Exchange of Gold Bars for Gold Coin. facie right was overthrown by the judgment of that body; but now that that prima facie right is overthrown, Mr. Wise must be treated and considered in disposing of the question before me as never having had a right to a seat in the Fiftyfirst Congress. As a consequence, therefore, Mr. Wise can not enjoy a privilege belonging to a member of the House when he is not a member. It must be remembered that the decision of the House against Mr. Wise relates back to the very beginning of the term which was the subject of contest, so that Mr. Waddill became entitled to receive pay for all that part of the term during which Mr. Wise was the de facto incumbent. The judgment of the House must necessarily have that retroactive effect, because the right to the seat is given by the election and not by the judgment, which merely declares which party was elected. At the same time, as the intruder was admitted to a seat on a color of title thereto, his acts have validity so long as his de facto incumbency existed; but it would hardly be in accordance with reason to allow a mem ber, after being unseated, to go on exercising any privilege of membership when he is not even a de facto member. Mr. Wise, the unseated member, and Mr. Waddill, the seated member, can not both have the privilege in question as Representatives from the same Congressional district. It results, therefore, that, in my opinion, Mr. Wise has no right to the free use of the mail upon the facts presented. I have the honor to be, yours, very respectfully, W. H. H. MILLER. The POSTMASTER-GENERAL. EXCHANGE OF GOLD BARS FOR GOLD COIN. Opinion of July 1, 1890 (ante, p. 576), construing the act of May 26, 1882, chapter 190, with respect to the exchange of gold bars for gold coin, re-affirmed. DEPARTMENT OF JUSTICE, SIR: As requested, I have carefully examined the opinion given to you by Acting Attorney-General Taft, under date of Exchange of Gold Bars for Gold Coin. July 1 instant, in relation to the question whether the statute of May 26, 1882, authorizing the receipt by superintendents of mints and the New York assay office of United States gold coin in exchange for gold bars is mandatory or only enabling in its character. I find myself constrained to concur in the opinion of the Acting Attorney-General. It is hardly worth while to go into a further statement of the reasons upon which this conclusion is based; suffice it to say that if this statute confers a discretion, such discretion is conferred upon subordinate officers, and is broader than any discretion as to the same subject-matter conferred upon the Secretary of the Treasury. By the act of June 22, 1874 (18 Stat., 202), the Secretary was authorized to transfer to the office of the assistant treasurer at New York, from the bullion fund of the assay office at New York, refined gold bars bearing United States stamp of fineness, weight, and value, or bars from any melt of foreign gold coin or bullion of standard value to or above that of the United States, and apply the same to the redemption of coin certifi cates, or in exchange for gold coin at less than par and not less than the market value, subject to such regulations as he may prescribe. Here was a discretion vested in the Secretary, to be exercised at the office of assistant treasurer at New York, to exchange bars for coin. The act of 1882 authorizes these subordinate officers, namely, the superintendents of the coinage mints and of the United States assay office at New York, to make the exchange at their respective places. It may be doubtful whether the act of 1882 does not operate as a repeal of the act of 1874, so far as affects this question of exchanging bars for coin; but if it does not work such repeal, if it gives a discretion at all, it gives to at least one of these subordinate officers, namely, the superintendent of the assay office in New York, a discretion which might seriously conflict with that of the Secretary. As stated in the opinion of the Acting Attorney-General, this is a discretion which each of the officers to whom it is granted might exercise in a different way, if it be a discretion; and also a discretion in each officer not subject to the control of the Secretary. It is difficult to believe Congress ever intended such a state of things to exist. It is much more in harmony with the plain Directions on Mail Matter. purpose of the act, namely, the avoidance of the expense of coinage, to treat the act as mandatory. Second. As to the question whether 4 cents a hundred dollars, the supposed expense of making the bars, can be charged, my conclusion also concurs with that of the Acting Attorney-General. As I understand it, in ascertaining the value of these gold bars the unbroken practice of the Government has been to fix the same solely by the amount of gold they contained, and without reference to the expense of making the bars. This being so, it is hardly to be supposed that Congress intended that another element should be considered in ascertaining the value for the purpose of this exchange. Very respectfully, W. H. H. MILLER. The SECRETARY OF THE TREASURY. DIRECTIONS ON MAIL MATTER. The following words printed upon the wrapper of a newspaper sent by mail, namely, "Sample copy; if not called for by party to whom addressed postmaster please deliver to some local teacher," held to be a direction for delivery within the meaning of section 1 of the act of January 20, 1888, chapter 2, and therefore permissible. DEPARTMENT OF JUSTICE, July 17, 1890. SIR: I have examined the question submitted by your letter of July 8 instant, whether the Penman's Journal, a newspaper printed in the city of New York, can lawfully print upon the wrappers inclosing its "sample copies" an instruction to postmasters in the following words, to wit: "Sample copy. If not called for by party to whom addressed postmaster please deliver to some local teacher." In a supplemental note of July 11 the acting PostmasterGeneral advised me that the Penman's Journal is rated as second-class matter. The statute upon this subject is found in volume 25, United States Statutes at Large, page 1, and is as follows: Directions on Mail Matter. "Mailable matter of the second class shall contain no writing, print, or sign thereon in addition to the original print, except as herein provided, to wit: The name and address of the person to whom the matter shall be sent, index figures of subscription book either printed or written, the printed title of the publication and the place of its publication, the printed or written name and address without addition of advertisement of the publisher or sender, or both, and written or printed words or figures, or both, indicating the date on which the subscription to such matter will end, the correction of any typographical error, a mark except by written or printed words, to designate a work or passage to which it is desired to call attention, the words 'sample copy' when the matter is sent as such, the words 'marked copy' when the matter contains a marked item or article, and publishers or news agents may inclose in their publications, bills, receipts, and orders for subscriptions thereto, but the same shall be in such form as to convey no other information than the name, place of publication, subscription price of the publication to which they refer and the subscription due thereon." Then follow provisions with reference to third and fourth class matter, and the section concludes as follows: "In all cases directions for transmit, delivery, forwarding, or return shall be deemed part of the address; and the Postmaster-General shall prescribe suitable regulations for carrying this section into effect." It is clear, I think, that if the words to which your ques tion is directed are permissible at all, it is by reason of the portion of the section last quoted "In all cases directions for transmit, delivery, forwarding, or return shall be deemed part of the address.” It would not be questioned that a direction that in case of non-delivery the postmaster should return to the sender, giv ing his name, would be lawful; neither do I suppose that it would be questioned if the direction were, in case of non-delivery to the original address, that it should be delivered to some second person named, such direction would be lawful. The only difference in the case under consideration is that the direction to the postmaster is to deliver to some one of a class. I am unable to see that in this fact there lurks any Attorney-General. violation of law. It is a direction for delivery, as I think, within the meaning of the language of the statute, and in my judgment, therefore, is lawful. I have the honor to be, very respectfully, yours, The POSTMASTER-GENERAL. W. H. H. MILLER. ATTORNEY-GENERAL. It is not within the province of the Attorney-General to consider questions looking to changes in maritime law to be accomplished by treaty with foreign Governments. DEPARTMENT OF JUSTICE, July 17, 1890. SIR: Your communication of May 20 ultimo, inviting my attention to a letter from the Belgian minister at this capital, and certain propositions from His Majesty the King of the Belgians, looking to various changes in maritime law, to be accomplished by treaty, has received my attention. I regret that it does not fall within the duties of the Attorney-General to enter upon a discussion of the interesting questions you have laid before me. As you will see by section 356 of the Revised Statutes, "the head of any Executive Department may require the opinion of the Attorney-General on any questions of law arising in the administration of his Department." This provision, as repeatedly construed by my predecessors, limits the func tion of the Attorney-General, in the matter of opinions requested by the heads of Departments, to questions arising out of the law as it is, and does not seem to call upon him to give his views and opinions upon the advisability of making changes, by treaty, in any department of jurisprudence. The proposals of His Majesty the King of the Belgians are addressed, necessarily, to the treaty-making power of the United States, and involve international considerations which I do not think come within the province of the Department of Justice. At the same time, should negotiations be opened |