within the meaning of the act of June 11, 1906 (34 Stat. 233). Your suggestions, briefly summarized, are:

First. That the opinion ignores a class of reservations created by proclamation of the President which more nearly fit the term "temporary forest reserves" than do the lands that have merely been withdrawn from entry, viz, forest reserves "comprehending lands devoid of timber and intended to be (and which were) used for experimental purposes, in the planting of trees, etc."

Second. That the opinion affects the jurisdiction of your department, as heretofore understood and exercised, over such withdrawn lands and therein may operate seriously upon private interests which rest upon the validity of your acts; and

Third. That to extend the right of entry by metes and bounds to lands merely withdrawn, and which may likely be restored to the public domain, offends the general policy of allowing entries of public lands only in rectangular tracts and tends to inconvenience and confusion.

The first suggestion, if well grounded, would be strongly persuasive, but it is hardly borne out by the proclamations themselves. A careful examination of all proclamations creating or affecting forest reservations, from the first of them down to a time long subsequent to the act in question, reveals no instance in which the purpose of the reservation was expressed to be temporary, or may safely be inferred to have been so from the recitals, description of subject-matter, or general context of the proclamation. In this respect the proclamations are so substantially similar that one can not logically be distinguished from another. The proclamation instanced by you (35 Stat. 2120) recites that the lands restored were no longer required "for experimental forest purposes." The original proclamation (34 Stat. 3178) which created the reservation thus abolished is couched in the terms common to scores of others and affords no indication that its purpose differed from the purpose actuating the creation of forest reservations in general. The recitals are, first, a recital of the authority of the President to set aside forest reserves under section 24 of the act of March 3, 1891 (26 Stat. 1103), and, second, the following:

"And whereas, the public lands in the Territory of New Mexico, within the limits hereinafter described, are in part covered with timber, and it appears that the public good would be promoted by setting apart and reserving said lands as a public reservation."

I take the explanatory recital of the later proclamation to mean that the land was originally set apart for the conduct of forestry experiments of a more or less general character, or with a view to the forestation or reforestation of that particular tract. From neither of these objects may it be inferred that the subsequent restoration was part of the original plan.

Of the other suggestions contained in your letter, that which concerns the respective jurisdictions of your department and the Department of Agriculture and the protection of private interests is, of course, important; but I do not believe that the opinion logically points to the results which you apprehend. Because lands merely withdrawn are regarded as temporary forest reserves for the special and limited purpose of the act of June 11, 1906, it by no means follows that they must be regarded as forest reserves for all purposes. The very existence of the distinction between the temporary and the permanent reserves-the distinction upon which depends the attribution of any meaning to the words "temporary forest reserves" in the act-rests in the fact that the former have not yet attained the status of lands definitely set apart to be used and administered as national forests. They may never reach that status. The jurisdiction conferred upon the Secretary of Agriculture by the act of February 1, 1905 (33 Stat. 628), cited by you, is essentially a jurisdiction to care for, supervise, and manage the national forests as distinct instrumentalities of the Government-as "going concerns"-and to execute certain laws relating to them. He is directed by that act to "execute, or cause to be executed, all laws affecting public lands heretofore or hereafter reserved under the provisions of section 24 of the act approved March 3, 1891, and acts supplemental to and amendatory thereof, after such lands have been so reserved,” excepting certain classes of laws left for execution by the Interior Department. The language here used distinctly

imports that the process of reserving a given area of land shall have been completed before the Secretary's functions shall come into play.

The laws which the Secretary is to execute are manifestly the laws which declare the general policy respecting forest reservations and govern their administration and use as such apart from the general mass of public lands. The object of the "temporary" reservation is to retain the lands withdrawn in statu quo until the President may inquire further whether they are lands suitable to be brought within the operation of those laws. Application of those laws before the inquiry has been ended and acted upon would not only defeat in part the presidential purpose, but would be inconsistent with the laws themselves, since they presuppose as a condition to their application to a given area of land that a definite and final decision of the President to set apart and reserve it for forestry purposes shall have been made and proclaimed. The duty and responsibility of creating forest reserves rests with the President. The preliminary withdrawal of lands through your action is but a step in the process of creating them. The withdrawn areas can not be said to come under the "supervision" of the Secretary of Agriculture or his department within the meaning of the act of February 15, 1901 (31 Stat. 790), until they shall have been definitely devoted by the President to the forest policy. The power which brings about such withdrawals may, of course, revoke them.

The foregoing observations appear to cover the various objections made in your letter save that which is based upon the inconvenience of allowing entries to be made otherwise than in accordance with the public surveys. This is an objection the ground for which may be in large measure removed in practice by cooperation between the two departments; but whether this be so or not it is an objection which goes rather to the wisdom of the act of June 11, 1906, than to the soundness of the Acting Attorney General's opinion.

Very respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF THE INTERIOR.

CHIEF CONSTRUCTOR IN THE NAVY-GRADE-VACANCY. The resignation of Mr. Washington L. Capps, chief of the Bureau of Construction and Repair in the Navy Department, upon his completion of 30 years' service in the Navy, and his being commissioned, under the provisions of the naval appropriation act of June 24, 1910 (36 Stat. 607, 608), a chief constructor in the Navy, with the rank of rear admiral, did not create a new grade in the construction corps. No vacancy was created thereby in the grade of naval constructor, nor in the total number of naval constructors and assistant constructors provided by law. The office of chief of bureau in the Navy Department is not designated by acts of Congress as a grade.

DEPARTMENT OF JUSTICE,
December 10, 1910.

SIR: The material facts giving rise to the request for an opinion contained in your letter of the 12th ultimo are stated by you as follows:

"From October 31, 1903, to and including September 30, 1910, the Chief of the Bureau of Construction and Repair in this department, with the title of chief constructor, was Washington L. Capps, whose actual position in the Navy was in the grade of naval constructor with the rank of captain on the latter date, and on which date he completed 30 years' service in the Navy. On October 1, 1910, he resigned his office as such chief of bureau, and on the same day, in accordance with the terms of a provision in the naval appropriation act approved June 24, 1910 (36 Stat. 607, 608), he was commissioned a chief constructor in the Navy with the rank of rear admiral, and he still remains on the active list."

The provision of the act of June 24, 1910, under which Mr. Capps was commissioned, reads as follows:

"The pay and allowances of chiefs of bureaus of the Navy Department shall be the highest shore-duty pay and allowances of the rear admiral of the lower nine; and all officers of the Navy who are now serving or shall hereafter serve as chief of bureau in the Navy Department and are eligible for retirement after 30 years' service, shall have, while on the active list, the rank, title, and emoluments of a chief of bureau, in the same manner as is already provided by statute law for such officers upon retirement by reason of

age or length of service, and such officers, after 30 years' service, shall be entitled to and shall receive new commissions in accordance with the rank and title hereby conferred."

The questions upon which you desire an expression of my views are stated by you as follows:

"1. Does the recent commissioning of Mr. Capps as a chief constructor in the Navy with the rank of rear admiral create a new grade in the construction corps of the Navy?

"2. Does the same fact create a vacancy in the grade of naval constructor in the Navy with the rank of captain, and in the total number of naval constructors and assistant naval constructors as provided by law?"

Of the eight bureaus among which, under section 419 of the Revised Statutes, "the business of the Department of the Navy shall be distributed in such manner as the Secretary of the Navy shall judge to be expedient and proper," the fifth is "a Bureau of Construction and Repair." Section 421 requires the chiefs of these bureaus to be "appointed by the President, by and with the advice and consent of the Senate," and they hold their offices for the term of four years.

Section 423 provides that

"The Chief of the Bureau of Construction and Repair shall be appointed from the list of officers of the Navy, not below the grade of commander, and shall be a skillful naval constructor."

An act of March 3, 1893 (27 Stat. 716), modifies this section by providing that

* * any naval constructor having the rank of captain, commander or lieutenant commander shall be eligible as Chief of the Bureau of Construction and Repair."

Section 1471 of the Revised Statutes, as amended by section 7 of the navy personnel act of March 3, 1899 (30 Stat. 1005), provides that the Chief of the Bureau of Construction and Repair, when that office is filled by an officer below the "rank" of rear admiral, shall have the "rank" of rear admiral while holding that "position," and shall have the "title" of chief constructor.