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can not, under the disguise of military orders, evade the legislative regulations by which he in common with the Army must be governed, and Congress can not in the disguise of 'rules for the government of the army impair the authority of the President as Commander in Chief.”
This power or right of command extends as much to one portion of the Army as to any other, and includes the assignment of any portion thereof to such duty as the Commander in Chief deems best.
Under the laws and Army regulations of the present time the Engineer Corps is just as much an integral portion of the Army as is any other, and its members are just as much subject to military command and to assignment to any duty consistent with their profession as are other officers. And this would be equally so even without this section 1158 or any other special authority.
But it is unnecessary for the present purpose to express any opinion as to the competency of Congress to curtail or restrict this power of command vested in the President as commander in chief. It suffices to say that it does not appear that Congress has attempted or intended to do so, or to repeal any portion of section 1158, Revised Statutes, or its implied grant of power to the President to order army engineers to any duty.
To attempt to curtail or restrict this power of command which the Constitution has vested in the President would be a serious and delicate matter, and in view of the considerations referred to it is quite safe to say that Congress would not do this in a general appropriation act by a general provision applicable alike to all departments, with no expression of any intention to thus curtail the power of the Commander in Chief of the Army, or any reference to that subject, and with no repeal of such a provision as is that of section 1158, Revised Statutes.
Under this section Army engineers may, by special order of the President, be assigned to any duty not actually incompatible with their profession or office. This is the clear and certain implication of that section. And what is implied in a statute is just as much a part of the act as if it were expressed in the same words. United States v. Bab
bit (1 Black, 55). As this is a special act making special provision for the assignment of army engineers to duty, it would seem that by familiar rules of construction it is not repealed by such a later general act, even though the terms of the latter are broad enough for that purpose.
The question here considered is a peculiar one in that it involves a question of the power of the President as Commander in Chief, and what is here said would not be applicable to cases not involving this question.
I am of opinion that section 9 of the act of March 4, 1909, does not operate to either repeal any portion of section 1158, Revised Statutes, or revoke the implied power there given to the President to order Army engineers to any duty, or to curtail his power under that section or otherwise to assign such engineers to any duty, and that he may,
by special order, make the detail of engineers requested in this
GEORGE W. WICKERSHAM.
The SECRETARY OF WAR.
TONNAGE TAX—COASTING AND FOREIGN TRADE, GREAT
The steamer H. S. Holden, enrolled and licensed under section 4318 of
Revised Statutes for the coasting or foreign trade, which cleared Cleveland, Ohio, for Two Harbors, Mich., without cargo or passengers from Cleveland to Two Harbors, but with cargo from Cleveland to the intermediate port of Fort William, Canada, which cargo she discharged at the latter place, and then proceeded to Two Harbors, is within the provisions of section 2793 of the Revised Statutes, and is not amenable to the tonnage tax imposed by section 36 of the act of August 5, 1909 (36 Stat. 111).
DEPARTMENT OF JUSTICE,
May 6, 1910. SIR: I have the honor to reply to your letter of November 13, 1909, transmitting a copy of an application by the owner of the steamer H. S. Holden for refund of tonnage tax collected on October 11, 1909, under section 36 of the tariff act of August 5, 1909 (36 Stat. 111), in circumstances detailed in the question which you submit for opinion, as follows:
“Was the steamer II. S. Holden enrolled and licensed to be employed either in the coasting or foreign trade, as provided in section 4318 of the Revised Statutes, on a voyage from Cleveland to Two Harbors, Mich., but without cargo or passengers for Two Harbors, carrying coal, however, from Cleveland to the intermediate port of Fort William, Canada, and after there discharging her cargo, proceeding thence to Two Harbors, to be regarded under section 2793 of the Revised Statutes as an enrolled and licensed vessel engaged in the foreign and coasting trade on the northern, northeastern, and northwestern frontiers of the United States, arriving at a port in one district from a port in another district, and also touching at an intermediate foreign port?”
Section 2793 of the Revised Statutes, under which your question arises, reads:
“Enrolled or licensed vessels engaged in the foreign and coasting trade on the northern, northeastern, and northwestern frontiers of the United States, departing from or arriving at a port in one district to or from a port in another district, and also touching at intermediate foreign ports, shall not thereby become liable to the payment of entry and clearance fees, or tonnage tax, as if from or to foreign ports; but such vessels shall, notwithstanding, be required to enter and clear.”
At the outset it must be inquired whether this section 2793 is still in force; but on that I can have no doubt. The tariff act of August 5, 1909, certainly does not repeal the section; because section 36 of that act, dealing with the subject of tonnage duties, expressly declares that it “shall not be construed to amend or repeal tion twenty-seven hundred and ninety-three of the Revised Statutes". Any claim of repeal must therefore be that section 2793 was extinguished by some one of the enactments which, intermediately between the Revised Statutes and the tariff act of 1909, restated or altered the general system of tonnage duties. These intermediate acts were approved February 27, 1877 (19 Stat. 250); June 26, 1884
(23 Stat. 53, 57); and June 19, 1886 (24 Stat. 79, 81). All these statutes were in substance as well as in form alterations of or substitutes for section 4219 of the Revised Statutes; and they can have had no more purpose of repealing section 2793 of the Revised Statutes than could be ascribed to the last-mentioned section itself. It is of course beyond cavil that neither of the two stated sections of the Revised Statutes was designed to repeal the other. Their simultaneous inclusion in the revision forbids any such idea, Further, section 2793 of the Revised Statutes was a revision of section 2 of the act of February 10, 1871, and section 4219 of the Revised Statutes was an outgrowth of numerous acts antedating 1871. In their origin, therefore, section 2793 of the revision was subsequent to section 4219; and that fact, beside the nature of section 2793, shows that it was intended as a special exception from the general scheme of tonnage duties. In all the years between the revision of 1874 and the tariff act of 1909, section 2793 of the Revised Statutes has been continuously and consistently recognized and enforced by the executive officers of the Government, notwithstanding the intermediate alterations of the general tonnage duties; and, as already seen, the tariff act of 1909 itself in express terms contains a legislative recognition of section 2793 as still operative.
How, then, does section 2793 of the Revised Statutes apply to the facts stated in your question? Does it cover such a case? The steamer Holden was admittedly enrolled and licensed under section 4318 of the Revised Statutes, which says that vessels of the United States “navigating the waters on the northern, northeastern, and northwestern frontiers, otherwise than by sea,” when so enrolled and licensed, may "be employed either in the coasting or foreign trade on such frontiers.” This statutory provision accords to the described class of vessels the peculiar privilege of engaging in foreign trade without the registration generally required by the statutes for that purpose, while still engaging under their enrollment in the coasting trade. The Holden likewise was, within section 2793, departing from a port in one district to a port in another district, viz, from Cleveland, Ohio, to Two Harbors, Mich. The remaining inquiries under the statute are whether the fact that the Ilolden carried no cargo or passengers from Cleveland to Two Harbors prevented her being "engaged in the foreign and coasting trade on the northern, northeastern, and northwestern frontiers of the United States, and whether the fact that she carried cargo from Cleveland to Fort William, Canada, shows that she was doing something more than "touching at an intermediate foreign port.” It will be more convenient to make the latter inquiry first.
1. Does section 2793 contemplate that the intermediate foreign port be touched merely for a purpose less than or different from discharge or receipt of cargo at that port? On the contrary, it seems clear that the section covers stoppage at the foreign port for receipt or discharge of cargo, and not improbably it looks chiefly to that case. The purposes for which the foreign port may be touched are not prescribed or limited in the act. The language is wide and general. In all ordinary circumstances there would be no motive whatever for going into the foreign port except the delivery or procurement of cargo. The conditions of the trade on the frontier waters between the United States and Canada involve a close and necessary intermixture of domestic and foreign carrying. The existence and the expediency of that intermixture are recognized, as we have seen, by section 4318 of the revision in its peculiar allowance that vessels may carry on both kinds of trade under enrollment alone. Further, this section 2793 is a revision of section 2 of the act of February 10, 1871 (16 Stat. 595); and that section supplements and qualifies the act of July 1, 1870 (16 Stat. 176), the first section of which in terms refers to touching at a port for the purpose of taking on or putting off cargo.
Still further, section 2793 itself, by its reference to vessels “engaged in the foreign and coasting trade,” certainly shows that a vessel enjoying its benefits may be-even if it need not be--carrying both domestic and foreign cargo on the same voyage, and therefore that the vessel may touch at the foreign port for receipt or discharge of cargo. This view of the statute also accords with its construction by the Treasury Department at all times. Under date May 13,