caving and injury in the manner directed by the engineer

in charge.

Very respectfully,

P. C. KNOX.

The SECRETARY OF THE NAVY.

ATTORNEY-GENERAL-OPINION.

It is not deemed necessary or desirable for the Attorney-General to express an opinion upon the question of granting extra compensation in lieu of annual leave to certain former employees of the Census Office, under a proviso to the deficiency appropriation act of June 30, 1902 (32 Stat., 571), that being a matter relating solely to payments out of the Treasury. By section 8 of the act of July 31, 1894 (28 Stat., 208), it is made the duty of the Comptroller of the Treasury to determine such questions.

DEPARTMENT OF JUSTICE,

July 7, 1902.

SIR: Your letter of July 3, inclosing a copy of a letter of the same date addressed to you by the Acting Director of the Census, presents certain facts and a question of law arising thereupon respecting the legality of extra compensation in lieu of annual leave to certain former employees of the Census Office, under a proviso to the deficiency appropriation act of June 30, 1902. The question in its ultimate effect thus relates solely to payments out of the Treasury. This is a matter which falls especially within the function of the Comptroller of the Treasury under section 8 of the act of July 31, 1894 (28 Stat., 162, 208), providing that certain officers of the Government, including the head of any executive department, may obtain the decision of the Comptroller upon any question involving a payment to be made by them or under them, which decision, when rendered, shall govern the Auditor and the Comptroller in passing upon the account in question.

In view of this law, and in accordance with various opinions of Attorneys-General, I have the honor to say that I do not deem it necessary or advisable for me to express

any opinion upon the question which you submit. (21 Opin., 188; 22 Opin., 413, 420; id., 581; 23 Opin., 468.)

Very respectfully,

HENRY M. HOYT,

Acting Attorney-General.

The SECRETARY OF THE INTERIOR.

IMMIGRATION-HEAD TAX-PORTO RICO.

The head tax upon alien passengers brought into ports of Porto Rico should be accounted for and credited to the "immigrant fund," as is done with like collections upon alien passengers arriving at ports in the United States.

Section 14 of the act of April 12, 1900 (31 Stat., 77, 80), "to provide revenues and a civil government for Porto Rico," gives force and effect in that island to the immigration act of August 13, 1882 (22 Stat., 214).

DEPARTMENT OF JUSTICE,

July 15, 1902.

SIR: I have the honor to acknowledge the receipt of your letter of the 28th ultimo, in which you ask for an opinion "as to whether, in view of the provisions of sections 4 and 14 of the act to provide revenues and a civil government for Porto Rico, and for other purposes,' approved April 12, 1900, the head tax upon alien passengers brought to ports of Porto Rico should not be accounted for and credited to the immigrant fund,' as is done with collections upon alien passengers arriving at ports of the United States under the provisions of 22 Stat., 214."

Said section 4 of the Porto Rican act, in substance, provided that prior to the organization of the government of Porto Rico "all collections of duties and taxes in the United States upon articles of merchandise coming from Porto Rico" should not be covered into the general fund of the Treasury, but should be held as a separate fund for the benefit of Porto Rico, and that after such organization all moneys theretofore collected under the provisions of said section, then unexpended, should be transferred to the local treasury of Porto Rico, and the Secretary of the Treasury should designate the several ports and subports of entry in Porto Rico, and make such rules and regulations and appoint

agents to collect the duties and taxes authorized to be levied and collected and paid in Porto Rico under said act; and said section further provided that upon the organization of a civil government for Porto Rico, and proclamation thereof by the President, all collections of duties and taxes in Porto Rico under the provisions of said act should be paid into the treasury of Porto Rico, to be expended as required by law for the government and benefit thereof.

It is apparent, from a critical examination of section 4 above referred to, that the duties and taxes therein mentioned are those levied and collected as such upon "articles of merchandise." Reference is made to ports and subports of entry, and to the making of rules and regulations, and appointment of agents to collect the duties and taxes authorized to be levied, collected, and paid in Porto Rico by the provisions of said act.

Under section 14, the statutory laws of the United States not locally inapplicable, except the internal-revenue laws, and except as otherwise provided, were given "the same force and effect in Porto Rico as in the United States."

Among the statutory laws of the United States "given force and effect in Porto Rico" by said act is "An act to regulate immigration" (22 Stat., 214), approved August 3, 1882. It will be observed from the title, and from a consideration of the provisions of said act, that its scope and purpose is not the raising of revenue, but the regulation of immigration. The duty of 50 cents exacted for each passenger is merely nominal, and in no way restricts immigration. The act provides that this duty shall be paid the collector of customs of the port to which such passenger shall come, or the collector nearest thereto, not by the immigrant, but by the master, owner, agent, or consignee of the steam or sailing vessel bringing such immigrant, and that "the money thus collected shall be paid into the United States Treasury, and shall constitute a fund to be called the immigrant fund, and shall be used, under the direction of the Secretary of the Treasury, to defray the expense of regulating immigration under this act, and for the care of immigrants arriving in the United States, for the relief of such as are in distress, and for the general purposes and

* * *

Pro

expenses of carrying this act into effect. vided, That no greater sum shall be expended for the purposes herein before mentioned at any port than shall have been collected at such port."

If section 14 of the Porto Rican act really gives "force. and effect" to said immigration act in Porto Rico, the money collected thereunder must be paid into the United States Treasury, and devoted to the purposes designated in said act. Unless this is done, the purpose of the act is clearly defeated.

If this is done the spirit of section 4 will be carried out as well as the letter of section 14, for the money collected in Porto Rico under said immigration act will undoubtedly all be expended at the various ports in Porto Rico where it shall have been collected, and Porto Rico receive the benefit thereof.

Inasmuch as section 4 of the Porto Rican act evidently deals with duties and taxes levied and collected as such upon articles of merchandise, and section 14, by implication, gives force and effect in Porto Rico to said immigration act of August 13, 1882, and the head duty collected thereunder is a mere incident to and not the object of said act, and the diverting of such head duty from the purposes contemplated in said immigration act will evidently defeat the provisions of said section 14 of said Porto Rican act, so far as giving force and effect in Porto Rico to said immigration act is concerned, I am of the opinion that said head duty should "be accounted for and credited to the immigration fund,' as is done with collections upon alien passengers arriving at ports in the United States."

Respectfully,

HENRY M. HOYT,
Acting Attorney-General.

The SECRETARY OF THE TREASURY.

ARMY OFFICERS-APPOINTMENT.

Where A, an officer in the military service of the United States, was dismissed pursuant to the sentence of a general court-martial, which court, as it afterwards appeared, had no jurisdiction over the officer, and B was nominated to take his place on a certain date, "vice A, dismissed," which nomination was confirmed by the Senate, the appointment of B operated to supersede A, who ceased to be an officer after the date on which that appointment took effect.

DEPARTMENT OF JUSTICE,

July 22, 1902.

SIR: I have the honor to acknowledge the receipt of your letter of the 16th instant, in which you state that Hamilton H. Blunt was dismissed from the military service of the United States as a captain of the Forty-ninth Infantry, U. S. Volunteers, in pursuance of the sentence of a general courtmartial which became operative by the approval of the President on January 2, 1901, and that Blunt has applied to your Department "for an adjustment of his record under the decision of the Supreme Court in the Deming case' and for a certificate of discharge." You ask: "On what date and by what act was the officer separated from the volunteer military service of the United States?"

It appears that under date of January 16, 1901, the President nominated to the Senate "First Lieut. William H. Butler, Forty-ninth Infantry, to be captain January 2, 1901, vice Blunt, dismissed;" that the nomination was confirmed January 21, and that he was on January 25, 1901, commissioned as captain, to rank from January 2, 1901.

It was recently held by the Supreme Court in Mc Claughry v. Deming, the case above referred to, that a court-martial organized to try an officer of volunteers, and composed in part of officers of the Regular Army, "had no jurisdiction over the person of the defendant or the subject-matter of the charges against him," and that the sentence imposed was for that reason void. The court-martial which tried Blunt, an officer of volunteers, having been similarly composed, was for the same reason without jurisdiction, and his sentence was also void.

The decision in the Blake case (103 U. S., 227) seems to determine the question here at issue. In that case Blake, a