Treaty of Washington-Transportation. July 18, 1866 (14 Stat., p. 184, sec. 26), where it is enacted "that no goods, wares, or merchandise taken from any port or place in the United States on the northern, northeastern, or northwestern frontiers thereof to a port or place in another collection district of the United States on said frontiers in any ship or vessel, shall be unladen or delivered from such ship or vessel within the United States but in open day," &c. By the act of February 18, 1867 (14 Stat., p. 394, chap. 42, sec. 2), it was provided "that section 26 of the act aforesaid" (that just quoted) "be so amended that the Secretary of the Treasury be, and he is hereby, authorized in his discretion to make such regulations as shall enable vessels engaged in the coasting trade between ports and places upon Lake Michigan exclusively, and laden with American productions and free merchandise only, to unlade their cargoes without previously obtaining a permit to unlade." From the latter statute it is evident that it was considered by Congress that a description of ports upon the northern, northeastern, or northwestern frontiers of the United States included ports upon Lake Michigan. The phrase "northern frontier" is used, as it seems to me, in the regulations which we are considering, in the same sense in which it is used in the statute of 1866 above cited, which subsequent legislation indicates to have included such ports as Chicago and Milwaukee. In direct answer, then, to the inquiry with which your letter closes, I am of opinion that it is lawful to transport goods by means of British or other foreign vessels from Chicago or Milwaukee to points in Canada, thence through Canadian territory by rail, and by either foreign or American vessels to Oswego or Ogdensburgh, and that there is no real inconsistency between the treaty and the regulations which have been adopted for the purpose of carrying into execution its provisions. Very respectfully, your obedient servant, Hon. JOHN SHERMAN, Secretary of the Treasury. Case of Chief Engineer Ziegler. CASE OF CHIEF ENGINEER ZIEGLER. On February 4, 1863, Z. was appointed a chief engineer in the volun- DEPARTMENT OF JUSTICE, SIR: By your communication of March 11 last, you request an opinion as to the legality of Mr. Ziegler's present position on the Navy Register, which is that of an officer whose commission purports to be dated on February 4, 1863. The facts in the case, as they appear from a report of the naval solicitor and other papers inclosed, are substantially as follows: Mr. Ziegler was promoted in the Volunteer Navy to the grade of chief engineer on February 4, 1863. The act of March 2, 1867, section 3 (14 Stat., 516), provided "That the officers of the Volunteer Naval service who are, or may be, transferred to the Regular Navy or Marine Corps, shall be credited with the sea-service performed by them as volunteer officers, and shall receive all the benefits of such Case of Chief Engineer Ziegler. duty in the same manner as if they had been during such service in the Regular Navy or Marine Corps." * * In June, 1868, Mr. Ziegler was transferred from the Volunteer to the Regular Navy, and received a commission dated June 18, 1868, as chief engineer, having been nominated by the President and confirmed by the Senate. At a subsequent date Mr. Ziegler petitioned the Navy Department to determine his place in the number and grade of chief engineers, and to do this by granting him a new commission to date back to February 4, 1863. . On the 17th of January, 1877, the Secretary of the Navy sent to the President for his signature, and he signed the same, a new commission giving Mr. Ziegler rank from February 4, 1863, according to his request, which commission was transmitted to him on the 23d of January following: This commission was not based upon any nomination to, or confirmation by, the Senate. But it is claimed that it was a declaration and decision of the legal effect of the former commission of 1868, which was intended to give effect to section 3 of the act of 1867, and that such former commission should not have named the date thereof as of that when Mr. Ziegler's rark as chief engineer commenced in the Regular Navy. The inquiry therefore is, whether or not the true construction of section 3 of the act of 1867 is that claimed by Mr. Ziegler-which is, substantially, that as a transferred officer he was entitled to all the credit and benefit of his volunteer service, so that he is entitled to take rank from the date of his commission as chief engineer in that service. The inquiry, it seems to me, has been substantially settled by opinions heretofore rendered by this Department, the accuracy of which I am not disposed to question. In the case of Lieut. Commander Dyer and others (14 Opin., 191) it is said by Hon. George H. Williams, then AttorneyGeneral: "As to the third section of the act of 1867, quoted above, under which the officers appointed from the volunteer service are to be credited with the sea-service performed by them as volunteer officers, and to receive all the benefits of such duty Case of Chief Engineer Ziegler. in the same manner as if they had been during such service in the Regular Navy, this provision does not strike me as affording any support to the view that these officers should be commissioned or take rank as from the date of the act of 1866" (which was apparently the contention in that case). "Line-officers in the Navy," the Attorney-General proceeds, "I understand, are credited with the sea-service performed by them, not so much with a view to future advancement in their relative position or rank as to future assignment to duty." In the case of E. E. Bradbury (14 Opin., 358), Attorney-General Williams says: "The design of the provision referred to" (speaking of that in the third section of the act of March 2, 1867), "then, was to give the transferred officers the full benefit of their former sea-service, in so far as it might go to complete the period of such service required in their respective grades previous to nomination for promotion, and in so far as it ought properly to be taken into account in the matter of assignment to duty. Beyond these advantages, the provision would seem to con. fer nothing." The argument for Mr. Ziegler is substantially this: that he is entitled to all the advantages of his service in the Volunteer Navy as respects his grade and rank in the Regular Navy. The language of the statute gives to Mr. Ziegler only the benefit of his sea-service; and in the view taken by AttorneyGeneral Williams (in which I concur), Mr. Ziegler derives no benefit from his service in the Volunteer Navy, except that, so far as he had performed sea-service therein, such service would be taken into account in the matter of his assignment to duty, he not belonging to the class of officers who would · derive benefit in so far as it might complete the period of such service in any grade previous to nomination for promotion. Such being my view of the construction of the act of 1867, Mr. Ziegler is not entitled to hold a commission dated as of the date of his volunteer commission; and the commission which was transmitted to him on the 23d of January, 1877, was improvidently issued by the President and Secretary of the Navy. He should take his place upon the register according to the Jurisdiction of Court-Martial. rank given him by the commission which was issued upon his nomination to and confirmation by the Senate, namely, the commission dated June 18, 1868. Very respectfully, your obedient servant, Hon. R. W. THOMPSON, Secretary of the Navy. CHAS. DEVENS. JURISDICTION OF COURT-MARTIAL. Where a quartermaster's civilian clerk was under arrest by the military authorities, at a post in the State of Nebraska, on a charge of conspiring to defraud the government: Held that the accused was not subject to court-martial jurisdiction. DEPARTMENT OF JUSTICE, June 15, 1878. SIR: I have the honor to return, herewith, the papers which accompanied your letter of the 21st of June, 1877, touching the case of William G. Crafts, a quartermaster's civilian clerk, who was arrested by the military authorities at Camp Robinson, in the state of Nebraska, on the charge of conspiring to defraud the government. Your letter proposed the inquiry whether a court-martial may legally assume jurisdiction of such case. This inquiry is covered, substantially, by the opinion which I had the honor to communicate to you under date of the 15th of May last, wherein the subject of the amenability of a quartermaster's civilian clerk to court-martial jurisdiction is considered. Accordingly, for answer thereto, I need only refer you to that opinion. I will add that the delay in responding to your letter is the result of an oversight. I am, sir, very respectfully, Hon. GEORGE W. MCCRARY, Secretary of War. CHAS. DEVENS. |