the Hon. Robert G. Cousins, relative to the legal status of certain Indians in Iowa and the jurisdiction of the State of Iowa over them, with respect to crimes committed either on the Indian reservation or outside of its limits.

Your letter does not request an opinion on any specific question, but only "upon the questions set out in the communication submitted." Referring to this communication, it appears that my opinion is requested upon various questions affecting the status of the Indian tribes in question, and involving generally the application of the civil and criminal laws of the State of Iowa to such Indian tribes and its jurisdiction over them. The purpose for which these opinions are requested is, as stated in the communication submitted to you, "to secure such legislation as may be deemed necessary."

I regret to say that compliance with your request would involve a departure from the settled policy of this Department with respect to such opinions. My predecessors have repeatedly held that no opinion should be given upon any question of law unless it is "specifically formulated" in a case "actually arising in the administration of a department, and accompanied by a statement or finding of the facts involved." (23 Opin., 330, 473, and the opinions there cited.)

Moreover, your correspondents in effect ask me to review the decisions of the United States circuit court for the northern district of Iowa in the case of Ma-Ka-Ta- Wah-Qua-Twa v. Rebok (111 Fed. Rep., 12), and Peters v. Malin (111 Fed. Rep., 244). In these cases the status of these Indians, and the application of the laws of Iowa to them, were discussed at length by Judge Shiras, and his conclusions, until reversed by a higher court, are necessarily binding upon this Department. Even if the question should be regarded as still sub judice, this Department has uniformly refused to consider any questions that have been committed to judicial review. To do so might "bring this Department into conflict with a judicial tribunal," and this has been held to be an adequate reason for a refusal to give an official opinion. (23 Opin., 221.)

For the reasons suggested, I am unable to comply with your request.

Respectfully,

JAMES M. BECK, Acting Attorney-General.

The SECRETARY OF THE INTERIOR.

CUSTOMS LAW-INFORMER'S COMPENSATION.

Notwithstanding the absence of the certificate provided for by section 6 of the act of June 22, 1874 (18 Stat., 186), the Secretary of the Treasury is authorized, under section 4 of that act, to award compensation to a Canadian customs official who furnished information which resulted in a forfeiture of certain diamonds for violation of section 3082, Rev. Stat.

A deputy collector of customs, with headquarters in the customs district of Vermont, but stationed for service at Montreal, Canada, is a "chief officer of customs" within the meaning of section 4 of the abovenamed act, which authorizes the payment of a reward for original information leading to the discovery of any fraud upon the customs

revenue.

DEPARTMENT OF JUSTICE,

June 4, 1902.

SIR: Your letter of May 20 informs me that a Canadian. customs officer claims compensation as informer under section 4 of the act of June 22, 1874, in a seizure case; that as a result of the information received from this man the Government secured about $31,000 from the forfeiture, by judicial proceedings, of certain diamonds for violation of section 3082, Revised Statutes; that section 6 of the act of 1874 provides that no payment shall be made to an informer in any case wherein judicial proceedings are instituted unless the claim to reward is established to the satisfaction of the court and a certificate of the value of the services given by the court to the Treasury, which certificate, however, shall not be conclusive upon the Secretary as to the value of the services; that in the present case the court holds that section 6 attempts to confer upon the judiciary a power not judicial, and that the courts are without jurisdiction to make the required certificate; that thereupon the point has been raised in favor of the informer that since section 6 has been declared in effect to be unconstitutional and inoperative,

section 4 of that act remains in full force, and that under section 4 the authority of the Secretary to make an award is clear, and therefore the award in this case may now be made, notwithstanding the absence of the certificate required by section 6. Upon these facts you submit to me the question whether or not your Department is authorized to award compensation in the absence of the certificate of section 6. Section 4 (act June 22, 1874, 18 Stat., 186) provides that

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* * "whenever any person not an officer of the United States shall furnish to a district attorney, or to any chief officer of the customs, original information concerning any fraud upon the customs revenue, perpetrated or contemplated, which shall lead to the discovery of any duties withheld, or of any fine, penalty, or forfeiture incurred * such compensation may, on such recovery, be paid to such person so furnishing information as shall be just and reasonable, not exceeding in any case the sum of five thousand dollars."

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The information in this case was given to a deputy collector of customs, with headquarters in the customs district of Vermont, but stationed for service at Montreal, Canada. He thus appears to have been in reality the "chief officer of the customs" who was available for the receipt of this information in order that it might be promptly and effectively used by this Government. In 20 Opin., 690, Mr. Olney holds that the information, in order to justify the reward, must be conveyed directly to the chief officer of the customs; but he is also of opinion that there may be circumstances where information transmitted to or through an inferior officer may properly be considered as coming to the chief officer within the meaning of the statute. Under the facts of this case I think this is an instance within the exception or concession of Mr. Olney's opinion. The deputy collector appears to have been the chief officer of customs in the service in Canada.

Section 6 of the act provides for a certificate of the value of the informer's service, as above stated, by the court or judge before whom the subsequent forfeiture proceedings are instituted.

In Ex parte Riebeling (70 Fed. Rep., 310) it is decided, in

accordance with well-known precedent authorities holding that the courts are without jurisdiction to perform any other than judicial functions, that section 6" is an attempt to confer upon the court or judge a power not judicial, which Congress has no power under the Constitution to require the judiciary to exercise, and accordingly the courts and judges are without jurisdiction to make such certificate." This decision, which is carefully considered, reviews and approves the decision to the same effect in Ex parte Gans (17 Fed. Rep., 471), which was in all essential respects similar to the Riebeling case.

These decisions intimate that section 6 was intended to modify or limit the power given under section 4; and state that the provision may have been intended as a check on the Secretary; that nevertheless the section presents the anomaly of confounding or confusing judicial and executive functions. "The duty attempted to be imposed by section 6 upon the courts is simply clerical in its nature, which may be as conveniently and efficiently discharged by any competent member of the Executive Department." It is also noted that section 6 expressly provides that the Secretary is not bound by the certificate of the court as to the amount of the compensation awarded.

I think these opinions are conclusive on the point. They clearly amount to a decision that section 6, so far as attempting to impose an executive function upon the courts, is unconstitutional and inoperative. This gives to section 4 full and unqualified effect in cases in which there are, as well those in which there are not, judicial proceedings. I therefore have the honor to advise you that the Treasury Department is authorized to award compensation in the case. submitted, notwithstanding the absence of the certificate provided for by section 6 of the act of June 22, 1874.

Very respectfully,

JOHN K. RICHARDS,

Acting Attorney-General.

The SECRETARY OF THE TREASURY.

CENSUS OFFICE-EMPLOYMENT-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 Permanent Census Office, is not absolute and regardless of qualifications. Such preference is to be given if the person is equally qualified; but the appointing power still retains and must exercise its discretion and judgment in determining the fitness for the required work of the persons to be selected and retained. To this end the Director of the Census may fix a reasonable standard of fitness, and guard it by reasonable regulations intended and calculated to secure an efficient permanent force. Such regulations may relate to age, experience, rating, proposed time of service, etc. The preference given by the statute is one with respect to the place sought or held; but if a person of the preferred class fails to secure the place he seeks, or to retain the one he has, there is no obligation on the appointing power to create a vacancy by dismissing an efficient employee to give him another chance.

DEPARTMENT OF JUSTICE,

June 5, 1902.

SIR: I have your letters of the 23d and 31st ultimo and of the 3d instant, inclosing communications from the Director of the Census, in which are propounded certain questions concerning the interpretation of the statutes requiring preference to be given to honorably discharged soldiers and sailors, and their widows and orphans, in appointment or retention in the public service. An early opinion upon the points presented is urged, to aid the Director of the Census in selecting the force of 800 clerks who are to be retained, the 1st of next July, in the Permanent Census Office.

The statutes referred to, presented in chronological order, are as follows:

By the act of March 3, 1865, carried into the Revised Statutes (approved June 22, 1874) as section 1754, it is provided:

"Persons honorably discharged from the military or naval service by reason of disability resulting from wounds or sickness incurred in the line of duty, shall be preferred for appointments to civil offices, provided they are found to possess the business capacity necessary for the proper discharge of the duties of such offices."

A similar declaration of public policy, with respect to re