MANUFACTURE AND IMPORTATION OF SMOKING OPIUM. The act of February 9, 1909 (35 Stat. 614), prohibiting the importation of opium for other than medicinal purposes, did not repeal that portion of the act of October 1, 1890 (26 Stat. 620, 621), which relates to the manufacture of smoking opium in the United States.

Neither the act of February 9, 1909, nor any other act has abrogated or dispensed with the necessity of observing each and all of the requirements of section 37 of the act of October 1, 1890, as to notices, inventories, bonds, books, returns, etc.

It is a fundamental and familiar rule that a repeal by implication is never held to take place unless there is an irreconcilable repugnancy between the earlier and later acts, and that if by any permissible construction both may stand and be enforced there is no such repeal.

DEPARTMENT OF JUSTICE,

May 29, 1911.

SIR: I have the honor to reply to the note of the Assistant Secretary of the Treasury, of date April 18, 1911, transmitted by your direction, in which my opinion is requested, whether the act of February 9, 1909 (35 Stat. 614), has repealed that portion of the act of October 1, 1890 (26 Stat. 620, 621), which relates to the manufacture or preparation of opium for smoking.

The pertinent portion of the earlier act is as follows:

"SEC. 36. That an internal-revenue tax of ten dollars per pound shall be levied and collected upon all opium manufactured in the United States for smoking purposes; and no person shall engage in such manufacture who is not a citizen of the United States and who has not given the bond required by the Commissioner of Internal Revenue.

"SEC. 37. That every manufacturer of such opium shall file with the collector of internal revenue of the district in which his manufactory is located such notices, inventories, and bonds, shall keep such books and render such returns of material and products, shall put up such signs and affix such number to his factory, and conduct his business under such surveillance of officers and agents as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may, by regulation, require. But the bond required of such manufacturer shall be with sureties satisfactory to the collector of internal revenues and in a penal sum of not less than five thousand dollars; and the sum of

said bond may be increased from time to time and additional sureties required at the discretion of the collector or under instructions of the Commissioner of Internal Reve

nue.

“SEC. 38. That all prepared smoking opium imported into the United States shall, before removal from the custom-house, be duly stamped in such manner as to denote that the duty thereon has been paid; and that all opium manufactured in the United States for smoking purposes, before being removed from the place of manufacture, whether for consumption or storage, shall be duly stamped in such permanent manner as to denote the payment of the internal-revenue tax thereon.

"SEC. 39. That the provisions of existing laws governing the engraving, issue, sale, accountability, effacement, cancellation, and destruction of stamps relating to tobacco and snuff, as far as applicable are hereby made to apply to stamps provided for by the preceding section.

"SEC. 40. That a penalty of not more than one thousand dollars, or imprisonment not more than one year, or both, in the discretion of the court shall be imposed for each and every violation of the preceding sections of this act relating to opium by any person or persons; and all prepared smoking opium wherever found within the United States without stamps required by this act shall be forfeited."

The later act provides:

"That after the first day of April, nineteen hundred and nine, it shall be unlawful to import into the United States opium in any form or any preparation or derivative thereof: Provided, That opium and preparations and derivatives thereof, other than smoking opium or opium prepared for smoking, may be imported for medicinal purposes only, under regulations which the Secretary of the Treasury is hereby authorized to prescribe, and when so imported shall be subject to the duties which are now or may hereafter be imposed by law.

"SEC. 2. That if any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any opium or any preparation or derivative thereof contrary to law, or shall receive, conceal, buy, sell, or in any

manner facilitate the transportation, concealment, or sale of such opium or preparation or derivative thereof after importation, knowing the same to have been imported contrary to law, such opium or preparation or derivative thereof shall be forfeited and shall be destroyed, and the offender shall be fined in any sum not exceeding five thousand dollars nor less than fifty dollars, or by imprisonment for any time not exceeding two years, or both. Whenever, on trial for a violation of this section, the defendant is shown to have, or to have had, possession of such opium or preparation or derivative thereof, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant shall explain the possession to the satisfaction of the jury."

It is a fundamental and familiar rule that a repeal by implication is never held to take place unless there is an irreconcilable repugnancy between the earlier and later acts, and that if by any permissible construction both may stand and be enforced there is no such repeal.

It will be noticed that with the exception of a portion of a single sentence the first of these acts relates exclusively to the manufacture or preparation within this country of opium for smoking purposes. The single exception to this is the provision that "all prepared smoking opium imported into the United States shall, before removal from the customhouse, be duly stamped in such manner as to denote that the duty thereon has been paid." This portion of the earlier act is in great part an internal-revenue measure and, as already said, relates exclusively to the manufacture or preparation of smoking opium in this country and may be enforced in all its aspects independently of and notwithstanding any law either forbidding or regulating the importation of such opium. It relates to and regulates only the domestic preparation of the drug and is not affected by any act forbidding or regulating the importation of the same article. The two acts are quite independent of each other and relate to different subjects and the former may well continue to regulate the domestic preparation while the latter forbids the importation of the same drug. The former is not solely an internal-revenue measure, but is also a regulation of the preparation for use of a deleterious

article, and if the later act should entirely prevent the importation of opium yet the same reasons both as a revenue measure and a regulation which operated to produce the earlier act would still exist, for there was still opium here which might be prepared for smoking. But if the later act did not entirely prevent such importation then there is further reason for such a law as that contained in the earlier act.

While with the single unimportant exception above mentioned the earlier act relates exclusively to domestic preparation, the later act relates exclusively to the importation of opium and, subjected to the accepted test above mentioned, no reason is perceived why both these acts may not well stand and be enforced.

An act which taxes or regulates the domestic manufacture or preparation of an article may well be entirely consistent with another and later act which absolutely prohibits the importation of such article. The former act would operate upon the domestic production thereof and former importations and subsequent importations made in violation of the later act.

But if the article is not one of domestic production and its importation is actually prevented by the later act, yet no repugnancy would exist between the two acts, but after the exhaustion of the supply on hand it would only present a condition where there is no subject upon which the former law could operate. Its provisions, however, would remain in force to be executed whenever occasion therefor should arise.

I have, therefore, no doubt that the provisions in question of the earlier act are still in full force and may be executed notwithstanding the later act of February 9, 1909. And I am further of the opinion that nothing in the above act of 1909 or in any other act has abrogated or dispensed with the necessity of observing each and all of the requirements of section 37 of said first-mentioned act as to notices, inventories, bonds, books, returns, etc., as there provided. Respectfully,

GEORGE W. WICKERSHAM.

THE SECRETARY OF THE TREASURY.

INSPECTION OF STEAM MOTOR BOATS.

The engine, boiler, or other operating machinery of a steam motor boat more than 40 feet in length is subject to inspection by the local inspectors of steam vessels, and the design thereof is subject to their approval, by the proviso to section 1 of the act of June 9, 1910 (36 Stat. 462), which act repealed by implication so much of section 4426 of the Revised Statutes as requires inspection of small steam vessels of the motor-boat class, but it did not repeal prior laws relating to the inspection of motor boats propelled otherwise than by steam.

DEPARTMENT OF JUSTICE,

May 29, 1911.

SIR: I have the honor to acknowledge the receipt of your letter of the 10th instant, in which you say: 66* * * In issuing regulations under the motor-boat act (see Department Circular No. 225, inclosed herewith), a ruling was made to the effect that the approval of the design of the engine, boiler, and other operating machinery of steam motor boats more than 40 feet, but not more than 65 feet in length, required by the act of June 9, 1910, was in addition to the inspection of steam vessels provided for by section 4426 of the Revised Statutes (see rule 13). The correctness of this regulation has been questioned by the Honorable William E. Humphrey, M. C., in a letter to the department, dated May 5, 1911, which, with its inclosures, is transmitted herewith. In view of the doubt thus raised as to the validity of the regulation, I have the honor to request your opinion as to whether the same is in conformity with law, or in conflict therewith."

No actual case is presented involving the application of the regulation. This being so, I might well decline to render an opinion upon the question submitted. (20 Op. 536; 21 ib. 109, 509, 568.) As it appears, however, that in making this regulation your department was influenced somewhat by the views expressed by this department in a letter to the United States attorney for the district of Maryland, dated March 14, 1911, relating to the inspection of a gasoline motor boat, which was called to your attention, I feel that I should comply with your request.

Section 4426 of the Revised Statutes provides:

"SEC. 4426. The hull and boilers of every ferry-boat, canal-boat, yacht, or other small craft of like character, pro