Port of Genesee-Transportation in Bond. legislation been repealed; and, if not, (2) what is the present condition of the port of Genesee as regards the above privilege. Upon consideration, I am of opinion that the act of 1876 has not been repealed, and also that the privileges to which the port of Genesee is entitled are those set forth in the act of June 10, 1880. In the first place, I remark that there is no express repeal of the act of 1876, and likewise no contradiction between its terms and those of the act of 1880. The precise question, therefore, is whether the act of 1876 has been vacated or annulled by such subsequent legislation. In my opinion it was intended by the above act of 1876 to confer upon the port of Genesee a right to participate in the privileges of the class of ports mentioned in section 2997 as defined for the time in the sections immediately preceding, and as they might thereafter be defined in any subsequent legislation to be substituted therefor. The privileges in question are not of the nature of property, but are merely certain public functions connected with the customs system conferred only in the interest of the community at large, and depending as regards the scope and permanence of their details upon such interest alone. These might, therefore, be expected to fluctuate without affecting the right of any port named in that connection to participate therein as before. The proper way of disconnecting a port with the system would be a repeal of the act which had originally caused the connection, for instance, here, the act of 1876. It seems plain that a mere change of the names in the list of ports contained in the Revised Statutes would not affect the right of a port which derived its title to the privileges in question from a different statute. It In the present case the act of 1880 only effects a change of the detail of privileges, together with a change in the list of privileged ports as contained in the Revised Statutes. therefore expressly repeals only such legislation as in point of matter it contradicts. In my view neither the new matter nor the formal repeal affects the title of the port of Genesee, which is derived from a separate act, and which, as I have said, is not a title only to the privileges defined in the Revised Case of Charles L. Phillips. Statutes, but as well to such as under any development of the particular policy should be substituted therefor. Very respectfully, S. F. PHILLIPS, Acting Attorney-General. The SECRETARY OF THE TREASURY. CASE OF CHARLES L. PHILLIPS. P., a midshipman, was nominated and confirmed in March, 1868, to be ensign, the promotion being made "subject to examination." In July, 1868-having never been examined-he was tried by a naval courtmartial as a midshipman, and sentenced to dismissal from the service. Held that, under the circumstances, he was properly tried as a midship man. The minority of some of the members of the court-martial is not available as an objection to the validity of its proceedings. Notification by the Secretary of the Navy of the approval by the President of the sentence is sufficient evidence both of approval and promulgation. DEPARTMENT OF JUSTICE, August 7, 1880. SIR: In the matter of the application of Charles L. Phillips, dismissed from the Navy in July, 1868, which application was by you referred to me on the 2d instant, I have the honor to report that, in my judgment, the case is not one that calls for any action upon the part of the Executive. Mr. Phillips admits himself guilty of the gross, willful, and inexcusable act of disobedience for which he was dismissed. He bases his application for reinstatement wholly upon technicalities, showing no claim upon the merits. His technical objections are unfounded. First. He says he was nominated March 10, and confirmed March 24, 1868, to be ensign, and was tried on the 3d of July following as midshipman. He omits to state that his promo. tion, because made while he was in a distant and foreign station, was subject to examination." He never was examined; therefore never was an ensign, and was properly tried as a midshipman. Bank of Aids of the General of the Army. Second. Though he expressly stated, when brought before the court, that he had no objection to any member of it, and pleaded guilty (see top of page 13 of his letter to Hon. William D. Kelley), he now objects, twelve years later, that two of the members were minors. He bases this objection upon the assumption that the rules of the common law apply to the composition of a court-martial, and that minority would be such an objection as would invalidate the verdict of a jury, or a judgment thereon. Whatever effect this fact would have in a common-law court, it has nothing to do with the action of a court-martial, which exists by virtue of statute and regulations conformable thereto. In the present instance the statutory requirements were complied with. Third. He complains that the sentence was not approved by the President nor promulgated. He was notified by the Secretary of the Navy of the approval by the President of the sentence as modified by him (the President). This is evidence both of approval and promulgation. The President acts through the Secretaries of the War and Navy in such matters. A promulgation is not necessarily a publication in a newspaper. The legal propositions of this letter are sustained by last term's decision of the Supreme Court in Ex parte Reed (100 U. S. Reps., 13.) There is no reason to recognize Mr. Phillips as having been in the Navy since 1868, nor in giving him any ground for claiming salary for twelve years which have since elapsed. Very respectfully, yours, The PRESIDENT. EDWIN B. SMITH, Acting Attorney-General. RANK OF AIDS OF THE GENERAL OF THE ARMY. Advised that the construction of the law as given by Judge-AdvocateGeneral Holt, and since acquiesced in and followed in several instances by the War Department, be adhered to, namely: That the rank conferred by section 1096 Rev. Stat. upon the aids selected by the General of the Army thereunder entitles such aids to the precedence, when Dam at Lake Winnibigoshish. serving upon courts-martial, courts of inquiry, military boards, and the like, to which the same rank would entitle an officer of the line or staff (independent of the office of aid) when thus serving. DEPARTMENT OF JUSTICE, August 11, 1880. SIR: Yours of 30th ultimo calls my attention to the Revised Statutes: "SEC. 1096. The General may select from the Army such number of aids, not exceeding six, as he may deem necessary, who shall have, while serving on his staff, the rank of colonel of cavalry." You ask, "Does the rank given under section 1096 Revised Statutes entitle its holder to the same precedence as like rank (independent of the office of aide-decamp) gives to an officer of the line or staff of the Army when serving upon military boards, courts of inquiry, courtsmartial, and the like?" Judge-Advocate-General Holt answered this question in the affirmative, and the War Department has hitherto acquiesced in his construction of the law. The phrase "while serving on his staff" is susceptible of two interpretations: as indicating the character of the duty performed, or the time during which the relation to the General exists. Inasmuch as the latter meaning was adopted by the War Department, upon the advice of Judge-Advocate-General Holt, before the revision of the statutes, and has since been acquiesced in and followed in several instances, I advise adherence to that construction. The papers transmitted are herewith returned. Very respectfully, H. T. CROSBY, Esq., Chief Clerk, CHAS. DEVENS. Acting for the Secretary of War, in his absence. DAM AT LAKE WINNIBIGOSHISH. By the act of June 14, 1880, chap. 211, an appropriation is made for the construction of a dam at Lake Winnibigoshish, with a proviso “that all injuries occasioned to individuals by overflow of their lands shall be ascertained and determined by agreement or in accordance with the laws of Minnesota, and shall not exceed in the aggregate $5,000." The land to be overflowed, as is ascertained by actual survey, lies Dam at Lake Wianibigoshish. within the limits of the reservation of the Chippewa Indians, secured to that tribe by the treaty of February 22, 1855. Held that the said proviso, being in terms limited to the lands of individuals, cannot be extended to lands of the Chippewa tribe, and that Congress has not otherwise, in said act, manifested an intention to exercise the right of eminent domain in or upon lands in said Indian reservation, or to authorize the overflow of any part of that reservation, or the taking of timber or materials therefrom. DEPARTMENT OF JUSTICE, SIR: Referring to the clause of the river and harbor improvement bill approved June 14, 1880, which appropriates "For the reservoirs at the headwaters of the Mississippi River, to be used in the construction of a dam at Lake Winnibigoshish, seventy-five thousand dollars: Provided, That all injuries occasioned to individuals by overflow of their lands shall be ascertained and determined by agreement or in accordance with the laws of Minnesota, and shall not exceed in the aggregate five thousand dollars," yours of the 22d of July states that an actual survey ascertains that all of the land to be overflowed will be within the limits of the reservation secured to the Chippewa Indians by treaty of February 22, 1855, and thereupon you submit for my consid eration the following questions: First. Can the United States, in its own right, appropriate such of the lands as will be overflowed? and if not Second. Would the right, if acquired, to cut the timber on the lands to be overflowed within the limits of the reservation, to be paid for in the same way as other materials, and the right to overflow the land in perpetuum, to be paid for out of the $5,000 provided for injuries, &c., satisfy the requirements of the act? Third. What person or persons are authorized to treat with the War Department or its agents for the transfer of the land in question? 1. The Indians usually have only the right to occupy their lands, while the complete ultimate title and the exclusive right of acquiring possession is held by the National Government independently of the will of the Indian tribes. (Johnson v. McIntosh, 8 Wheat., 603; Cherokee Nation v. Georgia, 5 Pet., 17.) |