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communication submitted, where a realty corporation takes title to real property subject to a mortgage, but does not assume the indebtedness secured thereby. Under such circumstances, as is stated in the brief, "such mortgage is in no sense its indebtedness; the 'thing' itself, i. e., the real property and not the corporation, is liable for the mortgage and interest thereon; but in order that the corporation may maintain or keep possession of or not be ousted therefrom, the interest must be paid.”

This would not be payment by the corporation owning the property subject to such lien of its own indebtedness, because the indebtedness is not "its" bonded or other indebtedness, but an indebtedness created by a third party and charged as a lien upon the land acquired, subject thereto, by the purchasing corporation. The interest accruing upon such charge or incumbrance would certainly fall within the description in the first clause of the second paragraph of the section under consideration as one of the

charges * * required to be made as a condition to the continued use or possession of property," and therefore would be deductible as such. Respectfully,




In the absence of statutory authority therefor, public policy forbids the

sale of official stamps, uncanceled, which have become obsolete, but which resemble in general appearance ordinary postage stamps. If canceled, the objection would be removed.


February 23, 1910. Sir: By your letter of the 4th instant you asked to be advised whether there is any legal objection to your department's selling certain old stamps in its possession to the highest bidder, and accounting for the proceeds in the usual way as miscellaneous receipts from the sale of condemned property.

It appears that the stamps referred to were issued under the authority of section 3915 of the Revised Statutes, as amended by the act of February 27, 1877 (19 Stat. 240, 250). The amendment to that section provided:

"The Postmaster-General shall cause to be prepared a special stamp or stamped envelope, to be used only for official mail matter, for each of the executive departments; and said stamps and stamped envelopes shall be supplied by the proper officer of said departments to all persons under its direction requiring the same for official use; and all appropriations for postage made prior to March third, eighteen hundred and seventy-three, shall no longer be available for said purpose; and all stamps and stamped envelopes shall be sold or furnished to said several departments or clerks only at the price for which stamps and stamped envelopes of like value are sold at the several postoffices."

By an act approved March 3, 1877 (19 Stat. 319, 335–336), Congress authorized the free transmission through the mail of letters, packages, or other matters relating exclusively to the business of the Government of the United States, and provided for the use of what is known as the penalty envelopes for that purpose. By an act approved July 5, 1884 (23 Stat. 156, 158), section 3915 of the Revised Statutes was repealed so far as it related to stamps and stamped envelopes for official purposes.

The special stamps referred to have thus become obsolete. It appears that your department has about 63,000 of these stamps on hand, in denominations of 3, 6, and 10 cents. In regard thereto you say:

"It has been the custom of this department from time to time, upon application by the public, to give them specimens of these stamps, but the calls are so few and the number on hand so large that they will practically never be exhausted in this manner, and they are of necessity deteriorating. An examination of the catalogues of stamp collectors indicates that some of these stamps are listed at a value as high as 50 cents each.”

In general appearance the particular stamps referred to by you closely resemble ordinary postage stamps. They are of about the same general shape, size, design, and color, and, while bearing the words “Dept. of the Interior, U. S.," are calculated to mislead the casual observer

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into thinking that they are ordinary postage stamps, and susceptible of use as such. This being so, the question arises whether it would be proper to sell them in an uncanceled condition, as I assume you propose to do if there is no legal objection to such action.

It seems that no express authority has been given the executive departments to sell old or disused material and supplies. Such practice appears to have grown up, however, for reasons of economy, and is apparently recognized in the provisions of sections 197 and 3618 of the Revised Statutes, which provide for the accounting by government officers for moneys received from the sale of old material and supplies. This implied authority, however, resting as it does simply upon the ground that it is for the interest of the Government to make such disposition thereof, it seems to me is necessarily limited by the further principle that the sale of any such article will not be contrary to public policy. For example, in view of the statutes prohibiting and punishing the counterfeiting of the securities and current coin of the United States and providing for the seizure and forfeiture of the dies, molds, and other material used in the manufacture thereof, it would be manifestly contrary to public policy for any department of the Government to sell any such old and disused dies or molds.

I am therefore of the opinion that, in the absence of express authority to sell the stamps referred to, public policy, as further illustrated by the legislation of Congress forbidding the making of anything in the likeness of or similitude to the securities or obligations of the United States (sec. 177, Crim. Code; sec. 3708, Rev. Stat.), which terms have been declared to include stamps (sec. 147, Crim. Code; sec. 5413, Rev. Stat.), forbids the sale of the stamps referred to in an uncanceled condition. celed, there would be no such objection, as it would then be plain to everyone that they were not intended for use as postage. Respectfully,



Tourists taken on board the German steamship Cleveland at New York,

carried around the world and landed at San Francisco, are not transported and landed in violation of section 8 of the act of June 19, 1886 (24 Stat. 81), as amended by the act of February 17, 1898 (30 Stat. 248).


February 26, 1910. Sır: I have the honor to acknowledge receipt of your communication of the 19th instant, requesting an expression of my opinion upon the question whether section 8 of the act of June 19, 1886 (24 Stat. 81), as amended by section 2 of the act of February 17, 1898 (30 Stat. 248), has been violated by the German steamship Cleveland of the Hamburg-American Line, in landing at San Francisco, about 615 passengers, who were a party of tourists taken on board at New York for a trip around the world. In the course of the cruise the vessel stopped at seventeen ports, it being the purpose when the voyage was begun to disembark the passengers at San Francisco.

A history of the legislation upon the subject in question and the subject closely related thereto, to wit, domestic commerce in merchandise, will, I think, show the object of this statute.

In 1817 Congress enacted a law relating to the transportation of merchandise, which was brought into the Revised Statutes under the title “Vessels in domestic commerce," as section 4347, in the following form:

"No merchandise shall be transported under penalty of forfeiture thereof, from one port of the United States to another port of the United States, in a vessel belonging wholly or in part to a subject of any foreign power.”

In United States v. 250 Kegs of Nails (61 Fed. 410), the Circuit Court of Appeals for the Ninth Circuit held that this statute did not include merchandise shipped from New York to Antwerp in one foreign vessel and afterwards forwarded by another vessel to a port in California, although the port in California was the objective point of shipment when the transportation was begun. This decision was rendered in 1894, but on February 15, 1893 (27 Stat.

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455), after the case had arisen and before final decision therein, Congress amended said section by inserting after the word "power" the following: "and the transportation of merchandise in any such vessel or vessels from one port of the United States to another port of the United States via any foreign port shall be deemed a violation of the foregoing provision.”

Before the passage of the act of June 19, 1886, no similar provision applying to the carrying of passengers had been enacted, and section 8 of said act was inserted, which provided as follows:

"That foreign vessels found transporting passengers between places or ports in the United States, when such passengers have been taken on board in the United States, shall be liable to a fine of two dollars for every passenger landed."

The reason for the insertion of this provision was stated by the chairman of the Committee on Shipbuilding and Shipowning Interests of the House of Representatives (Cong. Rec.,49th Cong., 1st sess., vol. 17, part 2, p. 1108), as follows:

"Section 8 imposes a penalty on a foreign vessel for transporting passengers between two ports of the United States. This has been rendered necessary by a construction which has been given to our laws imposing a penalty on foreign vessels for transporting merchandise between ports of the United States. Merchandise has been construed by the department to cover simply goods transported. In view of the construction which has been given, there seems to be no penalty provided for the conveyance of passengers between ports of the United States. There have been found no difficulties in this respect except with Canadian vessels on the Lakes, which have been accustomed during the summer season to come to the American side and convey excursion parties. And it has been suggested by the Treasury Department that the penalty which is provided by this section will be sufficient to break up the practice.”

Said section 8 of the act of June 19, 1886, was amended by section 2 of the act of February 17, 1898, to read as follows:

"No foreign vessel shall transport passengers between ports or places in the United States, either directly or by

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