INTERNAL REVENUE-RECLAMATION OF ALCOHOL FROM THE STAVES OF EMPTY SPIRIT PACKAGES-ATTORNEYGENERAL, OPINIONS. The Attorney-General can not properly express an official opinion upon the legality of certain orders issued by the Commissioner of Internal Revenue prohibiting the reclamation of alcohol from the staves of empty spirit packages, in the absence of affirmative proof that such alcohol had been properly tax paid, for the reason that the question has been decided by the Treasury Department, and is presented merely because of the request of counsel for parties interested, and for the further reason that the question must ultimately be decided by the courts. DEPARTMENT OF JUSTICE, January 30, 1911. SIR: I beg to reply to your letter of October 7, 1910, requesting my opinion upon certain questions in respect to the extraction of alcohol from the staves of empty spirit. packages. An earlier response has been delayed in order that briefs might be prepared and filed by counsel for various parties interested, as was requested by them. Several such briefs have been presented, as well as a memorandum by the Commissioner of Internal Revenue, and the matter has received careful consideration. I regret to say, however, that the circumstances are such as to make it inadvisable for me to attempt to formulate an opinion upon these questions as they now arise. It appears that the questions presented involve the legality of certain orders issued by the Commissioner of Internal Revenue, the purpose of which is to prohibit the reclamation of spirits from such packages in the absence of affirmative proof that such spirits had been properly tax-paid. The papers in the case show that these orders were issued under your direction and that the Commissioner and the Solicitor of Internal Revenue, as well as yourself, are fully satisfied that your action in the premises is correct, the questions referred to being presented for my consideration merely because of the request of counsel for the parties interested. There are numerous precedents to the effect that the Attorney-General is precluded from rendering opinions under such circumstances. In an opinion of August 17, 1892 (20 Op. 440), it appeared that the Treasury Department had reached conclusions upon certain questions which had arisen or might arise therein under a statutory provision, and that an opinion was desired as the "correctness of the interpretations and applications of said law." In declining to accede to this request it was said (ib. 441-442): "It is required not only that the question must be one arising in the administration of a department, but it must be one which is still pending. A matter which has been considered and decided is not now a 'question' upon which the head of a Department may require an opinion of the head of the Department of Justice." An opinion reported in 3 Op. 39 likewise decides that the Attorney-General does not possess the power to revise the decisions of an executive department, deliberately made and entirely satisfactory to the Secretary thereof. It appears, moreover, that a proper determination of the questions presented can not be accomplished without considerable difficulty, and that the questions are essentially judicial in their nature. There is also every reason to believe that if an opinion should be rendered sustaining the validity of the orders in question, parties interested would resort to the courts for the purpose of having the matter judicially investigated and determined. That it is not proper for the Attorney-General to express an opinion upon a question which must ultimately be decided by the courts has been settled by numerous and unequivocal precedents (Digest Op. 46–48). Furthermore, it appears that the orders referred to are apparently supported by a decision of the Circuit Court of Appeals for the Seventh Circuit (Hunter v. Corning, 86 Fed. 913), although the application of that decision is contested. In a letter to the President's Secretary in regard to this matter, which has been called to my attention, you state: "The parties have their remedy in the courts, and they have been offered permission-pending the decision of the courts to continue their business on the furnishing of bonds to pay the Government from this date, if the decision is sustained." Under all the circumstances, it seems clear that it would not be proper to attempt to give you the advice requested. Respectfully, GEORGE W. WICKERSHAM. The SECRETARY OF THE TREASURY. FIELD ASSISTANT ON THE GEOLOGICAL SURVEY-ACCEPTANCE OF AN ORDER FROM THE KING OF SWEDEN. A field assistant on the United States Geological Survey designated as special agent, whose service is not continuous, who is paid by the day when actually employed, and who does not take any oath of office, is not an officer under the United States within the meaning of Article I, section 9, paragraph 8, of the Constitution, and he may therefore accept from the King of Sweden the order of the "Knighthood of the North Star." DEPARTMENT OF JUSTICE, SIR: I have the honor to respond to your communication of January 18, in which you transmit a copy of letter to you from Hon. James McKinney, Representative in Congress, and ask my opinion whether Prof. J. A. Udden, special assistant on the United States Geological Survey, may accept from the King of Sweden the order of the "Knighthood of the North Star," which that Sovereign has conferred on him, in view of Article I, section 9, paragraph 8, of the Constitution of the United States, which provides that "No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state." Upon inquiry of the Chief Geologist of the United States Geological Survey, I am informed by him that the facts respecting the status of Professor Udden are these: He was employed under Civil-Service Rule VIII as field assistant, grade four (designated as special agent in this case); He is employed by the chief geologist, with the approval of the director, under authority of the Civil Service Commission; His work is indefinite in term, his employment being from time to time during the year, with the limitation. that the compensation is not to exceed $300 in any one year; He is paid by the day when actually employed, at $5 per day; He does not take any oath of office, and, in reply to the question: "Do his duties require a continuous service, or only as they may be occasionally called for by his superior?" the answer is: "Only occasional work." Under these conditions I am of the opinion that Professor Udden can not be called an officer under the United States within the meaning of the provision above quoted. (United States v. Germaine, 99 U. S. 508.) I have the honor, therefore, to advise you that there is nothing in the Constitution or laws to prevent the acceptance by Professor Udden of the order conferred upon him by the King of Sweden. Respectfully, GEORGE W. WICKERSHAM. The SECRETARY OF STATE. CUSTOMS LAW-IMPORTATION OF TORPEDOES FOR THE UNITED STATES. Whitehead torpedoes imported from Europe into the United States to be distributed among the torpedo-boat destroyers of the United States are dutiable under the tariff act of August 5, 1909 (36 Stat. 11), but until they are carried to a place where there is a port collector where they may be entered, and the duties ascertained and paid, no duty would become payable. DEPARTMENT OF JUSTICE, SIR: I have the honor to acknowledge the receipt of your communication of January 28, in which you state that your department is contemplating ordering in Europe. some Whitehead torpedoes, which upon arrival would be distributed among the torpedo-boat destroyers and sub marines without landing them; but that after being used some of the torpedoes will have to be landed from time to time for the purpose of repairs, or to be stored in the event the vessels go out of commission; and you ask whether under these circumstances the torpedoes can be admitted to the United States free of duty. The existing tariff law, approved August 5, 1909 (36 Stat. 11), enacts that "there shall be levied, collected, and paid upon all articles. when imported from any foreign country into the United States or into any of its possessions (except the Philippine Islands and the islands of Guam and Tutuila), the rates of duty which are by the schedules and paragraphs of the dutiable list of this section prescribed." The same statute in section 28 provides the method for entering important merchandise and for the ascertainment of the amount of duties payable upon any particular importation. The essential feature to be considered in this connection being that an invoice of the merchandise made out in the currency of the place or country from whence the importation shall be made, duly certified by a consular officer of the United States, shall be produced to the collector of the port, or his deputy, at which the goods are entered. Until therefore the torpedoes which you contemplate purchasing are carried to a place where there is a port collector through whose office the entry can be made and the duties. ascertained and paid as a practical matter, no duty would become payable. Assuming, however, that the torpedoes are brought to such a port, in my opinion they can not be admitted to the United States free of duty. This precise question was considered by this department and determined by an opinion rendered February 9, 1892, by Solicitor-General Taft (20 Op. 314), in which he advised the Secretary of the Treasury that the bituminous coal imported for the use of the Government was dutiable. In that opinion he said that: "In the tariff act of 1874, Revised Statutes, section 2505, page 483, there was a provision that all articles imported for the use of the Government should come in free. This was part of the free list of the tariff act of 1874. In the |