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during the time in which the officer remains on the active list of the navy, whether as bureau chief or otherwise.
But the provision is plain and unambiguous, and, therefore, construction of any kind is not permissible, but the ordinary meaning of the language used must be taken as the meaning of the provision in question.
As the “emoluments” of an office or place include salary, pay, and every kind of pecuniary compensation for service rendered (Hoyt v. United States, 10 How. 108, 135), the pay provided for in this provision also continues with the “rank, title, and emoluments," and your question is therefore answered in the affirmative. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF THE NAVY.
CIVIL SERVICE-ELIGIBILITY OF CARPENTER TO FILL
The Attorney-General can not properly render an opinion to the Secre
tary of Commerce and Labor upon the question whether the Civil Service Commission is authorized, under existing civil-service rules, to certify eligibles from the list of persons who have qualified as carpenters, from which selection may be made for filling temporarily a statutory position as clerk, as the question is not one arising in the administration of the Department of Commerce and Labor which the Secretary is called upon to determine.
DEPARTMENT OF JUSTICE,
September 27, 1910. SIR: I have the honor to acknowledge the receipt of your letter of the 14th instant, with inclosures, wherein you request an opinion upon the question whether the CivilService Commission is authorized, under existing civilservice rules, to certify eligibles from the list of persons who have qualified as carpenters, from which selection may be made for filling, temporarily, a statutory position as clerk at $900 per annum under your department.
Your letter shows that the question has arisen in the following manner:
A vacancy in a statutory position of clerk at $900 per annum now exists in the Bureau of Light-Houses of your department. In another part of your office the services of a carpenter are urgently needed for a period of probably three months, and you desire to utilize the vacancy in the statutory position mentioned for the purpose of securing the services of a carpenter. Accordingly a requisition was made by you upon the Civil Service Commission for a list of eligible clerks qualified as carpenters, and the commission has advised you that the position of clerk is an educational one of the first grade, while the position of carpenter is noneducational and of the third grade, and that it could not, therefore, issue a certificate from the carpenter register for the purpose of filling your clerk vacancy. You also transmit a copy of your reply to the letter of the commission, in which you sought to have it recede from the position it had taken in the matter, and of the response of the commission, informing you that no additional facts had been submitted which would warrant it in changing its action.
Therefore you request me to review the matter and advise you whether the Civil Service Commission is authorized to comply with your request.
It is clear from your letter, and the papers which accompanied it, that the authority of the Civil Service Commission in the premises is one for its determination and can not in any sense be said to be pending before you for decision. As stated in response to a request for an opinion under similar circumstances (20 Op. 312), “the question is one which perhaps affects the administration of your department, but it is not one which you, as the head of the department, are called upon to decide in its administration."
In an opinion of August 1, 1910 (Ante, p. 393) concerning a difference of views arising between the Civil Service Commission and the Director of the Geological Survey as to the eligibility of a certain person for permanent appointment, the Secretary of the Interior was advised that the question presented was not one arising in the administration of his department which he was called upon to determine, and upon which an opinion could be requested by him under the provisions of section 356 of the Revised Statutes, but was one for the determination of the commission, pursuant to the civil-service statutes and regulations. (See also 20 Op. 158.)
Should the commission entertain any doubt as to what action it is authorized to take, it may, as was done in the case of the opinion referred to by you in another connection (26 Op. 522), ask the President to call for an expression of my views.
I regret that under the circumstances the law and uniform practice of this department preclude me from responding to the question which you ask. .
In accordance with your request, the papers which accompanied your letter are herewith returned. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF COMMERCE AND LABOR.
HUDSON RIVER-HARBOR LINES-SHOAL WATER.
The establishment of harbor lines on the Hudson River from Troy to
below New Baltimore does not preclude the Government, in the prosecution of improvements in said river in the interest of commerce and navigation, from depositing the excavated material in the areas of shoal water behind and shoreward of the said lines without the consent of the owners and without making compensation.
DEPARTMENT OF JUSTICE,
September 27, 1910. Sir: I have the honor to reply to your letter of June 30, 1910, in which you ask my opinion as to whether the existence of bulkhead or so-called "harbor" lines on the Iludson River from Troy to below New Baltimore precludes the Government in the prosecution of improvements in the river at that point, from depositing the excavated material in the areas of shoal water behind and shoreward of the said lines without the consent of the owners and without making compensation.
I am of opinion that the existence of these lines does not have this effect.
There can be no question that, prior to the delineation of said harbor lines, the Federal Government had the sovereign right, under its duty in respect to interstate commerce, to take material excavated from one portion of the bed of a river and deposit it in another portion of that bed (whether deep or shoal water); and this without the consent of the owner of the fee in the submerged soil and without compensation to him. (Scranton v. Wheeler, 179 U. S. 141, 163-164; South Carolina v. Georgia, 93 U. S. 4 at p. 11, semble; Barney v. keokuk, 94 U. S. 324, 337–338; Gibson v. U. S., 166 U. S. 269, 271; So. Pac. Co. v. Western Pac. R. R. Co., 144 Fed. 160, 192-193; Hawkins Point Light House Case, 39 Fed. 77; Hill v. U. S., 39 Fed. 172; 22 Op. 646; Cf. 27 Op. 311.)
Also it is clear that, prior to the delineation of the said harbor lines, there coexisted beside, but subject to, these rights and powers of the Federal Government, a subordinate right in the owner of the submerged soil to build bulkheads and wharves, and to fill in, up to the point at which actual navigation would be obstructed. (Yates v. Milwaukee, 10 Wall. 497; II. Cent. R. Co. v. II., 146 U. S. 387, and below 33 Fed. 730; Dutton v. Strong, 1 Black. 23 (Harlan, J.); Railroad Co. v. Schurmeir, 7 Wall. 272.)
The question then is, what effect, if any, did the delineation of these harbor lines have upon these coexisting rights of the Government on the one hand and of the owner of the submerged soil on the other?
To determine that question it is necessary first of all to examine the act of Congress by which the lines were authorized (act Aug. 11, 1888, sec. 12; 25 Stat. 400), and which is in fact the only express statement of their meaning and intended effect. This express statement is as follows:
“SEC. 12. Where it is made manifest to the Secretary of War that the establishment of harbor lines is essential to the preservation and protection of harbors, he may, and is hereby, authorized to cause such lines to be established, beyond which no piers or wharves shall be extended or deposits made except under such regulations as may be prescribed from time to time by him."
Clearly there is here no express language either of abdication by the Government of any of its rights and duties or of grant to the private owner of any new affirmative rights. On the contrary, the language is entirely prohibitory-fixing the point beyond which piers, wharves, or deposits must not go. And in the later amended form of the section, criminal punishment is provided for violation of the prohibition. (Act Sept. 19, 1890, 26 Stat. 455, sec. 12.) In short, the statutory definition of the lines, so far as its express terms go, merely announces specifically the position of the navigable channel, up to which the owner of the submerged land had, as I have stated, an already existing right to wharf or fill.
Is there, however, implied, even if not expressed, in such an announcement a positive change of rights of the parties up to this boundary so announced ? I see no valid grounds for such an implication. The line was drawn in water. The river, part deep and part shallow, remained as before, and also as before there remained the public necessities for using the shallow water and its bed in the service of navigation. Nothing actually happened except that the Government, having a certain jurisdiction over the entire river, and the owners of the submerged lands having certain rights excepting in the channel, the Government designated for the information of the owners the whereabouts of that channel. It is not apparent how such a designation implies the termination of the former status of the parties up to the channel; for certainly even the implied recognition of the preexisting rights of the owners was not inconsistent with an intention also to continue the preexisting rights of the public. That these two sets of rights are not mutually exclusive is shown by their original undoubted coexistence.
While the power of dumping in the particular case to which you refer may not be itself of very high importance, the, principle affecting it would necessarily also affect even the most essential uses of the stream in the public interest; and the powers and duties involved are therefore of so high a degree that they can not be deemed to have been abdicated without the most explicit language