control of its head, shall be referred to the Attorney-General, to the solicitor of the treasury, or to both, is entirely within the discretion of the Secretary of the Treas ury. (1893) 20 Op. Atty. Gen. 658. The Sec. 350. [What officers under control of Attorney-General.] officers named in the preceding section shall exercise their functions under the supervision and control of the head of the Department of Justice. [R. S.] Act of June 22, 1870, ch. 150, 16 Stat. L. 162; Act of Aug. 2, 1861, ch. 37, 12 Stat. L. 285; Act of Aug. 6, 1861, ch. 65, 12 Stat. L. 327. R. S. sec. 376, infra, p. 254, seems to constitute an exception to the provision of this section directing that the solicitor of Sec. 351. [Subordinate officers.] Justice, the treasury shall be under the supervision and control of the Attorney-General. (1893) 20 Op. Atty.-Gen. 715. There shall be in the Department of One chief clerk, at a salary of two thousand two hundred dollars a year. One law clerk, acting as examiner of titles, at a salary of three thousand dollars a year. One stenographic clerk, at a salary of two thousand dollars a year. One disbursing clerk. In the office of the Solicitor of the Treasury: One chief clerk, at a salary of two thousand dollars a year, and such temporary clerks as may from time to time be needed, but the allowances for such temporary clerks shall in no one year exceed one thousand dollars. [R. S.] Act of March 3, 1853, ch. 97, 10 Stat. L. 211; Act of March 3, 1865, ch. 98, 13 Stat. L. 516; Act of July 23, 1866, ch. 208, 14 Stat. L. 207; Act of June 22, 1870, ch. 150, 16 Stat. L. 163; Act of June 25, 1868, ch. 71, 15 Stat. L. 75; Act of June 22, 1870, ch. 150, 16 Stat. L. 162. The number and compensation of the subordinate officers and employees in the Department of Justice depend upon the various Appropriation Acts which have for many years disregarded the limitations set by the text. The current appropriations were contained in the Legislative, Executive, and Judicial Appropriation Act of March 4, 1915, ch. 141, 38 Stat. L. 1038. A provision of the Legislative, Executive, and Judicial Appropriation Act of Feb. 19, 1897, ch. 265, 29 Stat. L. 575, for a stenographic clerk," $1,800, was amended by a provision of the Deficiency Appropriation Act of July 19, 1897, ch. 9, 30 Stat. L. 129, to read "private secretary to the Attorney-General," $2,400. Recent Appropriation Acts, however, provide for a private secretary and assistant to the Attorney-General " at a salary of $3,000. See the Act of March 4, 1915, ch. 141, 38 Stat. L. 1038-1039, above cited in this note. 66 Sec. 352. [Rooms to be provided.] The superintendent of the Treasury building shall from time to time provide such rooms as may be suitable and necessary for the accommodation of the Department of Justice, in some building in the vicinity of the Treasury building. [R. S.] Act of June 22, 1870, ch. 150, 16 Stat. L. 164. Recent Appropriation Acts provide for the rent of such buildings and parts of buildings as may be needed. See the notes to the preceding R. S. sec. 351. R. S. sec. 353. See the notes to R. S. sec. 346, supra, p. 242. Sec. 354. [Duties of Attorney-General.] The Attorney-General shall give his advice and opinion upon questions of law, whenever required by the President. [R. S.] Act of Sept. 24, 1789, ch. 20, 1 Stat. L. 92. ch. 69, 19 Stat. L. 241. was inserted by Act of Feb. 27, 1877, R. S. sec. 355. See the note to R. S. sec. 346, supra, p. 242. The right of the President to call upon the Attorney-General for an opinion is not necessarily limited by the provisions of this section. Article II, sec. 2, cl. 1, of the Constitution is entitled to a liberal interpretation. The President may justly call upon him for an opinion or advice in transactions which do not in all respects present a question of law, and unrestrained by the technical rule of the statutes and the strict practice upon the subject. (1901) 23 Op. Atty.-Gen. 364. When Attorney-General's opinion binds accounting officers. In (1904) 25 Op. Atty. Gen. 301, Attorney-General Moody said, that while "the authority of the comptroller to decide a question involving a payment to be made from the treasury, so as to guide the auditing officers and himself in passing upon accounts, is complete [citing the Act of July 31, 1894, § 8, 28 Stat. L. 162, 208, in TREASURY DEPARTMENT, and all the notes thereto], on the other hand, although a disbursement may be involved, when the question is of general and great importance, and especially when the comptroller, in advance of decision by himself, requests that the matter be referred to the Attorney-General, and states that the opinion of the AttorneyGeneral will be followed by him, then it is the view of this department that the question may properly be answered by the Attorney-General. . . If a question is presented to the Attorney-General in accordance with law that is, if it is submitted by the President or the head of a department if it is a question of law and actually arises in the administration of a department, and the Attorney-General is of opinion that the nature of the question is general and important in other directions than disbursement, and therefore conceives that it is proper for him to deliver his opinion, I think it is final and authoritative under the law, and should be so treated by the accounting officers, even if the question involves a payment to be made." See also notes to the following R. S. sec. 356. Sec. 356. [Opinion of Attorney-General upon questions of law.] The head of any Executive Department may require the opinion of the Attorney-General on any questions of law arising in the administration of his Department. [R. S.] Act of June 22, 1870, ch. 150, 16 Stat. L. 163. I. Attorney-General's duty and au- 1. Jurisdiction of Attorney-Gen- 2. For information of Congress, 3. For information of private in- 4. Only for guidance of head of solicitor of the treasury, and a concurrent jurisdiction in both. Whether questions arising in the concurrent jurisdiction, that is, questions of pure law actually arising in the admisistration of the department, and relating to matters within the direct or supervisory control of its head, shall be referred to the Attorney-General, to the solicitor of the treasury, or to both, is entirely within the discretion of the Secretary of the Treasury. (1893) 20 Op. Atty.-Gen. 658. The Attorney-General will not express an opinion upon a question involving payment of money which has been decided by the comptroller of the treasury, whose decision, under section 8 of the Act of July 31, 1894, ch. 2, 28 Stat. L. 208 (in title TREASURY DEPARTMENT) is conclusive in law. (1904) 25 Op. Atty. Gen. 185. The comptroller of the treasury, rather than the Attorney-General, should pass upon the question of the power of refund and payment out of the treasury of duty overpaid on an importation of merchandise. (1902) 24 Op. Atty.-Gen. 553. See also (1902) 24 Op. Atty. Gen. 85; (1906) 25 Op. Atty.-Gen. 614; (1907) 26 Op. Atty. Gen. 431. Exceptions. The authority conferred upon the comptroller of the treasury by section 8 of the Act of July 31, 1894, 28 Stat. L. 208 (in title TREASURY DEPARTMENT) 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 R. S. sec. 354 and the text section, or to repeal them pro tanto. 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 therefore conceives that it is proper for him to deliver his opinion, it is final and authoritative 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. 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 requests 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. (1904) 25 Op. Atty.Gen. 301, followed (1906) 26 Op. Atty.Gen. 81. See also (1908) 26 Op. Atty.Gen. 609. 2. For Information of Congress The Attorney-General cannot give an opinion on a question submitted by the head of a department solely in compliance with a resolution passed by the House of Representatives and for the information of the House. (1885) 18 Op. Atty. Gen. 107. See also (1861) 10 Op. Atty.-Gen. 164; (1876) 15 Op. Atty.-Gen. 133; (1882) 17 Op. Atty.-Gen. 357. 3. For Information of Private Individuals The legality of orders issued by the commissioner of internal revenue, prohibiting the reclamation of alcohol from the staves of empty spirit packages, in the absence of affirmative proof that such alcohol had been properly tax paid, is not a question upon which the AttorneyGeneral is authorized to give an opinion, where the question has been decided by the Treasury Department and is presented merely because of the request of counsel for parties interested. (1911) 28 Op. Atty. Gen. 596. 4. Only for Guidance of Head of Department The opinion sought 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. For the guidance of the heads of bureaus and other officers of the departments in the discharge of their duties, provision is made by R. S. sec. 361, infra, p. 251. for assistance from the office of the Department of Justice under the direction of the Attorney-General. (1893) 20 Op. Atty.Gen. 609. See also (1884) 18 Op. Atty.Gen. 59; (1891) 20 Op. Atty. Gen. 272; (1891) 20 Op. Atty. Gen. 251. 5. Matters Belonging to Justice Depart ment In (1905) 25 Op. Atty. Gen. 543, the Attorney-General declined to express an opinion upon the question whether proceedings by court-martial would bar proceedings in the civil courts for an assault or other crime involved in the offense of hazing, for the reason that it would be of no assistance to those officers in the proper discharge of their duties, and should such action be taken the matter would peculiarly be one for the consideration of his department. See also (1902) 24 Op. Atty.-Gen. 59; (1908) 26 Op. Atty. Gen. 631. 6. To Review Proceedings of Courts- To review the proceedings of courts-martial, in search of questions of law, is not part of the duty of the Attorney-General. (1852) 5 Op. Atty. Gen. 626. 7. Examination and Approval of Codes or Rules An examination and approval of codes or rules adopted to meet future cases is not required from the Attorney-General. Nor is he required to examine and approve forms of applications, permits, bonds and affidavits, for future use in other departments. (1894) 20 Op. Atty.-Gen. 739. II. QUESTIONS AND SUBJECTS FOR OPINION Only on matter actually pending. The cases in which the Attorney-General is authorized to give opinions to the heads of the executive departments are those that are actually pending in such departments and that involve the legal question submitted. (1897) 21 Op. Atty.-Gen. 558. See also (1871) 13 Op. Atty.-Gen. 535; (1879) 16 Op. Atty.-Gen. 404; (1884) 18 Op. Atty.Gen. 77; (1886) 18 Op. Atty.-Gen. 365; (1889) 19 Op. Atty.-Gen. 331; (1889) 19 Op. Atty. Gen. 342; (1889) 19 Op. Atty.Gen. 414; (1889) 19 Op. Atty.-Gen. 439; (1890) 19 Op. Atty.-Gen. 559; (1890) 19 Op. Atty. Gen. 694; (1890) 19 Op. Atty.Gen. 695; (1891) 20 Op. Atty.-Gen. 51; (1891) 20 Op. Atty.-Gen. 158; (1891) 20 Op. Atty. Gen. 271; (1891) 20 Op. Atty.Gen. 289; (1892) 20 Op. Atty.-Gen. 383; (1892) 20 Op. Atty.-Gen. 440; (1892) 20 Op. Atty. Gen. 463; (1892) 20 Op. Atty.Gen. 465; (1893) 20 Op. Atty. Gen. 536; (1893) 20 Op. Atty.-Gen. 583; (1893) 20 Op. Atty. Gen. 588; (1893) 20 Op. Atty.Gen. 618; (1893) 20 Op. Atty.-Gen. 658; (1893) 20 Op. Atty.-Gen. 667; (1894) 20 Op. Atty. Gen. 723; (1894) 21 Op. Atty.Gen. 7; (1896) 21 Op. Atty. Gen. 369; (1902) 24 Op. Atty. Gen. 59; (1902) 24 Op. Atty. Gen. 118; (1903) 24 Op. Atty.Gen. 556; (1904) 25 Op. Atty.-Gen. 179; (1908) 26 Op. Atty.-Gen. 609; (1908) 27 Op. Atty. Gen. 37; (1908) 27 Op. Atty.Gen. 49; (1911) 29 Op. Atty.-Gen. 99; (1911) 29 Op. Atty.-Gen. 226. Only on question of law. The Attor ney-General is only authorized to give his official opinion upon a question of law submitted to him for that purpose by the President or the head of one of the executive departments. He cannot, therefore, approve or disapprove opinions of assistant attorneys-general attached to particular departments. (1872) 14 Op. Atty.-Gen. 21. See also (1881) 1 Op. Atty.-Gen. 254; (1890) 19 Op. Atty.-Gen. 556; (1894) 20 Op. Atty. Gen. 702; (1894) 21 Op. Atty.Gen. 36. The question 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 citizenship, does not involve any question of law within the meaning of this section, and is not, therefore, 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 execution. (1904) 25 Op. Atty.-Gen. 183. A finding of facts cannot be made by the Attorney-General. (1890) 19 Op. Atty.Gen. 457. See also 3 Op. Atty.-Gen. 3; (1849) 5 Op. Atty.-Gen. 165; (1852) 5 Op. Atty.-Gen. 626; (1861) 10 Op. Atty.Gen. 165; (1881) 18 Op. Atty.-Gen. 487; (1891) 20 Op. Atty.-Gen. 253; (1892) 20 Op. Atty. Gen. 384; (1893) 20 Op. Atty.Gen. 591; (1893) 20 Op. Atty.-Gen. 672; (1895) 21 Op. Atty.-Gen. 174; (1908) 26 Op. Atty.-Gen. 604; (1908) 27 Op. Atty. Gen. 49. Judicial questions. It is not proper for the Attorney-General to give an opinion on questions which are judicial in character and which must be decided by the courts. (1911) 29 Op. Atty.-Gen. 99; (1911) 28 Op. Atty.-Gen. 226. The Attorney-General cannot 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. (1902) 24 Op. Atty. Gen. 69. In (1903) 25 Op. Atty.-Gen. 97, the Attorney-General declined 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 performed, for the reason that the question was essentially a judicial one, amounting to an inquiry whether in regular proceedings a court and jury would hold that officer liable. In (1905) 25 Op. Atty.-Gen. 369, the Attorney-General declined to express an opinion upon the question whether a wilful refusal to give true answers to inquiries concerning statistics which, by section 6 of the Permanent Census Act of March 6, 1902 (in CENSUS, vol. 2, p. 31) 32 Stat. L. 52, the Department of Commerce and Labor was authorized to collect, would subject a person to the penalties prescribed by section 22 of the Act of March 3, 1899, 30 Stat. L. 1020, for the reason that the question was pre-eminently one for judicial and not executive determination. When the only way to settle the question submitted is by judicial proceedings, it would not be proper for the AttorneyGeneral to express an opinion on it. (1887) 19 Op. Atty.-Gen. 56. See also (1891) 20 Op. Atty.-Gen. 277; (1891) 20 Op. Atty.Gen. 210; (1892) 20 Op. Atty.-Gen. 393. Question not arising in department making inquiry. The Attorney-General is not authorized to give an official opinion as to a question of law not arising in the department from which the inquiry is sent, (1891) 20 Op. Atty.-Gen. 51. See also (1862) 10 Op. Atty. Gen. 220; (1891) 20 Op. Atty.Gen. 178; (1891) 20 Op. Atty.-Gen. 249; (1892) 20 Op. Atty.-Gen. 420; (1894) 20 Op. Atty.-Gen. 714. 66 In (1906) 25 Op. Atty.-Gen. 584, the Attorney-General declined to express an opinion upon the question propounded by the Secretary of the Interior as to whether the preliminary draft of title LXVIII., Railway and Telegraph Companies,' submitted to him by the commission to revise and codify the laws of the United States, correctly embodies the provisions of existing law upon the subject, for the reason that the inquiry did not present a question of law arising in the administration of his department. A question which the head of a department is not called upon to answer is not a question of law arising in the administration of his department." (1892) 20 Op. Atty. Gen. 500. A question propounded to the Secretary of a Department which he is not called upon to answer is not a question upon which the Attorney-General is authorized to give an opinion. (1910) 28 Op. Atty.Gen. 534. As to construction of statute. This section and R. S. sec. 357 do not permit the Attorney-General to give an opinion as to the construction or interpretation of a statute except in an actual case which has arisen and is before one of the executive departments calling for its action in the regular course of the administration of its affairs. (1897) 21 Op. Atty. Gen. 511. The duty of applying a statute to its subject matter is one of administration only, and cannot devolve on the AttorneyGeneral. (1892) 20 Op. Atty. Gen. 487. Question of propriety involving executive discretion. The Attorney-General will not express an opinion upon the propriety of the exercise by the head of a department of his official discretion. (1902) 24 Op. Atty.-Gen. 118; (1905) 25 Op. Atty. Gen. 94; (1905) 25 Op. Atty.Gen. 524; (1907) 26 Op. Atty. Gen. 421; (1908) 26 Op. Atty.-Gen. 578. As to interpretation of regulation of practice. A request to interpret a regulation of practice made by the commissioner of patents for his own guidance and that of his subordinates, for the convenient, intelligent, and orderly disposal of the business of his office, cannot be granted. Such a regulation when not specially authorized or demanded by law is not law in the sense in which that term is used in the statute. (1887) 18 Op. Atty. Gen. 521. As to propriety of prosecuting appeal.The propriety of prosecuting an appeal in a matter of public interest pending before a department is not always a matter of law, but may well be one merely of judicial discretion, and does not fall within the competency of the judicial department to give advice thereon. (1876) 15 Op. Atty.Gen. 574. As to advisability of changing law.— This statute limits the function of the Attorney-General in the matter of opinions requested by the heads of departments on questions arising out of the law as it is, and does not seem to call upon him to give his views and opinions upon the advisability of making changes by treaty. (1890) 19 Op. Atty. Gen. 598. Mere moot question. The inquiry must relate not to a mere moot question, but to one which requires immediate action. The answer must be necessary for the protection of the officer making the inquiry or to infer the lawfulness of the action which he is about to take. (1897) 21 Op. Atty.Gen. 509. See also (1897) 21 Op. Atty.Gen. 506; (1897) 21 Op. Atty. Gen. 478. III. STATEMENT OF QUESTION SUB MITTED Question to be specifically formulated.— It has been the invariable rule of the Department of Justice to decline to give an opinion upon any question of law unless it is specifically formulated." (1902) 24 Op. Atty.-Gen. 59; (1907) 26 Op. Atty Gen. 378; (1908) 26 Op. Atty.Gen. 609. A statement of facts must be submitted showing that the question has actually arisen in the administration of his department in an existing case calling for action to authorize the Attorney-General to express an opinion upon a question of law propounded by the head of a department. (1898) 22 Op. Atty.-Gen. 85. A statement of the facts in the nature of an agreed case in an action at law should be embodied in the request for an opinion. (1893) 20 Op. Atty.-Gen. 613; (1902) 24 Op. Atty. Gen. 59; (1902) 24 Op. Atty.Gen. 102; (1907) 26 Op. Atty.-Gen. 378; (1908) 26 Op. Atty.-Gen. 609. See also (1889) 19 Op. Atty. Gen. 397; (1891) 20 Op. Atty.-Gen. 220; (1893) 20 Op. Atty. Gen. 526; (1897) 21 Op. Atty. Gen. 506. An opinion cannot be given upon a general subject, but only on one or more specific questions of law based on the case stated. (1891) 20 Op. Atty.-Gen. 249. IV. OPINIONS AS BINDING PRECEDENTS 1. On Administrative Officers Administrative officers should regard the opinions as law until withdrawn by the Attorney-General or overruled by the courts. (1893) 20 Op. Atty.-Gen. 655. See also (1893) 20 Op. Atty.-Gen. 648; (1894) 20 Op. Atty.-Gen. 719; (1849) 5 Op. Atty. Gen. 97; Berger v. U. S., (1901) 36 Ct. Cl. 247. In (1904) 25 Op. Atty.-Gen. 301, Attorney-General Moody said: "Of course the opinion of the Attorney-General, when rendered in a proper case-as must be the presumption always from the fact that it is rendered must be controlling and conclusive, establishing a rule for the guidance of other officers of the government, and must not be treated as nugatory and ineffective (20 Op. Atty.-Gen. 648; citing 5 Op. Atty. Gen. 97; 6 Op. Atty.Gen. 334; 7 Op. Atty.-Gen. 699; 9 Op. Atty. Gen. 37).' See also article STATUTES AND STATUTORY CONSTRUCTION, vol. 1 of this work, p. 82, § 58. 2. On Succeeding Attorneys-General Questions once definitely answered.-A question once definitely answered by a former Attorney-General and left at rest for a long term of years should be reconsidered only in a very exceptional case. (1894) 21 Op. Atty. Gen. 24; (1902) 24 Op. Atty. Gen. 53. See also (1865) 11 Op. Atty. Gen. 189. 3. On Courts See cases cited in article STATUTES AND STATUTORY CONSTRUCTION, vol. 1 of this work, p. 83, § 58, note 91. When Sec. 357. [Legal advice to departments of war and navy.] ever a question of law arises in the administration of the Department of War or the Department of the Navy, the cognizance of which is not given by statute to some other officer from whom the head of the Department may |