record is a creditable one. For your guidance in disposing of this application you ask my opinion as to whether section 11 of the act referred to applies to officers of the Marine Corps. The act of March 3, 1899 (30 Stat., 1007), was evidently drafted with care and with a clear understanding of the distinctions between the Navy and the Marine Corps. The first seventeen sections, in definite terms, apply to the Navy; then follow the sections which, with equal exactness, apply to the Marine Corps. These two arms of the service are recognized and treated throughout the entire statute as separate and distinct, and for each of them appropriate provision is made. Section 11 reads: "That any officer of the Navy, with a creditable record, who served during the civil war, shall, when retired, be retired with the rank and three-fourths the sea pay of the next higher grade." The intention of the Congress, as expressed in the language of the act, must guide in its interpretation. The mere fact that one set of officers, not mentioned, are as meritorious as those expressly provided for, can not justify a construction liberal enough to give to the former benefits granted in clear terms only to the latter. The unambiguous language of section 11 makes it apply only to officers of the Navy, and there is nothing within the entire act which in any way indicates that any officer not in the Navy was intended to be included within the provisions of such section. I am therefore of the opinion that section 11 does not apply to officers of the Marine Corps, and have the honor to so advise you. I return herewith the inclosures contained in your letter. Respectfully, The SECRETARY OF THE NAVY. P. C. KNOX. INDEX-DIGEST. [See also Index to Subjects, p. xiii.] ALIENS. Right 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 States, 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. 531. ALIEN CONTRACT LABOR LAWS. See CHINESE, 13, 15. AMERICAN ARTIST. See CUSTOMS LAWS, 15. AMERICAN EPHEMERIS AND NAUTICAL ALMANAC. Number of Copies Authorized to be Printed.-The Secretary of the Navy is authorized, 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 "additional" copies thereof as he may determine necessary "for the public service and for sale to navigators and others." 663. AMERICAN NAUTICAL ALMANAC. See AMERICAN EPHEMERIS AND NAUTICAL ALMANAC. APPOINTMENT. See ARMY OFFICERS, 1, 6; PRESIDENT, 1. APPRAISER OF CUSTOMS AT PITTSBURG, PA. Revival of the Office. The office of appraiser of customs in the collection district of Pittsburg, 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. 613. APPROPRIATIONS. Act of March 3, 1903 (32 Stat., 1059)-Census Office.-The unexpended balance of the census appropriation referred to by the proviso in the act of March 3, 1903 (32 Stat., 1059), is available for census purposes, notwithstanding the specific appropriations made therefor by the act of February 25, 1903 (32 Stat., 896). 699. 711 ARMY OFFICERS. 1. Appointment.-Indirect Dismissal.-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. 89. 2. Relative Jurisdiction of Civil and Military Courts in 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 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 tried for the offense by a military court. 570. 3. Same. A court-martial has no jurisdiction 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. Ib. 4. Relative Rank-Promotions.-The mere promotion of two officers in different departments of the Army does not, under sections 1603 and 1219, Revised Statutes, disturb their preexisting relative rank. 74. 5. Same. Section 1219, Revised Statutes, does not purport to regulate merely the relative rank of officers in the same department of the Army, but is intended to fix the relative rank of the various officers of different departments of the Army. Ib. 6. Same. There is no warrant, therefore, for holding that promotions are appointments where the officers promoted are in different departments of the Marine Corps, but are not appointments where they are in the same department. Ib. ASSAY. See CUSTOMS LAWS, 23, 24. ATTORNEY-GENERAL.-OPINIONS. 1. Hypothetical Questions-Questions involving Discretion and Judgment. The Attorney-General declines to express 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 administrative discretion and judgment, and of practicability and advisability, which must be determined solely by the Postmaster-General. 118. 2. Matters for Judicial and not Executive Determination.-The Attorney-General can not properly pass upon the question whether ATTORNEY-GENERAL.-OPINIONS-Continued. 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. 69. 3. Payments out of the Treasury. 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. 85. 4. Same Power of Refund.-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. Opinions of March 26, 1901 (23 Opin., 431), and July 20, 1901 (23 Opin., 468), followed. 553. 5. Question not Predicated upon a Case Actually Arising.-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 retroactive 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. 556. 6. Same. 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. 59. 7. Question Committed to Judicial Review.-Nor will the Department consider any question committed to judicial review. To do so might bring it into conflict with a judicial tribunal. Ib. 8. The conclusions of a Federal court, until reversed by a higher court, are binding upon the Attorney-General. Ib. 9. Question once Definitely Answered.—The principle announced in the opinion of Attorney-General Olney (21 Opin., 23), that “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," concurred in. 53. 10. Statement of Facts must Accompany Request.-It is the invariable rule of the Department of Justice to decline to give an opinion except when the request is accompanied by a statement or finding of the facts involved. 102. ATTORNEY'S FEES. See LOYAL CREEK CLAIMS. CAMEL'S HAIR NOILS. See CUSTOMS LAWS, 8. CENSUS OFFICE. 1. Appropriation act of March 3, 1903 (32 Stat., 1059).-The unexpended balance of the census appropriation referred to by the proviso in the act of March 3, 1903 (32 Stat., 1059), is available for census purposes, notwithstanding the specific appropriations made therefor by the act of February 25, 1903 (32 Stat., 896). 699. 2. 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 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. 64. 3. 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 regulations may relate to age, experience, rating, proposed time of service, etc. Ib. 4. 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 dismissing an efficient employee to give him another chance. Ib. 5. 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. 78. 6. 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. Ib. CERTIFICATE OF MERIT. 1. Enlisted Man-Military Service.-The President may grant a certificate of merit to an enlisted man of the Army who has distinguished himself in the service and is recommended for such certificate by the commanding officer of his regiment or by the chief of the corps to which he belongs, notwithstanding the fact that he is not in the military service at the time his case reaches the President for consideration, and, if granted the certificate, |