 17—510; 18—357 1882, Mar. 17, ch. 41 (22 Stat. 29) 18—371 1882, Mar. 22, ch. 47 (22 Stat. 30) 18—94, 596; 20—331,668 sec. 9 (22 Stat. 32) 17—314 1882, Apr. 11, ch. 75 (22 Stat. 43) 17—509; 18—79 1882, May 1, ch. 115 (22 Stat. 697) 17—626; 20—373; 21—154, 526 1882, May 4, ch. 116 (22 Stat. 52) 17—514 1882, May 4, ch. 117 (22 Stat. 55) 21—126 1882, May 6, ch. 126 (22 Stat. 58) 17—416,483; 18—388; 19—369; 20—602, 693; 21—124; 22— 73, 131; 25—138 sec. 1 (22 Stat. 58) 20—171; 24—114, 561 sec. 3 (22 Stat. 59) 24—114, 561 sec. 4 (22 Stat. 59).. 23—488; 24—114,561 sec. 6 (22 Stat. 60) 18—542; 21—261, 354 sec. 12 (22 Stat. 61) 18—90 sec. 14 (22 Stat. 61) 21—37, 582; 23—346 1882, May 15, ch. 144, sec. 3 (22 Stat. 63) 17—410, 414 sec. 4 (22 Stat. 63) 17-410,413 1882, May 15, ch. 145 (22 Stat. 64) 17—365 1882, May 17, ch. 163 (22 Stat. 85) 19—253 (22 Stat. 86) 17—647 1882, May 25, ch. 182-188 ( 22 Stat. 94-97 ) 20—613 1882, May 26, ch. 190 (22 Stat. 97) 19—576, 595 1882, June 5, ch. 195 (22 Stat. 98) 18—298 sees. 1-3 (22 Stat. 98) 18—299 1882, June 16, ch. 222 (22 Stat. 104) 25—515 1882, June 30, ch. 254, sec. 1 (22 Stat. 117,118) 17-422; 22—176,199 (22 Stat. 120) 19—265 550 ACTS AND EESOLUTIONS CITED. 1882, July 7, ch. 274 (22 Stat. 152) 20—613 1882, July 7, J. Kes. 43 (22 Stat. 387) T 18—51 1882, July 12, ch. 286,287 (22 Stat. 161) 20—613 1882, July 12, ch. 290 (22 Stat. 162) 18—495 sec. 9 (22 Stat. 164) 18—495; 20—725 sec. 13 (22 Stat. 166) 17—472 1882, July 15, ch. 294 (22 Stat. 168) 17—587; 19—193; 21—223 1882, July 25, ch. 349 (22 Stat. 174) 18—74; 19—211 1882, July 31, ch. 360 (22 Stat. 179) 20—215 1882, Aug. 2, ch. 374(22 Stat. 186) 22—461 sec. 2 (22 Stat. 186) 22—500 sec. 9 (22 Stat. 189) 19— 707; 25— 51 1882, Aug. 2, ch. 375 (22 Stat. 191)..., ; 18—190 (22 Stat. 194) 21—245 (22 Stat. 198) 17—453 (22 Stat. 199) 18—482 (.22 Stat. 208) 23—76 1882, Aug. 3, ch. 376 (22 Stat. 214) 18—109, 135, 185, 196 ; 19—155, 661,706; 20—218,259,380; 21—543; 23—522; 24—87; 25—372 seel (22 Stat. 214) 18—185; 19—486; 20—70; 24— 591 sec. 2 (22 Stat. 214) 18—186,500; 19—486; 20—70, 79; 20—372 sec. 3 (22 Stat. 214) 18—186; 19—487; 20 — 71,79; 21—7,438 sec. 4 (22 Stat. 214) 18—239; 19—487; 20—71,260, 372 1882, Aug. 3, ch. 381 (22 Stat. 217) 18—484 1882, Aug. 5, ch. 389 (22 Stat. 219, 228) 21—151 (22 Stat. 233) 18—433 (22 Stat. 242) ' 19—553,555 sec. 4 (22 Stat. 255) 19—508; 20— 610, 751; 21— 408; | 25—302 1882, Aug. 5, ch. 390 (22 Stat. 261) 19—265 1882, Aug. 5, ch. 391 (22 Stat. 284) 17—496,499; 18—397; 22—487, 621 (22 Stat. 285) 1.8—373; 19—170,303,353,358; 21—48; 25—580 (22 Stat. 286) 18—96; 23—39 (22 Stat. 287) 17—555,560 1882, Aug. 5, ch. 398, sec. 2 (22 Stat. 300) 22—170 1882, Aug. 7, ch. 433 (22 Stat. 306) . .*. 17—510; 18—205, 357, 484; 19— 132; 20—56,82 1882, Aug. 7, ch. 439 (22 Stat. 345) 18—229 1883, Jan. 6, ch. 13 (22 Stat. 400) 19—67, 481, 482 1883, Jan. 9, ch. 15 (22 Stat. 401) 20—158 1883, Jan. 16, ch. 27 (22 Stat. 403) 17— 623; 18— 172, 245, 410; 20— 585, 649; 21—261,445; 22— 60, 63; 23—578 sec. 2 (22 Stat. 404) 20—276,651; 21—290,394,535; 23—595 sec. 3 (22 Stat. 404) 17—505; 25—381 ACTS AND RESOLUTIONS CITED. 551 1883, Jan. 16, ch. 27, sec. 6 (22 Stat. 405) 19—326,626; 20— 397,585; 21— 614 sec. 7 (22 Stat. 406) 19-412; 21—393; 24—65 sec. 9 (22 Stat. 406) 17—554; 18—83 sec. 11 (22 Stat. 406) 21—299; 24—135 sees. 12-15 (22 Stat. 407) 21—299 1883, Feb. 14, ch. 44 (22 Stat. 414) 18—426,512; 22—344; 25—196 1883, Mar. 2, ch. 64, sees. 2, 3, 4 (22 Stat. 452) 17—585 1883, Mar. 3, ch. 93 (22 Stat. 456) , 25—190 (22 Stat. 458) 19—265 1883, Mar, 3, ch. 96 (22 Stat. 471) 19—74 1883, Mar. 3, ch. 97 (22 Stat. 472) 18—413; 21—103 (22 Stat. 473) 17—555; 19—619 (22 Stat. 476) 18—567 (22 Stat. 477) 18—207 1883, Mar. 3, ch. 116 (22 Stat. 485) 20—115 sec. 2 (22 Stat. 485) 22—211; 24—548 1883, Mar. 3, ch. 119 (22 Stat. 487) 17—658; 18—17 1883, Mar. 3, ch. 120 (22 Stat. 487) 21—471 1883, Mar. 3, ch. 121 (22 Stat. 488) 17—539; 18—82,148,461; 22— 570 sec. 2499 (22 Stat. 491) 18—63; 19—302 sec. 2500 (22 Stat. 491) 20—77 sec. 2502 (22 Stat. 491) 18—63; 20—195 Schedule A (22 Stat. 492) 20—183 Schedule A (22 Stat. 493 ) 18—383 Schedule A (22 Stat. 494) 18—552 Schedule (22 Stat. 497) 18—466,530; 19—103; 20—195 Schedule C (22 Stat. 498) 19—157 Schedule C (22 Stat. 499) 19—527 Schedule C (22 Stat. 500) 19—691 Schedule D (22 Stat. 501) 18—69,475, 536; 19—367, 527 Schedule E (22 Stat. 502) 18—606; 23—241 Schedule F (22 Stat. 503) 17—646; 18—1 Schedule H (22 Stat. 505) 17—613; 18—478 Schedule I (22 Stat. 506) 20—622 Schedule J (22 Stat. 507) 19—335 Schedule K (22 Stat. 508) 17—673; 18—368, 527, 534; 19— 272 Schedule K (22 Stat. 510) 19—105 Schedule L (22 Stat. 510) 18—368 Schedule M (22 Stat. 510) 18—316, 461 Scheduled (22 Stat. 511) 17—672; 19—687, 690 sec. 2503, free list (22 Stat. 514) 18—140, 263 free list (22 Stat. 517) 20—314 free list (22 Stat. 518) 18—148,461 free list (22 Stat. 519) 18—527 free list (22 Stat. 521) 18—163,538; 20—719 sec. 7 (22 Stat. 523) 17-635,638,639; 18—288,364, 468, 479, 483, 496, 510, 516; 19—18, 543, 604, 606 sec. 8-2841 (22 Stat. 523) 20—7 sec. 10 (22 Stat. 525) 17— 650; 18— 14 sec. 13. (22 Stat. 526) 17—541 552 ACTS AND KESOLUTIONS CITED. 1883, Mar. 3, ch. 123.(22 Stat. 526) 17—620 sec. 2 (22 Stat. 527) 20—132 1883, Mar. 3, ch. 128 (22 Stat. 531, 548) 19—701 (22 Stat. 553) 25—508 sec. 4 (22 Stat. 563) 18—352; 19— 420,424,509; 20— 303, 437, 671; 21—339; 22— 78; 25—41 1883, Mar. 3, ch. 130, sec. 8 (22 Stat. 565) 20—353 sec. 10 (22 Stat. 565) 20—483,515; 23—473 sec. 12 (22 Stat. 565) 20—353 1883, Mar. 3, ch. 133(22 Stat. 566) 18—565 1883, Mar. 3, ch. 134 (22 Stat. 567) 25—315 1883, Mar. 3, ch. 141 (22 Stat. 583) 20—437 (22 Stat. 595) 20—113 1883, Mar. 3, ch. 142, sees. 1, 2 (22 Stat. 600, 602) 18—271 sees. 3,4 (22 Stat. 602) 18—272 1883, Mar. 3, ch. 143 (22 Stat. 603) 18—205 ('22 Stat. 604) 18—79 (22 Stat. 605) 18—175 (22 Stat. 625) 22—3; 23—295 1883, Mar. 3, J. Ees. 22 (22 Stat. 641) 18—261 1884, May 1, ch. 37 (23 Stat. 17) 20—610; 22—389 1884, May 13, ch. 46 (23 Stat. 21) 18—182 1884, May 16, ch. 52 (23 Stat. 22) 21—134 1884, May 17, ch. 53 (23 Stat. 24) 19—368, 701 sec. 7 (23 Stat. 25) 19—678 sec. 8 (23 Stat. 26) 18—559 sec. 14 (23 Stat. 28) 18—139 1884, May 21, ch. 55 (23 Stat. 28) 18—147 1884, May 29, ch. 60 (23 Stat. 31) 18—154, 328 sees. 2,3 (23 Stat. 31, 32) 18—155 sees. 4,5 (23 Stat. 32) 25—251 1884, June 3, ch. 62 (23 Stat. 33) 18—298; 23—337, 411 1884, June 26, ch. 121 (23 Stat. 53) 18— 111; 19— 661; 20—368; 21—26, 35, 166, 340 sec. 2 (23 Stat. 54) 22—213 sec. 10 (23 Stat. 55) 18—253 sec. 12 (23 Stat. 56) 18—99, 111, 234; 23—415 sec. 14 (23 Stat. 57) 18—53, 196, 197, 260, 382; 20— 368; 24—123, 597 sec. 15 (23 Stat. 57) 21—367 sec. 16 (23 Stat. 57) 19—690; 21—93, 96; 23—422 sec. 20 (23 Stat. 58) 24—112 sec. 26 (23 Stat. 59 18—63, 198, 282; 19—647, 661, 663, 665; 23—587; 25—376 sec. 27 (23 Stat. 59) 18—55 sec. 29 (23 Stat. 59) 19—646 1884, June 27, ch. 126 (23 Stat. 60) 21—340 1884, July 4, ch. 180, sec. 1 (23 Stat. 76, 96) 19—162, 166, 561 sec. 8 (23 Stat. 97, 98) 20—562 1884, July 4, ch. 181, sec. 2 (23 Stat. 99) 18—252 1884, July 5, ch. 214 (23 Stat. 103) 20—603; 23—569 sees. 2, 3 (23 Stat. 103) 18—544 sec. 6 (23 Stat. 104) 21—537 1884, July 5, ch. 215 (23.Stat. 104) 18—133, 164 ACTS AND BESOLTJTIONS CITED. 553 1884, July 5, ch. 217 (23 Stat. 107, 109) 18—349 (23 Stat. 110) 18—205 (23 Stat. Ill) 19—265 1884, July 5, ch. 218, sec. 6 (23 Stat. 115) 22—202, 261, 355, 608 1884, July 5, ch. 220 (23 Stat. 115) 18 Stat. 90, 388, 542; 19—369; 20—602; 22—73, 131; 25— 138 sec. 3 (23 Stat. 115) 24—562 sec. 4 (23 Stat. 115) 21^25; 23—488; 24—562 sec. 6 (23 Stat. 116) , 19—510; 20—175, 693; 21—6, 69, 124, 131, 348, 481 sec. 12 (23 Stat. 117) 20—172 sec. 15 (23 Stat. 118) 20—171, 730 1884, July 5, ch. 221 (23 Stat. 118) 25—50 sec. 3 (23 Stat. 119) 18—198; 19—564; 20—369; 21— 441 1884, July 5, ch. 222 (25 Stat. 119) 19—223 1884, July 5, ch. 227 (23 Stat. 123) 19—193 1884, July 5, ch. 229 (23 Stat. 133) 19—35; 20—111 (23 Stat. 135) 21—246 (23 Stat. 138) 18—66 (23 Stat. 139) 18—482 (23 Stat. 143) 18—406 sec. 2 (23 Stat. 147) 18—201; 20—111 sec. 4 (23 Stat. 147) 18—188 sec. 8 (23 Stat. 148) '. 20—111 1884, July 5, ch. 234 (23 Stat, 157) 18—93 sec. 3 (23 Stat. 158) 18 Stat. 49, 54; 23—316; 25—617 1884, July 7, ch. 331 (23 Stat. 172) 18—62 (23 Stat. 177-179) 19—701 (23 Stat. 187) 18—172 1884, July 7, ch. 332 (23 Stat. 194) : 18—205 (23 Stat. 195) 18—79 (23 Stat. 206) 18—91 (23 Stat. 220) 18—33,464 1884, July 7, ch. 334 (23 Stat. 254,336) 20—252 (23 Stat. 258) 25—8 1884, July 7, ch. 335 (23 Stat. 262) 18^567 1885, Jan. 6, J. Res. 5 (23 Stat. 516) 25—127 1885, Jan. 13, ch. 20 (23 Stat. 282) 20—613 1885, Feb. 24, ch. 149, sees. 3, 4 (23 Stat. 322) 22—1 24 1885/ Feb. 26, ch. 164 (23 Stat. 332) 19—332, 345; 20—71, 89, 380; 23—382, 389; 24^-102, 112 sec. 3 (23 Stat. 333) 20—530 sec. 5 (23 Stat. 333) 22—195 1885, Feb. 28, ch. 260 (23 Stat. 335) 18—174 1885, Mar. 3, ch. 331 (23 Stat. 348) 18—353 1885, Mar. 3, ch. 335 (23 Stat. 350) 19—694 1885, Mar. 3, ch. 339 (23 Stat. 360) 19—265 1885, Mar. 3, ch. 342 (23 Stat. 385) 18—215 (23 Stat. 386) 18—411 (23 Stat. 387) 18—250 1885, Mar. 3, ch. 343 (23 Stat. 408) 19—701 (23 Stat. 418) 18—173 1885, Mar. 3, ch. 347 (23 Stat. 435) 25—395 554 ACTS AND RESOLUTIONS CITED. 1885, Mar. 3, ch. 354 (23 Stat. 438) 21—106 1885, Mar. 3, ch. 359 (23 Stat. 446, 449) 18—233 1885, Mar. 3, ch. 360 (23 Stat 478, 482) 18—353 (23 Stat. 507) 18—328 (23 Stat. 512) 18—147 1886, Mar. 19, ch. 22 (24 Stat. 5) 19—587 1886, Apr. 15, ch. 50 (24 Stat. 12) 19—96 1886, May 15, ch. 333 (24 Stat. 29,39) 20—744 (24 Stat. 43) ■■ 18—440 1886, May 17, ch. 338 (24 Stat. ,50) 20—149; 21—492 1886, May 17, ch. 341 (24 Stat. 51) 19—223 1886, May 20, ch. 363 (24 Stat. 69) 18—514 1886, June 1, ch. 395 (24 Stat. 73) , 19-43 1886, June 19, ch. 421(24 Stat. 79) 25—128 sec. 2 (24 Stat. 80) 21—285,484; 22—349 sec. 7 (24 Stat. 81) 18—565 sec. 8 (24 Stat. 81) 18—445 sec. 10 (24 Stat. 81) 19—688 sec. 11 (24 Stat. 81) 19—129; 20—368; 24—123, 597; 25—157 1886, July 19, ch. 424 (24 Stat. 84) 21—126 1886, June 30, ch. 574 (24 Stat. 93,97) 19—265 1886, June 30, ch. 585 (24 Stat. 107) 19—608 1886, July 2, ch. 611 (24 Stat. 122) 25—617 1886, July 8, ch. 747 (24 Stat. 128) 19—137 1886, July 10, ch. 761 (24 Stat. 141) 18—484 1886, July 28, ch. 800 (24 Stat. 159) 20—539 1886, July 29, ch. 810 (24 Stat. 167) 19—471 1886, July 30, ch. 818 (24 Stat. 170) 19—338 1886, Aug. 2, ch. 840, sees. 2, 6, 8, 10, 13 (24 Stat. 209-211). 18—490 1886, Aug. 3, ch. 849 (24 Stat. 215) 20—617 sec. 1 (24 Stat. 215) 19—235 sec. 7 (24 Stat. 216) 19—58; 25—589 1886, Aug. 4, ch. 897 (24 Stat. 219) 19—259 1886, Aug. 4, ch. 902 (24 Stat. 222, 227) 20—33 1886, Aug. 4, ch. 907 (24 Stat. 872) 18—501 1886, Aug. 5, ch. 929 (24 Stat. 310, 314) 21—246 (24 Stat. 318) -. 18— 48i (24 Stat. 319) 19—34 (24Stat. 328) 18—463 sec. 4 (24 Stat. 330) 20—111 sec. 6 (24Stat. 330) 18—438 1886, Aug. 5, ch. 930, sec. 6 (24 Stat. 336) 18—438 1886, Dec. 23, ch. 9 (24 Stat. 353) :. 25—87 1887, Jan. 3, ch. 14 (24 Stat. 355) 22—615, 663 1887, Feb. 3, ch. 90, sec. 3 (24 Stat. 373) 20—522 1887, Feb. 3, ch. 92 (24 Stat. 377) 23—411 1887, Feb. 4, ch. 104 (24 Stat. 379) 18—587 sees. 1, 2, 4 (24 Stat. 379, 380) 25—408, 439 sec. 11 (24 Stat. 383) 19—47; 25—332 1887, Feb. 8, ch. 119 (24 Stat. 388) 19—232, 256; 19—560; 20—43, 47; 21—445; 22—234; 23— 349; 25—483 sees. 2, 3 (24 Stat. 388, 389) ;. 19—15 ACTS AND RESOLUTIONS CITED. '555 1887, Feb. 8, ch. 119, sec. 4 (24 Stat. 389) 19—161 sec. 5 (24 Stat. 389) 19—163; 25—418 sec. 6 (24 Stat. 390) 19—184 sec. 9 (24 Stat. 391) 18—594 1887, Feb. 9, ch. 127 (24 Stat. 394,399) 19—265 1887, Feb. 12, ch. 129 (24 Stat. 401) 19—61; 20—144; 22—374 1887, Feb. 23, ch. 220 (24 Stat. 414) 19-332; 20-71, 74, 89; 21- 438 sec. 6 (24 Stat. 415) 20—71, 380 sec. 7 (24 Stat. 415) 20—72, 90 sec. 8 (24 Stat. 415) 20—72 1887, Feb. 23, ch. 221 (24 Stat. 415) 22—544 1887, Feb. 23, J. Res. 6 (24 Stat. 644) 25—127 1887, Feb. 23, ch. 221 (24 Stat. 415) 22—154 1887, Feb. 28, ch. 272, sees. 6, 7 (24 Stat. 427) 19—25 1887, Mar. 2, ch. 314 (24 Stat. 440) 22—470 1887, Mar. 2, ch. 320, sec. 3 (24 Stat. 466) 19—95 1887, Mar. 3, ch. 340 (24 Stat. 476) 19—26 1887, Mar. 3, ch. 345, sec. 5 (24 Stat. 492) 18—598; 19—492, 495, 498 1887, Mar. 3, ch. 348 (24 Stat. 492) 18—591 1887, Mar. 3, ch. 353 (24 Stat. 500) 18—576; 20—448 1887, Mar. 3, ch. 356 (24 Stat. 501) 19—29 1887, Mar. 3, ch. 359, sec. 1 (24 Stat. 505) 20—753; 22—210 sec. 10 (24 Stat. 507) 22—210 1887, Mar. 3, ch. 362 (24 Stat. 509, 515) 20—34 (24 Stat. 535) 19—80 (24Stat. 542) 19—154,194 1887, Mar. 3, ch. 365 (24 Stat. 544) 20—613 1887, Mar. 3, ch. 376, sees. 1, 2 (24 Stat. 556) 19—525; 20—224,225 sec. 3 (24 Stat. 557) 19—68; 20—226 sec. 4 (24 Stat. 557) 19—68,525; 20—226 sec. 5 (24 Stat. 557) 19—68 1887, Mar. 3, ch. 391, sec. 4 (24 Stat. 594) 19—236 1887, Mar. 3, ch. 392 (24 Stat. 607) 21—339 1887, Mar. 3, ch. 397 (24 Stat. 635) 20—331 sec. 24 (24 Stat. 639) 18—595 1888, Jan. 20, ch. 2 (25 Stat. 1) 19—596 1888, Mar. 5, ch. 23 (25 Stat. 44) 19—132 1888, Mar. 29, ch. 45 (25 Stat. 46) 19—297, 299 1888, Mar. 30, ch. 47 (26 Stat. 47, 51) 19—192, 292 (26 Stat. 57) 20-462 1888, Apr. 4, ch. 59 (25 Stat. 79) 19—134, 242 1888, Apr. 4, ch. 61 (25 Stat. 80) 21—35 1888, Apr. 5, ch. 64, sec. 1(26 Stat. 81) 19—269 1888, Apr. 24, ch. 194 (25 Stat. 94) 20—611; 21—221 1888, May 16, ch. 257 (25 Stat. 151). 25—39 1888, May 30, ch. 336 (25 Stat, 160) 19—199 1888, June 4, ch. 340 (25 Stat. 166) 19—183; 22—266 1888, June 7, ch. 369 (25 Stat. 174) 22—87 1888, June 18, ch. 391 (25 Stat. 185) 26^3 1888, June 29, ch. 496 (25 Stat. 209) 19—317 sec. 3 (25 Stat. 209) 19—318 sees. 4, 5 (25 Stat. 210) 25—222 1888, June 29, ch. 503, sec. 8 (25 Stat. 217, 238) 19—252 556 ACTS AND RESOLUTIONS CITED. 1888, July 10, J. Eea. 28 (25 Stat. 1248) 19^51, 453, 455; 21—87 1888, July 11, ch. 614 (25 Stat. 248) 19—219 1888, July 11, ch. 615 (25 Stat. 276) 19—320 (25 Stat. 286) 19—327 1888, July 18, ch. 677 (25 Stat. 328, 333 ) '. 19—328, 330 1888, Aug. 1, ch/723 (25 Stat. 353) .-.. 25—43 1888, Aug. 1, ch. 728 (25 Stat. 357) 19—674; 20—630 1888, Aug. 7, ch. 772 (25 Stat. 382) 21—488 1888, Aug. 8, ch. 787, sec. 2 (25 Stat. 387) 22—611 1888, Aug. 11, ch. 860 (25 Stat. 400, 404) , 21—246 sec. 1 (25 Stat. 423) 20—498 sec. 3 (25 Stat. 423) 25—147 sees. 9, 10 (25 Stat. 424, 425) 19—396, 599,676; 20-7112; 21— 435; 25—212 1888, Aug. 13, ch. 868 (25 Stat. 437) 20—158 1888, Aug. 14, ch. 890, sec. 3 (25 Stat. 442) 19—222 1888, Aug. 21, ch. 899 (25 Stat. 444) 20—613 1888, Sept. 1, ch. 936 (25 Stat. 452) 23—570 1888, Sept. 13, ch. 1015 (25 Stat. 476) 19—370; 22—133 sec. 3 (25 Stat. 476) 20—730 sec. 6 (25 Stat. 477) 24—92, 637 sec. 7 (25 Stat. 477) 23—545, 621; 24—92,637 sec. 8 (25 Stat. 478) 23—582 sec. 12 (25 Stat. 478) .24—562 sec. 13 (25 Stat. 479) 22—340; 25—138 1888, Sept. 22, ch. 1027(25 Stat. 481) 19—264 1888, Sept. 26, ch. 1039 (25 Stat. 496) 19—668 1888, Sept. 26, J. Res. 44 (25 Stat. 630) 19—399 1888, Oct. 1, ch. 1064 (25 Stat. 504) 19—369; 20—174, 602; 21—69, 425; 23—188; 25—139 1888, Oct. 2, ch. 1069 (25 Stat. 505, 511).'. 20—34 (25 Stat. 526) 19—564 (25 Stat. 533) 21—215 1888, Oct. 12, J. Res. 48 (25 Stat. 631) 19—399 1888, Oct. 19, ch. 1210 (25 Stat. 565, 566) 19—332; 20—89, 380; 21—438 (25 Stat. 567) 20—75, 380 1888, Oct. 19, ch. 1216 (25 Stat. 613) 20—522 1889, Jan. 4, ch. 19 (25 Stat. 639) 25—184 sec. 2 (25 Stat. 639) 19—296 1889, Feb. 9, ch. 119 (25 Stat. 657) 19—617; 21—499; 25—191 1889, Feb. 9, ch. 122 (25 Stat. 659) ., 20—398; 21—355; 25—9 1889, Feb. 12, ch. 135 (25 Stat. 661) 19—312; 24—107 1889, Feb. 14, ch. 166 (25 Stat. 670) 19—283 1889, Feb. 14, J. Res. 6 (25 Stat. 1335) 21—31; 23—147 1889, Feb. 16, ch. 171 (25 Stat. 672) 21—151 1889, Feb. 22, ch. 180 (25 Stat. 676, 677) 20—246 sec. 14 (25 Stat. 680) 19—635 sec. 15 (25 Stat. 680) 21—352 1889, Feb. 26, ch. 278 (25 Stat. 696, 699 ) 20—484, 554 1889, Feb. 26, ch. 279 (25 Stat. 705, 726) 19—320 1889, Mar. 1, ch. 317 (25 Stat. 757) 19—309 1889, Mar. 1, ch. 319 (25 Stat. 760) 22—417 sec. 18 (25 Stat. 766) 25—233 1889, Mar. 1, ch. 328 (25 Stat. 772) 20—438 sec. 6 (25 Stat. 773) 22—237 ACTS AND RESOLUTIONS CITED. 557 1889, Mar. 1, ch. 328, sec. 40 (25 Stat. 778) 20—439 sec. 41 (25 Stat. 778) 20—669 sees. 42, 43 (25 Stat. 778) 20—438 sec. 46 (25 Stat. 778) 20—439 sec. 49 (25 Stat. 779) 20—438, 669; 21—353 1889, Mar. 1, ch. 331 (25 Stat. 781) 25—271 1889, Mar. 1, ch. 332 (25 Stat. 782) 19—359; 20—50, 178 1889, Mar. 1, ch. 333 (25 Stat. 783) 19—293, 443, 482; 25—121 sec. 2 (25 Stat. 783) 19—295 1889, Mar. 2, ch. 370, sec. 4 (25 Stat. 793, 808) 19—286 " 1889, Mar. 2, ch. 371 (25 Stat. 809, 814) 20—485, 554 1889, Mar. 2, ch. 374 (26 Stat. 841, 843) 19—325, 326 1889, Mar, 2, ch. 382, sec. 9 (22), (25 Stat. 862) 25—109 1889, Mar. 2, ch. 390 (25 Stat. 869) 20—289 1889, Mar. 2, ch. 396 (Stat. 878) .'... 19—303,358; 20—615; 21—49; 22—487 1889, Mar. 2, ch. 405 (25 Stat. 888) 20—711, 742 sec. 25 (25 Stat. 898) 19—167 ' sec. 28 (25 Stat. 899) 19—467; 20—712 sec. 29 (25 Stat. 899) 19—166 1889, Mar. 2, ch. 410 (25 Stat. 905, 921) 19—363 sec. 1 (25 Stat. 932) 19—282 1889, Mar. 2, ch. 411 (25 Stat. 939,945) 20—34 (25 Stat. 957) 20—75,380 (25 Stat. 961) 23—295 (25 Stat. 963) 19—375 1889, Mar. 2, ch. 412 (25 Stat. 980) 19—307 (25 Stat. 998) 19—511 (25 Stat. 1005) 19—309 1889, Mar. 2, ch. 415, sec. 2 (25 Stat. 1009) 21—346 1889, Mar. 3, ch. 422 (25 Stat. 1013) 22—234 1890, Feb. 27, ch. 20, sec. 3 (26 Stat. 13) 25—316 1890, Mar. 5, ch. 26 (26 Stat. 17) 24—646 1890, Mar. 27, ch. 51 (26 Stat. 31) 22—106 1890, Apr. 4, ch. 63 (26 Stat. 34, 39) 20—555 1890, Apr. 11, J. Res. 14 (26 Stat. 670) 20—381 1890, Apr. 25, ch. 156 (26 Stat. 62) 19—600; 20—90, 452, 576, 577, 595, 598, 641 sees. 2, 3 (26 Stat. 62) 19—700; 20—453 sec. 4 (26 Stat. 63) 20—453; 21—216 sec. 5 (26 Stat. 63) 20—90 sec. 6 (26 Stat. 63) 20—90,237,567 sec. 11 (26 Stat. 64) 21—36 sees. 16, 18 (26 Stat. 64, 65) 19—703 1890, Apr. 26, ch. 160 (26 Stat. 66) 20—59 (26 Stat. 67) 20—298 1890, May 2, ch. 182 (26 Stat. 81) 19—569,585 sec. 4 (26 Stat. 83) .' 19—683 sec. 29 (26 Stat. 93) 19—586, 702; 22—235 sec. 30 (26 Stat. 94) 20—743 sec. 31 (26 Stat. 94) 20—743; 25—164 sec. 43 (26 Stat. 99) 23—350 1890, May 14, ch. 207 (26 Stat. 109) 20—24 1890, May 16, ch. 216 (26 Stat. 115) 20—242 1890, May 21, ch. 234 (26 Stat. 116) 23—321 558 ACTS AND RESOLUTIONS CITED. 1890, June 9, ch. 401 (25 Stat. 127) 20—59 1890, June 10, ch. 407 (26 Stat. 131) 20—39, 408; 21—93, 226, 34"; 22—75 sec. 2 (26 Stat. 131) ., 19—657 sec. 3 (26 Stat. 131) 19—657; 21—571; 22—45 sees. 4-6 (26 Stat. 131, 134) '. . . 19—657 sec. 7 (26 Stat. 134) 19—657, 662; 20—247, 660; 21— 90, 101, 283, 320, 418; 24— 584 sec. 8 (26 Stat. 135) 19—656,662 sec. 9 (26 Stat. 135) 19—662; 20—683; 24—2 sec. 12 (26 Stat. 136) ....19—662; 20—40, 86; 24—13; 25—82 sec. 13 (26 Stat. 136) 19—662, 666; 20—39; 21—86; 23—330, 378; 24—584 sec. 14 (26 Stat. 137) 19—661,663; 20—183,184,186, 187, 191, 192; 21—86, 152, 262, 334, 403; 25—376 sec. 15 (26 Stat. 138) 19—664; 20—187, 229, 230, 238, 274; 21—86,203; 24—31,37 sec. 16 (26 Stat. 138) 22—456; 23—239 sec. 17 (26 Stat. 139) 22—452 sec. 18 (26 Stat. 139) 21—86 sec. 19 (26 Stat. 139) 19—603, 605; 21—108 sec. 21 (26 Stat. 140) 19—663 sec. 22 (26 Stat. 140) 20—731 sec. 23 (26 Stat. 140) 21—121, 326, 403; 22—542; 24—59 sec. 24 (26 Stat. 140) 19—661, 663, 664; 23—442, 468 sec. 25 (26 Stat. 141) 19—662, 664; 20—229, 230 sec. 26 (26 Stat. 141) 19—663, 668 sec. 29 (26 Stat. 141) 19—604, 661, 664, 669; 20—5 sec. 30 (26 Stat. 142) 19—603 1890, June 16, ch. 426, sees. 1-4 (26 Stat. 157) 19—617, 621, 624 1890, June 27, ch. 634 (26 Stat. 182) 19—587; 24—556 sees. 2, 3 (23 Stat. 182) 19—588 1890, June 30, ch. 639 (26 Stat. 187) 19—581 1890, June 30, ch. 640 (26 Stat. 189) 20—49 1890, July 2, ch. 647 (26 Stat. 209) 22—125 1890, July 11, ch. 667 (26 Stat. 228, 235) 19—625; 20—60, 650 (26 Stat. 242) 24—668 (26 Stat. 249) 19—701,702 1890, July 14, ch. 706 (26 Stat. 272, 275) 20—559 1890, July 14, ch. 707 (26 Stat. 282, 288) 20—599 1890, July 14, ch. 708 (26 Stat. 289) 20—124, 318 sees. 1, 2 (26 Stat. 289) 20—318 sec. 3 (26 Stat, 289) 20—126 1890, Aug. 19, ch. 801 (26 Stat. 320) : ' 21—285, 484 1890, Aug. 19, ch. 802 (26 Stat. 320) 21—106, 227, 513 sec. 30 (26 Stat. 328) 21—107,513 1890, Aug. 19, ch. 806 (26 Stat. 333) 20—482 sec. 1 (26 Stat. 333) 20—483 sec. 3 (26 Stat. 334) 19^674 sec. 11 (26 Stat. 336) 20—483 ACTS AND RESOLUTIONS CITED. 559 1890, Aug. 19, ch. 807 (26 Stat. 357) 20-301; 25—627 1890, Aug. 28, ch. 812 (26 Stat. 362) 21—340; 22—78 1890, Aug. 29, ch. 820, sec. 2 (26 Stat. 370) 21—411 1890, Aug. 30, ch. 837 (26 Stat. 371) 20—35, 59 (26 Stat. 387) 20—176 (26 Stat. 391) 19—705 (26 Stat. 392) 22—3; 23—295 (26 Stat. 393) 19—702 (26 Stat. 409) 20—50 1890, Aug. 30, ch. 839, sec. 6 (26 Stat. 416) 21—460 sec. 7 (26 Stat. 416) 21—193,460 sec. 8 (26 Stat. 416) 21—160; 22—392 1890, Aug. 30, ch. 841 (36 Stat. 417) 22—171 1890, Sept. 19, ch. 907 (26 Stat. 426, 431) 21—246 (26 Stat. 448) 20—700; 21—432 sec. 4 (26 Stat. 453) 19— 677; 20— 102, 112,489, 606; 21—433; 22—345; 25—212 sec. 5 (26 Stat. 453) 20—489, 606; 21—433; 22—345; 25—212 sec. 6 (26 Stat. 453) 20—489,491; 25—602 sec. 7 (26 Stat. 454) 20—112, 480, 488, 489, 491; 21— '42, 293; 22—54, 333 sec. 8 (26 Stat. 454) 20-^89, 491 sec. 9 (26 Stat. 454) 20—491 sec. 10 (26 Stat. 454) 21—518 sec. 12 (26 Stat. 455) 20—740 1890, Sept. 19, ch. 908 (26 Stat. 465) 19—670,679; 20—203,748; 21— 172, 313; 22—198; 23—203, 207, 492, 512; 24—564 1890, Sept. 25, J. Res. 50 (26 Stat. 681) 23—154 1890, Sept. 27, ch. 1001 (26 Stat. 492) 20—67, 129, 326, 377; 21—566 1890, Sept. 30, ch. 1126 (26 Stat. 504, 525) 20—315 (26 Stat. 536) 20—423 (26 Stat. 541,547) 19—702 1890, Oct. 1, ch. 1241 (26 Stat. 562) 20—434 sec. 3 (26 Stat. 562) 21—387, 492; 25—159, 515, 572 1890, Oct. 1, ch. 1244 (26 Stat. 567) 20—77; 21—117, 225 par. 74 (26 Stat. 570) 25—350 par. 199 (26 Stat. 581) 19—690; 21—110 pars. 231, 233 (26 Stat. 583) .' 20—2, 3 par. 241 (26 Stat. 584) 19—697; 20—2 par. 285 (26 Stat. 586) 23—396; 25—115 par. 354 (26 Stat. 593) 20—622 par. 385 (26 Stat. 595) , 21—243 par. 432 (26 Stat. 600) 20—314 par. 493 (26 Stat. 603) 20—77 pars. 512-516 (26 Stat. 604) ' 23—354, 448 par. 726 (26 Stat. 610) 19—697 par. 752 (26 Stat. 611) 20—648, 719; 21—3 sec. 2 (26 Stat. 602, 604) 20—630; 23—354 sec. 3 (26 Stat. 612) 20—290, 357 sec. 6 (26 Stat. 613) 25—144 sec. 10 (26 Stat. 614) 20—699 sec. 24 (26 Stat. 617) -- 24—47 560 ACTS AND RESOLUTIONS CITED. 1890, Oct. 1, ch. 1244, sec. 25 (26 Stat. 617) 19—689; 21—159, 229; 22—111; 24—54 sec. 41 (26 Stat. 621) 21—440 Sec. 50 (26 Stat. 624) 20—81 sec. 54 (26 Stat. 624) 19—669; 21—117 sec. 55 (26 Stat. 625) 19—687 1890, Oct. 1, ch. 1246 (26 Stat. 625) 20—583 1890, Oct. 1, ch. 1259 (26 Stat. 648) 20—346, 350 1890, Oct. 1, ch. 1260 (26 Stat. 648) 21—340 1890, Oct. 1, ch. 1266 (26 Stat. 653)...., 20—395, 752 sec. 4 (26 Stat. 653) 21—189 sec. 5 (26 Stat. 653) 20—346, 395, 398 sec. 6 (26 Stat. 654) 20—346 sec. 9 (26 Stat. 654) 20—395 1891, Jan. 21, ch. 85 (26 Stat. 724) 20—613 1891, Jan. 24, ch. 91 (26 Stat. 727) 20—320 1891, Feb. 6, ch. 113 (26 Stat 733) 25—259 1891, Feb. 9, ch. 122 (26 Stat. 737) 24—128,580 1891, Feb. 10, ch. 127 (26 Stat. 742) : 21—134 sec. 3 (26 Stat. 742) 20—211 sec. 4 (26 Stat. 742) , 20—698; 21—136; 23—459 1891, Feb.28, ch.382 (26 Stat. 789) 20—549 1891, Mar. 2, ch. 496 (26 Stat. 822) 20—134, 144, 241, 363, 412, 548, 701 1891 r Mar. 3, ch. 519 (26 Stat. 830) 20—98, 162, 294, 306, 322, 409 sec.2 (26 Stat. 831) 20—98,166 sec. 3 (26 Stat. 831) 20—98,170 sec.4 (26 Stat. 831) 20—99,411 sec. 5 (26 Stat. 832) 20—99,410 1891, Mar. 3, ch. 527 (26Stat.838) 20—54,57 1891, Mar. 3, ch. 529, sees. 4-9 (26 Stat. 839, 840) • 21—205 1891, Mar. 3, ch. 536 (26 Stat. 848) 21—215 1891, Mar. 3, ch. 538, sec. 6 (26 Stat. 853) 21—133 1891, Mar. 3, ch. 539 (26 Stat. 854) 20—123 1891, Mar. 3, ch. 540 (26 Stat. 862, 867) 20—381 (26Stat.868) 22—9 (26 Stat. 872) , 25—315 (26Stat.880) 20—222 1891, Mar. 3,ch.542 (26 Stat. 949) '. 20—219,381 (26 Stat. 965") 20—237 (26 Stat. 968) 20—177 (26Stat.978) 20—483 1891, Mar. 3, ch. 543, sec. 15 (26 Stat. 1025) 20—220 sec. 31 (26 Stat. 1039) 20—518 1891, Mar. 3, ch. 544 (26 Stat. 1044) 20—395 1891, Mar. 3, ch.545 (26 Stat. 1053) 21—211 (26 Stat. 1061) 20—392 1891, Mar. 3, ch.546 (27 Stat. 1062) 22—4 1891, Mar. 3, ch. 547 (26 Stat. 1079) 20—261,585 1891, Mar. 3, ch. 548 (26 Stat. 1081) 21^11 1891, Mar. 3, ch.551 (26 Stat. 1084) ' 20—79,380,416; 23—281; 25— 224 sec. 1 (26 Stat. 3084) 20— 372; 22— 122,496 sec.2 (26 Stat. 1084) 20—531 ACTS AND RESOLUTIONS CITED. 561' 1891, Mar. 3, ch. 551, sec. 3 (26 Stat. 1084) 20—72 sec.4 (26 Stat. 1084) 20—73 sec. 5 (26 Stat. 1085) 23—389 sec.6 (26 Stat. 1085) 22—122 sec.7 (26 Stat. 1085) 20—69,73,218 sec. 8 (26 Stat. 1085) 20—70, 73, 122, 218,260, 416, 463; 23—522; 24—531 sec. 10 (26 Stat. 1086) 20—74, 416, 685, 706; 23—272 sec. 11 (26 Stat. 1086) 20—74; 21—6 1891, Mar. 3, ch. 555 (26 Stat. 1089) 21—129, 168 1891, Mar. 3, ch. 559 (26 Stat. 1093) 20—542 1891, Mar. 3, ch. 560 (26 Stat. 1094) 21-^56 1891, Mar. 3, ch. 561, sees. 18-21 (26 Stat. 1101, 1102) 21—519 sec. 24 (26 Stat. 1103) 23—569 1891, Mar. "3, ch. 562 (26 Stat. 1103) 20—83 1891, Mar. 3, ch. 563 (26 Stat. 1103) 25—102 1891, Mar. 3, ch. 565 (26 Stat. 1106) 20—753; 21—416; 22—29 sec. 3 (26 Stat. 1107) „ . 23—354, 372, 446; 25—26 sec. 4 (26 Stat. 1108) r . 22—70 sec.7 (26 Stat. 1109) 21—159 sec. 13 (26 Stat. 1110) 25—180 1891, Mar. 3, J. Ees. 18 (26 Stat. 1116) 20—93 1891, Mar. 3, ch. 687 (26 Stat. 1445,1456) 20—115, 116 1892, Mar. 29, ch. 25 (27 Stat. 12) 24—128,580 1892, May 5, ch. 60 (27 Stat. 25) 20—667; 21—5; 22—73, 325; 23—487; 25—139 sees. 2-4 (27 Stat. 25) 20—730 sec. 3 (27 Stat. 25) 21—581 sec. 6 (27 Stat. 25) 23—620; 24—132 sec.7 (27 Stat. 26) 21—18 1892, May 9, ch. 62 (27 Stat. 27) .• 20—427; 22^80 1892, May 13, ch. 72 (27 Stat. 33, 36) 23—464 1892, June 15, ch. 119 (27 Stat. 51) 21—294 1892, July 5, ch. 147 (27 Stat. 74, 79) 20—574 (27 Stat. 85) 20—591 1892, July 6, ch. 154 (27 Stat. 87) 20^29; 21—338; 22—80 1892, July 13, ch. 158 (27 Stat. 88, 90) 20—496, 526 (27 Stat. 92) 21—246 sec. 3 [7] (27 Stat. 110) 20—480; 21—42,293,521,532; 22—53, 333, 345; 25—212 1892, July 13, ch. 164 (27 Stat. 120, 137) 20—517, 518 1892, July 13, ch. 165 (27 Stat. 145, 147) 21—119 sec. 4 (27 Stat. 148) 20—598 1892, July 14, ch. 171 (27 Stat. 150, 153) 20—508 (27Stat. 164) 22—4 1892, July 16, ch. 197 (27 Stat. 223, 226) 20—601 (27 Stat. 227) 20—559 1892, July 23, ch. 234 (27 Stat. 260) 25^17 1892, July 26, ch. 256 (27 Stat. 272) .' 25-462 1892, July 28, ch. 311, sec. 5 (27 Stat. 282, 319) 21—133 1892, July 28, ch. 315 (27 Stat. 321) 20—434 1892, July 28, ch. 316 (27 Stat. 321) 21—537 ; 25—389, 572 1892, July 29, ch. 321 (27 Stat. 325) 22—125 1892, July 20, ch. 320 (27 Stat. 322) '.... 21—215 18456—08 36 562 ACTS AND KESOLTJTIONS CITED. 1892, July 29, ch. 322 (27 Stat. 326) 21—294; 22—242 (27 Stat. 327) 20—550 1892, July 30, ch. 328 (27 Stat. 336) 21—491; 22—55, 92 1892, Aug. 1, ch. 352 (27 Stat. 340) 20—440, 442, 445, 454, 459, 464, 465, 487, 501; 21—32; 25— 442, 467 sec. 2 (27 Stat. 340) 20—460 sec. 3 (27 Stat. 340) 20—447, 460 1892, Aug. 5, ch. 380 (27 Stat. 349) 20—554 (27 Stat. 363) 20—595,599; 21—216 1892, Aug. 5, ch. 381 (27 Stat. 389) 20—567, 577, 623 sec. 2 (27 Stat. 389) 20—569, 578 sec. 3 (27 Stat. 389) 21—253, 330 sec. 4 (27 Stat. 390) 20—599 1893, Feb. 6, ch. 64 (27 Stat. 431) 25—38 1893, Feb. 15, ch. 114 (27 Stat. 449) 20—645; 21—447; 22—106 sec. 3 (27 Stat. 450) 20—645; 22—107; 24—673 sec. 5 (27 Stat. 451) 24—673 sec. 6 (27 Stat. 452) 20—647 1893, Feb. 15, ch. 117 (27 Stat. 455) 25—128 1893, Feb. 21, ch. 150 (27 Stat. 472) 21—333 1893, Feb. 25, J. Ees. 16 (27 Stat. 756) 27—756 1893, Feb. 27, ch. 168 (27 Stat. 478) 20—684 1893, Mar. 1, ch. 182 (27 Stat. 496, 500) 20—559, 596 1893, Mar. 1, ch. 183 (27 Stat. 507) 20—604; 21—10; 22—555 sees. 1, 2 (27 Stat. 507) 20—604 sec. 3 (27 Stat. 507) 21—10 sec. 5 (27 Stat. 507) 21—64 sec. 7 (27 Stat. 508) 20—604 sees. 9, 10 (27 Stat. 508) 21—10 \ sec. 14 (27 Stat. 509) 20—605 sec. 19 (27 Stat. 509) - 21—10 sec. 20 (27 Stat. 510) 20—605; 21—64 sec. 22 (27 Stat. 510) 21—64 sec. 23 (27Stat. 510) 20—604 sec. 24 (27 Stat. 511) 20—604 1893, Mar. 1, ch. 186 (27 Stat. 515) 20—593 1893, Mar.3, ch. 199 (27 Stat. 537) 20—652 (27 Stat. 551) 22—4 1893, Mar. 3, ch. 206 (27 Stat. 569) 23—278 sec. 1 (27 Stat. 569) 22—460 sec. 4 (27 Stat. 570) 23—522 sec. 6 (27 Stat. 570) 23—389 sec. 9 (27 Stat. 571) 21—478 1893, Mar. 3, ch. 208 (27 Stat. 572, 586) 20—566, 572, 595 (27 Stat. 587) 21—217,253,330 (27 Stat. 599) 20—628 (27 Stat. 600) 23—464 (27 Stat. 602) 21—32 (27 Stat. 603) 27—603 (27 Stat. 607) 20—697 1893, Mar. 3, ch. 209 (27 Stat. 612,631) 20—620 sec. 10 (27 Stat. 640) 20—750 sec. 16 (27 Stat. 645) 20—724 1893, Mar. 3, ch. 210 (27 Stat. 646,661) :.... 21—352 ACTS AND RESOLUTIONS CITED. 563 1893, Mar. 3, ch. 211 (27 Stat. 675, 682) 20—752 sec. 5 (27 Stat. 715) 20—607, 671, 717, 728; 21—338, 427; 22—78; 25—41 1893, Mar. 3, ch. 212 (27 Stat. 715) 20—576; 22—47 (27 Stat. 731) 20—617; 25—590 1893, Nov. 3, ch. 13 (28 Stat. 7) 20—687; 25—315 1893, Nov. 3, ch. 14 (28 Stat. 7) 22—73, 132, 326; 23^87 sec. 2 (28 Stat. 7) 21— 5, 21,100; 23— 486; 25—139 sec. 8 (22 Stat. 8) 22—355 1893, Dec. 21, ch. 3 (28 Stat. 16, 18) 20—735 1894, Jan. 22, ch. 16 (28 Stat. 28) 22—125 1894, Jan. 27, ch. 22 (28 Stat. 33) 21—60, 137, 184, 349, 547, 596; 22—1; 25—608 1894, Apr. 6, ch. 57 (28 Stat. 52) 21—236,239,583; 22—67; 25—4 sec. 6 (28 Stat. 54) 21—466 sec. 8 (28 Stat. 54) 21—291 1894, Apr. 21, ch. 61 (28 Stat. 58) 21—137,349,546,596; 22—1 _ sec. 2 (28 Stat. 62) 21—60; 25—610 1894, June 5, ch. 92 (28 Stat. 85) 21—419 1894, June 28, ch. 118 (28 Stat. 96) 25—43 1894, July 26, ch. 165 (28 Stat. 123, 136) 25-580, 586 (28 Stat. 140) 21—84,343; 25—590 1894, July 31, ch. 174 (28 Stat. 162, 172) 21—553 (28 Stat. 173) 21—187 sec. 2 (28 Stat. 205) 21—506, 508, 510, 511; 22—184; 24—14 sec. 7 (28 Stat. 206, 207) 21—351; 22—4 sec. 8 (28 Stat. 207, 208 ) 21—178, 183, 225, 406, 423; 22— 582; 23—1, 3, 10, 86, 431, 469, 588; 24—85, 700; 25— 189, 271, 303, 616 sec. 12 (28 Stat. 209) 21—296 sec. 22 (28 Stat. 211) 22—414 1894, Aug. 1, ch. 178 (28 Stat. 214 21—457, 496 1894, Aug. 1, ch. 179, sec. 2 (28 Stat. 216) 22—37 1894, Aug. 4, ch. 213 (28 Stat. 229) 21—367 1894, Aug. 6, ch. 228 (28 Stat. 233) 25—315 1894, Aug. 7, ch. 232 (28 Stat. 243, 259) 22—4 1894, Aug. 13, ch. 279 (28 Stat. 277) 25—102 1894, Aug. 13, ch. 280 (28 Stat. 278) 23—174 1894, Aug, 13, ch.282 (28 Stat. 279) 22—125, 422 sees. 2, 5 (28 Stat. 279) 25-598 1894, Aug. 15, ch. 290 (28 Stat. 286, 312) 25—611 1894, Aug. 18,'ch. 299 (28 Stat. 338, 342) 21—246; 22—156 (28 Stat. 359) 21—221 sec. 5 (28 Stat. 362) 22—313 sec. 6 (28 Stat. 363) 21—305, 594 1894, Aug. 18, ch. 301 (28 Stat. 372, 390) 21— 544, 614; 22— 263, 326; 23— 585 (28 Stat. 391) 21-543; 24-591, 622; 25-372, 499 (28 Stat. 404) 21—247 (28 Stat. 419) ,---- 21—515 1894, Aug. 23, ch. 307 (28 Stat. 424, 476)...- 21—133 564 ACTS AND RESOLUTIONS CITED. 1894, Aug. 27, ch. 349 (28 Stat. 509) 21—74, 117, 118, 225, 243 par. 58 (28 Stat. 511) 25—351 Schedule E (28 Stat. 521) 23—239 par. 182£ (28 Stat. 521) 24—4 par. 206 (28 Stat. 523) 23—396; 25—115 Schedule H (28 Stat. 525) 21—74 par. 297 (28 Stat. 531) 21—66 par. 328 (28 Stat. 534) 21—542 par. 413 (28 Stat. 538) 21—301 par. 608 (28 Stat. 544) 21—80, 377 sec. 5 (28 Stat. 547) 25—144 sec. 6 (28 Stat. 547) 21—260 sec. 9 (28 Stat. 548) 21—474 sec. 14 (28 Stat. 550) 21—592,602 sec. 21 (28 Stat. 551) 24—47 sec. 22 (28 Stat. 551) 21—109,229,255,501; 23—396; 25—115 sec. 23 (28 Stat. 552) 21—255 sec. 26 (28 Stat. 552) 24—588 sec. 33 (28 Stat. 553) 21—113 1894, Dec. 15, ch. 7 (28 Stat. 595) 21—292; 23—275 1895, Jan. 12, ch. 23, sec. 8 (28 Stat. 601, 602) 21—175 sees. 15, 16 (28 Stat. 603) 21—138 sec. 54 (28 Stat. 608) 24—663 sec. 56 (26 Stat. 609) 21—405 sec. 73 (28 Stat. 612) .._.. 24—663 sec. 80 (28 Stat. 621) 21—428 sec. 89 (28 Stat. 622) 22—265; 25—377 sec. 90 (28 Stat. 623) 21—370, 423 sec. 96 (28 Stat. 624) 21—119, 181; 25—612 1895, Jan. 16, ch. 25 (28 Stat. 625) 25—552 1895, Feb. 8, ch. 64 (28 Stat 645) 21—227 1895, Feb. 11, ch. 79 (28 Stat. 650) 22—9 1895, Feb. 18, ch. 97 (28 Stat. 667) 21—285,485; 22—349 1895, Feb. 19, ch. 102 (28 Stat. 672) 21—227,513 sec. 2 (28 Stat. 672) •.. 25—149 1895, Feb. 26, ch. 34 (29 Stat. 28,38) 21—515 1895, Feb. 28, ch. 140 (28 Stat. 691) 21—407 1895, Mar. 1, ch. 145, sec. 8 (28 Stat. 693,697) 22—236 1895, Mar. 2, ch. 162, sec. 2 (28 Stat. 707) 21—180 1895, Mar. 2, ch.' 169 ( 28 Stat. 727, 733) 21—162, 168, 194, 230, 375 1895, Mar. 2, ch. 176 (28 Stat. 744, 752) 21—223 (28Stat.761) 21—351; 22-h1 1895, Mar. 2, ch. 177 (28 Stat. 764, 777) , 21—187 (28 Stat. 807) 21—154 (28 Stat. 808) 25—637 1895, Mar. 2, ch. 182 (28 Stat. 814) 23—569 1895, Mar, 2, ch. 186 (28 Stat. 825, 838) 21—164; 25—581 1895, Mar. 2, ch. 187 (28 Stat. 843) 21—155,525 (28 Stat. 844) 25—637 1895, Mar. 2, ch. 189 (28 Stat. 910) 21—205 (28 Stat. 911) 21—261 (28 Stat. 920) 21—286 ACTS AND RESOLUTIONS CITED. 565' 1895, Mar. 2, ch. 189 (28 Stat. 928) ... .. 21—216 331 (28 Stat 941) .... 21-35<)' ' (28Stat.942) 28-396 (28 Stat. 947) 21—247 1895, Mar. 2, ch. 191, sec. 4 (28 Stat. 964) 21—314 1895, Mar. 2, ch. 193 (28 Stat. 964) 23—428 1895, Mar. 2, ch. 194 (28 Stat. 965) 23—376 1896, Mar. 2, ch. 37 (29 Stat. 39) 23—275; 28—224 1896, Mar. 2, ch..39 (29 Stat. 42) 21—509' 1896, Mar. 6, ch. 49 (29 Stat. 54) 25—38 1896, Apr. 25, ch. 140 (29 Stat. 99, 106) 21—372 1896, May 7, ch. 161 (29 Stat. 115) 22—185 1896, May 19, ch. 199 (29 Stat. 122) 25—28 1896, May 28, ch. 252 (29 Stat. 140, 149) 21—553 (29 Stat. 179) 25-305 sec. 19 (29 Stat. 184) 22-87; 24—686 .sec. 21 (29 Stat. 184) 22—88; 23—40, 138; 24—686 1896, May 28, ch. 255, sec. 1 (29 Stat. 188) 21—413; 24—139 189.6, June 3, ch. 314 (29 Stat. 202) 21—420- 28—315 (29 Stat. 208) 22—156' (29 Stat. 209) 22-308 (29 Stat. 213) 21— 587; 22— 138; 23—505 (29 Stat. 228) 21—472 (29 Stat. 229) , 21—391 (29 Stat. 230) 21—414 sec. 5 (29 Stat. 235) 21—380 1896, June 3, ch. 317 (29 Stat. 246) 22—242 1896, June 3, ch. 338 (26 Stat. 256, 259) ... .' 22—99 (26 Stat. 261 ) 22—465 1896, June 10, ch.- 398 (29 Stat. 321, 339) 25—153, 165 1896, June 10, ch. 399 (29 Stat. 361) 22—378 1896, June 11, ch. 419 (29 Stat. 393, 401) 21—546 1896, June 11, ch. 420 (29 Stat. 413, 432, 437) 22—4 (29 Stat. 452) 21—123 1897, Jan. 6, ch. 4 (29 Stat. 481, 482) 23—376 1897, Jan. 21, ch. 83 (29 Stat. 494) 23—78 1897, Jan. 30, ch. 109 (29 Stat. 506) 25—417 1897, Feb. 4, ch. 146 (29 Stat. 511) 21—580; 28—316 1897, Feb. 8, ch. 172 (29 Stat. 512) 22—126 1897, Feb. 15, ch. 229 (29 Stat. 528) 28—398 1897, Feb. 16, ch. 234 (29 Stat. 530) 28—316 1897, Feb. 19, ch. 265 (29 Stat. 538, 565) 21—508 1897, Feb. 20, ch. 268 (29 Stat. 579, 590) 21—515 1897, Feb. 24, ch. 311 (29 Stat. 593) .* 23—332, 411 1897, Feb. 26, ch. 333 (29 Stat. 597) 23—151 1897, Feb. 27, ch. 340 (29 Stat. 599) 22—291, 364; 23—477 1897, Mar. 2, ch. 358, sees. 4, 6, 8 (29 Stat. 604) 24—635 1897, Mar. 3, ch. 376 (29 Stat. 624) 23—138, 578 1897, Mar. 3, ch. 387 (29 Stat. 665,673) 21—545 (29 Stat. 681) 22—4 1897, Mar. 3, ch. 389 (29 Stat. 687) 28-117 sec. 9 (29 Stat. 689) 25—376 sec. 10 (29 Stat. 689) 26—553 566 ACTS AND BESOLUTIONS CITED. 1897, June4,ch. 2 (30 Stat. 11, 17) 21—551 (30 Stat. 34, 35) 23—589 (30 Stat. 35) 22—266; 25—470 (30 Stat. 45) 23—505 (30 Stat. 48) ; 22—308 (30 Stat. 50) 23—284 (30 Stat. 54) 25—449 (30 Stat. 58) 23—138 1897, June 7, ch. 3 (30 Stat. 83) 25—165 1897, June 7, ch. 4 (30 Stat. 96) 25—149 1897, July 24, ch. 11, par. 181 (30 Stat. 151, 166) 23—46; 24—45 par. 182 (30 Stat. 166) 24—569 Schedule E (30 Stat. 168 ) 23—239 par. 295, 296 (30 Stat. 174) 23—49 par. 390 (30 Stat. 187) -25—81 par. 415 (30 Stat. 190) 24—6 par. 483 (30 Stat. 195) 24—55,612 par. 503 (30 Stat. 196) 23—446 par. 504 (30 Stat. 196) 23—311 par. 697 (30 Stat. 202) 25—94 par. 701 (30 Stat. 203) 24—28 par. 702 (30 Stat. 203)1 25—277 par. 703 (30 Stat. 203) 24—40 sec. 3 (30 Stat. 203) 22—477 sec. 5 (30 Stat. 205) 24—37 sec. 8 (30 Stat. 205) 25—144 sec. 10 (30 Stat. 206) 22— 18L sec. 11 (30 Stat. 207) 23—354; 24—551 sec. 12 (30 Stat. 207) 22—77 sec. 15 (30 Stat. 207) 23—419; 24—58 sees. 16, 18 (30 Stat. 208) 24—589 sec. 22 (30 Stat. 209) 21—591, 598 sec. 29 (30 Stat. 210) 22—119,285; 23—47, 131, 134; 24—46, 569 sec. 30 (30 Stat. 211) 22—119, 127; 23—627; 24—54, 575; 25—126,345 sec. 32 (30 Stat. 211) 22—491; 23—330, 377, 400, 442; 24—2, 587 1897, Dec. 18, ch. 2 (30 Stat, 226) 22—138 1897, Dec. 29, ch. 3, sec. 9 (30 Stat. 227) 23—64; 24—577 1898, Feb. 17, ch. 26 (30 Stat. 248) 25—128 ch. 27 (30 Stat. 249) 22—307 1898, Mar. 15, ch. 68, sec. 7 (30 Stat. 316) 22—62, 78, 255; 25—42 sec. 9 (30 Stat. 317) 25—303 1898, Apr. 20, J. Res. 24 (30 Stat. 738) 22—656; 23—225 1898, Apr. 22, ch. 187 (30 Stat. 361) 22—89, 96, 109, 136, 147, 161, 176, 199, 226, 237, 536 sec. 6 (30 Stat. 362) 23—233,580 sec. 10 (30 Stat. 362) 23—580 sec. 11 (30 Stat. 363) 22—176 1898, Apr. 25, ch. 189 (30 Stat. 364) 22—95 1898, Apr. 26, ch. 191, sec. 7 (30 Stat. 365) 22—95, 258 1898, May 4, ch. 234 (30 Stat. 369) 22—82,308 1898, May 7, ch. 245 (30 Stat. 399) 22—241 ACTS AND RESOLUTIONS CITED. 567 1898, May 11, ch. 293 (30 Stat. 404) 22—237 sec. 1 (30 Stat. 405) 23—233 8, May 14, ch. 299, sec. 10 (30 Stat. 413) ■. 25—499 898, May 18, ch. 345 (30 Stat. 419) 22—190 898, May 26, ch. 363 (30 Stat. 420) 23—236,408 898, May 28, J. Res. 41 (30 Stat. 745) 22—308 898, May 31, ch. 368 (30 Stat. 422) 25—491 898, June 4, ch. 379 (30 Stat. 431) 23—578 898, June 13, ch. 446 (30 Stat. 440) 22—366 (30 Stat. 443) 25—364 sec. 3 (30 Stat. 444) 23—480 1898, June 13, ch. 448 (30 Stat. 448) 22—134, 248, 279, 320, 568 sec. 1 (30 Stat. 448) 23—171, 228 sec. 2 (30 Stat. 448) 23—139, 341, 399 sec. 20 (30 Stat. 456) 22—272 Schedule A (30 Stat. 458) 22—447, 532; 23—616 Schedule A (30 Stat. 459) 22—178; 193, 218, 247, 253, 369; 24—44 Schedule A (30 Stat. 460) 22—168, 270, 318, 376; 23—211 Schedule A (30 Stat. 461) 23—4, 54 Schedule A (30 Stat. 462) 22—284 sec. 27 (30 Stat. 464) 23—178 sec. 29 (30 Stat. 464) 22—298 ; 23—221 ; 24—99 sec. 31 (30 Stat. 466) 22—568 1898, June 23, ch. 494 (30 Stat. 487) 22—306 1898, June 28, ch. 517 (30 Stat. 495) 23—216 sec. 13 (30 Stat. 498) 25—169 sec. 16 (30 Stat. 501) 23—529; 25—169 sec. 21 (30 Stat. 502) 24—689 sec. 26 (30 Stat. 504) 25—165 sec. 29 (30 Stat. 507) , 25—460 1898, July 1, ch. 546(30 Stat. 597, 613) 22—295 (30 Stat. 614) 25—120 (30 Stat. 620, 621 ) 25—402 (30 Stat. 624) 23—298 (30 Stat. 631) 22—141, 308; 23—505 (30 Stat. 645) 22—556 1898, July 7, ch. 571 (30 Stat. 653) 22—255 (30 Stat. 696) 25—491 1898, July 7, ch. 572 (30 Stat. 714) 22—381 1898, July 7, ch. 584 (30 Stat. 721) 23—236, 408 1898, July 7, J. Ees. 55 (30 Stat. 750) 22—150, 250, 269, 353, 574, 580, 629; 25—225 (30 Stat. 751) 23—346,488; 25—139 1898, Dec. 21. ch. 28, sec. 23 (30 Stat. 762) 22—349 1899, Jan. 5, ch. 41 (30 Stat. 772) 22—301; 25—491 1899, Feb. 24, ch. 187 (30 Stat. 865) ..: 25-491 1899, Feb. 28, J. Ees. 23 (30 Stat. 1390) 22—533; 23—57 1899, Mar. 2, ch. 352 (30 Stat. 977) 22—537; 23—574 sec. 7 (30 Stat. 979) 25—315 sec. 8(30 Stat. 979) 22—480 sec. 11 (30 Stat. 979) 22—381 sees. 12-14 (30 Stat. 979, 980) 23—580 sec. 17(30 Stat. 981) 22—426 568 ACTS AND BESOLUTIONS CITED. 1899, Mar. 3, ch. 413 (30 Stat. 1004) 22—620 sec. 2 (30 Stat. 1005) 22—449; 25—2 sees. 4, 5 (30 Stat. 1005) 25—295, 509 sec. 7 (30 Stat. 1005) 22— 626; 25— 123 sees. 8, 9 (30 Stat. 1C06) 22—380, 657, 659; 25—453 sec. 11 ( 30 Stat. 1007) 22—433; 24—709; 25—264 sec. 18 (30 Stat. 1008) 24—75 sees. 19, 20 (30 Stat. 1009) 22—486 sec. 22 (30 Stat. 1009) 22— 378; 28— 156 1899, Mar. 3, ch. 419, sec. 2 (30 Stat. 1014) 22—415 eec. 4 (30 Stat. 1014) 24—79 sec. 18 (30 Stat. 1019) 25—228 sec. 22 (30 Stat. 1020) 25—370 sec. 27 (30 Stat. 1021) 23—317; 25—1 1899, Mar. 3, ch. 421 (30 Stat. 1027) 25—87 1699, Mar. 3, ch. 423 (30 Stat. 1065) 23—409 (30 Stat. 1070) 22—665 sec. 2 (30 Stat. 1074)..... 22—410 1899, Mar. 3, ch. 424 (30 Stat. 1095)....: 23—594 (30 Stat. 1106) 23—505 1899, Mar. 3, ch. 425 (30 Stat. 1121) 22—653 (30 Stat. 1125) 25—147 (30 Stat. 1128) 22—489 (30 Stat. 1147) 22—519 sec. 2 (30 Stat. 1149) 24—595 sec. 3 (30 Stat. 1150) 25—55 sees. 3-6 (30 Stat. 1150) 23—164 sec. 9 (30 Stat. 1151) 25—602 sec. 10 (30 Stat. 1151).... 23—552, 566 sec. 18 (30 Stat. 1153) 25—211 1899, Mar. 3, ch. 426 (30 Stat. 1191) 23—179 1889, Mar. 3, ch. 429 (30 Stat. 1279) 25—500 1899, Mar. 3, ch. 433, sec. 2 (30 Stat. 1346) 23—21 1900, Mar. 14, ch. 41, sec. 8 (31 Stat. 47) 25—171 1900, Mar. 24, ch. 91 (31 Stat. 51) 23—329, 450 1900, Mar. 31, ch. 120, sec. 1 (31 Stat. 58) 25—51 1900, Apr. 4, ch. 159, Schedule A (31 Stat. 62) 23—136 1900, Apr. 12, ch. 191 (31 Stat. 77) 23—329; 24—56 sec. 2 (31 Stat. 77) 24—56 sec. 3 (31 Stat. 77) 24—56, 122, 612 sec. 4 (31 Stat. 78) 23—415; 24—86,123,621 sec. 7 (31 Stat. 79) 23—350; 24—41 sec. 9 (31 Stat. 79) 23— 403; 24— 41 sec. 13 (31 Stat. 80) 23— 564; 25— 175 sec. 14 (31 Stat. 80) 23—169, 403,. 552 sec. 17 (31 Stat. 81) 23—138 sec. 18 (31 Stat. 81) 23—138; 24—41 sec. 32 (31 Stat. 83) 23—491 1900, Apr. 30, ch. 339, sec. 3 (31 Stat. 141) 23—416 sec. 4 (31 Stat. 141) 23—346, 510 sec. 6(31'Stat. 142) 83—177 sec. 55 (31 Stat. 150) 23—539 sees. 66, 69, 80, 86 (31 Stat. 153-158),. 23—138 sec. 91 (31 Stat 159) 24—601; 25-523 ACTS AND RESOLUTIONS CITED. 569 1900, Apr. 30, ch. 339, sec. 98 (31 Stat. 161) 24—7 sees. 98-101 (31 Stat. 161) 23—352 sec. 101 (31 Stat. 161) 23^89 1900, May 1, J. Res. 23, sec. 2 (31 Stat. 716) 23—491, 555 1900, May 25, ch. 552 (31 Stat. 184) 23—390 (31 Stat. 185) 25—106 1900, May 25, ch. 553, sees. 2, 5 (31 Stat. 188) 23—213 1900, May 26, ch. 586 (31 Stat. 213) 23—395 1900, June 6, ch. 786 (31 Stat. 321) 25—613 1900, June 6, ch. 791 (31 Stat. 626) 23—505 (31 Stat. 631) 23—284 (31 Stat. 637) 23—534 1900, June 6, ch. 807 (31 Stat. 664) 23—287 1900, June 6, ch. 819 (31 Stat. 682) 25—39 1900, June 7, ch. 859 (31 Stat. 703) 25—509 1901, Feb. 1, ch. 190 (31 Stat. 746) 23—444 1901, Feb. 2, ch. 192, sec. 14 (31 Stat. 751) 25—591 sec. 17 (31 Stat. 751) 23—575 sec. 26 (31 Stat. 755) 23—574 sec. 32 (31 Stat. 756) 25—577 1901, Feb. 15, ch. 372 (31 Stat. 790) 24—604 1901, Feb. 26, ch. 607 (31 Stat. 810) 25—315 1901, Mar. 1, ch. 676, sec. 26 (31 Stat. 869) 24—626 sec. 28 (31 Stat. 869) 25—165 1901, Mar. 1, ch. 677 (31 Stat. 875) 25—106 1901, Mar. 2, ch. 800, sec. 8 (31 Stat. 879) 23—471 1901, Mar. 2, ch. 803 (31 Stat. 897) 23—637 Art. VII (31 Stat. 898)'. 25—157, 161 (31 Stat. 899) 25—592 (31 Stat. 900) 23—574 (31 Stat. 910) 24—537; 25—565 1901, Mar. 2, ch. 804 (31 Stat. 911) 25—581 1901, Mar. 2, ch. 806, Schedule A (31 Stat. 942) 23—615 1901, Mar. 2, ch. 809, sec. 1 (31 Stat. 950) 23—424 1901, Mar. 3, ch. 850 (31 Stat. 1099) 24—580 1901, Mar. 3, ch. 852 (31 Stat. 1108) 25—457 1901, Mar. 3, ch. 853 (31 Stat. 1162) 24—702 (31 Stat. 1179) 23—534 (31 Stat. 1181) , 25—584 1901, Mar. 3, ch. 854, sec. 42 (31 Stat. 1196)..., 23—573 sec. 1389 (31 Stat. 1405) 25—44 1901, Mar. 3, ch. 864(31 Stat. 1440) 23—578 1901, Mar. 3, ch. 872, sec. 8(31 Stat. 1450) 24—667 1902, Mar. 6, ch. 139 (32 Stat. .51) 24—702 sec. 4 (32 Stat. 51) 24—79; 25—16 sec. 5 (32 Stat. 51) 24—65 sec. 6 (32 Stat. 52) 25—370 sec. 7(32 Stat. 52) 24—79; 25—228 sec. 8 (32 Stat. 52) 25—228 sec. 9 (32 Stat. 52) 25—228 sec. 10 (32 Stat. 53) 24—79 1902, Mar. 8, ch. 140, sec. 3 (32 Stat. 54) 25—129 1902, Mar. 11, ch. 179 (32 Stat. 63) 25—315 1902, Mar. 20, ch. 234 (32 Stat. 1278) 25—315 570 ACTS AND RESOLUTIONS CITED. 1902, Mar. 22, ch. 272 (32 Stat. 78) 24—52 1902, Apr. 28, ch. 594 (32 Stat. 152) 24—616; 25—16, 113 sec. 3 (32 Stat. 171).....! 24—81, 95, 103, 544; 25—619 sec. 5 (32 Stat. 171) 25—487 1902, Apr. 29, ch. 641 (32 Stat. 176) 24—544; 25—137 sec. 1 (32 Stat. 176) 24—638 sec. 2 (32 Stat. 176) 24—562 1902, May 2, ch. 679 (32 Stat. 184) 25—600 1902, May 13, J. Res. 20 (32 Stat. 740) 24—663 1902, May 27, ch. 888 (32 Stat. 258) 25—166 sec. 7 (32 Stat. 275) 25—418,533 1902, June 6, ch. 1033 (32 Stat. 308) 25—106 1902, June 13, ch. 1079 (32 Stat. 342) 24—594 (32 Stat. 360) 25—195 (32 Stat. 371) .......'. 25—145 sec. 14 (32 Stat. 376) 24-594 1902, June 27, ch. 1157 (32 Stat. 400) 25—627 1902, June 27, ch. 1160, sec. 3 (32 Stat. 400) 24—98 1902, June 28, ch. 1301 (32 Stat. 456) 24—701 (32 Stat. 465) 25—226 1902, June 28, ch. 1302 (32 Stat. 481) 25—442 sec. 5 (32 Stat. 483) 25—54, 484, 551, 557 1902, June 30, ch. 1323 (32 Stat. 501) 25—166 1902, June 30, ch. 1329 (32 Stat. 543) 25—44 1902, June 30, ch. 1351 (32 Stat. 571) 24—85 1902, Julyl, ch. 1355 (32 Stat. 630) 24—106, 696 (32 Stat. 632) 24—125,675 1902, Julyl, ch. 1362 (32 Stat. 641) 25—153 par. 11, 14, 25, 30 (32 Stat. 642-646) .. 25—461 par. 31, 33 (32 Stat. 646-648) 25—153 par. 32 (32 Stat. 647) 25—154 par. 33, 39, 49, 63, 64 (32 Stat. 648-655) 25—462 par. 41 (32 Stat. 651) 24—689 par. 49, 50, 55, 58 (32 Stat. 652-654) .. 25—461 par. 66 (32 Stat. 656) 25—464 1902, July 1, ch. 1368 (32 Stat. 678) 24—663 1902, Julyl, ch. 1369 (32 Stat. 691) 24—121,535, 550; 25—565 sec. 64 (32 Stat. 706) 24—645 sees. 63, 64, 65 (32 Stat. 706) 25—89, 100 sees. 70-73 (32 Stat. 708) 25—420 sees. 76-83 (32 Stat. 708) 25—102 1902, Julyl, ch. 1370 (32 Stat. 712) 25—184 1902, Julyl, ch. 1371, sec. 2 (32 Stat. 715) 25—266 1902, July 1, ch. 1375, sec. 72 ( 32 Stat. 727 ) 25—169 1902, Julyl, ch. 1383 (32 Stat. 731) 25—167,175,193,270 1902, July 1, J. Res. 42 (32 Stat. 750) 24—556 1903, Jan. 12, ch. 90 (32 Stat. 767) 25—12 1903, Jan. 30, ch. 334 (32 Stat. 783) 25—104 1903, Feb. 2, ch. 349, sec. 2 (32 Stat. 791 ) : 25—250 1903, Feb. 10, ch. 537 (32 Stat. 821) ,. 25—316 1903, Feb. 14, ch. 552 (32 Stat. 825) 24—697 (32 Stat. 825,826) 25—5, 9,149,498 sec. 2 (32 Stat. 826) 25—2 sec. 3 (32 Stat. 826) 25—117 .. ACTS AND RESOLUTIONS CITED. 571 1903, Feb. 14, ch. 552, sec. 4 (32 Stat. 826) 25—3, 12 sec. 7 (32 Stat. 827) 25—3,11 sec. 10 (29 Stat 829) 25—3, 29, 37, 52, 117, 149, 221, 498 1903, Feb. 19, ch. 707 (32 Stat. 841) 25—464 1903, Feb. 25, ch. 755 (32 Stat. 854, 891) 25—462 (32 Stat. 896) 24—703 1903, Mar. 3, ch, 994 (32 Stat. 994) 24—624 (32 Stat. 995) 25—320 (32 Stat. 996) 25—163 1903, Mar. 3, ch. 1006 (32 Stat. 1059) 24—699; 25—13 1903, Mar. 3, ch. 1007 (32 Stat. 1109) 25—172 1903, Mar. 3, ch. 1008 (32 Stat. 1157) 24—675; 25—62, 246 ( 32 Stat. 1158) 25—142 (32 Stat. 1165) 25—252 1903, Mar. 3, ch. 1010 (32 Stat. 1188) 25—161 (32 Stat. 1197) 25—333,458, 586 (32 Stat. 1198) 25—544 1903, Mar. 3, ch. 1012 (32 Stat. 1213) 25—110, 131, 371 seel (32 Stat. 1213) 25—371 sees. 12, 13, 14, 15 (32 Stat. 1217) 25—337 sec. 33 (32 Stat. 1221) 25—132 sec. 36 (32 Stat. 1221) 24—707 sec. 39 (32 Stat. 1222) 25—23 1904, Mar. 18, ch. 716 (33 Stat. 97) 25—307 (33 Stat. 115) 25—380 1904, Apr. 21 (33 Stat. 222) 25—308 1904, Apr. 22, ch. 1417 (33 Stat. 244) 25—517 1904, Apr. 23, ch. 1485 (33 Stat. 264) 25—158, 185, 263, 299, 313 (33 Stat. 274) 25—529 1904, Apr. 23, ch. 1486 (33 Stat. 288) 25—245 1904, Apr.27, ch. 1622 (33 Stat. 349 ) 25—263 1904, Apr. 28, ch. 1758 (33 Stat. 429) 25—325, 443 1904, Apr. 28, ch. 1759 (33 Stat. 440) 25—611 1904, Apr. 28, ch. 1760 (33'Stat. 445) 25—342,413 1904, Apr. 28, ch. 1762 (33 Stat. 483) 25—493 (33 Stat. 488) 25—516 1904, Apr. 28, ch. 1824, sec. 2 (33 Stat. 573) 25—532 1905, Feb. 1, ch. 288, sec. 5 (33 Stat. 628) ■ 25—471 1905, Feb. 3, ch. 297 (33 Stat. 643) 25—382 1905, Feb. 6, ch. 453 (33 Stat. 689) 25—421 1905, Feb. 24, ch. 778 (33 Stat. 812) 25—600 1905, Mar.3, ch. 1404 (33 Stat. 854) 25—414 1905, Mar. 3, ch. 1405 (33 Stat. 869) 25—553 1905, Mar. 3, ch. 1408 (33 Stat. 928) 25—565, 582 1905, Mar. 3, ch. 1452 (33 Stat. 1016) 25—524,589 1905, Mar. 3, ch. 1483 (33 Stat. 1190) 25—516 1905, Mar. 3, ch. 1484 (33 Stat. 1257) 25—562 1905, Mar. 3, ch. 1498 (33 Stat. 1266) 25—548 1905, Dec. 21, ch. 5 (34 Stat. 5) 25—557 REVISED STATUTES OF THE UNITED STATES, SECTIONS CITED OR REFERRED TO IN VOLUMES 17 TO 25. OPINIONS. [Where a section is referred to twice in the same opinion the first reference only is usually indicated.] IE. S 22—124; 23—430 12 E. S 18—252; 20—467 13 E. S 17—545 28 E. S 17—419 30 E. S 17—419 60 E. S : 21—356 79 E. S 19—160 88 E. S 23—138,578 HOE. S '. 20—522 141 E. S 20—522 158 E. S 20—398; 22—62; 28— 8 158-198 E. S - 22—63 159 E. S 25— 8 161E. S 17—210; 19—403; 20—703, 729; 21—122; 24—698; 25—17, 99, 328 162 E. S 25^0 163 E. S 17—622,623; 18—245; 19— 326,555,626; 21—363 164 E. S : 18—245; 19—555 166 E. S 20—703,751; 25—305 167 E. S 17— 622; 21— 363 169 E. S 21—356,363 171 E. S 20-610 172 E. S 25-306 177 R. s 17—530,536; 18—59; 19—133, 500; 20—8; 23—474; 24—648; 25—258 178E. S 17—500, 530, 536; 18—50; 19—500, 504; 20—8; 21— 365; 23^74; 25—259 179R g 17—530, 536; 18—59; 19— '" 133, 500, 504; 20—8; 23^74; 25—259 180E g , 17—530, 536; 18—50, 59; ' " 20—8 181 R g 18—59; 20—8; 25—259 182 E. S 20 ~ 9 184, 185 E. S. 17—247 189R g ' 18—125, 136; 19—63, 329; 20—657; 21—195 573 574 KEVISED STATUTES CITED. 190 R. S , 20—696; 25—7 191 R. S .' 17—237,238,385; 20—252 192 R. S 21—178 194 R. S : 21—356 197 R. S 25—568 201 R.S 21—364 216 R. S 17—19 219 R. S 20—589 221 R. S: 17—146 222 R. S 17—146; 18—444 223 R. S 17—146 226 R. S 18—444 233 R. S 17—237 235 R. S 20—679 236 R. S 17—441; 19—386 237 R. S 22—323 243 R. S 25—99, 103 248 R. S 17—236; 19—388 249 R. S 20—193,715; 21—571; 22— 407; 24—34; 25—83 250 R. S 21—296 251 R. S 20—193; 22—407 255 R. S 17—125, 219; 19—394, 430; 25—538 268 R. S 17—238; 20—678 269 R.S 17—236; 19—178; 20—678 270 R.S 20—679. 271 R.S : 18-454 272 R.S 21—296 273 R.S 17—236; 20—679 276 R.S 20—678 2-77R.S 17—340; 19—30, 541; 20— 182, 678 283 R.S 20—679 292-296 R.S 19—31 295-317 R.S 23—610 296 R.S ^ 20—679 297 R.S 17—441 299 R.S 20—50, 707 301-311 R.S 25—102 302 R.S : 18—276 305 R.S 17—238 317 R.S 19—178 321 R.S..... 17—113; 22—570 343 R.S 19—578 345 R.S 19—578 349 R.S 18—60, 20—656, 716 350 R.S 20—656, 716 354R.S 18—489; 19—547; 20—609, 658; 21—175; 25—304 355 R.S 18—489; 19—63, 547; 20— 299, 612; 23—570; 24— 618; 25—161, 173, 242 REVISED STATUTES CITED. 575 356 E.S 17—358; 18—59,78,108,366 489, 521; 19—57, 333, 397, 415, 439, 547, 564, 598, 695; 20—51, 160, 180, 211, 221, 250, 252, 256, 270, 279, 290, 383, 385, 420, 441, 464, 465, 527, 536, 583, 589, 592, 609, 614, 619, 658, 667, 702, 715, 724, 739; 21— 8, 36, 175, 370, 478, 507, 509, 511, 570; 22—86; 25-184, 304, 584 357 B. S ., 19—547; 21—196,198,511 358 E. S .'... 18— 60; 20—609,648,657,659, 722,723; 21— 176 360 E. S 20—656 361 E. S 18—60; 20—609,656; 21—176 362 E. S 18—136; 19—329; 20-716 363 E. S 17—506; 19—329 365 E. S 18—125,136; 21—197 366 E. S 1 18—59, 125, 136 367 E. S 18—137 369 E. S 18—57 376 E. S 20—714, 716 377 E. S 19—178 379 E. S 17—143; 20—714 380 E. S 20— 152, 476, 478,' 634, 681 390 E. S 20—681 396 E.S 18—589 398R. S 19—39, 513, 516, 519; 22— 366 403 E. S 18—112 405 R. S 20—251 409 E. S 17—278; 18—278,315 412 E. S 24—558 415-436 E. S 18—177 416 E. S 19—504 418 E. S 18—178 419 E. S 18—177 420 E. S 17—155; 18—178 421 E. S 17—155,649; 22—48; 25—297 421-426 E. S 22—47 422 E. S 17—155; 22^9 423 E. S 22—47 424, 425, 426 E. S 22—49 439 E. S -' 18—432; 19—133 441 E. S 17—206; 18^54; 22—414; 25—16 442 E.S - 19—81 443 E. S 19—82 444 E. S 19—82; 22—414 446-461 E. S 25—462 450 E. S "-305 576 KEVISED STATUTES CITED. 451 E.-S ; 17—305 453 R. S 18—435, 454; 19—714 455 R. S 17—210 456 R. S... 18—455 463 R. S 17—210 464 R. S , 18—45 467 R. S 20—609 471 R. S '. 17—210, 340; 20—181 473 R. S 17—677 476 R. S 21—356 479 R. S 18—276 481 R. S 17—206 483 R. S 17—207; 21—122 487 R. S 17—207; 20—609; 21—176 508 R. S 1 17—210 520 R. S 25— 555 527 R. S 21—55, 163, 321, 373 555 R. S 23—138 563 R. S 19—174 623-626 R. S '. 19—531 628 R. S 20—495 629 R. S 19—174; 22—208 667 R. S 24—107 677 R. S 23—138 681 R. S 24—107 683 R. S 19—312 707 R. S 20—548 714 R. S....'. 21—450 748 R. S .-.- 20—495 758 R. S 18—307 763 R. S 18—308 767 R. S 19—63; 20—233,234 770R.S. 18—122,192; 19—153, 356; 20—654 771 R. S 18— J09; 19—355; 20—234 778 R. S 18—308 780 R. 8 20—495 783-794 R. S 23—610 787 R. S 19—295 788 R. S 19—294, 295; 20—495 790 R. S 17—530 795 R. S. 18—276 823 R. 8 19—63; 20—236 824 R. S 18—193; 20—229, 233, 236, 399,405, 709 825 R. S 19—356 827 R. S 17—479; 18—122, 192; 19— 354, 356; 20—229, 233, 235, 654, 709 829 R. 8 18—123 833 R. S 18—122,123; 19—356 834 R. 8 18—122; 19—356; 20—236 835 R. S 18—122; 19—63 836 R. S 18—192 REVISED STATUTES CITED. 577 838 R. S 18—126,128; 20—399,402 841 R. S 18-290 843 R. S 19—63 846 R. S 19-357 847 R. S 17—247 850 R. S 21—263 853 R. S 19—159, 861 855,856 R. S 17—248 860 R. S 17—54,616 875 R. S 24—70 906 R. S 18—346 911-1042 R. S 19—445 934 R. S 21—74,233 989 R. S 20—232 1047 R. S 21—564 1049 R. S 21—451 1053 R. S , 23—138 1059 R. S 22—210 1063 R. S 20—687; 22—205, 210,424; 24—545 1064 R. S ." 22—210, 425 1076 R. S '. 20—678; 25—329 1089 R. S 18—549 1090 R. S 18—549 1092 R. S 18—551 1094 R. S - 17—146,359; 19—283; 20— 688; 28—187,315 1094-1361 R. S 19—471 1104 R. S ., 17—47 1108 R. S...' -' 17-47 1111, 1112 R.S 17—149 1118 R. S 17—149; 22—38 1119 R. S 17—149 1122 R. S 22-483 1128 R. S 22-483 1131 R. S i - 22-483 1132 R. S ■ - 17—198; 22—483 1133 R. S 18—350 1143-1260 R. S 21—389 1153 R. S 19—427,429,430 1168 R. S 22—483 1191 R. S '-- 18-276 1193 R, S 17-3,466 1194 R. S : 17-198 1195 R. S 17—147 1196 R. S • 17—147 1198 R. S 22-483 1202 R. S 18—280,281; 19—502 1204 R. S 17-65,67,466,572,611; 21- 493 1206 R. S 17-571,572 1207 R. S 17—572 1209 R. 8 25—316 18456—08 37 578 REVISED STATUTES CITED. 1209-1212 E. S , 17-^10 1212 RS 25—317 1214 E. S 21—493 1215 R.S 21—493 1216 B. S 24—127,579 1219 R. S 17—12, 35, 53, 196, 198,363, '403; 23—157, 232, 406; 24-^-75 1222B. S 18—12; 19—600; 20—605; 22—89 1223 E. S 18—13; 19—204, 610; 21— 506, 511 1224 E. S 18—13; 19—601; 20—605 1225 E. S 20—688 1226 E. S 21—579; 25-316 1229 E. S 17—20; 18—373; 25—580 1230 E. S 17—19, 20 1235 E. S 18—204 1242 E. S 19-476 1246 E. S 21—390 1248 R. S 1 21—388 1249 E. S 21—388 1250 B. S . . 21—389 1251 E. S ' 21—389 1254 E. S 25—315 1255 E. S 25—315 1256 E. S 25—316 1259 E. S 19—285, 500; 20—353, 689; 25—315 1260 B. S ." 19—500; 20—289,689; 25— 315 1261 E. S 17—43 1262, 1263 E. S '...: 17—95 1265 E. S , 18—159 1272 E. S. (p. 221) : 17-390 1281 E. S 19—567, 621, 623 1282 B. S. ". 19—623 1283 E. S 19—622; 20—17 1285 E. S ..; 19—471; 24—129 1287 E. S 18—204 1289 E. S 17—462 1290 E. S 19—623; 20—358 1292 E. S 17—12, 405 1305-1308 B. S 19—621; 25—190 1313 B. S 17—359; 23—138, 578 1325 E. S 17—68; 25—581 1326 E. S 25—581 1333 B. S 17—359 1336 E. S 17—359 1342 E. S 18—281; 19—106; 23—26, 41 1342 E. S., art. 71 19—476 1342 E. S., art. 101 18—120 1342 B. S., arts. 105,106,108 17—300 1345 R.S 21—32 REVISED STATUTES CITED. 579 1349 R.S 18-276 1362 R. S " 19—590 1363 R. S 23-36 1364 R. S 23-38 1367 R. S 19—590 1368 R. S 19-169 1369 R. S 22—83 1370-1372 R.S 17—49 1375 R. S : 19-170 • 1376 R. S 19—170,172 1377 R.S 19—170 1378 R. S 18—156; 22—83 1380 R.S 19—171 1381 R. S - 18—156 1382 R. S 18—156; 22—83 1383 R. S 18—276; 19—171,175 1390 R. S 19—172; 20—358 1392 R. S 19—71 1393 R. S 22—83 1394 R. S 22—83 1396 R. S 22—83 1399-1401 R. S 17—103 1402 R. S 22 —49 1403 R. S.. ------ 22—84 1405 R. S L 22—84 1407 R. S 24—580 1411 R. S 22—84; 23—138 1412 R. S 17—189, 400, 556 1413 R. S 17—126, 127 1414 R. S , 22—84 1416 R. S -..- 21—329 1418-1420 R. S / 21—327, 328 1440 R. S 19—204 1443R. S 17—128, 154, 182; 21—103, 287 1443-1465 R. S 25—295 1444 R. S 17—182; 18—393; 22—433 1446 R. S .' 25—298 1448 R S .' 17—128 1448-1455 R. S 17—181 1453 R. S 17—182 1454 R. S... 18—96 1457 R. S 17—155; 25—295 1458 R. S 17—23 1460 R. S 17—495,498,499 1461 R. S 17—36, 38, 496, 498 1462,1463,1464,1465 R. S.._- 17—39 1466 R. S :-■- 25—520 1467 R. S 20—244; 21—46; 25—519 1471 R. S 18—177; 25—122,294 1472 R. S..; , - 17—155,156; 25—296 1473 R. S 1 - '....I.. 17—155; 25—297 1474 R. S 17—37; 19—170; 22—434 H75R. S 17—37; 18—156; 22—434 580 KEVISED STATUTES CITED. 1476 R. S i 17—37; 20—244,358 1477 K. S ~ .- 20—358; 22—49 1478 R. S 17—126,127; 20—358 1479 R. S 20—358 1480 R. S...I 17—50, 51, 127; 19 Op. 171; 20—358 1481 R. S 25—295 1482 R. S 25—295 1483 R. S 17—119,193 1483-1487 R. S ■.. 21—46 1485 R. S P 17—57 1486 R. S 17—56,57,88 1493 R. S 17—118; 20—358; 23—324 1494 R. S 23—324 1496 R. S 20—358 1506 R. S -• 17—76,320; 23—32 ■ 1507 R. 8 23—38 1513 R. S 19—351; 21—164; 25—579 1514 R. S 19—352, 354; 21—164, 342; 25—579, 586 1515 R. S 19—352, 354; 25—579, 586 1516 R. S 17—497; 21—342 1519 R. S.... 19—303 1521 R. S 17—193; 19—353; 20—376 1525 R. S >... 19—303 1528 R. S 17—103 1537 R. S 18—320 1541 R. S 20—96 1545 R. S 22—473 1547 R. S 18—320; 19— 591 ; 21— 46, 50, 441; 25—274 1548 R. S 25—276 1556 R. S 17—126, 332, 556, 559, 560; 18—156; 19—170, 592; 21—287 1557 R. S 17—332 1558 R. S..„. r 17—332, 559, 560 1561 R. S 17—320, 331, 498 1562 R. S : 17—332; 18—394 1565 R. S 17—156 1583 R. S 17—156 1588 R. S 17—154,158,182,498; 18—96 1590 R. S 17—498 1591 R. S 17—37, 496, 498, 499 1593, 1594 R. S 18—96 1603 R. S 24—74; 25—518 1608, 1610 R. S : 17—149 " 1612 R. S 19—622; 24—580; 25—264 1621 R. S 19—618; 25—519 1622 R. S 17—119; 25—263 1624 R. S 17— 22, 332; 19—183,473,474; 475, 502; 21—328, 442, 505; 23—550; 25—625 REVISED STATUTES CITED. 581 1625-1641 R. S 24—655 1642 R. S , 24—654 1644, 1649 R. S 24-^-656 1650-1652 R. S 24—656 1651 R. S 23—235 1661 R. S '. 19—61 1671 R. S 1 20—619 1675 R. S 23—612 1678 R. S 18—184 1680 R. S 23—137 1697 R. S 18-157, 276; 19—23; 20—17 1698 R. S 18—276 1703 R. S 22—163 1715 R. S 21—572 1733 R. S 22—163 1735 R. S r 1 9—23 1736 R. S 19—24 1740 R. S 19—220 1744 R. S 23—612 1745 R. S 19—198, 228; 24—674 1752 R. S ,.... 21—574 1753 R. S 17— 623; 21—393, 445; 24—66 1754 R. S 17—195; 19—318; 21—393; 22—189; 24—64 1756 R. S 17—153,419; 19—220, 284; 23—608 1757R. S 18—182; 19—220,284; 23— 608 1758 R. S 23—611 1761 R. S 17—153,521; 23—601; 25— 186, 318 1763 R. S 17—685; 18—304; 19—285; 20—698; 22—184; 24—14 1764R. S 19—63, 121, 285; 22—186; 24—14 1765 R. S 17—323,685; 18—206; 19— 63, 121, 284, 285; 20—222; 22—184; 24—14; 25—103 1766 R. S 17—31,429,607,678 1767 R. S.--"- v- - 18—576 1768 RS 18—321,576 1769 R. S 18—28,576; 20—448 1770-1772 R. S 18—576 1781 R. S 17—420; 24—560 1782 R. 8 17—420; 18—161; 24—560 1783 R. S 24-559 1784 R. S 25—46 1786 R. S : 17—419 1790 R. S 19—403, 404, 406 1797 R. S 24-616; 25—19, 112, 516 1818 R. S 21—224; 25-112 1828 R. S.... 23-570 1839 R. S 19-111; 23-569 582 REVISED STATUTES CITED. 1839-1976 R. S , 19—700 1841 R. S 17—649; 20—451; 21—117, 292 1843 R. S 17—649; 20—451 1844 R. S -. 19—321 1846 R. S 19—319 1850 R. S 19—321 1851 R S 19—321, 337 1852 R. S 19—260, 319 1860 R. S 19—337 1861 R S 18—540 1873 R. S ' 19—530, 531 1875 R. S , 17—649; 20^51 1876 R. S -. 17—649; 20—451 1886 R. S 19—320 1889 R. S 19—338 1891 R. ST. 23—635; 25—27, 128, 129 1893 R. S 17—498, 565 1910 R. S 19—444 1913 R. S 19—530 1918 R. S 19—530 1923 R. S 19—320 1955 R. S 17—582; 18—139 1956 R. S 18—585; 21—333, 346, 583; 25—498 1958 R. S --._ 18—585; 21—292 1959 R. S 25—498 1960 R. S 25—500 1960-1971 R. S 20^-52 1962 R. S 20—52, 54, 511, 638; 25—500 1963 R. S 19—432; 20—53, 637; 21— 177; 25—498, 500 1964 R. S 25—500 1965 R. S... 25—500 1969 R. S : 20—407; 25—500 1970 R. S 25—500 1973 R. S 25—500 1977 R. S '. 19—174 1989 R. S 19—570 1990 R. S 25—475 2011 R. S 18—104 2012 R. S 18—104 2031 R. S 17—684 2032 R. 8....: '.. 19—646 2045 R. 8 17—392 2052 R. S 20—495 2060 R. S 18—579 2064 R. S 20-^95 2074 R S 20—495 2098 R. S 21—132 2103 R. S 17—446; 18—8,162,238,486, 498; 25—309 2104 R. S } 17—446; 25—309 REVISED STATUTES CITED. 583 2105 E. S 25—309 2106 R. S 18—183; 25— 309 2116 E. S '. 18—237, 486 2117 E. S 18—91, 237 2118 E. S 20—246 2125 E. S..„ 18 1 — 545 2133 R. S 17—260 2134 E. S 18—35, 556 2137 E. S 18—545, 557 2139 E. S 19—307, 309, 310; 25—417 2140 E. S 19—307,308; 25—418 2141 E. S 22—232 2843 E. S 22—75 2844 E. S 22—75 2145 E. S >. 17—567 2146 E. S 17—567 2147 E. S 20—246 2149 E. S 20—246 2150 R. S 18—545 2152 E. S 21—72 2154, 2155 E. S 17—569 2165 E. S 17—534; 21—37; 23—348 2169 E. S 21—37 2174 E. S 17—534; 21—412; 23—403 2177 E S 25—233 2178 R. S 25—233 2215 E. S 18—276 2238 E. S 17—161 2281 R. S 18—573 2290 R. S 17—161 2291 R. S 17—161 2297 R. S 17—162 2318 R. S 17—231 2319 R. S 17—231; 20—167 2320 R. S 17—232 2322 R. S 17—232 2324 E. S 17—232 2378 R. S 23—569 2380 E. S 21—444 2392 E. S 17—249, 250 2393 R. S 23—569 2449 R.S , 17—407 2456 R. S 19—189 2458 R. S -v 20—495; 23—569 2459 R. S 23—569 2461 R. S 17—283; 18—435; 19—382 2462 E. S 17—283; 18—435; 19—382 2463 E. S 17-283; 19-383 2479 E. S , - "—28 2480 E. S 25-630 2482 E. S "-28; 18-171 2490 E. S 25—630 2491B.S....: : 18-424; 23—358 , 2499 E. 8 - "~ 82 584 REVISED STATUTES CITED. 2499 E. S 18—107,368; 19—272, 273, 301 2500E.S 17—580, 583; 18—82, 381; 19—244, 246 2502 E. S 19—687; 80—196; 21—603 2503 E. S 18—263; 20—196 2504 E. S 17—203, 226, 338, 614, 677; 18—69; 19—687 2505'E. S 17—227, 677, 679; 18—163 2506 E. S 18—163 2508 E. S 18—163 2509 E. S 18—163 2514 E. S 20—199 2533 E. S 18—591 2534 E. S 18—591 2536 E. S 18—98; 23—599 2538 E. S 23—138 2544 E. S 24—613 2576 E. S 17—685 2583 E. S 17—685 2605-2607 E. S 17—685 2606 E. S 20—676 2609 E. S 23—379 2613 E. S 17—476 2614 E. S 18—360; 23—246, 599 2615 E. S 18—360; 20—731; 23—246 2616 E. S 23—246 2619 E. 8 18—275,458 2621 E. S 17—685 2630 E. S 18—98; 19—630 2632 E. S 19—630 2634 E. S 19—630 2637 E. S , 17—685 2649 E. S 20—676 2650 E. S : 19—422 2652 E. S 21—203 2653 E. S 1 24—613 2693 E. S : 19—403,404,406 2704 E. S 17—105 2721 E. S '. 19—631 2722 E. S 19—629,631 2723 E. S 19—631 2730 E. S 24—613 2733 E. S 17—685; 19—420,422,424 2737 E. S 17—685 2741 E. S 17—275 2746 E. S 19—631 2749 E. S 17—533; 21—552 2750 E. S '. 21—552 2751 E. S 17—533; 21—552 2752 E. S 21—552 2753 E. S 21—287, 552 2757 E. S - % 19—505 2766 E. S 21—92, 94 REVISED STATUTES CITED. 585 2772 R. S ; 25-157 2774R. S 20—677; 24—28; 25—157 2779-2784 R. S 25—535 2785 R. S 17—275; 18—360; 20—7 2787 R. S 25—66,177 2795-2797 R. S 20—201; 21—92, 94 2798 R. S 21—92,94; 20—201 2802 R. S 18—326; 23—64 2804 R. S '. 24—588 2806 R. S 24—28 2809 R. S._ 17—84; 25—535 2811 R. S : 24—28 2823 R. S .' 24—28 2824 R. S 24—28 2838 R. S 18—323 2841 R. S 17—275; 20—5, 7 2842 R. S 20—5 2843 R. S 17—275 2845 R. S 17— 275; 22— 75 2849 R. S 17—275 2853 R. S 17—275; 19—227; 21—573 2854 R. S 17—275; 21—573 2855 R. S 19—227; 21—572 2858 R. S 21—117, 292 2859 R. S 17—683 2860 R. S 19—227 2864 R. S 18—260 2865 R. S 20—390; 23—64, 378; 24—586 2866 R. S 20—386, 389; 21-572 2867 R. S 20—677 2868 R. S 17—83 2869 R. S 21—419 2873 R. S 17—84 2875, 2876 R.S...." 19—605, 606 2891, 2892 R. S .- -. 20—198 2894 R. S 20—198 2899 R. S 18—579 2900 R. S 1 '. 17—272; 18—259; 20—667 2900-2908 R. S... 17—268, 274 2901 R. S 18—579 2902 R. S - 18—360; 23—243 2904, 2905 R.S 17—268, 274, 635 2906 R. S 17—107, 268, 274, 638; 18— 46, 470, 478 2907 R. S - 17—268, 273, 638; 18—289, 465, 496, 516; 19—543, 607; 21—109 2908 R. S : 17—268, 273, 276, 638; 18— 289, 469; 19—543, 607 2912 R. S 23—246 2921 R. S 23—246 2922 R. § 18—360; 23—248 2925 R. S 23—253 2926 R. S 21-262; 23-246 586 REVISED STATUTES CITED. 2927 R. S '_ 23—246 2928 B. S 21—121; 22—542 2929 R. S 23—246 2930 R. S 18—360; 23—379 2931 R. S 17—336, 642; 18—64, 199; 19—239, 244, 664; 20— 187, 192; 21—93, 251 2932 R. S 19—238, 663, 664; 20—187 2933 R. S ..1 23—246 2938 R. S ■ 23—246 2940 R. S 20—732 2943 R. S 23—246 ' 2949 R. S : , 18—360; 23—245, 2953 R. S 23—246 2954 R. S 19—608 2954-2959 R. S 20—37 2955 R. S..-- 19—608 2960 R. S 20—37; 21—233; 22—153 2960-2965 R. S 20—36 2961 R. S 21—232 2962 R. S 18—381; 21—232; 22—154 2965 R. S 21—116 2970 R. S 17—580, 651, 653; 19—669; 20—36; 21—117 2971 R. S 17—653; 21—23,40,117,130; 22—154 2972 R. S 17—654; 20—36; 21—117 2973 R. S 20—36; 21—117; 23—379 2977 R.S 17—652, 653; 20—36; 21— 232; 23—626 2978 R. S 23—627 2979 R. S 23^21 2980 R. S...- - 20—36 2981 R. S..-- 19—103; 21—40 2982 R. S , 23—419 2983 R. S 20—199; 21—476 2984 R. S ■. 18—519,580 2989R S 21—39; 22— 154 2990-2994 R. S 21—39 2990-2997 R. S 20—726 2998 R. S 21—304 3999 R. S 20—32 3000 R. S 20—309 3001 R. S 21—117 3001-3007 R. S 21—304 3002 R. S 20—726 3005 R. S , 21—40; 25—130 3006 R. S 18—262 3010 R. S 21—345 3011 R. S '. 17—143; 21—262 3012JR. S 17— 336, 642; 19— 664; 21— 225 3013 R. S 19— 647, 663, 664; 21—225,252 3015 R. S 21—257 3017 R. S 17—653 EEVISED STATUTES CITED. 587 3019R.S 18—82; 19—638, 640, 642; 22—112; 23—626 3020 R. S 23—627 3022 R. S 23—627 3025 R. S 21— 36; 23— 627; 25— 126 3026 R. S t 23—627 3030 R. S - 23—421 3038 R. S 21—257 3040 R. S 2 1—257 3041 R. S 21—257 3043 R. S 23—421 3047'R. S •. 23—421 3057 R. S 19—238 3058 R. S 22—154, 544 3061 R. S 18—458; 23—70 3062 R. S , _ 23—70 3074 R. S 23—330, 378; 24— 584, 589 3075-3079 R. S 24—585, 589. 3077 R. S 21—72 3078 R. S 21—117,292 3080 R. S 24-585 3081 R. S 24—584 3082 R. S 23—64, 378; 24—61, 586 3084 R. S 18—127 3085 R. S , 18—127, 128; 20—402 3086 R. S 18—545 3102 R. S ' 20—27, 30, 88; 21— 598 3111, 3113 R. S 21—92, 94 3114 R. S 18—562 3120 R. S 17—435 3142 R. S 18—560 3143 R..S 18—276 3144 R. S 18—276 3146 R. S 22—323 3151 R. S -, 18—276 3153 R. S , 18—276 3156 R. S 18—276 3164 R. S 18—127 3176 R. S - 17—433, 435; 23—399 3186 R. S - - 21—264 3208 R. S - 21—477 3220 R. S 17—500; 25—605 3221 R. S 18-379 3229 R. S 17—214; 21—565; 23—508 3240, 3241 R. S 19—311 3244 R. S.. 21—23 3248 R. S - 18 — 44 - 3288 R. S 18 — 92 3293 R S 18—380 3296 R. S 23—481 3329 R. S - 21 - 502 3329-3336 R. S 25—450 3330 R. S 17—580; 18—246; 21—502 3335-3354 R. S ------- 22—281 588 REVISED STATUTES CITED. 3336 R. S 22—281 3337 R. S 22—281 3338 R. S 22—281 3339 R. S 22—279; 23—171 3340 R. S 22—281 3341 R. S 22—281, 295 3342 R. S 22—281 3343 R. S 22—281 3345 R. S 22—281 3346-3354 R. S 22—282 3371 R. S 21—264 3394 R. S 24—120 3395 R. S , 17—113 3396 R. S 17—113, 115 3397 R. S 17—112, 113 3402 R. S 24—122 3406 R. S 17—112,113,114 3407 R. S 23—142 3408 R. S 17—542; 19—100; 20—682 3409 R. S 17—543 3412 R. S 19—100 3413 R. S 19—100; 21—561 3414 R. S 17—540 3415R S 17—540; 21—564 3424 R. S , 17—113 3426 R. S ,- 22—569,572 3433R. S , 18—82; 19—244; 21—475; 23—420 3445 R. S 17—114 3446 R. S 17—111,114. 3447 R. S 17—114 3448 R. S 19—307; 22—232; 24—120 3456 R. S 22—181 3461 R. S... I... 21—117,266,292; 23—20 3464 R. S : 25—449 3466-3494 R. S i , 19—348 3469 R. S 17— 214; 18— 60, 72; 19-345, 346, 348, 350; 20—531, 532, 685, 706, 727; 21— 50, 265, 361, 495; 22— 491; 23—18, 508, 632 3473 R. S 20—727 3477 R. S 17—266, 545, 548; 18—129 19—240, 346, 485, 643 20—117, 580; 21—75 22—99, 156, 159, 637 25—281 3480 R. S 18—421 3481 R. S 20—241; 21—480 3483 R. S... '. 17—90, 92 3490-3493 R. S .' 18—72 3496 R. 8 18—278 3502-3504 R. S 19—578 KEVISED STATUTES CITED. 589 3510 R. S 19—17 3513 R. S 18 — 418, 419; 25—170 3526 R. S 20—126; 25-170 3551 R. S 18—276 3564 R. S ; 18—322 3565 R.S 1 8—324 3570 R. S 20—100 3577 R. S 19—280 3579 R. S 19—280 3583 R. S. 19—101; 20—682 3585 R. S 17—123, 145 3586 R. S 17—123 3588, 3589 R.' S 17—123 3593 R. S 25—102 3600 R. S : 18—275 3614 R. S : 18—276 3617 R.S 1 17—592 ( . 3618 R.S 17—481, 482; 20—288; 25— 568 3620 R.S ■. 20—25; 22—643; 25—102, 486 3621 R. S 25—486 3622 R. S 19—557 3623 R. S 17—576 3624 R. S 17—576 3639 R. S 20—25; 25—486 3642 R. S 24—686 3648R.S 17^431, 609; 18—93, 102, 106; 20—747; 25—486, 615 3654 R.S 17—220; 19—429; 25—538 3657 R. S 17—124; 19—394; 25—537 3658 R. S 17—125; 19—394; 25—538 3660-3672 R. S 17—234 3672 R. S 25—568 3673 R. S -. 17—236 3675 R. S 17—238; 25—102 3676 R. S 18—136 3678 R.S 17—481,576; 18—466; 25— 302 3679 R.S 18—216, 569; 19—653; 20— 219; 21—244, 280; 25— 559 3681 R. S 18—136 3682 R. S - 20—610 3683 R. S - - 18—424, 432; 21—178 3687 R. S 19—608; 24—622 3689 R. S , 17—343; 23—469, 587 3690 R. S 18—413, 569 3691 R. S 18—569; 19—74 3692 R. S 23—166; 25—567 3698 R. S 17—73 3706 R. S '. 20—41 590 EEVISED STATUTES CITED. 3709 R. S 17—85, 86, 385; 18—350; 19—97, 289, 686; 20— 498; 21—57,59,137,138, 162, 181, 208, 304, 349, 546, 578, 596; 22—1, 40, 389; 25—608 3710 R. S 21—57, 181; 25—612 3714 E. S 25—611 3718 R: S , 19—409; 20—330; 21—57, 184 3719 R. S 21—57 3721 R. S 20—330; 21—578 3722 R. S 21—57 3724 R. S..' 21—57 3732 E. S ■... 18—79, 216; 19—653, 654, 655; 20—219; 21—1, 244, 288, 458, 496; 22—389; 25—562 3733 E. S 21—244, 288; 25—562 3735 E. S 20—219; 21—304 3736 E. S 19—80; 22—665; 24—603 3737 R. S .' 18—89; 19—186 3738 R. S 17—342; 18—87, 107, 342, 343, 345, 389; 20-^62 3739 R. S , 17—292; 18—112,268; 24— 560; 25—71 3740 R. S 18—112, 286 3741 R. S 18—112, 286 3742 E. S 17—292; 18—287 3744 E. S ' 20—447,498, 500; 22—103 3745 E. S 22—103 3748 E. S 17—101 3749 E. S 18—101; 21—477; 23—166 3753 E. S : 24—681 3754 E. S 1 24—682 3755 E. S 22— 411^ 23—76 3759 E. S ! 18—276 3760 R. S 21—138 3779 R. S...._ 20—42 3780 E- S....C 20-H12; 21—138 3786 E. S 22—389 3792 E. S 18—52 3802 R. S _. 21—423 3823-3825 E. S -. 19—159 3834 E. S 18—276 3836 E. S - 17—475; 20—447; 21—596 3845 E. S 20—106 3868 R. S 17—525 3870 R. S 18—276 3879 R. S 19—41 3882 E. S 19—509 3890 E. S 25—496 3891 R. S 1 , 25—496 3892 R. S i 25—496 'revised statutes cited. 591 3894 R. S 17—79,81; 18—307; 19—671, 679; 20-^203, 748; 81— 4,171; 23—203,260,492; 24—564 3896 R. S 25—363 3901 R. S 25—363,615 3915 R. S 17—255, 257; 21—119; 23— 317; 25—357 3916 R. S 25—358 3918 R. S '. 25—359 3920 R. S , 25—359 3921 R. S 18—131 3926 R. S 17—78; 23—478 3927 R. S 23—317 3929 R. S : , 17— 79, 80; 18— 307, 325; 21— ,313; 23—512; 24—564; 25—287, 504 3941-3963 R. S 20—162 3942 R. S 18—112 3944 R. S 20—166 3945 R. S 20-297 3949 R. S 17—294; 18—112 3954 R. S 20—296 3956 R. S 19—147 3960 R. S 17—166; 19—147; 20—167 3961 R. S 17—166, 241; 20—282 3962 R. S 17—277, 278; 20—313 3982-3984 R. S 21—398 3982 R. S 19—671 3985 R. S 21—394; 22—254 3990 R. S ,... 21—400 3992 R. S 21—397 3993 R. S 21—394; 22—254 3995 R. S 21—9 4000 R. S 21—9 4002 R. S., par. 2 18-71 4007 R. S 18—248 4009 R. S - 18—248; 20 — 410, 411 4012 R. S - 19—519 4017 R. S 19—423 4025 R. S 19—412 4026 R. S 21—400 4027 R. S 17—78 4028 R. S 17-62; 19—519 4041 R. S 17—78,79,80; 18—308; 21— 4; 23—512; 24—564; 25— 287 4047 R. B ' - 17-627 4057 R. S 17-487 4058 R. S 23—481 4062 R. S 19—16 4064 R. S 17—564 4071 R. S 2*- 70 4071-4074 R. S 24 — 71 592 REVISED STATUTES CITED. 4075 R. S 23—510 4076 R. S 23—510 4078 R. S „■ 17—675 4084 R. S 18—499 4086 R. S 18—220 4087 R. S 18—220 4088 R. S 18—219,220 4113 R. S ' 18—276; 23—608 4121 R. S.,lsted 19—379, 381 4121 R. S 20—392 4122 R. S 20—393 4130 R. S 22—76 4131R. S 17—534; 18—99; 21—166, 413; 23—352; 24—139 4132 R. S 17—287,444; 18—234; 20— , 254; 22—567; 23—29 4133 R. S 18—234 4134 R. S 17—444 4135 R. S 17—444 4136 R. S 17—287,444; 20—245; 21— 143, 198, 200; 21— 384, 386 4140 R. S 23—417 4142 R. S , 28—352 4154 R. S 22—170 4158 R. S 25— 50 4165 R. S 17—444; 25—552 4170 R. S 18—560 4191 R. S 17—83 4197 R. S 17—83 4201 R. S 25—157 4205 R. S 19—383 4214R.S 18—565 4216 R. 8 20-202 4219 R. S 17—120,121; 18—564; 20— 368; 21—412 4220 R. S 17—389 4226 R. S 18—17 4228 R. S 21—597 4229 R. S 21—603 4230 R. S 21—603 4232 R. S 21—602 4233 R. S 20—593; 21—106, 228, 513 4234 R. S 21—227 4253 R. S 18—282 4309 R. S , 1 21—190 4310 R. S 21—190 4312 R. S , 21—191 ' 4347 R. S 17—389, 581; 24—57; 25— 128 4351-4353 R. S 24—27 4367 R. S 24—57 4371 R. S 17—388; 18—564, 565 4386 R. S 25-411 EEVISED STATUTES CITED. 593 4399^500 E. S 18—31 4400 R. S 21—53; 23—274 4405 R. S 18—17; 20—214; 25—57, 67 4406-4407 R. S 24—142 4409 R. S 17—629, 630 4511 R. S 22—349 4412 R. S 21—107 4414 R. S 18—30 4415 R. S '.. 18— 30; 19— 632,648; 21—393 4417 R. S 25—57 4418, 4419 R. S 18—78, 365; 25—57 4420 R. S 25—57 4421 R. 8...-* 18—30; 25—56 4425 R. S 25-76 4426 R. S 18—26; 25—76 4437 R. S 24—142 4438 R. S 25—57 4439 R. S 20—213 4439-4442 R. S 24—143 4441 R. S -. . . 1 9—649 4445 R. S 24—140 4449 R. S '. 24—137 4450 R. S 17—630; 19—650; 24—140 4452 R. S 17—630; 24—139 4459 R. S 18—276 4462 R. S 18—17; 25—67 4463 R. S 25—56 4464-4469 R, S 17—599 4482 R. S 18—30 4491 R. S 18—78, 365 4499 R. S 25—56 4501-4612 R. S 18—256; 19—182 4507 R. S 25—117 4511 R. S 21—484; 24—113 4512 R. S 21—484 4513 R. S 21—485 4520 R. S 21—483 4520-4523 R. S 21—486 4522 R. S 21—484 4526 R. S 21—485 4527 R. S 21—485 4529 R. S --- 21—485 4561 R. S 21—26 4577 R. S 19-23,25; 21-27,35 4579 R. S 21-27,35 4580 R. S 21-26; 22-213 4581 R. S 21-26,35 4582 R. S - 21-26 4583 R. S, 21—26 4484 R. S 21-26 4585 R. S - 24-122 4598 R. S 21-483 4600 R. S 21-26; 22-214 18456—08 38 594 REVISED STATUTES CITED. 4606 R. S , 25—51 4609 R. S, -. 21—284 4612 R. S 21—285,484; 22—349 4623 R. S 23—361 4625 R. S 22—171,210 4634 R. S. ...,...,..-....,.. .:...... 22—206 4635 R. S '....1 22—171, 205 4637 R. S 22—206 4641 R. S 22—206 4642 R. S .- _". 22—207 4644 R. S -. 22—206 4646 R. S .- 19—356 4653 R. S , 23—578 4658 R. S 18—346 4660 R. S 23—570 4661 R. S ' : 23—570; 25—167 4662 R. S 25—167 4669 R. S 18—346, 529 4673 R. S 18—345 4684, 4685 R. S 19—183 4692 R. S r 17—458; 18—40, 74; 21—287 4693 R. S 17—359, 458; 18—74; 19— ' 537; 23—236 4695 R S 18—40, 74 4697 R. S 18—41, 75 4698 R. S 17—328; 18—41, 75 4698J R. S 25—88 4702 R. S ... 17—339; 18-40, 74 4707 R. S * 17—458; 19—587 4709 R. S 17—356 4713 R. S 17—222, 223 4714 R. S , 17—356; 25—88 4715 R. S : v ---- 17—416; 19—216; 25—87 4718 R. S .'.'..." 17—191, 441, 510; 19—1,191 4720 R. S 17— 222; 25— 88 4724 R. S 21—408,454 4725 R. S 17—222, 223 4741 R. S '. 19—506; 21—287 4744 R. S 19—211 4746,4748 R. S 1 17—340; 20—181 4751 R. S 17—283,593,594; 19—383,384 4752 R. S 23—363 4756 R. S ..._• 25—85 4757 R. S 25—85 4764-4766 R. S 20—117 4765 R. S 20—179 4768 R. S : 17—340; 20—182 4769 R. S 18—251, 252 4774 R. S 25—88 4776 R. S..... 25—88 4777 R. S : 25—88 4778 R. S 17—649; 20—451 4779 R. S , 17—340; 18—276; 20—182 REVISED STATUTES CITED. 595 4784, 4785 R. S 17—340; 20—182 4787 R. S 17—234; 20—83 4788 R. S 20—84 4789 R. S 17—235 4790R. S 20—84 ' 4791 R. S n ; 17—234 4792 R. S ; 20—471 4792^796 R. S 21—193 4793 R. S 20—471 4794 R. S 20—471 4795 R. S * 20-472 4796 R. S. 20—472 4803 R. S -. 24—123 4811 R. S . 19—248 4814-4824 R. S 20—515 4815 R. S 20—515 4816 R. S ". 17—450; 20—515 4818 R. S 17—157 4820 R. S : 17—191 4843 R. S 21—342 4851 R, S., 17—211, 213 4859-4868 R.S 21—350 4859-4869 R.S 22—3 4864R. S 22—4 4868 R. S 22—5 4883 R. S 17—207 4884 R. S 21—72 4892 R. S 20—455, 458- 4894 R. S 21—123 4897 R.S 19—698 4902 R. S 19—274 4905 R. S 24—71 4909^911 R. S 17—207 4911 R. S - 17—208,209 4950 R. S .' 18—276 4952R. S , , v 21—416; 22—30; 23—356, 372, 447; 25—180 4954 R. S --- 23—357 4956 R.S 21—160, 416; 22—29; 23— 354, 373, 446; 25—25, 180 4958 R. S ........ 23—359; 25—180 4959 R. S 22—29; 23—374 4963 R. S ' 23—354 4964 R. S 22—29; 23—376,447 4965 R. S -' 22-29; 23— 376, 447 4966 R. S 23—376 5133 R. S "-289 5134 R. S : 19-344,678 5139 R. S 17-292 5142 R..S - 17-291 5145 R. S 17-289 5146 R. S 19—315 5153 R.S-. .' 25-486 5154 R.S 17-289; 23-177 596 REVISED STATUTES CITED. 5155 R. S 23—177 5159 R. S 17—409; 18—493 5160 R. S '. 17—409 5182 R. S 19—100 5193 R. S 20—318 5197 R. S 19—316 5200 R. S .' 17—474 5202 R. S 17-H174 5208 R. S 1 17—472 5214 R. S 17—540; 20—695, 704 5214-5217 R. S "... 17—540 5215 R. S 17—543; 20—695 5220-5224 R. S 17—409 5226 R. S 17—123; 19—316 5226-5229 R. S 17—123 5234 R. S 17—474 5238 R. S 19—634 5239 R. S 19—152,633 5243 R. S 20—673; 22—475 5244-5255 R. S 20—705 5249 R. S 18—191 5260 R. S '. 17—512; 18—41,503, 504; 20—15 5261 R. S.l 17—512; 18—504 5270 R. S 17—185; 23—433 5272 R. S 17—185; 23^33 5275 R. S 23—433 5276 R. S 19—126 5280 R. S 25—78 5286 R. S 17—243; 21—271 5287 R. S '. 17—243 5289 R. S 21—273 5290 R. S 21—273 5292R. S 17—120; 18—285; 19—345, 347,350; 20—660, 708, 727; 21—101, 117, 266, 283, 292; 22—493; 28— 20,273,587; 25—221 5292-5296 R.S .'. 18—425; 19—348 5293 R. S 17—120, 435; 18— 285, 585; 19—5; 20—660, 709; 21— 90, 101, 147, 283, 292; 23—399, 587; 24—587; 25—221 5294R. S 20—709; 21—291; 23—273; 24—139; 25—221 5295 R. S 21—292 5298 R. S 17—243,244, 334; 19—296, 571 5300 R. S 17—243, 244, 335; 19—571 5318 R. S 25—32 5388 R. S 18-— 555; 19—184; 22—266 5413 R. S 20—691; 21—137; 22—40 5414 R. S 22—42 REVISED STATUTES CITED. 597 5418 R. S 19—650 5423 R. S 19—650 5430 R. S 20—691,698; 22—42 5431 R. S {. 22—32 5438 R. S 18—72 5440'R. S 21—8, 400 5450,-5451 R.S 17—420 5469 R. S 17—525 5479 R. S : _ 19—650 5488 R. S 22—591 5498 R. S 18—161 5490 R. S 25—486 5497 R. S 25—486 5498 R. S 23—534 5500, 5501 R. S 17—120 5503 R. S 21—244, 288 5525 R. S 25—475 5526 R. S 25—475 5539 R. S 17—565 5546R. S.,lsted 19—378 5546 R. S 24—549 5595 R. S 18—453 5596R. S... 17—463, 533; 18—98, 454; 19—279; 23—599; 25— 630 5600 R. S , 22—40 5601 R. S 21—285 6322 R. S 19—294 6324, 6325 R. S 19—294 6370 R. S 19—294 6375 R. S 19—294 TREATIES AND CONVENTIONS, REFERRED TO IN VOLUMES 17-25, OPINIONS. Austria : 1856, July 3 (11 Stat., 691) 17—185 Belgium: 1873, May 9, Postal Convention, approved May 12, 1873 ( 1 8 Stat. ,795) 19—518 Chili: 1892, Aug. 7, Art. I (27 Stat., 965) 20^95 Art. V (27 Stat., 967) 20—595 Art. VIII (27 Stat., 968) .• 20—597 Art. X (27 Stat., 969) 20—595 China: 1868, July 28 (16 Stat, 739) 25—137 1880, Nov. 17 (22 Stat, 826) .22—264 Arts. I, II (22 Stat, 826) 22—133; 25—138 Supplemental treaty, Art. II (22 Stat, 828) .. 20—424 1894, Mar. 17-Dec. 8 (28 Stat. , 1210) 21—68; 22—264 Art. I (28 Stat, 1210) 21— 357,575; 24— 93; 25— 139 Art. II (28 Stat, 1210) 21—357, 424, 575; 22—74 23—488, 545, 583, 620 24—91, 133, 544, 637 25—48, 139 Art III (28 Stat, 1211) 21— 347,359; 22-74, 203,355, 609; 24—112, 133; 25— 139 - Art IV (28 Stat, 1211) 23—346 Arts. V, VI (28 Stat, 1211) 25—139 France: 1831, July 4 (8 Stat, 430) 18—301 1853, Feb. 23, Art 8 (10 Stat, 996) 18—253 Germany: 1871, Dec. 11 (17 Stat, 921) T 20—201 Art. XIV (17 Stat, 929) 25—78 Art. XVI (17 Stat, 931) 20—199 1899, Dec. 2 (31 Stat, 1878) : 23—629 Great Britain: 1842, Aug. 9 (8 Stat., 576) 23—434 1848, Dec. 15 (9 Stat, 966, 967) '.. 19—517 1854, June5 (10 Stat, 1089) 22—216 1871, May 8 (17 Stat, 863) 22—216 Arts. XVIII-XXV, XXX (17 Stat, 869-873). 18-261 Arts. XXIX, XXXIV (17 Stat, 872, 874)... 20—388 1890, Mar. 25, Art. Ill (26 Stat, 1509) :.-. 23—432 Art. VII (26 Stat, 1510) --'--'-'-'-. 22—184 1896, Feb. 8 (29 Stat, 844) ..--,. :..-.... I 23— 316 1899, Dec. 2 (31 Stat, 1878) -'- 23^629 599 600 TREATIES AND CONVENTIONS CITED. Greece: 1837, Dec. 22,Art.I (8 Stat., 498) 19—304 Hague Peace Convention: 1899, July 29 23—313 Hawaii: 1875, Jan. 30, Art. V (19 Stat., 627) , 19—277 Italy: 1871, Feb. 26 (17 Stat., 845) 17—224 Mexico: 1848, Feb. 2 (9 Stat., 922) 19—9; 20—215 Arts. Ill, VIII, XII (9 Stat., 922, 929, 932) . . . 21—279 Art. VII (9 Stat., 928) 21—275 Art. XXI (9 Stat., 938) 20—118 1853, Dec. 30, Art. IV (10 Stat., 1034) 21—277 1861, Dec. 11, Art. I (12 Stat., 1199) 21—429 1868, July4(15 Stat., 379) 18—302 1871, Apr. 19 (17 Stat., 861) 18—302 1872, Nov. 27 (18 Stat., 760) 18—302 1874, Nov. 20(18 Stat., 833) 18—302 1884, Nov. 12, Art. V (24 Stat., 1013) 21—275 Panama: 1904, Feb. 26 (33 Stat., 2234) 25—443,475 Prussia: 1828, May 1, Art. V, IX (8 Stat., 381, 383) 21—80, 81 Samoan Islands: 1878, Jan. 17 (20 Stat, 704) 20—485; 23—629 Art. II (20 Stat., 704) 20—553 1899, Dec. 2 (31 Stat., 1878) 23—629 Spain: 1819, Feb. 19 (8 Stat., 252) 17—644,680 1898, Aug. 12, protocol 22—302 1898, Dec. 10, ratified Apr. 11, 1899 (30 Stat., 1754) 23—403; 24—9 Art. I (30 Stat, 1755) 23—199 Art. II (30 Stat, 1755) 23—565; 24—10 Art. IV (30 Stat, 1756) 23—558 Art V (30 Stat, 1757) 22—383; 23—12 Art VI (30 Stat, 1757) 22—383; 23—11,558 Art. VIII (30 Stat., 1758) 23—198, 565; 24—9; 25—244 Art. IX (30 Stat., 1759) 23—95, 194, 198; 24—43 Art. X (30 Stat, 1759) 23—198 Art. XI (30 Stat, 1760) 23—96,198 Art. XII (30 Stat, 1760) 23—198 Art. XIII (30 Stat, 1760) 23—116, 198 Art. XIV (30 Stat, 1761) 23—198 Sweden and Norway: 1827, July 4, Art. VIII (8 Stat, 350) 18—382; 20—368 Treaty op Washington: See Treaty of May 8, 1871, with Great Britain (17 Stat, 863). Two Sicilies: 1832, Oct. 14 (8Stat,442) 18—301 Universal Postal Conventions: 1878, June 1 (20 Stat., 734), held at Paris 18—457; 19—40 1885, Mar. 21 (25 Stat, 1339), held at Lisbon 18—457 1891, July4 (28Stat, 1078), held at Vienna 23—292,363 1897, June 15 (30 Stat, 1629), held at Washington 22—363 TREATIES AND CONVENTIONS CITED. 601 INDIAN TREATIES. Camanchb and Kiowa: 1865, Oct. 18 (14 Stat., 717) 19—481 Cherokee (west of Mississippi): 1833, Feb. 14, proclaimed Apr. 12, 1834 (7 Stat., 414) 19—44 Cherokee (North Carolina) : 1835, Dec. 29, proclaimed May 23, 1836 (7 Stat., 478) 17—72 Cherokee: 1866, July 19, proclaimed Aug. 11, 1866, Art. X (14 Stat., 799) 18—67 Arts. XII, XIII (14 Stat., 802, 803) 19—174 Art. XVII (14 Stat, 804) 18—555 Chippewa: 1854, Sept. 30, approved Jan. 29, 1855, Arts. II and III (10 Stat, 1110) 19—710 1855, Feb. 22, Art. VII (10 Stat, 1169) 25—417 1864, May 7 (13 Stat, 693) 25—627 1864, Oct. 18, Art. Ill, Isabella Indians, Mich. (14 Stat, 657). 20—277 1867, Mar. 19 (16 Stat, 719) 25—627 Choctaw: 1820, Oct. 18, Art. XIII (7 Stat, 213) 17—134 1830, Sept. 27, proclaimed Feb. 24, 1831, Art. IV (7 Stat., 333) 19—110 Art. XIV (7 Stat., 335) • 24—689 Choctaw and Chickasaw: 1855, June 22 (11 Stat, 612) 19—111; 25—463 Art. V (11 Stat, 612) 19—390 Art. VII (11 Stat, 612) 17—134, 135,136; 18—37 Art. XIV (11 Stat, 614) 17—134, 135 Art. XVI (11 Stat, 615) 18—39 Art. XVIII (11 Stat, 615) 17—266 Art. XXI (11 Stat, 615) 17—135 1866, Apr. 28, Art. VI (14 Stat, 771) 17—266 Arts. XI-XXVI (14 Stat. , 774, 777) 19—111 Art. XXXVIII (14 Stat, 779) 17—134, 135; 19—112, 389 Art. XXXIX (14 Stat, 779) 18—38 Art. XLIII(14Stat,779) 17—134,135; 18—37 Art. XLV (14 -Stat, 779) 17—134, 135 Art. XLVII (14 Stat., 470) 18—37 Creek: 1856, Aug. 7, ratified Aug. 28, 1856, Art. IV (11 Stat., 700). 19—343 Art. XV (11 Stat, 703) 19—342 1866, June 14, proclaimed Aug. 11, 1866 (14 Stat, 785).... 20—536; 24—624; 25—163 Art. X (14 Stat, 788) 19—343 Delaware: 1854, May 6 (10 Stat, 1048) 18—168, 224 Isabella Indians: See Chippewa treaty of Oct. 18, 1864 ( 14 Stat., 657) . . : 20-277 Kansas: 1862, Mar. 13, proclaimed Mar. 16, 1863 (12 Stat, 1221)... 17—200 Kaskaskias and Peorias: 1854, May 30 (10 Stat., 1082) 18-168, 224 Kickapoo: 1862, June 28, Arts. I, III (13 Stat., 623, 624) 19-255 602 INDIAN TREATIES CITED. Miami: 1838, Nov. 6, Art. X (7 Stat., 571) 17—410 1840, Nov. 28, ratified Feb. 25, 1841 (7 Stat., 582) 17—411 .1854, June5 (10 Stat., 1093) 17—382, 411 Art. IV (10 Stat., 1095) •. 17—410, 414 Nez Perce: 1855, June 11, ratified Mar. 8, 1859 (12 Stat, 957) 17—307, 20—45- Art. X (12 Stat., 960) 17—308 1863, June 9, proclaimed Apr. 20, 1867 (14 Stat., 647) 17—307; 20—45 Art. VIII (14 Stat., 651) 17—308 1868, Aug. 13, proclaimed Feb. 24, 1869 (15 Stat., 693) 20— 4d Ogalalla: 1876, Aug. 15, Art. VII, incorporated in the act of Feb. 28, 1877 (19 Stat., 256), 20—744 Osage: 1865, Sept. 29 (14 Stat., 687) 19—119 Peokias, Kaskaskias, etc.: 1867, Feb. 23 (15 Stat, 519) 19—116 Pbaieie dtj Chien: See Sacs treaty of July 15, 1830 (7 Stat., 328) 20—742 Sacs and Foxes, etc : 1830^ July 15, Prairie du Chien treaty (7 Stat, 328) 20—743 Sioux — Sisseton and Wahpeton Bands: 1867, Feb. 19(15 Stat, 505) 18—144 Arts. VIII, IX (15 Stat, 507) 20—744 Sioux: 1852, Aug. 5, amended by Senate Sept 4, 1852 (10 Stat., 954-958) 20—745 1868, Apr. 2.9 (15 Stat, 635) 18—141,230 Sisseton and Wahpeton: • See Sioux treaty of Feb. 19, 1867 (15 Stat, 505) 18—144; 20—744 Winnebago : 1865, Mar. 8 (14 Stat., 671) 18—142 Yakima: 1885, June 9 (12 Stat, 951) : 20—315 Yankton: 1858, Apr. 19, ratified Feb. 16, 1859; proclaimed Feb. 26, 1859 (11 Stat, 743)...:.". 18—145 Arts. VI, VII (11 Stat, 746) 20—774 CONSTITUTION, ARTICLES AND SECTIONS REFERRED TO IN VOLUMES 17-25, OPINIONS. Preamble , 25—237 Art. 1, sec. 2 23—603 sec.5, cl.4 23—601 sec. 6 17—522; 18—181, 686 sec. 6, cl. 6 21—212 sec. 7 20—505 sec. 7, cl. 2 20—507 , sec.8 18—26; 19—515; 20-613; 22—194, 649 sec. 8, par. 3 24—50; 25—423, 435, 437 sec. 8, cl. 4 .* 23—348 sec. 8, cl. 7 19—520 sec. 8, cl. 12 25—106,108 sec.8,cl.l4 23— 26 sec.8, cl. 15 24—654 sec.8,cl.l6 , 22—228; 23—234; 24—654 sec. 8, cl. 17 24—218, 219; 25—107 sec. 9 18—422 sec. 9, par. 6 25—431, 434 sec. 9, par. 7 18—176; 19—653; 23—588 sec.9,cl.9 24—117 sec. 10 22—215 II, sec. 2: 17—505, 522, 685; 18—26, 58, 98,319,345; 19—106,513, 614; 20—331,448; 21— 213; 22—185, 186, 188; 23—34, 315, 362 sec.2,cl.2.; 18—171,410; 22—215; 23— 137,138,577,600 sec.2,cl.3 23—600; 25—262 sec. 3 17— 98; 18—319; 20—508 sec.8,cl.3 18—588 III, sec. 2 ■ 18—407 VI, 18—182; 22—508 par. 2 - - 22—215 IV, amendment 24—488 V, amendment , 25—432, 434 XIII, amendment 25-27,474,477,478,481 XIV, amendment 18—149,181; 25—432,434 603 OPINIONS OF ATTORNEYS-GENERAL CITED OR REFERRED TO IN VOLUMES 17 TO 25 OPINIONS. 10p. 9 20—284 1 Op. 223 18—443 lOp. 335 17—326; 18—87 lOp. 346 19—466 1 Op. 493 20-^42 1 Op. 575 20—315 lOp. 597, 598 19—578 lOp. 613 23—601 lOp. 624 17—353 lOp. 631 .- 18—29; 19—262 ' lOp. 645 18—39 20p. 8 . 17—15; 21—266 2Op.9,10 17—16 2 Op. 27 '. 19-49,221 2 Op. 41 19—552 2 Op. 110 17—15 2 Op. 115 17—16 2 Op. 260 21—181, 185 2 Op. 344 17—111 2 Op. 465 18—146 2 Op. 481 , 17—353 2 Op. 482 '. 17—353; 22—494; 23—509 2 Op. 486 '. 23—509 20p. 499 1 17—326; 18—87 2 Op. 525 19—262 2 Op. 531..... , 20—442 2 Op. 558 24—131 2 Op. 590 17—173 2 Op. 621 , 18—453 20p. 638 1 19—49, 221 2 Op. 706 18—203 2 Op. 714 25—332 2 Op. 728 19—341 3 Op. 30 .---- 19—416 3 Op. 39 ••- 20—442 3 Op. 102 18—222 3 Op. 105 19—49,221 3 Op. 124 19-49,221 3 Op. 148 18-228 3 Op. 309 19—466 3 Op. 368 20-315 3 Op. 369 19-59,279 605 606 OPINIONS OF ATTOKNEYS-GENEKAL CITED. 3 Op. 422 19—122 3 Op. 438 21—181 3 Op. 461,462 18—228 3 Op. 479 19—122 3 Op. 496 19—446 3 Op. 530 1 24—661 3 Op. 606 ...:. 23—30 3 Op. 621 '. 19—122 3 Op. 622 ; 19—477 3 Op. 641 19—49 3 Op. 673 19—262 3 Op. 691 24—661 4 Op. 10 20—387. 4 Op. 48,49 18—287. 4 Op. 70 . 24—131 4 Op. 123 , 17—99; 19—49, 221 4 Op. 124 18^395 4 Op. 126 19—122 4 Op. 139 , 19—122 4 Op. 159 21—398 40p. 170... ' 17—301 40p. 182 20—664; 21—284 40p. 217 17—98; 25— 593 4 Op. 248 25—261 4 Op. 250..; '.1 19—221 40p. 256 -.. 19—49 4 Op. 258,260 .' 20—743 4 Op. 274 17—301; 25—581 4 Op. 306 17—98 4 Op. 318 19—49,221- 4 Op. 342* 19—122 4 Op. 348 -. 19—49,221 4 Op. 350.. i 21—329 4 Op. 458 19—477; 28—363 4 Op. 464 L 19—122 4 Op. 522 :.. 19—262 4 Op. 533 , 19—80 4 Op. 603 17—99 4Op.608.. 19—49 5 Op. 22 .' 24—129 5 Op. 58 24-571* 5 Op. 74 19—122 5 Op. 85 19—485 5 Op. 88 18—171 50p. 97 20—648,659,722; 25—303 50p. 132 17—99; 19—49,221 50p. 275 17—353 5 Op. 398 25—450 .. 50p. 561 17—326; 18—87 50p. 730; 20—662 50p. 754 18—171 50p.579 19— 477 • 5 Op. 626 19-H166 5 Op. 765 19—122 OPINIONS OF ATTOKNEYS-GENEEAL CITED. 607 5 Op. 768 fc 19—284 6 °P- ! 17—533; 18—98,300; 19— 589,590; 21—363 60p. 10 3 1_47 6 °P- 24 - 19—695,696; 20—250,383, 510, 584, 589. 60p. 25 19—556 6 Op. 49 18-11 •6 Op. 81 J 19-123 6 Op. 87 25-593 6 Op. 157 23—567 6 Op. 209 17—524 60p. 326,330 23—365 60p. 334 20—384,648,659,722; 25— 303 6 Op. 358 25—261 60p. 370-371 ,. 17—301 6 Op. 393,406 23—363 6 Op. 416 ' 1 24—571 6 Op. 456 25—581 6 Op. 488,490 19—6 6 Op. 507 17—301 6 Op. 577 7 19—252 6 Op. 605, 606 17—17 6 Op. 617 17—553 6 Op. 638 18—234 6 Op. 680 .' 19—387; 20—634 7 Op. 3 18—568 7 Op. 15 18—568 7 Op. 46 , 19—63 7 Op. 60 18—605 70p. 114 18—356; 24—644 7 Op. 141 21—196 7 Op. 149, 161 17—173 7 Op. 174 20—743 7 Op. 242 22—186 7 Op. 243 19—226 7 Op. 249 18—171 7 Op. 259 19—198 7 Op. 304 17—49, 221 7 Op. 333... 17—95 7 Op. 348 19—197 7 Op. 372 17—398 7 Op. 453,462,469 - 25—502 7 Op. 494 '. 1 9—673; 20—741 7 Op. 523 20—239 7 Op. 524 17—318 7 Op. 594 21—356 7 Op. 597 21-356 7 Op. 628 19—252 70p. 699 20—648, 659, 722; 25—303 7 Op. 700 20—659, 722 7 Op. 701 19—552 7 Op. 753 20—743 608 OPINIONS OP ATTOENEYS-GENEKAL CITED. 8 Op. 102 24—619 8 Op. 237 18—395 8 Op. 246 18—573 8 Op. 281 23—363 8 Op. 300 19—389 8 Op. 325 19—123 8 Op. 418 24—620 8 Op. 419 20—613 8 Op. 422 ;. 25—175 8 Op. 546 19—577 9 Op. 7 17—564 90p. 18 19—654; 21—249 90p. 34 20—284; 24—620 9 Op. 36 20—659, 722 9 Op. 37 20—648, 659, 722; 25—303 90p. 57 17—318; 20—239 90p. 59... 17—598; 18—550 90p. 82 17—70; 19—333, 415, 699; 20—144, 494; 21—511 9 Op. 127 19—122 9 Op. 137 17—99 9 Op. 146 19—357 9 Op. 161 '. 21—398 90p. 174 , 2i— 57; 22—47 9 Op. 188 20—117 9 Op. 297 25—594 9 Op. 311 18—279 9 Op. 355 19—333,415 9 Op. 387 19—387 90p. 421 17—70; 19—333,415,416, 699; 20—250, 315, 442; 21—507, 570; 23—331, 583 9 Op. 422 17—70 9 Op. 424 , 20—255; 21—143, 199 90p. 462 25—293, 502 9 Op. 508 '. 19—123 9 Op. 516 22—308 10 Op. 1 23—363 10 Op. 43 21^196 10 Op. 46 21—344 10 Op. 48 21—196 10 Op. 50 , 19—333, 415; 20—250, 315; 21—507 10 Op. 52 24—131 10 Op. 64 17—301 10 Op. 100 24—661 10 Op. 122 ;.. 20—315 10 Op. 140 '... 21-^71 10 Op. 164 17—326; 18—87 10 Op. 204 18—348 10 Op. 220 19—8, 699;. 20—160, 272, 315 10 Op. 229 : 25—581 10 Op. 231 18—211 OPINIONS OP ATTORNEYS-GENERAL CITED. 609 10 Op. 250 19_ 49,221 10 Op. 267 . 18—488; 19—398, 416, 466, 673, 696; 20—444, 494, 741; 21—607 10 Op. 271 : .'.... 17—604 10 Op. 288 18—211 10 Op. 308 19-49, 221 10 Op. 357 19—262 10 Op. 360 , 17—168 10 Op. 378 17— 155; 20— 605 10 Op. 436 19—122 10 Op. 452 21—495; 23—362 10 Op. 472 18—203; 20—19 10 Op. 494 21—345 10 Op. 584....'. 19—5 10 Op. 623 19—226 10 Op. 667 17—435 1 1 Op. 4 20—252 1 1 Op. 14 17—353 ; 18—33 11 Op. 19 17—301; 19—108 11 Op. 79 19—356 1 1 Op. 88 19—356 11 Op. 117 21—272 11 Op. 124 21—495 11 Op. 188 20—440 11 Op. 189 „..„ 18—488; 19—398, 564, 673, 696; 20—741; 21—507 11 Op. 192 20—444 11 Op. 209 18—300 11 Op. 407 . 19—57; 25—370 11 Op. 409 20—279 11 Op. 431 19—63 11 Op. 451 21—270 11 Op. 474 18—499 12 Op. 32 19—262 ; 23—576 12 Op. 38 19—263 12 Op. 41 23-7-576 12 Op. 43 :. 18—211 12 Op. 205 -- 18^88; 19—697; 20—444 12 Op. 206 - l ..-. 19—416, 466; 20— 270; 21— 220 12 Op. 207 SO-494 12 Op. 208 .' 20—527' 12 Op. 209 - : 19—398 12 Op. 236 .17-^415 12 Op. 314 22—207 12 Op. 369 : 21—196 12 Op. 386 18—228 12 Op. 413 •- 22—209 12 Op. 416, - 19—63 12 Op. 449..... , 17-521; 23-602 12 Op. 452 -. .23-602 120p.455 18-28 . 18456—08 39 610 OPINIONS OF ATTOENEYS-GENEEAL CITED. 12 Op. 459 19—123 12 Op. 501 19—502 12 Op. 530 17—343; 18—390 12 Op. 543 .. 20— 706, 707; 21— 266; 23— 20 12 Op. 544 17—326; 18—87 12 Op. 547 17— 32, 656; 20— 245; 24— 610 12 Op. 555 25—581 13 Op. 7 .' 20—10 13 Op. 9 J 21—47 13 Op. 13 , 25—593 13 Op. 27 18—184 13 Op. 29 17—344,390 13 Op. 35 20—283 13 Op. 44 25—593 13 Op. 89,92 23—511 13 Op. 96 17—4 13 Op. 99 20—687 15 Op. 115,117 23—511 130p. 160 19—57, 279; 20—315, 383; 24—73; 25—370 13 Op. 164 , 22—210 13 Op. 174 21—209 13 Op. 247 19—490 13 Op. 291 18—569 13 Op. 354 21—348 13 Op. 382 17—377 13 Op. 387 17—318 13 Op. 388 20—284 13 Op. 424 17—345; 18—390 13 Op. 430 18—222 13 Op. 460 18—114 13 Op. 479 21—50 13 Op. 515 18—137 130p. 531 , 19—333,415, 695; 20—444; 21—507; 24—119 13 Op. 568 19—333, 415, 695 13 Op. 580 18—125 13 Op. 583 21—197 13 Op. 641 : 19—221 140p. 17 17—326; 18—87 14 Op. 21 18—61 14 Op. 33 17—1 14 Op. 37 :.... 18—390 14 Op. 38 18—392 14 Op. 45 18—390 14 Op. 128 18—380 14 Op. 152 21—398 140p. 164 17—68; 18—25 14 Op. 172 18—178 14 Op. 177 17—326,358; 18—87,108; 19—696 14 Op. 178 20—584,589 14 Op. 179 17—279; 18—314 14 Op. 192 17—189 OPINIONS OP ATTORNEYS-GENEKAL CITED. 611 14 Op. 254 18—514; 20—552 14 Op. 256 20—552 14 Op. 258 18—514 140p. 259 1 18—374; 25—332,637 14 Op. 261 : 18—312 14 Op. 262, 263 ... . „ 17—649 14 Op. 290 '. 19—479 14 Op. 358 17—189 140p. 367 18—489; 1^—398,673; 20— 270, 493, 527, 713, 741; 21—202, 220, 507. 14 Op. 368 19—398,673; 20—713,741 14 Op. 483 24—560 14 Op. 499., 11—304 14 Op. 506 17—9 14 Op. 522 19—378,392 14 Op. 541 19—673; 20—386,741 14 Op. 568 „ 17—307 ' 14 Op. 572 : 20—46 14 Op. 573.. 19—357 140p. 574 17—529; 21—24, 130 14 Op. 577 21—596 14 Op. 588 20—46 15 Op. 3 18—99, 300, 728; 21—363 15 Op. 5 21—363 15 Op. 6 : 20—728; 21—364 15 Op. 45 17—189 15 Op. 62 18—322 15 Op. 80 25—581 15 Op. 113 20-720 15 Op. 125 17—679; 20-720 15 Op. 139 19—556 15 Op. 167..- 17—45 15 Op. 207 17—521 15 Op. 208 17—17 15 Op. 212 22—667 15 Op. 214 20—450 15 Op. 226 : 21—471; 22—104 15 Op. 230 22—124 15 Op. 235 21—1 15 Op. 236 - 21—249 15 Op. 239 25—562 15 Op. 240 19-654; 21—1 15 Op. 262 17—256; 18—49; 23—319; 25—617 15 Op. 267 23—319 15 Op. 277 17-479; 19-357 15 Op. 278 17-425,520 15 Op. 290 17—44,398 15 Op. 295 17—398 15 Op. 306 19-123,384 15 Op. 315 17—318 15 Op. 330 "— 12 15 Op. 332 17—405 612 OPINIONS OF ATTOBNEYS-GENEEAX, CITED. 15 Op. 336 21—49 15 Op. 340 1 18—171 15 Op. 356 19—631 15 Op. 362 18—203; 20—19 15 Op. 378... 25—328 16 Op. 392 ; 23—147 15 Op. 402 21—143, 199; 25—386 16 Op. 420 23—153 15 Op. 436 : 17—283; 19—384 15 Op. 441 .' 17—279 15 Op. 449 17—533; 18—300 15 Op. 451 17—536 15 Op. 462 19—39 15 Op. 475 17—326; 18—87 15 Op. 492..., 19—356 15 Op. 499 18—99 15 Op. 515 .„ 18—409 15 Op. 526 18—166. 409 15 Op. 551 1 18—13 15 Op. 556 20—412 15 Op. 603 17—323 15 Op. 608 20—223 15 Op. 6fl 25—273 15 Op. 635 17—332 15 Op. 636 : 19—303 15 Op. 637. ." 17—193; 19—303; 21—49 15 Op. 648..." 21—57 15 Op. 649 22—17 15 Op. 651 21—57 16 Op. 9 24—128 16 Op. 24 25—328 16 Op. 26, 27 17—423 16 Op. 36 17—34 16 Op. 56 17—365 16 Op. 58 17—345; 18—390 16 Op. 74 21—39 16. Op. 87 18—573 16 Op. 123 17—168 16 Op. 147 19—536 16 Op. 150 24—661 16 Op. i58 18—259 16 Op. 161 '. 17—550 16 Op. 162 17—72; 19—571 16 Op. 179 17—495 16 Op. 203 17—127 16 Op. 206 '. 20—97,529; 22—245 16 Op. 212 19—629 16 Op. 222 19—558 16 Op. 232 17—164 16 Op. 259 18—59; 20—727 16 Op. 263 17—550 16 Op. 278 _ 18—89 16 Op. 296 -. 17—193 16 Op. 304,305 -20—386 OPINIONS OF ATTOHNEYS-GENEKAL CITED. 613 16 Op. 312 17—24 16 Op. 317 17—353 16 Op. 327 17—510 16 Op. 329 : 18—356 16 Op. 335 21—29 16 Op. 350 , 4 '. 1 7—398 16 Op. 367 19—459 16 Op. 385 18—59 16 Op. 414 17—155; 20—362 16 Op. 443 17—111 16 Op. 452 17—319 16 Op. 468 19—252 16 Op. 479 17—109 16 Op. 489 17—318; 19—386 16 Op. 501 17—265 160p.523 17—521; 18—29 16 Op. 533 18—234 16 Op. 534 17—109 16 Op. 539 17—521 16 Op. 540 17—456 16 Op. 553 18—564 16 Op. 570 20—727 160p.571 16—59 16 Op. 573 17—252 16 Op. 577 : 17—42 16 Op. 583 17—613 16 Op. 587 25—572 16 Op. 596 17—530; 20—10; 25—259 16 Op. 597 17—530 16 Op. 605 17—365 16 Op. 611 17—95 16 Op. 617 18—59; 21—205; 23—20 16 Op. 619 17—42 16 Op. 634,635 18—248 16 Op. 651 17—365 16 Op. 656, 657 17—99 16 Op. 666 17—124 16 Op. 670 17—502 17 Op. 3 17-46 17 Op. 7 21—382 17 Op. 10 17-12 17 Op. 31 20-245 17 Op. 32 --- 24—610 17 0p.,34 17—196; 24—76 17 Op. 70 - 22—104 17 Op. 117 - 20—439 17 Op. 134 23—216 17 Op. 137 21-29,31 17 Op. 195 24—66 17 Op. 196 23—157; 24—76 17 Op. 213 21-266; 23-20 17 Op. 246 17-604 17 Op. 268 20—665 17 Op. 297 18—20 614 OPINIONS OF ATTOBNEYS-GENEBAL CITED. 7 Op. 306 20—46 7 Op. 318 : 20—239 7 Op. 326 17—642 7 Op. 332 20—658, 722 7 Op. 339 17—442; 20—181 7 Op. 349 20—128 7 Op. 357 '. 20—383 7 Op. 362 17—402; 24—76 7 Op. 416 18—388 7 Op. 433 23—400 7 Op. 436 20—665 7 Op. 448 21—324 7 Op. 449 25—450 7 Op. 457 19—537 7 Op. 483 18—388, 543; 19—369, 370 7 Op. 530 20—10; 28—259 7 Op. 535 20—10 7 Op. 534 21-413 7 Op. 545 21—75 70p. 579 18—381; 21—24, 130, 502; 23—420 7 Op. 590 17—600; 20—372; 21—158, 528 70p. 600 ". 20—372; 21—158 7 Op. 626 .' 20—372 7 Op. 648 25—333, 637 7 Op. 649 20—451 7 Op. 656 19—109; 20—245 7 Op. 658 18—17 7 Op. 679... ". 20—648, 719 8 Op. 34 23—216 80p. 39'. , 18—74 8 Op. 43 18—109 8 Op. 49 23—320 8 Op. 50 20—10 8 Op. 53 19—664 8 Op. 58 20—9, 11 8 Op. 63 19—646,664 8 Op. 72 20—727; 21—50 8 Op. 77 20— 383; 77— 107 8 Op. 99 28—415 8 Op. 101 21—210 8 Op. 107 •..' 19— 696; 20— 383, 724 8 Op. 108 19— 696; 20— 584, 589 80p. 135 24—592 8 Op. 146 18—153 8 Op. 158 18—230 8 Op. 164 20—110 8 Op. 167.. 18—369 8 Op. 172 18—188 8 Op. 185 1 •. 18— 196; 24— 592; 25— 373 8 Op. 192 20—654 8 Op. 196 25—373 80p. 197 19—647, 664;20— 369 OPINIONS OF ATTORNEYS-GENERAL CITED. 615 18 Op. 207 18—240 18 Op. 223..... 18—369 1 8 Op. 234 23—415 18 Op. 235 18—563; 19—499 18 Op. 264 20—307 18 Op. 321 20—652 18 Op. 331 21—502 18 Op. 344 18—528 18 Op. 352 24—644 18 Op. 353 • 18—485 18 Op. 360 23—248 18 Op. 376 18—508 18 Op. 381 21—24,130 18 Op. 398 20—435 18 Op. 414 20—652 18 Op. 424 18—432 18 Op. 434 : 19—713 18 Op. 447 18—497,519 18 Op. 487 19—697; 20—527,614,713, 741; 21—584; 24—32 18 Op. 487-489 19-673 18 Op. 488 20—444,713 18 Op: 497 18—517,519 18 Op. 500 20—80,372 18 Op. 510 19—545 18 Op. 517 , 18—519 18 Op. 521 21—259; 25—184 18 Op. 532 21—410 18 Op. 535 19—368 19 Op. 7 20-^66,536,724. 19 Op. 8 20—121,123,160,273 19 Op. 9..' 20—383 19 Op. 32 20—372; 21—528 19 Op. 39 19—521 190p. 56 20—278, 383, 673; 21—135; 24—73; 25-370 19 Op. 57... 20—17 19 Op. 69 20—227 19 Op. 110 19—179 19 Op. 134 - 19—242 19 Op. 161 19—511,561 19 Op. 169 20—362 19 Op. 175 20—17 19 Op. 232 19—562 19 Op. 264 - 20—452 19 Op. 269 22—104 19 Op. 272 19—301 19 Op. 293 19—368 19 Op. 306 21—25 19 Op. 311 19—501 19 Op. 318 24-67 19 Op. 328 21-197 19 Op 331 20—383,442,445,466,536,739 616 OPINIONS OF ATTOBNEYS-GENEKAL CITED. 19 Op. 332 21—168,507; 23—331; 24— 556 19 Op. 345 20—531,532,707 19 Op. 351 25—581 19 Op. 354 20—654' 19 Op. 377 20—392 19 Op. 393 25—539 19 Op. 396 20—527; 21—36, 220; 23— 419 19 Op. 396-467 , 20—260 19 Op. 407 20—330 19 Op. 411 , 21—142 19 Op. 412 21—168 19 Op. 414 -... 20—253, 443, 445, 466, 614, 739; 21—584 19 Op. 434 : 19—535; 20^313 19 Op. 439 21—325 19 Op. 450 20—526, 580 19 Op. 465 20—527, 614, 713 19 Op. 466 20—713 19 Op. 467 21—220 19 Op. 486 ._. 20—260, 382 190p. 533 20—313 ^ 19 Op. 552 22—8 19 Op. 576 19—594 19 Op. 599 „. 19—676 19 Op. 616 ,25—191 - 19 Op. 628 20—97, 529; 22—245 19 Op. 633 ..1 20—477 19 Op. 650 22—389 19 Op. 661. 20—369 19 Op. 666 20—39 19 Op. 670 20—466, 673, 702; 21—135 19 Op. 672 20—256, 525, 614, 640, 741; 21—595; 24—32 19 Op. 673 20—386, 592 19 Op. 674 20—252 19 Op. 676 :.... 20—114 19 Op. 679 23--207, 492; 25—287 19 Op. 695 20— 383, .466 19 Op. 696 20—260,445,525, 614, 640, 713; 21—36, 220, 584 19 Op. 700 , 20—454 19 Op. 706 23—525 20 Op. 1 21—186 20 Op. 11 1 -•- 21—297 20 Op. 27 20—86 20 Op. 51 20—510, 639 20 Op. 60 20—651 20 Op. 62 20—639 20 Op. 69 20—382 20 Op. 89 20—152 20 Op. 93 22—245 20 Op. 100 22—333 OPINIONS OF ATTORNEYS-GENEHAL CITED. 617 20 Op. 149 21 _4 91 20Op. 161 22-124 20 Op. 193 21 _ 86 20 Op. 194 20-257 20 Op. 210 21—135; 23—583; 24—73; 25 370 20 Op. 217 20—382 20 Op. 220 17—507 20 Op. 250..... 21—512 20 Op. 253 21—144, 199, 595; 23—93; 24—32; 25—384, 388 20 Op. 259 20—382; 21—202 20 Op. 270 21—220; 23—93, 419; 25— 452 20 Op. 274 21—291 20 Op. 277 21—135 20 Op. 284 20^20 20 Op. 293 22—104 20 Op. 314 21—135; 23—583; 24—73; 25—370 20 Op. 330 : 23—363 20 Op. 350 25^50 20 Op. 371 23—280 20 Op. 373 21—158 20 Op. 383 21—202, 507, 584 20 Op. 384 24—32 20 Op. 420 -21—202 20 Op. 421 24—131, 582 20 Op. 440 21—584; 24—119; 25—96 20 Op. 445 22—104 20 Op. 459 24—32 20 Op. 463 25—467 20 Op. 465 21—202 20 Op. 479 22—333 20 Op. 487 25-^68 20 Op. 488..... 22—54, 333 20 Op. 493 21—202,220. 20 Op. 510 *. 20—639 20 Op. 524 24—32 20 Op. 526 21—220, 584; 23—93 20 Op. 534 21—558 20 Op. 536 21—570; 24—556 20 Op. 539 21—135; 24—73; 25—370 20 Op. 592 21—181 20 Op. 593 21—410 20 Op. 599 - 21—220 20 Op. 602 21—584; 22—325 20 Op. 608 20—657 20 Op. 609 21—174 20 Op. 613 24—619 20 Op. 614 21—584; 22-86, 343, 499; 23—473 20 Op. 618 21-202,584; 25-528 20 Op. 619 23—222 618 OPINIONS OF ATTORNEYS-GENERAL CITED. 20 Op. 640 22—343,499 20 Op. 648 ., 25—303 20 Op. 649 21—259; 25—184 20 Op. 652 21—259; 23—297 20 Op. 654 22—582 20 Op. 655 21—221 20 Op. 660 21—284,419 20 Op. 667 20—723 20 Op. 668 23—363 '20 Op. 690 24—62 20 Op. 691 21—135 20 Op. 693 22—202 20 Op. 695 21—560 20 Op. 697 21—135, 137, 174 20' Op. 698 21—260 20 Op. 699 21— 202; 22— 343, 499; 23— 93, 473 20 Op. 702 21— 135, 370, 509; 22— 182; 23—222, 288; 25—370 20 Op. 703 - 21—168 20 Op. 705 23—273; 25—224 20 Op. 711 21—174, 179, 202, 220; 22— 343, 499, 608; 23—473 20 Op. 713 21—41, 179 20 Op. 714 21—135, 370, 509; 22— 494; 25—370 20 Op. 715 21—134 20 Op. 717 21—174 20 Op. 718 20—78 20 Op. 719 21—339 20 Op. 721 21—339, 352, 410, 423 20 Op. 723 .... 21—174, 202; 22—86 20Op. 724 ■.." 21—220 20 Op. 728 21—186,364 20 Op. 729 21—168; 23—583 20 Op. 730 21—413 ' 20 Op. 740 21—174; 22—343, 499 20 Op. 742 22—343, 499 20 Op. 748 21—314 21 Op. 4 21—314 21 Op. 5 . 22—132 21 Op. 6 21—370,509; 22—131, 610; 23—622; 25—370 21 Op. 21 22—54 21 Op. 23 21—130,502 21 Op. 24 24—55, 132 21 Op. 33 21—58 21 Op. 36 22—343,478,499 21 Op. 37 21—582 21 Op. 41 , 22—333 21 Op. 43 25—603 21 Op. 50 :.. 23—19,633 21 Op. 51 21—266; 28—19,633 21 Op. 55 21—322 OPINIONS OF ATTORNEYS-GENERAL CITED. 619 21 Op. 56 , 22—47 21 Op. 68 22—131; 23—488 21 Op. 73 22—86; 23—288 21 Op. 74 22.-98 21 Op. 75 1.,...'. 21^48 21 Op. 80 21—377 21 Op. 90 21—284 21 Op. 92 21—404 21 Op. 94 21—365 21 Op. 95 21—404 21 Op. 101 21—284; 24-590 21 Op. 102 21—284 21 Op. 106 21—513,584 21 Op. 109 21—159, 570; 24—556; 25— 370 21 Op. 110 21-229; 22—111,121,127; 25— 346 21 Op. 121 22—544 21 Op. 124 23—79 21 Op. 129.... 21—135 21 Op. 130 _. 24—661 21 Op. 133 21—509 21 Op. 135 21—260 21 Op. 144 ' 25—388 21 Op. 153 21—225 21 Op. 154 21—523 21 Op. 159 23—231, 372 ; 24—54 21 Op. 162 21—322 21 Op. 164 21—345 21 Op. 1 74 22—86 ; 24—32 21 Op. 178 21—181, 221, 531; 22—583; 23—2, 3, 87, 431, 470; 24—700; 25—189, 271, 303, 616 21 Op. 179 -'- 21—225, 406; 22—343, 499 21 Op. 180 -' 21—256 21 Op. 181 1 22—583; 23—2, 87, 431, 470; 24—700; 25—7 89, 271, 303 21 Op. 183 21-221, 225 21 Op. 184 25—612 21 Op. 188 21—221, 225, 531; 22—583; 23—2, 87, 431, 469; 24- 86, 700; 25—189, 271 21 Op. 201 22—478; 23—473, 583 21 Op! 202."!... 22-343,499 21 Op. 203 25—83 21 Op. 207 22-105 21 Op. 220 22-343, 499, 608; 23-419, 473 21 Op. 221 21-225 21 Op 224 21-251, 320, 403, 419; 24- 38; 25—189, 271, 303 21 Op. 226 ----- 21-455 21 Op. 229 25—346 620 OPINIONS OF ATTOKNEYS-GENERAL CITED. 21 Op. 232 22—153 21 Op. 234 22—65 21 Op. 240 24—32 21 Op. 251 -. 21—320, 404, 419; 24—38 21 Op. 253 , 21—332 21 Op. 255 25—184 21 Op. 262 21—404 21 Op. 264,266 23—20, 633 21 Op. 267 '. 24—26 21 Op. 283 24—590 21 Op. 289 21—335, 550 21 Op. 292 : 21—418 21 Op. 293 :.... 22—54 21 Op. 300 24—135 21 Op. 320 21—419; 23-443 21 Op. 326 '. 21—403 21 Op. 338 21—423, 427 21 Op. '340 .' 21—365 21 Op. 345 21-419 21 Op. 347 22—131, 202; 23—547 21 Op. 349 -• 21—423; 23—297 21 Op. 355 21—363 21 Op. 357 23—547; 24—544 21 Op. 369 21—509; 23—288, 583; 24— 73; 25—97, 370 21 Op. 371 21—423 21 Op. 391 21—422 21 Op. 394 22—254 21 Op. 402 25—189, 271, 303 21 Op. 405 21—406, 423; 25—377 21 Op. 423 25—377 21 Op. 424 22—73; 23—622 21 Op. 454 24—32 21 Op. 473 21—476 21 Op. 486 ." 25—401 21 Op. 501 23—420 21 Op. 506 '. 22—478; 23—331,473; 24— 119 21 Op. 509 21—570; 24—119; 25—96 21 Op. 510 23—331, 473 21 Op. 530 22—583; 23—2,87, 431,469; 24—700; 25—303, 616 21 Op. 531 22—333; 25—189 21 Op. 537 21—565; 22—245 21 Op. 543 24—592 21 Op. 557 24—73; 25—370 21 Op. 568 24—556; 25—370 21 Op. 571 22—407 21 Op. 583 , 23—583; 24—73 21 Op. 587 22—140 22 Op.- 1,5 23—294 22 Op. 13 22—408; 24—101; 25—473 22 Op. 27 25—473 22 Op. 29 22—70 OPINIONS OF ATTOBNEYS-GENEKAL CITED. 621 22 Op. 42 23—622 22 Op. 52 22—333 22 Op. 70 23—359 22 Op. 72 22—610 22 Op. 77 23—331; 24—119; 25—96, 370 22 Op. 95 22—258 22 Op. 98 23—288 22 Op. Ill 22—130; 25—347 22 Op. 130 22—260 22 Op. 131 22—260 22 Op. 132 23—486,622 22 Op. 150..' 22—250; 23—194 22 Op. 163 24—13; 22 Op. 168 22—271 22 Op. 176 22—200 220p. 178 22—193 22 Op. 181 23—288, 583; 25—370 22 Op. 184 •. 23—315; 24—14 22 Op. 218 * 23-^-56 22 Op. 225 22—539 22 Op. 237 24-14 22 Op. 240 25—390 22 Op. 342 ■ 24—32 22 Op. 249 22—354; 23—488 22 Op. 268 25—179 22 Op. 269 25—26 22 Op. 285 23—131 22 Op. 289 22—363 22 Op. 310 22—529 22 Op. 320 23—344 22 Op. 342 23—231, 419, 473 22 Op. 348 25—208 22 Op. 351 23^73 22 Op. 353 23—280,488 22 Op. 360 24—533 22 Op. 384 22—655 22 Op. 408 23—227,427 22 Op. 413 24—86, 700 22 Op. 414 25—16 22 Op. 420 - 24—86 22 Op. 460 23—281, 525 22 Op. 491,494 23—508 22 Op. 498 23—231,473; 25—452 22 Op. 501 22—648 22 Op. 511 25—224 22 Op. 514 23—225,427 22 Op. 521 23—225 22 Op. 545 22-554 22 Op. 546 - 22—554; 23—225 22 Op. 551 - 23-225 22 Op. 557 24—96 22 Op. 566 25-256,415 22 Op. 574 22—628 622 OPINIONS OF ATTORNEYS-GENERAL CITED. 22 Op. 581 23— 431,469;24— 86, 700; 25— 189,271,299,303,616 22 Op. 583 23-431,469 22 Op. 608 23—622 23 Op. 1 '. 24—700 23 Op. 2 24—700 23 Op. 3 24-44 23 Op. 18 23—633 23 Op. 86 24—700 23 Op. 136 : 24—52 23 Op. 163 : 25—567 23 Op. 178 , 25—370 23 Op. 182 23—452 23 Op. 195 23—452 23 Op. 207 23—492; 25—287 23 Op. 221 '. 24—60; 25—528 23 Op. 232 23—406 23 Op. 271 25—224 23 Op. 316 „ 25—617 23 Op. 330 ■_ 24—60 23 Op. 331 . . .' , 24—102 23 Op. 353 : 23—373 23 Op. 377 24—584 23 Op. 400 23—415 23 Op. 406 24—661 23 Op. 413 25—320 23 Op. 422 : 23—497 23 Op. 431 24—700,553 23 Op. 432 23—605 23 Op. 468 23—588; 24— 86, 553; 25— 50, 271,299,303,616 23 Op. 490 23—581 23 Op. 492 25—287 23 Op. 512 : , 23—531 23 Op. 521 24—114,555 23 Op. 531 23—583 23 Op. 545 23—583,621; 24—514,638 23 Op. 574 24—53 23 Op. 582 23—586 23 Op. 585 25—528 23 Op. 586 24—700 23 Op. 599 24—53 23 Op. 625 24—54 23 Op. 634 25—179 24 Op. 1 24—557,583 24 Op. 8 25—194,244 24 Op. 45 24—569 24 Op. 55 24—612 24 Op. 59 '. 28—370,528 24 Op. 69 25—97,370 24 Op. 81 24—103; 25—619 24 Op. 85 24—700 24 Op. 86 24—123 24 Op. 102 ' 25—370 OPINIONS OF ATTOBNEYS-GENEEAL CITED. 623 24 Op. 103 25—619 24 Op. Ill :.. 24—555 24 Op. 118 25—96 24 Op. 125 24—696 24 Op. 127 24—582 24 Op. 533 : 25—303 24 Op. 556 24—583; 25—370 24 Op. 588 24—590 24 Op. 594 25—273 24 Op. 616 25—18 24 Op. 697 ' 25—293 25 Op. 11 25—502 25 Op. 25 25—179 25 Op. 29 25—535 25 Op. 62 25—246 25 Op. 66 25—177 25 Op. 97 25—370 25 Op. 122 25—294 25 Op. 158 25—515 25 Op. 270 25—299 25 Op. 301 25—380,616 25 Op. 332 25—637 25 Op. 413 25—594 25 Op. 563 25—582