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I am of the opinion, therefore, that it was contemplated by Congress that a new inquiry should be made by the President with reference to the status of American authors and proprietors under the copyright laws of foreign countries, and that publication of such finding should be made in order to entitle foreign authors and proprietors to the advantages of the copyright laws of this country.
It will be observed that the determination of the specified conditions of the foreign laws and the proclamation of the President made with reference thereto does not create the right of foreign authors and proprietors to enjoy the rights and privileges of our copyright laws, but that such proclamation is only the evidence of the existence of the conditions under which those rights and privileges may be exercised. It is true that the absence of such proclamation is conclusive evidence that such rights do not exist, while, on the other hand, the proclamation is conclusive evidence that they do exist; but, nevertheless, the proclamation is not a condition precedent to the existence of the rights themselves. Therefore, there is no reason why such proclamation may not be retroactive in its effect; and, consequently, if a proclamation were made showing the determination of fact by the President that either of the conditions required in the statute have been complied with since a specified date, such proclamation would be conclusive evidence of that fact, and the citizens or subjects of such country would be entitled to avail themselves of our copyright laws from the date mentioned in the proclamation. It was unquestionably recognized by Congress that it would require some time for the President to make the proper investigation and to publish a proclamation of the conditions found; and it can not be believed that Congress intended to deprive the citizens or subjects of a foreign state or nation, which had complied with the provisions of the statute, of the privileges of the American copyright laws while such investigation was pending. I therefore answer your second inquiry in the affirmative. Respectfully,
GEORGE W. WICKERSHAM, The SECRETARY OF STATE.
CENSUS OFFICE-CITIZENSHIP OF ENUMERATORS AND
The provision of section 10 of the permanent census act of March 6,
1902 (32 Stat. 53), which prohibits the employment in the Census Office of persons other than citizens of the United States, does not prevent the employment of persons as enumerators and inter
preters who are not such citizens. The provision referred to was not, however, repealed by the act of
July 2, 1909 (36 Stat. 1). The expression “All employees of the Census Ofice," in section 10 of the census act of 1902, does not relate to enumerators or interpreters.
DEPARTMENT OF JUSTICE,
March 19, 1910. Sir: I have the honor to acknowledge receipt of your communication of March 4, 1910, wherein you ask my opinion upon the following questions:
1. Whether the provision in section 10 of the act of March 6, 1902 (32 Stat. 53), that “All employees of the Census Office shall be citizens of the United States," applies to any appointments made for the purpose of taking the Thirteenth Census, as provided for by the special Thirteenth Census act of July 2, 1909;
2. If it does apply, should it be so construed as to prevent the employment of persons to act as interpreters and enumerators who are not citizens of the United States; and
3. Whether the exceptional conditions which prevail in Porto Rico and Hawaii are not of sufficient importance to justify the assumption that it was not the intent of Congress that the provision relative to citizenship should apply to those islands.
In reply thereto I will say:
Section 17 of the act of March 3, 1899 (30 Stat. 1019), entitled “An act to provide for taking the Twelfth and subsequent censuses," reads as follows:
“ That the special agents appointed under the provisions of this act shall have equal authority with the enumerators in respect to the subjects committed to them under this act, and shall receive compensation at rates to be fixed by the Director of the Census: Provided, That the same shall in no case exceed six dollars per day and actual neces
sary traveling expenses and an allowance in lieu of subsistence not exceeding three dollars per day during their necessary absence from their usual place of residence: And provided further, That no pay or allowance in lieu of subsistence shall be allowed special agents when employed in the Census Office on other than the special work committed to them, and no appointments of special agents shall be made for clerical work."
The act of March 6, 1902, was entitled "An act to provide for a permanent Census Office," and section 10 thereof (32 Stat, 53) amended section 17 of the act of 1899 above quoted by adding thereto the following:
And provided further, That the Director of the Census is hereby authorized in his discretion to employ the clerical force of the Census Office for such field work as may be required to carry out the provisions of sections seven, eight, and nine, in lieu of employing special agents for that purpose; and such employees when so employed shall be allowed, in addition to their regular compensation, actual necessary traveling expenses and an allowance in lieu of subsistence not exceeding three dollars per day during their necessary absence from the Census Office. All employees of the Census Office shall be citizens of the United States."
On July 2, 1909 (36 Stat. 1), Congress passed an act entitled "An act to provide for the Thirteenth and subsequent decennial censuses," and the eighteenth section of this act provides for the appointment by the Director of the Census of special agents, and with reference to the authority of such special agents and the payment of their compensation and expenses, its provisions are substantially the same, or at any rate cover the same ground, as section 17 of the act of 1899 as amended by section 10 of the permanent census act. But there is omitted from this section the provision that all employees of the Census Office shall be citizens of the United States.
By section 33 of the act of 1909 (36 Stat. 10) it was provided
“ That the act establishing the permanent Census Office, approved March sixth, nineteen hundred and two, and acts
amendatory thereof and supplemental thereto, except as are herein amended, shall remain in full force. That the act entitled 'An act to provide for taking the Twelfth and subsequent censuses,' approved March third, eighteen hundred and ninety-nine, and all other laws and parts of laws inconsistent with the provisions of this act are hereby repealed."
The first question therefore is, whether or not the provision with reference to the citizenship of employees of the Census Office is repealed by the act of 1909.
I am of the opinion that it is not. As shown, it is expressly provided in the act of 1909 that the permanent census act shall remain in force, except as therein amended. There is no express language in the act of 1909 repealing the provision in question, and I think the fact that section 18 of the act of 1909 covers, with the exception of this provision, the same ground as section 10 of the permanent census act, does not work a repeal of this provision by implication. It is a well-recognized principle that in order for a later statute to repeal by implication a former statute or any portion thereof, “there must be a positive repugnancy between the provisions of the new law and those of the old, and even then the old law is repealed by implication only pro tanto, to the extent of the repugnancy." (Chew Heong v. United States, 112 U. S. 536, 549; Wood v. United States, 16 Pet. 342, 362; State v. Stoll, 17 Wall. 425, 431.)
This provision is not a part of the last proviso, nor is it intimately connected with the section in which it appears, but is an entirely independent provision, and its existence does not at all depend upon a repeal of that which goes before. Clearly, section 18 of the last act is a substitute for the remaining portions of said section 10 of the permanent census act, and by implication repeals the same; but this provision is just as consistent with section 18 of the last act as with section 10 of the former act, and consequently was not repealed thereby.
It becomes necessary, therefore, to determine the scope and meaning of the expression “ Census Office" in this provision; and I think that may be readily determined
from the use of this same expression as it appears in the immediate context. The expression appears three times elsewhere in this section; first in the second proviso, wherein it is provided that no pay or allowance in lieu of subsistence shall be allowed special agents when employed in the Census Office on other than the special work committed to them; it again appears in the third proviso where the Director of the Census is authorized, in his discretion, to employ the clerical force of the Census Office for such field work as may be required to carry out the provisions of sections 7, 8, and 9; and it also concludes this same proviso wherein it is declared that in addition to the regular compensation, the clerical force shall be allowed actual and necessary traveling expenses and an allowance in lieu of subsistence not exceeding $3 per day during their absence from the Census Office. Clearly, the expression as thus used in each instance has reference to the employees in the Census Office located in Washington, and has no relation to enumerators or interpreters who are appointed by the supervisors of census, with the consent of the Director of the Census; and I think it has the same meaning in the provision in question. In fact, these employees are not provided for in the permanent census act, and the positions were specially created by the act of 1909 for the purpose of taking the Thirteenth Census.
The expression also often appears in other portions of the act, but it is not deemed necessary to analyze and determine what its meaning is as it elsewhere appears.
I am of the opinion, therefore, that the provision of the permanent census act which prohibits the employment in the Census Office of other persons than citizens of the United States, does not prevent the employment of persons as enumerators and interpreters who are not such citizens; and this, as I understand, is a sufficient answer to the three questions propounded. Respectfully,
GEORGE W. WICKERSHAM, The SECRETARY OF COMMERCE AND LABOR.