Mississippi River Commission-Mileage. MISSISSIPPI RIVER COMMISSION-MILEAGE. The members of the Mississippi River Commission (created by the act of June 28, 1879, chap. 43), who are appointed from the Engineer Corps of the Army, are entitled to mileage, at the rate of 8 cents per mile, for all travel required of them by that commission pertinent to the objects for which it was constituted. Travel so required is travel under orders, within the meaning of section 2 of the act of July 24, 1876, chap. 226. Such mileage should be paid out of the appropriation made in said act of June 28, 1879, for "necessary expenses." DEPARTMENT OF JUSTICE, August 25, 1880. SIR: In reply to yours of the 11th instant, asking, in reference to such members of the Mississippi River Commission (created by the act of 1879, chap. 43, June 28) as are appointed from the Engineer Corps of the Army, what traveling allowances or mileage can be paid, and by whom said allowances shall be paid, I submit the following conclusions: The act above cited provides (sec. 2) that "the commissioners appointed from the Engineer Corps of the Army and the Coast and Geodetic Survey shall receive no other pay or compensation than is now allowed them by law." At that time (as still) mileage at the rate of 8 cents per mile was allowed by law, "when any officer travels under orders," with certain exceptions not material here. (Act of 1876, chap. 226, § 2; 19 Stats., 100.) Upon consideration of the language of the constituting act, especially such as requires certain qualities in the persons to be appointed, I am of opinion that it was the intention of Congress that the members of the Mississippi River Commission should personally inspect the various localities upon that river at which surveys, &c., were then going on or in the view of the commission ought to be undertaken, whenever such personal inspection might be required by that body; meaning by required, action analogous to the specific order by which the War Department properly interprets the act of 1876. Travel so required is travel under orders within the meaning of the act of 1876 above quoted. The commission had power to compel the engineer officers belonging thereto, as officers of Reissue of Patent. the Army, to undertake any travel which it might designate, pertinent to the objects for which it was constituted. Concluding, therefore, that the officers appointed upon the Mississippi River Commission from the Engineer Department of the Army are entitled to mileage for all travel ordered by that commission, I will add briefly that I concur with your view, that such mileage should be paid out of the special appropriation made in the constituting act for "necessary expenses." "Travel" is an item the amount of which so specially depends upon the particular duty to which an officer is assigned that the propriety of making a distinction between the source from which he is to derive pay, in the stricter sense of the word, and that from which he is to receive such compensation, is apparent. The decision of the Second Comptroller to this effect, quoted by you, seems applicable to all cases in which Congress has not manifested a different intention, and, therefore, to the present. Very respectfully, your obedient servant, S. F. PHILLIPS, Acting Attorney-General. The SECRETARY OF WAR. REISSUE OF PATENT. Where an application for the reissue of a patent in two or more divisions is made, whilst the original patent is in existence, the Commissioner of Patents has power to issue a patent for one or more of the divisions of the reissue application, and subsequently to issue a patent for the remaining divisions, if it be deemed that otherwise the applicant is entitled thereto. Until such application is ended in all its divisions, the vitality of the original patent continues, so far as required to support that portion of the application which remains undecided. DEPARTMENT OF JUSTICE, SIR: Yours of the 26th instant, with papers inclosed, states the case of James Greaves as the basis for a question of law in regard to reissues of patents. That case is, that a patent having been issued to Greaves on the 20th of February, 1877, an application was made by him on the 15th of March after Reissue of Patent. wards for its reissue in two divisions, A and B. Thereupon, upon examination the subject-matter of A was found to conflict with a like subject-matter in a pending application by another party, and on the 10th of July, 1877, an interference proceeding was accordingly instituted. Upon this state of facts Greaves asks that a patent for division B be issued now, without prejudice to his right hereafter to a patent for division A, in case the interference shall be disposed of in his favor. This presents for decision the general question, can the Commissioner of Patents issue a patent for one or more of the divisions of a reissue application, and subsequently issue a patent to the applicant for the remaining divisions if it be held that otherwise he is entitled to them? In his letter to you, made part of your communication, the learned Commissioner of Patents states that previously to 1869 it had been the common practice of the office to allow the several divisions of an application for a reissue to issue separately, and he adds that he is not aware that the legality of this action has ever been questioned in the courts. In 1869, Commissioner Fisher held, in the case of Whiteley, that such separate issue could not be allowed, and the same rule was, about the same time, laid down by Chief Justice Cartter, of the supreme court of the District of Columbia. In these cases, as I understand from Mr. Marble's letter, just cited, the reissue was in the first instance undivided, and only after a grant had been made in that style was a division called for. In the present case both of the divisions of the reissue application were filed at the same time. However, after these decisions, it was laid down as a rule of practice in the Patent Office that "all the divisions of a reissue will issue simultaneously. If there be controversy as to one, the others will be withheld from issue until the controversy is ended." (Rule 66.) This rule was in force at the time of the application for reissue under consideration. Its terms are broad enough to cover applications made at the same time, as well as those made under the circumstances of Whiteley's case. But now a new rule has been adopted, having been in force, as I find from the copy of the rules transmitted by you, at least since December 7, 1879. It provides that, "unless it shall be other Reissue of Patent. wise ordered by the Commissioner, all the divisions shall issue simultaneously; if there be controversy as to one, the others will be withheld from issue until the controversy is ended, unless he shall otherwise order." (Rule 88.) The former rule went beyond the principle laid down by Chief Justice Cartter, quoted in the papers. The reason assigned by him for refusing to issue a subsequent division was that with the issue of the preceding division the original patent had necessarily expired, and that such original being functus officio, it could no longer form a basis for reissues. This principle covers the case of applications for a division made after the reissue has been granted, as it is only by such grant, and not by the mere application, that the original patent is surrendered and loses vitality. The good sense of the maxim, Pendente lite nihil innovetur, is as applicable to proceedings in the Patent Office as elsewhere. Until an application is ended in all its divisions, the vitality of the original patent continues, so far as required to support that portion of the application which remains undecided. Since the repeal of the above rule suggested by the decisions in Whiteley's case, &c., it therefore appears that there has been nothing to prevent the Commissioner of Patents from issuing the several divisions of a reissue in case the applications therefor have been made whilst the original patent is in existence. In addition to this, the rule of December 1, 1879, expressly confers the power, and governs the case in question, although adopted whilst the application was pending. I therefore answer the question put by you as to the power of the Commissioner over successive reissues of divisions of patents, in the affirmative. Very respectfully, your obedient servant, S. F. PHILLIPS, Acting Attorney-General. The SECRETARY OF THE INTERIOR. Exemption from Enrollment and License. EXEMPTION FROM ENROLLMENT AND LICENSE. The provision in the act of June 30, 1879, chap. 54, which exempts from enrollment, registration, or license "any flat-boat, barge, or like craft for the carriage of freight, not propelled by sail or by internal motive power of its own, on the rivers or lakes of the United States," has reference solely to vessels of that description built within the United States and owned by citizens thereof. It does not extend to foreignbuilt craft. Held, accordingly, that barges of the above description of twenty tons burden or upward, built in Canada but owned by American citizens, are liable to the payment of tonnage as prescribed by section 4371 Rev. Stat., when found trading between district and district. DEPARTMENT OF JUSTICE, September 16, 1880. SIR: Yours of the 14th instant asks the following questions : "Whether the last clause of the act relating to vessels not propelled by sail or internal motive power of their own, and for other purposes, approved June 30, 1879, should be so construed as to apply to barges or vessels of Canadian build not propelled by sail or internal motive power of their own when owned by American citizens, so that such barges or vessels when so owned and found trading between district and district will not be liable to the payment of tonnage tax prescribed by section 4371 of the Revised Statutes." The clause referred to by you is one which exempts all flat-boats, barges, or like craft for the carriage of freight, not propelled by sail or by internal motive power of its own, on the rivers or lakes of the United States, from enrollment, registration, or license. Upon its face the law applies only to craft navigating rivers or lakes which belong exclusively to the United States. A question is made whether such craft if of 20 tons burden or over must also be built within the United States, as required by sections 4132 and 4312 of the Revised Statutes. The clause in question has been thought to include craft of that burden even where foreign built, if imported and owned by American citizens. The provision certainly has no such effect directly, for vessels so built were not required or allowed to be enrolled pre |