rest a decision is the fact that the statute which the legislature did in terms repeal was the only law in force at that. time under which the relator and others similarly situated had any right to relief or any remedy for the taxes wrongfully imposed, and that the former act upon that subject was by incorporation merged in it and had no vitality distinct from it. So long as statutes must have effect according to the intent of the legislature as manifested by the language employed, and in the light of the circumstances under which the acts are passed, there could hardly be, without express words, a stronger manifestation of an intent to abrogate all legislation giving those who had paid taxes upon Government securities a claim upon the county for the amounts paid, than by a law in terms repealing the only statute in force which embodied the only other statute that had been passed upon the subject" (pp. 118-119).

In the second case, People v. Wilmerding, 136 N. Y. 363, 368, 369, Judge Peckham stated for the court as follows:

There is also another rule well established in this court which declares that a statute declaring a former statute to be thereby amended so as to read as prescribed in the amending act, is not a repeal of the original statute, and that from the time of the passage of the amendatory act such act is the only enactment on the subject as to future transactions, and the former statute is merged and lost in, and has no vitality distinct from, the amendatory act. And it has been held that a repeal of the amendatory act does not revive the original act, but both fall by virtue of the repeal of the later act. (People v. Supervisors, 67 N. Y. 109.) ** It was there distinctly decided that an earlier statute which was amended and reenacted in the shape of an amendment, so as to read as prescribed in the later amendatory statute, was thereby wholly annulled as to all future cases and became merged and incorporated into the later statute. It was further held that when the statute accomplishing an amendment in this manner is itself repealed, the repealing act as effectually annihilated the earlier act which was amended as if it had been expressly mentioned in such repealing act.

*

"It thus appears that the enactment of the later statute of 1866 by reason of the language used in the first section thereof, did thereby incorporate into it all the life and force of the first section of the act of 1846, so that the later act stood from that time and as to all future cases as the sole and only exponent of legislative intent and power upon the subject and such act thereby utterly blotted out and annihilated the earlier statute, except as to rights or duties already existing. And when the act of 1866 was itself repealed in clear and direct language by the act of 1868, the latter act not only by repealing annihilated the act of 1866, but also the first section of the act of 1846, as if such first. section had been mentioned in the repealing act. This is expressly decided by the case above cited. And it did so upon the principle that the first section of the act of 1846, by reason of its amendment of 1866, and its incorporation in that act, lost all separate existence, and must therefore stand or fall, live or die, with the act of which it had become an integral part, and if that act were repealed, such repeal could not thereby revive the first section of the act of 1846, because it had no existence and had had none since the enactment of the act of 1866.

"In repealing the later act it is the same (so far as regards the prior act) as if such later act were the only one which had ever existed upon the subject, and the prior one could no more spring into life simply by reason of such repeal than if such prior act had never been passed."

In the act of 1909 Congress makes no mention whatever of the act of 1884, though the section of 1886, which the act of 1909 repealed, is in express terms an amendment and restatement of the section of 1884. This undoubtedly was because Congress thought, as is quite inevitable from a strict analysis of the relationship of the two acts, that the provisions of the section of 1884 had come to form a part of the act of 1886 and rested alone for their vigor upon the enactment of 1886 and so fell with the latter act's repeal.

So much of the prior legislation as Congress wished preserved was repeated in the act of 1909. Section 36 expressly reiterates the primary provisions of the section of

1886, with only the changes of the omission of the Sandwich Islands from the list of countries having lower tonnage rates because of the annexation of those islands to the United States, and the reduction of tonnage rates for the favored list of countries from 3 cents to 2 cents per ton, and from a total annual charge of 15 cents per ton to 10 cents per ton; but, while so repeating the main provisions of the act of 1886, Congress deliberately omitted all the suspension clauses of the act. This can not have been without thought or purpose; and the purpose must have been to discontinue the power of suspension. Even if not pursuing the method of simple amendment of the act of 1886, Congress assuredly would have restated all of that act which it intended to continue, when it restated so much. And it may be added, that palpable manifestation of Congressional intent ought to be found before saying that it was the Congressional purpose in the act of 1909 to give to the President the power of suspending the tonnage duties in favor of only a very limited number of foreign countries and without any reference to the relation of the general import and export duties between the foreign countries and this country-which is the nature of the suspending system. in the act of 1884-though in the act of 1886 it was enlarged in favor of all foreign countries and was made dependent in each instance upon an existing parity of the general import and export duties as well as vessel charges. Instead of there being such manifestation, the very reverse

appears.

It is even true that the continuation now of the President's suspending power as it existed under the act of 1884 would be in some respects incongruous with the express provisions of section 36 of the act of 1909. It was perhaps odd at the outset that the suspending power was restricted in the act of 1884 to vessels from countries enjoying the lower tonnage rates; and that peculiarity of legislation seems to have been felt by Congress, with the result that in 1886 the suspending power was widened in favor of all foreign countries. Could the narrower rule be readily supposed to have been restored by the act of 1909? Beyond that the suspending power given in the act

of 1884 was in favor of vessels entering from "the Dominion of Canada, Newfoundland, the Bahama Islands, the Bermuda Islands, the West India Islands, Mexico, and Central America, down to and including Aspinwall and Panama," and would not reach as far even as the present group of countries enjoying the lower tonnage rates; for that group now includes "the coast of South America bordering on the Caribbean Sea," which was not in the favored list of 1884. The result, then, of holding the suspending power of 1884 now to have been revived would be that a privilege given to vessels from all the other countries. now enjoying the lower rates would be denied to vessels from the northern coast of South America, though those vessels are expressly given the lower tonnage rates. Equality of treatment would be destroyed even between the specially enumerated countries whose vessels alike enjoy the lower charges.

Finally, it is not without significance that the act of 1909, beside repealing section 11 of the act of 1886, repeals also section 12 of that act which has been previously quoted. Had Congress meant to keep the suspending power in existence, the provisions of said section 12 might more naturally have been retained in the purpose still of inviting foreign countries "to cooperate with the Government of the United States in abolishing all light-house dues, tonnage taxes, or other equivalent tax or taxes on, and also all other fees for official services to, the vessels of the respective nations employed in the trade between the ports of such foreign country and the ports of the United States."

In my opinion, accordingly, the President now has no power under any circumstances to declare a suspension of tonnage duties imposed by the act of 1909 on vessels entering from the Province of Ontario or from any other foreign country.

Respectfully,

Approved:

LLOYD W. BOWERS,

Solicitor-General.

GEORGE W. WICKERSHAM.

The SECRETARY OF COMMERCE AND LABOR.

OFFICERS OF MARINE CORPS-AUTHORITY TO COMMAND IN THE ARMY.

Article 122 of the Articles of War does not operate to give to officers of the Marine Corps any authority to exercise command in the Army unless they have been detached for service with the Army by order of the President and are still serving with the Army under that order.

When any part of the Marine Corps is present with the Army and engaged in a common enterprise with it, without an order of the President detaching it for service with the Army, the case is one of cooperation and not of incorporation, and in such a case no officer of the Marine Corps can exercise command over the Army any more than a naval officer can, when some part of the Navy is cooperating with the Army; and the converse is true of army officers cooperating with 'the Marine Corps.

The Marine Corps is a part of the naval establishment and is subject to the laws and regulations for the government of the Navy, save in the single instance when it has been "detached for service with the Army by order of the President."

DEPARTMENT OF JUSTICE,

October 6, 1909.

SIR: I have the honor to reply to your letter of September 25, 1909, in which you inquire whether Article 122 of the Articles of War "operates, proprio vigore, to vest authority to exercise command in the Army in an officer of the Marine Corps whose command casually encounters or serves with troops of the Army; or is it restricted in its operation to such portions of the Marine Corps as have already been detached for service on shore by the President, in the operation of sections 1619 and 1621 of the Revised Statutes?"

The stated article forms part of the general Articles of War enacted by section 1342 of the Revised Statutes, and reads:

"If, upon marches, guards, or in quarters, different corps of the Army happen to join or do duty together, the officer highest in rank of the line of the Army, Marine Corps, or militia, by commission, there on duty or in quarters, shall command the whole, and give orders for what is needful to the service, unless otherwise specially directed by the President, according to the nature of the case."