Treaty of Washington-Cod Liver Oil. tially taken as above in May, 1856, by the Treasury Department, but more definitely repeated by it in January, 1866, and finally adhered to in instructions given during last December, is reasonable, and ought to prevail. The question cannot turn upon the sort of package, whether wood or glass or other, in which the article is imported. The quality relied upon to establish a distinction must inhere in the oil itself. The difference in wording upon the matter in question, between the reciprocity treaty of 1854 and the treaty of 1871, is not important. The fact, then, that such practical construction had been given to the former treaty, and substantially had been continued throughout its existence, is significant as to the intentions of the parties in repeating the provision when dealing with the same subject in 1871. Besides, the qualification "the production of the fisheries of the Dominion of Canada," &c., not only excludes the production of other fisheries, but suggests that the oil is to be such only as fisheries ordinarily produce, and so excludes such oil as has undergone further manipulation to fit it for purposes to which fishery oil cannot be applied. The treaties of 1854 and of 1871 are in this respect essentially commercial, and therefore the expression under consideration should be treated as commercial. Accordingly, in case of an issue properly raised between an importer and the Government, the question whether an article is fish oil within the treaty of 1871 must ordinarily be determined by a jury. As your communication (purposely, I suppose) states no specific facts as to the refining process to which the fish oil in question has been submitted, I assume that only very general suggestions, such as are given above, are called for in reply. Before concluding, it seems pertinent to add that the circumstance that new and improved processes for extracting oil have come into use at the fisheries will not exclude their product from the operation of the treaty of 1871. For instance, it seems that oil extracted from the livers of the fish, by either process mentioned as above by His Excellency the British Minister, is equally commercial fish oil. In such case there is no secondary manipulation of the article; i. e., no mingling of an effect of British skill in some other department of industry with an effect of the same still Relative Rank of Assistant Surgeons. employed in fishing, and therefore nothing to deprive the article of the favor due to it under the treaty provision in question. Very respectfully, your obedient servant, The SECRETARY OF THE TREASURY. Solicitor-General. Approved: CHAS. DEVENS. RELATIVE RANK OF ASSISTANT SURGEONS. On the 9th of October, 1867, C. was appointed to fill an original vacancy in the grade of assistant surgeon in the Army, under the provisions of section 17 of the act of July 28, 1866, chap. 299. He accepted the appointment October 14, 1867. Having previously served as a medical officer of volunteers for more than three years, his appointment entitled him under the same provisions to the rank of captain, and he was accordingly noted as of that rank on the Army Register. Held that the relative rank of C. with other assistant surgeons in the medical corps must be determined by reference to the rank conferred by his appointment (which is that of captain) and the date thereof, and not by reference to the date of his appointment as assistant surgeon, irrespective of the rank conferred thereby. DEPARTMENT OF JUSTICE, June 6, 1878. SIR: Yours of the 3d ultimo, addressed to the AttorneyGeneral, presents for consideration the following case and question: "I have the honor to request your opinion as to a question of rank, under the law, arising in the case of Dr. Archibald B. Campbell, assistant surgeon, with the rank of captain in the United States Army. This officer accepted his commission as assistant surgeon October 14, 1867, and having before served as medical officer of volunteers for more than three years, his rank as captain is noted in the Army Register as of the same date, in accordance with the provision of the act of July 28, 1866, chapter 299, section 17; 2d March, 1867, chapter 146, section 5; Revised Statutes, section 1170. "His name, however, has heretofore been borne on the Army Register below the names of twenty-three captains and assistant surgeons, the dates of whose appointments as as Relative Rank of Assistant Surgeons. sistant surgeons with the rank of first lieutenant in the regular Medical Corps were prior to his appointment in the same corps as captain. "The question which I would propound to you is whether Dr. Campbell's relative rank with other assistant surgeons in the Medical Corps, and his rank in the Army, is to be determined by the date of his appointment as captain or by the date of his appointment and commission as assistant surgeon, without reference to the grades of captain or first lieutenant attached by law to that office? "The accompanying papers present the grounds of Dr. Campbell's claims and the views of the Judge-Advocate-General and the Adjutant-General upon the question." The act of 1866, cited by you, which alone it is necessary here to consider, after increasing the number of assistant surgeons in the Army, thus creating in that class what are called in the act "original vacancies," and after providing that officers of this class should have the rank, &c., of lieutenants of cavalry for the first three years' service, and of captains of cavalry after three years' service, enacted that "all the original vacancies in the grade of assistant surgeon shall be filled by selection by examination from among the persons who have served as staff or regimental surgeons or assistant surgeons of volunteers in the Army of the United States two years during the late war, and persons who have served as assistant surgeons three years in the volunteer service shall be eligible for promotion to the grade of captain." In other words, the act provided that all persons ordinarily belonging to the class of assistant surgeons should for three years' service rank as lieutenants, and afterwards as captains, and that competition for admission in the first instance to the vacancies thereby created should be limited to persons who had served, &c., for two years in the late war-persons having so served for three years to be eligible to promotion as captains; i. e., such three years' service entitling the person, upon successfully undergoing examination, instanter and by mere operation of law to rank as captain. Three years' serv ice in this class being by this act the ordinary standard of merit for the rank of captain, it proceeded to recognize three years' service in a like class during the late war as an equiva Transportation over Land-Grant Road. lent thereof; the word "promotion" in that connection being to the same effect, and signifying a recognition of the service among the volunteers as to some extent performed in the Regular Army. After carefully considering the papers communicated by you, I answer the question above propounded by saying that under the circumstances of Dr. Campbell's previous three years' service in the late war his relative rank as captain began at the date of his appointment and commission as assistant surgeon in the Regular Army. Very respectfully, your obedient servant, The SECRETARY OF WAR. Approved: S. F. PHILLIPS, Solicitor-General. CHAS. DEVENS. TRANSPORTATION OVER LAND-GRANT ROAD. In March, 1877, the Northern Pacific Railroad Company entered into a contract with the Quartermaster's Department to transport Army supplies, at a stated rate per 100 pounds, between certain points in the State of Minnesota, in performing which the company was obliged to transport the stores part of the way over a land-grant railroad. In the contract was a stipulation that no deduction should be made from the rate stated "on account of land grants." Held that the contract is within the act of March 3, 1875, chap. 133, and that the accounting officers of the Treasury have no authority to audit and settle a claim for transportation thereunder, but such claim is required to be settled by suit in the Court of Claims. The prohibition in the act of 1875 is not limited to payments to the company owning the land-grant road over which the transportation was performed. It extends to payments made to any railroad company for transportation over any land-grant road of the sort specified, whether its own or another's. The act of 1875 does not take away the authority of the accounting officers of the Treasury to audit and settle accounts for transportation arising under bona fide contracts made with common carriers other than railroad companies, in cases where such transportation has been partly performed over land-grant roads. DEPARTMENT OF JUSTICE, SIR: Yours of the 7th instant, addressed to the AttorneyGeneral, states the following case and questions: "In March, 1877, the officers of the Quartermaster's Depart Transportation over Land-Grant Road. ment contracted with the Northern Pacific Railroad Company for the transportation of quartermaster stores from Saint Paul, Minn., to Moorhead, in that State, at 84 cents for one hundred pounds. In carrying out this contract the company was obliged to transport the stores for about 131 miles over the Lake Superior and Mississippi Road. This is a landgrant railroad, and, as such, direct payments to the owners for the transportation of United States property appear to be forbiddden by the act of March 3, 1875 (18 Stat., 453). As transportation over this road, in part, was necessary, it was stipulated in the contract between the officers of the Quartermaster's Department and the Northern Pacific Railroad Company that no deduction should be made from the rate above stated on account of land-grants. "Accounts for this transportation, amounting to $17,338.79, have been received at the Quartermaster-General's Office and found to be clerically correct. The Third Auditor states that if the tariff of each company is to be taken as the measure of computation, the amount due the Northern Pacific Railroad Company alone, for transportation over its own line, will strictly exceed the amount which would be due under the contract for the transportation over both roads. It would also appear that in several other cases officers of the Quartermaster's Department and of the Indian Department have contracted with common carriers to transport freight over routes that necessitated its being carried over railroads that had received land-grants; and that stipulations similar to that above mentioned have been inserted in the several contracts, and accounts for this transportation are now pending, involving the question whether they shall be paid irrespective of the land-grants to any of the roads over which the transportation extends. "Your opinion is respectfully requested on the following points: "1. Is the contract first above mentioned legal and valid? "2. Is the stipulation therein on the subject of land-grant roads affected as a part of the contract? "3. Have the Auditor and Comptroller authority to audit and settle the account first above mentioned? 4. Can the Auditor and Comptroller settle and allow |