10. Yet while upon the high seas, actually bearing an American register and carrying an American flag, she was as much exempt from interference by another power as though she had been lawfully registered; the question whether or not her register was fraudulently obtained, or whether or not she was sailing in violation of any law of the United States, being one over which such power could not then and there rightfully exercise jurisdiction. Ibid.

11. The word "wrecked,” as used in section 4136 Rev. Stat., is applicable to a vessel which is disabled and rendered unfit for navigation, whether this condition 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. Opinion of Dec. 5, 1877, 15 Op. 402.

12. To authorize the issue of a register under that section. it is sufficient if the cost of repairing the vessel-as well where, in so doing, the original plan of the vessel is departed from and changes in her construction and internal arrangement are made, new machinery, new appliances for her navigation, and other improvements introduced, as where the vessel is simply restored to what she originally wasequals three-fourths of her value when repaired. Ibid.

II. Enrollment and License of Vessels.

13. Steamboats owned by citizens of the United States may be enrolled and licensed, although they may have been employed in the rebel service under papers issued by the rebel authorities. Opinion of Oct. 2, 1865, 11 Op. 359.

14. Under section 4371 Rev. Stat., and the act of April 18, 1874, chap. 110, vessels usually called canal-boats, of more than five tons burden, trading from place to place in a district, or between different districts, on navigable waters of the United States (except such as are provided with sails or propelling machinery of their own adapted to lake or coastwise navigation, and also such as are employed in trade with the Canadas), are exempt from license or enrollment as well where in the trade in which they are engaged they do not enter a canal of a State as where their voyages are

15. The act of 1874 does not contemplate boats employed exclusively on the "internal waters" of a State where the same are not also navigable waters of the United States, nor boats employed exclusively on the "canals of a State." It contemplates boats which are employed on navigable waters of the United States as well as on the canals or internal waters of a State. Ibid.

16. The rule as to exemption from enrollment or license provided by that act is not confined in its operation to waters within the interior of each State, but extends to any waters coming under the denomination of navigable waters of the United States, irrespective of their geographical location. Ibid.

17. The act of April 18, 1874, chap. 110, does not exempt from the license required by section 4371 Rev. Stat. a vessel of more than five tons burden, answering to the description of a canal-boat, which is engaged in trade between different ports or districts on navigable waters of the United States, and which has never been used on a canal, was not intended to be used there, and does not in its present employment enter a canal. Opinion of October 19, 1875 (15 Op. 52), to that extent overruled. (See NOTE, 16 Op. 248.) Opinion of Jan. 13, 1879, 16 Op. 247.

18. It is the use made of the vessel, not its mechanical structure, which determines whether it is or is not entitled to the exemption allowed by that act. Ibid.

19. The provision in the act of June 30, 1879, chap. 54, which exempts from enrollment, registration, or license "any flat-boat, barge, or like craft for the carriage of freight, not propelled by sail or by internal motive power of its own, on the rivers or lakes of the United States," has reference solely to vessels of that description built within the United States and owned by citizens thereof. It does not extend to foreign-built craft. Opinion of Sept. 16, 1880, 16 Op. 563.

III. Tonnage Duties.

20. Neither the President nor Secretary of the Treasury has power to remit the tonnage duty assessed with reference to the character

of the vessel, officers, and crew, nor to remit the penalty of a bond to return seamen. Opinion of Nov. 3, 1843, 4 Op. 273.

21. Vessels belonging to citizens of the British North American provinces entering otherwise than by sea at any ports of the United States on our northern, northwestern, and northeastern frontiers, are not liable to the tonnage duty imposed by section 15 of the act of July 14, 1862, chap. 163, if that duty is in excess of the tonnage duty on vessels entering otherwise than by sea at any of the ports of the British possessions on the same frontiers. Opinion of May 16, 1863, 10 Op. 482.

22. Section 2 of the act of March 2, 1831, chap. 98, is not repealed or affected by section 15 of the act of July 14, 1862, chap. 163, imposing an additional tonnage duty on vessels entering at the custom-houses of the United States. Ibid.

23. The Revised Statutes have made no change in the law respecting tonnage duties upon vessels engaged in foreign commerce. The substance of that law is correctly expressed in the Treasury circular of June 6, 1874, and no reason is perceived for changing the directions therein given. Opinion of Aug. 17, 1874, 14 Op. 450.

24. Under sections 4219, 4225, and 4371 Rev. Stat., certain foreign vessels, when found trading between district and district, &c., are liable to tonnage dues (including light-money) amounting to $1.30 per ton. Opinion of Aug. 19, 1875, 15 Op. 35.

25. Barges for the carriage of freight, not propelled by sail or by internal motive power of their own, of twenty tons burden or upward, which were built in Canada but are owned by American citizens, are liable to the payment of tonnage as prescribed by section 4371 Rev. Stat. when found trading between district and district. Opinion of Sept. 16, 1880, 16 Op. 563.

chap. 31, does not permit even an indirect carrying trade by foreign ships. Belgian vessels carrying hides and wool from Buenos Ayres to Boston come within the prohibition of and are subject to the forfeitures denounced by it. Opinion of June 30, 1842, 4 Op. 69. 28. Foreign vessels owned wholly by citizens of the United States may be lawfully engaged in the coasting trade; but the cargoes must consist of domestic goods other than distilled spirits. Opinion of July 20, 1843, 4 Op. 189.

29. Subjects of foreign powers are, by the act of March 1, 1817, chap. 31, incompetent to import any goods, wares, or merchandise from one port of the United States to another in any vessel of which they may be the owners in whole or in part; yet citizens of the United States are untouched by the act, and left to the enjoyment of the privileges conferred by the acts of December 31, 1792, chap. 1, and February 18, 1793, chap. 8. Ibid.

30. The only liability incurred by foreignbuilt vessels wholly owned by citizens employed in trade from port to port in the United States is that of paying the tonnage duties chargeable upon foreign vessels. Ibid.

31. The owners of registered vessels engaged in the coasting trade are subject to the payment of hospital-money by the act of 1st March, 1843, chap. 49, and collectors are required to collect it from the seamen, masters, and ownOpinion of Aug. 15, 1843, 4 Op. 233.

ers.

32. Foreign vessels, except steamboats employed on rivers or bays, &c., may carry passengers from port to port in the United States, subject to the conditions as to fees, tonnage duties, &c., prescribed by the act of February 18, 1793, chap. 8, and other laws of the United States. Opinion of Nov. 2, 1843, 4 Op. 270.

NOTE, 15 Op. 45.) Opinion of Sept. 11, 1875, 15 Op. 44.

VI. Officers of Steam-Vessels.

34. A naval officer cannot lawfully serve as master of a private steam-vessel in the merchant service without having previously obtained the license required by section 4438 of the Revised Statutes, although he may be eligible by virtue of his commission to take command of a steamvessel of the United States in the naval service. Opinion of Oct. 26, 1875, 15 Op. 61.

VII. Inspection of Steam-Vessels.

35. Where a steam-tug was owned by the Government and used by the War Department in towing dredging-machines and scows, and for other like purposes: Held that it was not subject to the inspection laws of the United States relating to steam-vessels, and that unlicensed pilots and engineers might lawfully be employed upon her. Opinion of June 1, 1870, 13 Op. 249.

36. Public vessels, within the meaning of the inspection and navigation laws, are vessels owned by the United States and used by them for public purposes. Ibid.

37. Those laws do not warrant any distinction between public vessels under the control of the Navy Department and public vessels under the control of any other Department of the Government. Ibid.

38. By act of May 2, 1878, chap. 80, an American register or enrollment was authorized to be issued to the Canadian-built propeller East, by the name of The Kent. The vessel was dismantled as a steamer, and subsequently enrolled under that act as a barge. Afterwards the machinery was replaced in her; but the inspectors of steamboats declined to give her a certificate of inspection, the boiler not being constructed of stamped iron, as required by section 4428 Rev. Stat. Held that the act of 1878 was executed by the enrollment of the vessel as a barge; and that the boiler, being then no part of the vessel, was not nationalized under that act, nor entitled to pass inspection without being stamped. Opinion of Dec. 22, 1880, 16 Op. 680.

VIII. Obstruction to Navigation. 39. Obstructions to navigation in the navigable waters of the United States, whether by

States or by individuals, constitute acts of purpresture, and there is remedy in such case by ex officio information in the name of the Attorney-General of the United States. Opinion of Oct. 19, 1853, 6 Op. 172.

40. Where Congress (by act of July 25, 1868, chap. 233) appropriated a sum of money, to be expended under the direction of the Secretary of War, for the removal of a wreck near the harbor of New York, and the Secretary of War contracted with a company to remove the wreck: Held that the contractors had the right to proceed with the work as against any persons employed by the owners, and that the Secretary of War had power to aid them with all the necessary force to enable them to remove the obstruction. Opinion of Sept. 21, 1868, 12 Op. 494.

41. In view of the practical difficulties of preventing the obstructions to navigation mentioned in the case considered by a resort to legal proceedings: Advised that the attention of the proper committee of Congress be called to the subject, and penal legislation recommended. Opinion of Nov. 17, 1870, 13 Op.

342.

42. In the absence of legislation by Congress upon the subject of the improvement of the harbor of Saint Louis, or of the navigation of the Mississippi River at that point, no one is authorized to institute judicial proceedings in behalf of the United States against the city of Saint Louis for the abatement as a nuisance of the Bryan street dike, constructed by that city in said river. The anticipation that, should such legislation hereafter be adopted, the dike will be an obstacle, is no ground for interference. Opinion of Oct. 11, 1875, 15 Op. 515.

43. Where a vessel put into harbor "in a furious storm," and, leaking badly, was run ashore, thereupon becoming a wreck, which forms an obstruction to navigation: Held that (the wreck appearing to have been caused by stress of weather, and not through any fault or misconduct on the part of the master and crew) the owners of the vessel are under no legal obligation to remove it, and that the case does not warrant the institution of proceedings to that end against them. Opinion of Jan. 4, 1876, 15 Op. 71.

44. Where a dike was being constructed by an iron company in the Ohio River, leading

compensation. Op. 480.

Opinion of April 27, 1880, 16

49. Accordingly, where it was proposed to construct a dike in the Ohio River to improve its navigation (under an appropriation by Con

45. Congress having made an appropriation for the improvement of the Connecticut River, to be expended under the direction of the Secretary of War, the latter has power, under this legislation, to remove a wrecked vessel lying in that river, without waiting until it is abandoned, if in his judgment it constitutes an obstruction to navigation. Opinion of May 24, 1877, 15 Op. 285.

IX. Improvement of Navigable Waters.

46. Under the act of March 3, 1875, chap. 166, to aid in the improvement of the Fox and Wisconsin Rivers, the officers in charge of that work cannot acquire land needed therefor by purchase directly from the owner, but must have recourse to condemnation. April 11, 1879, 15 Op. 31.

Opinion of

47. The War Department has not authority, under the provisions of the acts of March 3, 1879, chap. 181, and June 10, 1879, chap. 15, relating to the improvement of the Kentucky River, to enter upon the locks and dams belonging to the State of Kentucky for the purpose of putting them in repair until the State shall have ceded title to and jurisdiction over them, so as to vest these in the United States, or until, after proper proceedings for condemnation had, the title shall be acquired by, and the jurisdiction shall by act of the State be transferred to, the United States. Opinion of Dec. 15, 1879, 16 Op. 405.

48. The property of an individual in a bar or other part of the bed of a navigable river is subject to the public right of navigation, and to the right of the public to regulate, control, and divert the flow of the water therein in the interests of navigation; and where the stream is a navigable river of the United States the right thus to regulate, control, and divert the flow of water belongs to Congress. Damage resulting to the individual proprietor from the exercise of that right is not a proper subject of

tending from the shore on the south side of the river into the middle of the stream, crossing a sand-bar at the outer extremity, which is under water at all times except when the river is at its low-water level or within a few feet thereof: Advised that the United States would incur no liability to the owner of the sand-bar by reason of any washing away of the same, or other damage thereto resulting from the construction of the dike; that the right of the United States thus to occupy the bar for the improvement of navigation is paramount to the right of the owner, and must prevail over the claims of the latter. Ibid.

50. Where certain parties claiming the land formed by accretion along the line of the piers erected by the United States at the mouth of Grand River, Ohio, proposed to sell the same, with the river frontage bordering thereon, for railroad purposes, the design of the party proposing to purchase being to build on the premises substantial docks upon such lines as the Government shall indicate: Advised that such river frontage is affected by the rights of the United States only so far as the navigation of the river and the maintenance of works constructed for the improvement thereof are concerned; that those rights do not preclude the owner from making any use of his property which does not obstruct the oue or interfere with the other of these objects; and that the intended use of the river frontage by the purchaser (in view of the report of the engineer officer in charge) would not conflict with any right of the United States in the premises. Opinion of May 10, 1880, 16 Op. 487.

51. By the act of June 14, 1880, chap. 211, Congress made an appropriation for the improvement of Oakland harbor, in California, and provided that the same should not be available "until the right of the United States to the bed of the estuary and training-walls of this work is secured, free of expense to the Government, in a manner satisfactory to the Secretary of War." The estuary here referred to is a navigable water of the United States,

98

and the training-walls of the work are located on the shore below high-water mark. Held (1) that the statute does not contemplate that the United States shall have necessarily an absolute title to the bed of the estuary and to such portions of the shore as are occupied by the training-walls; (2) that under the power to regulate commerce, a power which includes that of regulating and improving navigable waters, the United States now have a right (which is deemed sufficient in this case) to use the bed and shore of the estuary for the purposes of said improvement by erecting trainingwalls or any other appropriate structure thereon, and that the proprietor of the soil can make no complaint of such use. Opinion of June 28, 1880, 16 Op. 535.

52. On examination of the provisions of the act of the Georgia legislature approved October 8, 1879, and upon considerations stated in the opinion: Held that payment of the $1,000 awarded under that act to the owner of the point on Fig Island, which is contemplated to be removed by the United States in the work of improving the Savannah River, cannot be paid out of the amount appropriated for the continuance of that work; and advised that special legislation by Congress, providing for the payment, should not be had until the express assent of the State of Georgia to the acquisition and removal of the land by the United States is obtained. Opinion of July 10, 1880, 16 Op. 541.

forced by proceedings in rem. Opinion of Oct. 18, 1878, 16 Op. 186.

3. But the custody of real estate acquired in satisfaction of a pecuniary forfeiture arising under those laws is by that section devolved upon the Commissioner. Ibid.

COMMISSIONER OF PENSIONS. See also PENSIONS.

There is no appeal from the Commissioner to the President. Opinion of Aug. 4, 1846, 4 Op. 515.

COMPENSATION.

See also FEES AND COSTS.

I. Generally.

II. Officers, &c., in the Civil Service. III. Officers, &c., in the Military Service. IV. Officers, &c., in the Naval Service. V. Officers, &c., in the Marine Corps. VI. Counsel Employed by Head of Department. VII. Where Officer Holds more than One Office. VIII. Extra Pay.

IX. Withholding Pay.

I. Generally.

1. In the absence of constitutional restriction the future compensation of a public officer may be altered at pleasure by the legislature during his incumbency, without violating any legal right vested in him by virtue of his appointment. Opinion of June 18, 1877, 15 Op. 317.

II. Officers, &c., in the Civil Service.

2. A marshal is not entitled to the commission of 1 per cent. under act of 28th February, 1799, chap. 19, upon specie captured, as in cases where he sells vessels and other property. Opinion of July 26, 1814, 1 Op. 178. 3. Navy agents may be allowed $2,000 a year over and above office-rent, clerk-hire, fuel, &c., under act of 3d March, 1809, chap. 28. Opinion of June 20, 1816, 1 Op. 188.