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pilots, * *

pelled by steam, shall be inspected under the provisions of this title.

By the act of May 16, 1906 (34 Stat. 193), section 4426 of the Revised Statutes was amended by adding thereto, among other provisions, the following, which was substantially a reenactment of the act of Janaury 18, 1897 (29 Stat. 489):

All vessels of above fifteen gross tons carrying freight or passengers for hire, but not engaged in fishing as a regular business, propelled by gas, fluid, naphtha, or electric motors, shall be, and are hereby, made subject to all the provisions of section forty-four hundred and twenty-six of the Revised Statutes of the United States relating to the inspection of hulls and boilers and requiring engineers and

*." The act of June 9, 1910 (36 Stat. 462), is entitled "An act to amend laws for preventing collisions of vessels and to regulate equipment of certain motor boats on the navigable waters of the United States.” Its first section reads:

Be it enacted, etc., That the words ‘motor boat' where used in this act shall include every vessel propelled by machinery and not more than sixty-five feet in length, except tug boats and tow boats propelled by steam. The length shall be measured from end to end over the deck, excluding sheer: Provided, That the engine, boiler, or other operating machinery shall be subject to inspection by the local inspectors of steam vessels, and to their approval of the design thereof, on all said motor boats, which are more than forty feet in length, and which are propelled by machinery driven by steam.”

The proviso to this section is the only provision in the act bearing upon the subject of inspection.

Section 9 of this act provides “that all laws and parts of laws only in so far as they are in conflict herewith are hereby repealed.”

As indicated by the quotation from your letter, you have construed the requirement of the proviso to the first section of the act of June 9, 1910, as to the approval of the design of the engine, boiler, and other operating machinery on steam motor boats more than 40 feet in length, as creat

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ing an addition to the inspection of steam vessels provided for by section 4426 of the Revised Statutes. In my opinion this construction is erroneous. The proviso referred to covers the inspection of steam motor boats more than 40 feet in length, as well as the approval of the design thereof by inspectors of steam vessels, and, in my judgment, was intended to supersede the provisions of existing law relating to the inspection of steam vessels so far as respects steam vessels included within the motor-boat class.

The history of the act confirms this view. The bill (S. 7359, 61st Cong. 2d sess.) as originally introduced, did not include vessels propelled by steam in the motor-boat class. It provided “that the words ‘motor boat’when used in this act shall include any vessel as defined in section three of the Revised Statutes, if propelled by machinery other than by steam and less than sixty-five feet in length.” The bill was amended in the Senate so as to provide that “steam vessels not more than forty feet in length used exclusively for pleasure purposes shall be considered as motor boats and be subject hereafter only to the provisions of law relating thereto.” The House amended the Senate bill so as to include in the definition of "motor boats,” steam vessels not more than 65 feet in length, except tugboats and towboats. It also, in lieu of the provision subjecting steam vessels not more than 40 feet in length only to the provisions of law relating to motor boats, provided for the inspection of the engine, boiler, or the operating machinery of steam motor boats over 40 feet in length, and for the approval of the design thereof.

This action of Congress appears to have been contrary to the recommendation made by the Department of Commerce and Labor that this subject be not dealt with in this act. In a letter to the chairman of the Senate Committee on Commerce in regard to the bill, which is incorporated in the House and Senate committee reports thereon (Senate Report No. 587; House Report No. 1162, 61st Cong., 2d sess.), the Acting Secretary of Commerce and Labor said:

“The Department is aware that in the matter of the inspection of hulls and machinery, license of officers, and other particulars the laws make considerable distinction between steamboats and motor boats. It has been urged on the one hand

to recommend that in this bill motor boats be subjected to many of the statutory requirements now prescribed for steam vessels. On the other hand it has been urged to recommend that steam vessels be exempted in this bill from many requirements of law not now applicable to motor boats. While much may be urged by special interests for or against either of these propositions the Department is opposed to the use of this bill as a vehicle to carry such propositions into law. Such propositions may well be considered separately on their merits by Congress.”

Under existing law, only motor boats above 15 gross tons carrying freight or passengers for hire, but not engaged in fishing as a regular business, are made subject to the provisions of section 4426 of the Revised Statutes relating to the inspection of hulls and boilers. All other motor boats are exempt from such inspection. On the other hand, section 4426 requires the inspection of every steam vessel referred to therein without regard to its size. In the act of June 9, 1910, notwithstanding the objection of your department, Congress seems to have intended to remedy this discrimination to some extent by placing certain steam vessels within the motor-boat class, and providing for the inspection, etc., of such only as were over 40 feet in length.

In my opinion, therefore, the act of June 9, 1910, repeals by implication so much of section 4426 of the Revised Statutes as requires the inspection of small steam vessels of the motor-boat class as defined in the act of 1910, and such vessels are now subject to inspection by the local inspectors of steam vessels only to the extent prescribed by that act.

I adhere, however, to the view expressed in the department's letter of March 14, 1911, to the United States attorney for the district of Maryland, to the effect that the act of June 9, 1910, did not repeal prior laws relating to the inspection of motor boats propelled otherwise than by steam. The act of June 9, 1910, contains no provision whatever as to the inspection of this class of motor boats, and it provides that “all laws and parts of laws only in so far as they are in conflict herewith are hereby repealed.” Respectfully,

GEORGE W. WICKERSHAM. The SECRETARY OF COMMERCE AND LABOR.

APPOINTMENTS IN THE DEPARTMENT OF COMMERCE AND

LABOR.

The deputy commissioner of fisheries must be appointed by the Presi

dent, by and with the advice and consent of the Senate, and where such appointment is made by the head of the department it is illegal and the incumbent's status is that of a de facto officer. A new appointment is not made necessary, however, merely by reason of the increase

of the salary of the office. The Chief of the Division of Alaska Fisheries, in the Bureau of Fish

eries, the character of whose duties is not unlike that of the chiefs of divisions generally in the several executive departments, should be

appointed by the Secretary of Commerce and Labor. The agents in the Alaska fur-seal fisheries service and the agents and

inspector in the Alaska salmon fisheries service, whose positions were placed in the Division of Alaska Fisheries by the act of March 4, 1911 (36 Stat. 1439), need not be reappointed, since the mere creation of a new administrative division in which such positions are placed does not establish new offices; the new positions of agent, Alaska salmon fisheries and of warden and deputy wardens, Alaska service, in the Division of Alaska Fisheries, should be filled by appointments made by the President, by and with the advice and consent of the

Senate, as the duties of these officers are manifestly not clerical. The naturalist, fur-seal fisheries, and the two physicans, Pribilof Islands,

placed in the Division of Alaska Fisheries by the act of March 4, 1911 (36 Stat. 1439), should be appointed by the Secretary of Commerce and Labor, but as the Secretary has already made these appointments there is no necessity for their reappointment if the present incum

bents are to be retained. The positions of engraver and electrotyper or photographer in the Bureau

of Coast and Geodetic Survey, and the positions of associate physicist, assistant physicist, assistant chemist, laboratory assistant, aid, and superintendent of mechanical plant, in the Bureau of Standards, fall within the provisions of section 169 of the Revised Statutes and should be filled by appointments made by the Secretary of Commerce and

Labor. The position of local agent, Seattle, Wash., in the Bureau of Fisheries,

the duties of which are strictly clerical, is within the meaning of section 169 of the Revised Statutes and the appointment should be made by the Secretary of Commerce and Labor.

DEPARTMENT OF JUSTICE,

June 1, 1911. Sir: Under date of April 20, 1911, you wrote that, “by reason of certain provisions of the sundry civil appropriation act for the ensuing fiscal year, considered in connection with other legislation and with corresponding provisions of

the current appropriation act, this department is called upon to determine whether in the case of certain positions the reappointment or new appointment of present incumbents is necessary, and whether, where new appointments are required in any case, they must be made by the President by and with the advice and consent of the Senate or may be made by the Secretary of Commerce and Labor.”

You therefore request my opinion upon the several questions set forth below.

1. The office of Deputy Commissioner of Fisheries was created by an item in the sundry civil appropriation act of 1903 (32 Stat. 1102), appropriating $3,000 for the annual salary of such an officer. The act failed to specify how or by whom the appointment should be made, and the place was filled by the appointment of the present incumbent by the head of the Department of Commerce and Labor. The salary of $3,000 has been continued regularly in subsequent appropriation acts, and by the sundry civil appropriation act of March 4, 1911 (36 Stat. 1363, 1435), the compensation is increased to $3,500 per annum, effective July 1, 1911.

Upon this state of facts, you inquire:

“Should the position of Deputy Commissioner of Fisheries be filled by appointment or reappointment, effective July 1, 1911, assuming the intention to be to retain the present incumbent? If such appointment is necessary, must it be made by the President by and with the advice and consent of the Senate or may it be made by the head of the department? If it may not be made by the head of the department, is the existing appointment of the present incumbent a valid one ??

The Constitution provides (Art. II, sec. 2) that all officers of the United States shall be appointed by the President by and with the advice and consent of the Senate, except where, in case of inferior officers, Congress shall otherwise provide by law. The general rule deducible from this

provision is that, in the absence of an express enactment to the contrary, the appointment of any officer of the United States belongs to the President by and with the advice and consent of the Senate. (6 Op. 1; 15 ib. 3, 449; 17 ib. 532; 18 ib. 98, 298; 26 ib. 627.)

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