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physicist, $1,600; one assistant chemist, $1,800; two assistant physicists, at $1,400 each; two laboratory assistants, at $1,200 each; two laboratory assistants, at $1,000 each; two laboratory assistants, at $900 each; three aids, at $720 each; three aids, at $600 each; one superintendent of mechanical plant, $2,500.
You ask which, if any, of the positions must be filled by appointment made by the President by and with the advice and consent of the Senate and which may be made by the head of the department.
In my opinion all these positions fall within the provisions of section 169 of the Revised Statutes, and should, therefore, be filled by appointments made by you. While, as indicated by their designations, they are in the main positions requiring technical skill, the same is true of many other places in the classified civil service. In 21 Op. 363, 364, Attorney General Harmon held that a “translator, an official whose existence is recognized only in the annual appropriation act, and whose duties are purely clerical,” was a clerk within the meaning of section 169. The same may be said of the places here in question. The act simply provides for the employment of certain persons with technical skill, who are properly to be regarded as clerks rather than officers. As said by Attorney General Pierrepont (15 Op. 6), referring to section 169, “that clause was unquestionably intended to have a very comprehensive scope, and to embrace a variety of subordinate officers in the different departments besides those designated as clerks of the first, second, third, and fourth classes," and in view of the fact that section 169 is a standing provision, it is also fair to assume that Congress did not intend it to be limited to the classes of clerks “recognized by law” at the time of the revision.
In the case of the local agent at Seattle, Wash., I am advised informally by the Bureau of Fisheries that his duties are to be strictly clerical. Respectful.y,
GEORGE W. WICKERSHAM. The SECRETARY OF COMMERCE AND LABOR.
EXTENT OF ATLANTIC AND PACIFIC AND SOUTHERN
PACIFIC GRANTS-MINERAL INDEMNITY SELECTIONS.
Under the act of July 27, 1866 (14 Stat. 292), granting lands to the Atlan
tic & Pacific Railroad Co, and to the Southern Pacific Railroad Co., the grantees are entitled to 20 odd-numbered sections of land per mile on each side of the line, or 40 sections per mile in all, through Territories, and 10 odd-numbered sections per mile on each side of the line, or 20 sections per mile in all, through States, extending laterally from
the line of road. The railroad companies by the third proviso to section 3 of the act of
July 27, 1866 (14 Stat. 295), must obtain their mineral indemnity lands from the odd-numbered sections within 20 miles from the line of road which were entered by individuals prior to the time when the rights of the companies attached, but which have since been canceled or abandoned.
DEPARTMENT OF JUSTICE,
June 2, 1911. SIR: On October 6, 1910, Secretary Ballinger asked this department for a construction of the act of July 27, 1866 (14 Stat. 292), section 18 of which granted lands to the Southern Pacific Railroad Co. That section makes a grant to the railroad company similar to the grant contained in the same act to the Atlantic & Pacific Railroad and subject to all the conditions and limitations, thereof. The grant to the Atlantic & Pacific Co. is as follows:
“SEC. 3. That there be, and hereby is, granted to the Atlantic and Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores, over the route of said line of railway and its branches, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any State and whenever, on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from preemption or other claims or rights, at the time the line of said road is designated by a plat thereof, filed
in the office of the Commissioner of the General Land Office; and whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or preempted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections, and not including the reserved numbers."
And section 18 is as follows:
“That the Southern Pacific Railroad, a company incorporated under the laws of the State of California, is hereby authorized to connect with the said Atlantic and Pacific Railroad, formed under this act, at such point, near the boundary line of the State of California, as they shall deem most suitable for a railroad line to San Francisco, and shall have a uniform gauge and rate of freight or fare with said road; and in consideration thereof, to aid in its construction, shall have similar grants of land, subject to all the conditions and limitations herein provided, and shall be required to construct its road on the like regulations, as to time and manner, with the Atlantic and Pacific Railroad herein provided for.”
The letter of October 6 informed this department that Mr. B. D. Townsend, special assistant to the Attorney General, and a Mr. Hinkley had called at your department and asserted that its administration of these grants had been erroneous, in that Congress intended that their limits should be 20 miles on each side of the line of road through Territories and 10 miles on each side through States, the railroad companies to have the odd-numbered sections. Mr. Ballinger further stated that your department had always construed this grant as it had similar grants to other railroad companies—as giving to the grantees the odd-numbered sections within place limits of 40 miles on each side of the road through Territories and 20 miles on each side of the road through States. The letter of October 6, 1910, presented for my consideration a hypothetical question, and I verbally informed Mr. Ballinger that it is
not within the province of this department to answer questions of that character. On March 10, 1911, however, he again wrote me, referring to the letter of October 6, 1910, and stated that the Southern Pacific Railroad Co. had filed a list seeking a patent to certain lands in California, which lands, he stated, are within the limits of the grant as construed by your department, but more than 10 miles and within 20 miles of the line of road.
Mr. Ballinger and Mr. Lawler, subsequent to the letter of October 6, have advised me that the letter of that date inadvertently referred to Mr. B. D. Townsend as having accompanied Mr. Hinkley in presenting the contention made by him concerning the grant. Mr. Townsend's visit to your department had no reference to this matter.
So far as concerns the quantity of land intended to be granted by it, the act of 1866 appears to me to be quite plain and free from ambiguity, and as the letters from your department do not suggest any basis for doubt as to its proper interpretation, I have examined the report of Mr. Hinkley's oral argument before Judge Ross on demurrer to the bill of complaint in the cases of George D. Roberts v. The Southern Pacific Company, No. 177, and Edmund Burke v. The Southern Pacific Railroad Company et al., No. 192, recently decided in the Circuit Court of the United States for the Southern District of California, for a statement of his construction of the act of Congress. From that report I find it contended that Congress granted to the companies only one-half the quantity allowed them by your department, i. e., that the grant was limited to a territory extending only 20 miles on each side of the line of railroad in Territories and 10 miles in States. In my opinion the contention is directly contrary to the plain reading of the act. Section 3 grants to the company , “every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the Territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any State
That the grantees were to have 40 odd-numbered sections through Territories and 20 odd-numbered sections through States, bisected by the line of road, is as plain as the English language can make it; and unless some other provision of the grant renders this view absurd or unjust, we are not permitted to depart from it. As said by the Supreme Court in Lake County v. Rollins, 130 U. S. 662, 670:
“To get at the thought or meaning expressed in a statute, a contract, or a constitution, the first resort, in all cases, is to the natural signification of the words, in the order of grammatical arrangement in which the framers of the instrument have placed them. If the words convey a definite meaning which involves no absurdity, nor any contradiction of other parts of the instrument, then that meaning, apparent on the face of the instrument, must be accepted, and neither the courts nor the legislature have the right to add to it or take from it. Newell v. People, 7 N. Y. 9, 97; Hills v. Chicago, 60 Illinois, 86; Denn v. Reid, 10 Pet. 524; Leonard v. Wiseman, 31 Maryland 201, 204; People v. Potter, 47 N. Y. 375; Cooley, Const. Lim. 57; Story on Const., sec. 400; Beardstown v. Virginia, 76 Illinois, 34. So, also, where a law is expressed in plain and unambiguous terms, whether those terms are general or limited, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction. United States v. Fisher, 2 Cranch, 358, 399; Doggett v. Florida Railroad, 99 U.S. 72.”
This grant to the Southern Pacific Railroad Co. is similar to others of the same character made to other Pacific railroads, all of which have always been considered, if not actually construed, by your department and the courts in accordance with this view, and it would require quite a clear error, after this long period of construction and enforcement, to warrant a reversal. I need not refer to the numerous decisions which at least assume that the company is entitled to 40 and 20 odd sections, through Territories and States, respectively, divided by the line of road, as they are well known to your department.