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you, was accepted in reliance upon the truth of a representation which was not true, and that as soon as the fact was brought to your attention it was your duty to cause that account to be closed.
You further ask to be advised as to the amount of bonds applied for to which the depositor is entitled.
The second, or Corcoran account, being unauthorized, can not, in my opinion, be treated as a proper basis for the exchange of deposits for postal savings bonds under the provisions of section 10 of the act of June 25, 1910. That section provides “that any depositor in a postal savings depository may surrender his deposit, or any part thereof," in sums designated, and “receive in lieu of such surrendered deposits, under such regulations as may be established by the board of trustees, the amount of the surrendered deposits in United States coupon or registered bonds” in the denominations specified.
This undoubtedly refers to the surrender of a deposit authorized by law, and as the law authorizes a person to have no more than one postal savings account in his or her own right, the privilege which is attendant upon a deposit under the act is confined to the authorized deposit. Respectfully,
GEORGE W. WICKERSHAM. The POSTMASTER GENERAL.
TRANSPORTATION OF PASSENGERS INTO FOREIGN WATERS
AND BACK TO PORT OF DEPARTURE.
The transportation of passengers by foreign vessels from a port in
the United States through domestic and foreign waters, sometimes touching at a foreign port, and returning them to the port of departure, is not in violation of section 8 of the act of June 19, 1886 (24 Stat. 81), as amended by section 2 of the act of February 17, 1898 (30 Stat. 248).
DEPARTMENT OF JUSTICE,
February 12, 1912. Sir: I have had under consideration your letter of December 27, 1911, in which you say that in the course of the administration and enforcement of the coastwise shipping laws of
the United States your department finds it necessary, prior to the opening of navigation on the St. Lawrence River and the Great Lakes during the coming season, to deal with a situation brought to its attention toward the close of the season last past, and to issue appropriate instructions to collectors of customs and other officers concerned.
Your letter states that“ a custom has grown up within recent years on the St. Lawrence River and the Great Lakes, whereby foreign vessels of Canadian ownership have been permitted to take on passengers at United States ports and to transport them on excursions through domestic and foreign waters, returning them to the port of departure. Sometimes these vessels clear from the American port for a Canadian port, in which case the vessel usually makes a call at the latter port long enough to obtain clearance therefrom for the former. When such calls are made at a Canadian port, the passengers are in some cases permitted to land for a short time, and in other cases no such opportunity to land is afforded; but in either case the voyage is practically continuous and the passengers virtually remain with the vessel until her return to the port of departure in the United States. The traffic in question is essentially domestic, since it originates and terminates in the United States, and is supported by the American public, and is only foreign in so far as it passes through foreign ports or waters and is permitted to move in foreign vessels.”
Upon this state of facts you request my opinion66 whether the transportation by foreign vessels of passengers taken on board in the United States under the circumstances mentioned constitutes a violation of section 8 of the act of June 19, 1886 (24 Stat. 81), as amended by section 2 of the act of February 17, 1898 (30 Stat. 248),
The amended statute provides:
“ SEC. 8. No foreign vessel shall transport passengers between ports or places in the United States, either directly or by way of a foreign port, under a penalty of two hundred dollars for each passenger so transported and landed.”
The legislative history of this statute is set out in the opinion rendered you under date of February 26, 1910, in
the case of the Cleveland (28 Op. 204), and need not be repeated.
It is manifest that the passenger transportation referred to by you—excursions from United States ports through domestic and foreign waters, sometimes touching at a foreign port, but returning to the port of departure—does not come within the terms of the statute, which deals only with transportation “ between ports or places in the United States, either directly or by way of a foreign port.” These words imply a transportation beginning at one port or place in the United States and ending at another port or place therein. So, too, the clause imposing a penalty of $200 for “ each passenger so transported and landed implies landing at the port or place of destination.
You state, however, that “the traffic in question is essentially domestic, since it originates and terminates in the United States, and is supported by the American public, and is only foreign in so far as it passes through foreign ports or waters and is permitted to move in foreign vessels.” But this is not sufficient to bring the transportation referred to within the act. I know of no authoritative rule of construction which will permit a penal statute to be construed to cover cases not within its terms simply because it may be identical, or substantially identical, in principle with those embraced in the act. The remarks of Mr. Justice Story in Taber et al. v. United States (1 Story 1, 6), where it was held that a whaling voyage was not a foreign voyage within the meaning of a statute, are very appropriate in this connection:
And it is not decisive in a case of this nature, that the mischiefs to be guarded against and remedied by the act of 1803, are equally as applicable to whaling voyages, as to voyages to foreign ports for the general purposes of trade. Where a penalty, or a provision in the nature of a penalty, is to be enforced, the general rule is, that the statute is to be construed strictly; and the language is not to be enlarged to cover a case standing upon similar grounds, if the ordinary interpretation of the terms would not reach it."
In the recent case of the United States v. Baltimore Ohio Southwestern Railroad Co. (222 U. S. 8, 13), the appropriate rules of statutory construction are thus succinctly stated by Mr. Justice McKenna, in delivering the opinion of the Supreme Court:
“If, however, there be no ambiguity, the words of the statute are the measure of its meaning. If there be ambiguity, the character of the Statute determines for a strict or liberal construction. A criminal statute is strictly construed. Courts are not inclined to make constructive crimes.""
In the case before me I am unable to perceive any ambiguity in the statute; certainly none which warrants the construction suggested by the statement that “the traffic in question is essentially domestic, since it originates and terminates in the United States, and is supported by the American public.” The answer to this suggestion is that Congress in the statute in question was not dealing with that particular kind of traffic, even if it may properly be classed as domestic, but with transportation of passengers “between ports or places in the United States, either directly or by way of a foreign port.” In other words, it was legislating with respect to what is generally termed coastwise traffic, whereas the transportation referred to by you is not coastwise, but outward, into foreign waters or to a foreign port. I am unable to perceive how the fact that passengers so transported are returned to the port of departure in the United States brings the case within the statute.
In the case of the Cleveland, supra, it was held that a tourist voyage around the world on a foreign steamship, the passengers embarking at New York and landing ultimately at San Francisco, was not within the act in question. It was said in that connection that the return of the passengers to the port in California was a mere incident of the object of the voyage, and, so far as the nature of the commerce was concerned, “precisely the same as if, after a voyage to Japan, they had been returned over the same route and relanded in New York ”—the very case now pre
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sented, and which was there considered as clearly not within the statute. In the case of the Cleveland the transportation came within the letter of the statute, since the tourists were actually transported from one port in the United States to another port therein, via a foreign port or ports. But that case was held not to be within the spirit of the statute, because the real object of the voyage was the trip around the world. In the present case the transportation referred to—from a domestic port to a foreign port or into foreign waters and return—is, in my judgment, neither within the letter nor the spirit of the law. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF COMMERCE AND LABOR.
AUTHORITY OF PRESIDENT TO SEND MILITIA INTO A
The Constitution, which enumerates the exclusive purposes for which
the militia may be called into the service of the United States, affords no warrant for the use of the militia by the General Government, except to suppress insurrection, repel invasions, or to execute the laws of the Union, and hence the President has no authority to call forth the organized militia of the States and send it into a foreign country with the Regular Army as a part of an army of occupation.
DEPARTMENT OF JUSTICE,
February 17, 1912. SIR: I have the honor to respond to your note of the 8th instant, in which you ask my opinion upon the following question :
“Whether or not, under existing laws, the President has authority to call forth the organized militia of the States and send it into a foreign country with the Regular Army as a part of an army of occupation, especially should the United States intervene in the affairs of such country under conditions short of actual warfare?”
From very early times, in both England and this country, the militia has always been considered and treated as a military body quite distinct and different from the Regular or standing army, governed by different laws and