40). This latter section was amended by the act of March 3, 1897 (29 Stat. 695), by adding, after the word "forfeited," the following: 66* * * and may be sold to the highest bidder, pursuant to the provisions of section thirty-four hundred and sixty, Revised Statutes, if not valued as therein provided at over five hundred dollars; but if valued at more than five hundred dollars the sale shall be made pursuant to the judgment of the court in the proceedings for condemnation or forfeiture." Moreover, section 2 of the act of February 9, 1909, was redrafted from section 3082, Revised Statutes (Cong. Rec., 60th Cong., 2d sess., p. 1681). Section 3082, Revised Statutes, however, merely provides that the merchandise shall be forfeited, and it does not contain the significant addition that it "shall be destroyed." These provisions of law show that, prior to the enactment of the act of February 9, 1909, where what was contemplated was the sale, not the destruction, of the opium, Congress had always provided for a process by judicial condemnation or by judicial condemnation concurrently with summary proceedings. Opium was regarded in the light of a commercial import, and, naturally, when unlawfully imported, its disposition was dealt with as in the case of other unlawful importations. When, however, its importation was entirely prohibited for reasons which are patent, its destruction was decreed, and the provisions as to judicial proceedings were dropped, and it is a fair presumption that these changes were intentionally made because of the entire change in the nature of the enactment and of the purpose which Congress had in view, requiring a more efficacious remedy. Bearing in mind, then, this evident change in the purpose of Congress from mere regulation to absolute prohibition, with its concomitant change to the bare enactment that the opium "shall be destroyed," it fairly follows that a construction which called for a condemnation by judicial proceedings would not be beneficial. If the Government proceeded by way of a libel in rem against seized smoking opium, no question, evidently, could be raised in the case except one, namely, is or is not the article smoking opium. There could be no question of title, or of criminal intent, or of mistake. Such matters are irrelevant under the drastic provisions of the statute. Questions which could be, and are, raised in cases of condemnation of property seized for violation of the customs or navigation laws would have no place in such a proceeding. Such being the case, it is not to be supposed that Congress intended to require the submission to solemn judicial inquiry of the question whether the thing seized is smoking opium, a matter which can be determined on mere inspection by any collector of customs familiar with his duty. Giving full weight to each of the foregoing considerations, I have reached the conclusion that section 2 of the act of February 9, 1909, authorizes the summary destruction, without judicial proceedings, of opium imported in violation of section 1. Respectfully, GEORGE W. WICKERSHAM. The SECRETARY OF THE TREASURY. DEPUTY COLLECTORS OF INTERNAL REVENUE-TENURE OF OFFICE. The term of office of deputy collectors of internal revenue expires automatically upon the appointment of a successor to their own collector, and this limitation of tenure is not affected by section 6 of the act of August 24, 1912 (37 Stat. 555). In order to continue in office after the appointment of a successor to their own collector, deputy collectors must be affirmatively reappointed and recommissioned. DEPARTMENT OF JUSTICE, SIR: I have the honor to reply to your note of November 6, 1912, requesting my opinion on the question stated in a letter dated November 6, 1912, addressed to you by the United States Civil Service Commission. INDEX-DIGEST. ACCOUNTS. [See also Index to Subjects, p. xxi.] OF DECEASED DEPOSITORS. See POSTAL SAVINGS SYSTEM, 17, 18. AUTHORITY TO GRANT RIGHTS OF WAY. See FOREST RESERVES. AIR RIFLES. See ARMS AND MUNITIONS OF WAR, 8. The Title to a School Building in the Town of Petersburg, Alaska, ALASKA FISHERIES, CHIEF OF DIVISION. See COMMERCE AND FUR-SEAL FISHERIES SERVICE, APPOINTMENTS. See PRESIDENT, 1. APPOINTMENTS. AGENTS, ALASKA SALMON FISHERIES SERVICE. See PRESIDENT, 1. CHIEF, DIVISION OF ALASKA FISHERIES. See COMMERCE AND DEPUTY COMMISSIONER OF FISHERIES. See PRESIDENT, 2. ENGRAVER AND ELECTROTYPER, COAST AND GEODETIC SURVEY. LABORATORY ASSISTANT, STANDARDS BUREAU. See COMMERCE LOCAL AGENT, SEATTLE, WASH., FISHERIES BUREAU. See COM- NATURALIST, FUR-SEAL FISHERIES. See COMMERCE AND LABOR, PHOTOGRAPHER, COAST AND GEODETIC SURVEY. See COMMERCE 615 APPOINTMENTS-Continued. PHYSICIANS, FUR-SEAL FISHERIES. See COMMERCE AND LABOR, PHYSICISTS, ASSISTANT AND ASSOCIATE, STANDARDS BUREAU. RECESS APPOINTMENTS. See ARMY, 3, 4. ARANSAS LIFE-SAVING STATION. 1. Acquisition by the United States of Site.-Under the provision in ARID LANDS. See RECLAMATION OF ARID LANDS. ARMS AND MUNITIONS OF WAR. 1. Arms and Munitions of War-Defined. The words "arms or 2. Same. Such articles as come within the definition of "arms or 3. Same. Foodstuffs, ordinary clothing, and ordinary articles of 5. Same. Ammunition means something different from materials for ARMS AND MUNITIONS OF WAR-Continued. 6. Dominican Republic-Exportation Prohibited.-The President's proclamation of October 14, 1905 (34 Stat. 3183), prohibiting the export of arms, ammunition and munitions of war to the Dominican Republic, pursuant to a joint resolution of April 22, 1898 (30 Stat. 739), is still operative under the amended joint resolution of March 14, 1912. 387. 7. Mexico. The exportation of saddles, bridles, canteens, and carbine scabbards by merchants in the United States to other merchants in Mexico falls within the purview of the President's proclamation of March 14, 1912, prohibiting the export of arms or munitions of war to that country. 394. 8. Same-Exportation of Air Rifles.-Paper caps for toy cap pistols could hardly be considered within the prohibition of the President's proclamation of March 4, 1912, issued pursuant to the joint resolution of the same date, forbidding the exportation of arms and munitions of war to Mexico, whereas air rifles might well be regarded within the prohibition. The question, however, is one of fact, dependent upon the character of the articles sought to be imported. 570. 9. Same-Exportation of Gun Grease.-Gun grease is within the prohibition of the President's proclamation of March 14, 1912, issued pursuant to the joint resolution of the same date, forbidding the exportation of arms or munitions of war to Mexico. 414 ARMY. 1. An expert accountant in the Inspector General's Department is not entitled to be placed on the retired list on the ground that he has reached the age of 64 years because he is not an officer of the Army within the meaning of the statutes of the United States conferring the privilege of retirement. 249. 2. Officers.-Acceptance of Office in State National Guard.-An officer on the active list of the Regular Army may accept the office of colonel in the National Guard of a State, without violating the provisions of section 1222 of the Revised Statutes. 298. 3. Officers. Status when Promoted by Recess Appointment.-The acceptance by an Army officer of a recess appointment is provisional only and leaves to the officer a reversionary right to his former office in case his new appointment is not confirmed by the Senate. 598. 4. Same. An Army officer who accepts a recess promotion and thereafter becomes eligible for retirement by reason of age before the adjournment of Congress and before the appointment is acted upon by the Senate is entitled to the rank of his new appointment. Ib. 5. Same.-Commission in Name of Deceased Army Officer.-A commission as major of Cavalry can not be lawfully issued in the name of an officer of the Army whose death occurred after he was nominated to that grade by the President but prior to the time the nomination was confirmed by the Senate. 254. |