REMOVAL OF FLOATING DRY DOCK FROM ALGIERS, LA., TO GUANTANAMO, CUBA.

The President has no power, in the absence of an emergency making such action imperative for the protection of the interests of the Government, to remove to the naval station at Guantanamo, Cuba, the floating dry dock which was constructed and located at the naval reservation at Algiers, La., under the provisions of the act of May 4, 1898 (30 Stat. 379).

DEPARTMENT OF JUSTICE,

December 7, 1910.

SIR: I have the honor to reply to your letter of November 23, 1910, reading as follows:

"This department has in contemplation the removal of a floating dry dock from Algiers (New Orleans), La., where it is now located, to the naval station, Guantanamo, Cuba, at which latter station it would, in my opinion, after personal consideration and investigation, be better adapted for fulfillment of the object for which it was constructed. Some doubt, however, exists as to the legality of making the contemplated change in the location of this dock, because of the provision in the act of May 4, 1898, authorizing its construction, that said dock was 'to be located at the naval reservation at Algiers, Louisiana.'

"I have the honor to request your opinion as to whether the language quoted from the act of May 4, 1898, or any other provision of law, probihits the removal of the floating dry dock in question from Algiers, La., and the locating of same, either temporarily or indefinitely, at the naval station, Guantanamo, Cuba."

The provision to be construed is contained in the naval appropriation act approved May 4, 1898 (30 Stat. 369, 379), under the heading "Repairs and preservation at navy yards and stations," and reads as follows:

"Toward the construction of one steel floating dock of domestic manufacture which shall be a combined floating and graving dock, two hundred thousand dollars, said dock to be located at the naval reservation at Algiers, Louisiana, to be capable of lifting a vessel of fifteen thousand tons displacement, and twenty-seven feet draft of

water, to cost, including moorings and wharf, eight hundred and fifty thousand dollars."

The final appropriation for the completion of this dry dock was made by the naval appropriation act approved June 7, 1900 (31 Stat. 684, 696), as follows:

"Dry dock, Algiers, Louisiana: To complete floating dry dock for Algiers, Louisiana, six hundred and fifty thousand dollars, to be immediately available."

In determining the question presented, it is necessary to consider the previous legislation of Congress, which culminated in the authorization of the construction of a floating dry dock at Algiers, La.

The naval appropriation act of September 7, 1888 (25 Stat. 458, 463), contained the following provision under the heading "Bureau of Yards and Docks:"

"For the expenses of a commission of three officers, to be appointed by the Secretary of the Navy, to report as to the most desirable location on or near the coast of the Gulf of Mexico and the south Atlantic coast for navy-yards and dry docks and for the expenses of sounding and surveying and estimating expenses, fifteen thousand dollars.

* * * ""

The naval appropriation act approved June 30, 1890 (26 Stat. 189, 196), provided:

"And the President be, and he hereby is, required to appoint a commission composed of two competent naval officers, one competent army officer, and two competent persons from civil life, whose duty it shall be to select a suitable site, having due regard to commercial and naval interests, for a dry dock at some point on the shores of the Gulf of Mexico or the waters connected therewith; and having selected such site shall if upon private lands, estimate its value and ascertain as nearly as practicable the cost for which it can be purchased or acquired, and of their proceedings and action make full and detailed report to the President, and the President shall transmit such report with his recommendations to Congress. That to defray the expenses of such commissions the sum of fifteen thousand dollars, or so much thereof as may be necessary, be, and the same is hereby, appropriated.”

Provision for the establishment of a dry dock at Algiers, La., in pursuance of the recommendations of the abovementioned commissions, was first made by the act of March 3, 1893 (27 Stat. 715, 722), as follows:

"Dry dock, Algiers, Louisiana: Toward the establishment of a dry dock on the government reservation, near Algiers, Louisiana; for plans and specifications, and for the acquisition of such additional land as may be necessary in the discretion of the Secretary of the Navy, in accordance with the recommendations of two commissions appointed by the President under the provisions of an act approved September seventh, eighteen hundred and eighty-eight, and the act approved June thirtieth, eighteen hundred and ninety, respectively, twenty-five thousand dollars."

The next appropriation for this purpose was made by the naval appropriation act of July 26, 1894 (28 Stat. 123, 130), which contained the following clause:

"Dry dock at Algiers, Louisiana: For the purpose of completing the purchase of additional lands necessary for the establishment of a dry dock at Algiers, Louisiana, cost of advertising, plans and specifications for said dry dock, and expenses of judicial proceedings instituted for the condemnation of such additional lands, twenty-three thousand and twenty-five dollars and three cents."

The foregoing appropriations, it will be noted, contemplated the establishment of a stationary dock at Algiers. This plan appears to have been abandoned, however, and provision made for the construction of a floating dry dock at that place by the act of May 4, 1898, above set forth.

It will be observed that the act of May 4, 1898, requires "said dock to be located at the naval reservation at Algiers, Louisiana," and that the appropriation made by the act of June 7, 1900, is "to complete floating dry dock for Algiers, Louisiana." It is manifest that on their face these statutes negative the idea of the power of the President to locate the dock elsewhere or remove it when built. It is suggested, however, in the memorandum of the Judge-Advocate-General which accompanies your letter, that the language referred to was intended to be merely "descriptive of a thing" and not a permanent limitation upon the power of

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the Executive. The argument in favor of the authority of the President to authorize the removal of the dry dock to a different station, at least temporarily, if the interests of the service in his judgment should so require, is very forcibly presented by the Judge-Advocate-General, as follows:

"Arguments and decisions bearing upon the removal of objects, in their nature fixed and permanent, constructed under specific appropriations by Congress, can not be regarded as controlling, or even as applicable, to the present question. A floating dry dock, the same as a vessel, is constructed with a view to its removal at such times and to such places as may be deemed necessary or advisable, and, as shown by the general trend of legislation extending through a long period of years, it has not been the policy of the Congress to place restrictions upon the power of the Executive as to the one any more than as to the other. Thus we find that in the act of September 7, 1888, provision was made for 'one adjustable stern-dock, to be constructed at such place as the Secretary of the Navy may determine, thirty thousand dollars.' Again, by the act of June 7, 1900, provision was made for the 'purchase from the Government of Spain, for a sum not to exceed $275,000,' a floating dry dock belonging to that Government, and an appropriation of $300,000 made by the same act 'for the purchase of said dock and for transferring and mooring the same in such location as may be determined upon by the President.' The floating dry dock located at the naval station, Olongapo, P. I., was first appropriated for by the act of July 1, 1902, under the heading 'Naval station, Cavite, Philippine Islands,' as follows: Toward the purchase or construction of a floating steel dry dock (of American manufacture) (to cost not to exceed one million two hundred and twenty-five thousand dollars), two hundred thousand dollars.' Appropriations for the continuation of this floating dock were also made under the caption 'Naval station, Cavite, Philippine Islands.' When completed, however, the dock was located by the Executive at the naval station, Olongapo, P. I., and that Congress was aware of this action, and did not regard it as contrary to the purpose of the appropria

tions, is shown by the fact that the act of June 29, 1906, under the heading, 'Naval station, Olongapo, Philippine Islands,' made provision for a 'wharf for floating dry dock, sixty-five thousand dollars.'

"Very analogous to this question is that of the location of the light-ships authorized from time to time by Congress. These light-ships had been removed by the Executive to places other than those for which they were provided (24) Stat. 159). Accordingly, Congress, by act approved May 27, 1908 (35 Stat. 331), prohibited such action in the future by the following clause:

"Hereafter no light-ship shall be removed from the place designated for its station, in the act authorizing its construction, and be stationed elsewhere except upon express authority of Congress.'

"This prohibition was repealed by the next Congress (act June 17, 1910, 36 Stat. 537), from which it may be inferred that Congress concluded to leave to the Secretary of Commerce and Labor the power formerly exercised by him of removing light-ships from the places designated for their stations in the acts authorizing their construction.

"The discretion of the President, as commander in chief of the Navy, to make such disposition of the personnel and material of the naval service as to him may seem advisable, is, of course, subject to legislative restrictions by Congress enacted under its constitutional authority to 'provide and maintain a navy.' Unless, however, such restrictions be explicit and wholly free from doubt, they should not be regarded as intended to hamper or embarrass the Executive in the performance of its duties. As we have already seen, of four floating docks provided for by Congress, the location of two was left absolutely in the discretion of the Executive. The third was appropriated for under the caption of a specific naval station, but was nevertheless located at a different station in the same vicinity, and the action taken by the Executive in the matter met with the approval of Congress. No prohibition is explicitly made in the appropriation for the fourth onethat located at Algiers, La. with respect to its removal, and the words 'to be located at the naval reservation at