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Wichita National Game Reserve, application of U. S. mining

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Wildlife conservation, acquisition of land for such purposes.
Women, certification of appointment, proposed amendment of

civil service rule VII.---
Workmen's compensation fund of California, Federal taxation.-
World War adjusted compensation act, desertion for the entire

compensable period.---
World War veterans' act, application of the definitions therein

of relationship and dependency---
compensation for dependents-----
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Yacht, authority to remit or mitigate forfeiture for violation of

shipping act, 1916, as amended.

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OPINIONS

OF

HON. HOMER CUMMINGS, OF CONNECTICUT

APPOINTED MARCH 4, 1933

SALE OF INTERNAL REVENUE STAMPS TO MANUFACTURER

OF FERMENTED LIQUORS

The Attorney General declines to render an opinion upon the ques

tion whether a collector of internal revenue must sell stamps evidencing payment of the taxes imposed by section 608 of the Act of February 24, 1919, 40 Stat. 1109, to a manufacturer of fermented liquors, as this question is judicial in nature.

DEPARTMENT OF JUSTICE,

July 5, 1934. SIR: I have the honor to refer to your letter of June 1, 1934, wherein you request my opinion on the following question:

“Must a collector of internal revenue sell stamps evidencing payment of the taxes imposed by section 608 of the Act of February 24, 1919 (R. S. 3339; 40 Stat. 1109, U. S. C. Supp. VII, Title 26, section 1330 (a) and (b)), to a manufacturer of fermented liquors whose notice has been accepted and whose bond has been approved by the local district supervisor of the Bureau of Internal Revenue even though the sale of all intoxicating liquors is prohibited by the laws of the state in which the sale of such liquors is contemplated ? ”

I understand that this question arises as a result of the fact that at one time tax stamps were issued by the Treasury Department to the Atlanta Ice and Bottling Company, Atlanta, Georgia, but that some time ago the Treasury Department directed the Collector of Internal Revenue not to

1

issue any more tax stamps to this company and the latter now threatens or contemplates legal action against the Collector.

The question presented is judicial in nature. If I should answer it in the negative, my opinion would not be binding upon the Atlanta Ice and Bottling Company and the company would, no doubt, resort to the courts for judicial determination of the matter. The result might be to bring the Attorney General into conflict with a judicial tribunal. On the other hand, an affirmative answer would doubtless prevent this important question from reaching the courts for determination, a result which ought to be avoided if possible (35 Op. 273, 281).

My predecessors have frequently held that the Attorney General is not authorized to render opinions upon judicial questions (28 Op. 596; 19 Id. 56; 22 Id. 181; 29 Id. 226; 30 Id. 381; 32 Id. 472). I am in harmony with this view.

Accordingly, I must decline to render an opinion upon the question presented by you. Respectfully,

HOMER CUMMINGS. To the SECRETARY OF THE TREASURY.

FEDERAL SUBSISTENCE HOMESTEADS CORPORATION

The attempted taxation of the real or personal property owned by the

Federal Subsistence Homesteads Corporation by State, county, city, or other local taxing authorities should be contested, the question of

liability being ultimately for the courts to determine. The occupants of the homesteads will not be “wards of the Federal

Government”, in the sense that they are removed from the political status of residents of the State and of the subdivision thereof in which they live, but will be entitled to the rights and privileges, and subject to the duties and obligations, of citizens and will be subject to arrest by local authorities. Their right to vote will

depend upon State law. As citizens and as potential taxpayers, the occupants of the home

steads will be entitled to such police and fire protection as may ordinarily be provided by the State, county, or municipality for communities similarly situated; will be entitled to use the public schools and the public roads; and will be entitled to have their needs for such facilities considered by the local authorities in like manner as other citizens.

To the extent that the Corporation must supply a facility it may

contract therefor, and there is no disability to contract with a State or other political subdivision for the supplying of a facility which the State or other political subdivision is not otherwise legally

obligated to furnish. It is unnecessary for the Federal Subsistence Homesteads Corporation

to qualify and register as a foreign corporation in States other than

Delaware. The attempted imposition of license, franchise, occupation, income,

and excise taxes upon the Federal Subsistence Homesteads Corporation by Delaware or any other State should be contested, the ques

tion of liability being ultimately for the courts to determine. The Federal Subsistence Homesteads Corporation may lawfully

acquire options as an incident of the purchase of land. The Federal Subsistence Homesteads Corporation is authorized to

pay a reasonable charge for such evidences of title as may be required by the Attorney General to formulate his opinion as to the

validity of the title. It is not the policy of the United States Government to carry insur

ance on its property. However, the occupants of the homesteads will have, or will in time acquire, insurable interests, and such interests may properly be insured either by the individuals themselves or by the Corporation acting in their behalf and at their

expense. It is within the province of the United States Employees' Compensa

tion Commission to decide whether employees of the Division of Subsistence Homesteads in Washington and employees of the Federal Subsistence Homesteads Corporation on the various projects in the various States are entitled to the benefit of the United States Employees' Compensation Act; and it is suggested that the matter

be handled with the Commission. The Corporation may make loans for the purchase of livestock, tools,

implements, seed, fertilizer, and household furnishings and furniture, or may itself purchase and resell them to the occupants of the homesteads, when determined to be reasonably necessary in order to carry out the purposes of the statute, and assuming that such regulation as may be issued comes within its terms.

DEPARTMENT OF JUSTICE,

July 18, 1934. SIR: I have the honor to comply with your request of June 18, for my opinion upon the questions hereinafter indicated.

The National Industrial Recovery Act (48 Stat. 195, 205) contains the following section.

“ Sec. 208. To provide for aiding the redistribution of the overbalance of population in industrial centers $25,000,000 is hereby made available to the President, to be used by him through such agencies as he may establish and under such regulations as he may make, for making loans for and otherwise aiding in the purchase of subsistence homesteads. The moneys collected as repayment of said loans shall constitute a revolving fund to be administered as directed by the President for the purposes of this section.”

The President, by Executive Order of July 21, 1933, designated you to exercise in his behalf the powers and functions conferred upon him by this section; and you have caused the Federal Subsistence Homesteads Corporation to be formed, under the laws of Delaware, as a means of carrying out the purposes of the statute and administering, in part, the fund appropriated. The certificate of incorporation provides that the entire capital stock shall be issued to and held by the Secretary of the Interior and his successors in office “in trust for the United States of America, which shall be the sole and only authorized holder of legal title to the stock."

I have previously approved the legality of carrying out subsistence homesteads projects through corporations created for such purpose and have indicated the broad powers conferred by Section 208 of the National Industrial Recovery Act in an opinion of October 4, 1933 [37 Op. 288], concerning the legality of alternative plans then submitted, and in an opinion of March 19, 1934 [37 Op. 465], passing upon certain questions arising in connection with the proposed participation by the United States in a plan for the economic and social rehabilitation of the Virgin Islands. I also call attention to my opinion of February 7, 1934 [37 Op. 437], relating to the Public Works Emergency Housing Corporation, which in part discusses the same subject matter.

The questions submitted by you and my conclusions with respect thereto are hereinafter set forth.

“1. Is the real and personal property owned by Federal Subsistence Homesteads Corporation subject to, or exempt from, taxation by state, county, city and other local taxing authorities?”

Upon the authority of Clallam County v. United States, 263 U.S. 341, 345, and cases therein cited, I advise you to

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