In the case of United States v. Tucker, 122 Fed. 518, the court said (p. 522):

"While there might possibly be some difficulty (under the rule ejusdem generis) if the question were res integra, as to the strictly proper construction and applicability to the case of locks and dams of the words, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings,' used in the clause of the Constitution above quoted, the cases seem to leave no doubt that the broadest construction has been wisely put upon that language-one which makes it cover all structures and all places necessary for carrying on the business of the national government." The court construed the provision in the case of United States v. Wurtzbarger, 276 Fed. 753, using this language (p. 755):

"It has been the policy of the general government for many years to establish and maintain training schools and educational institutions for the Indians, who are the wards of the Government, and for such purposes it has acquired lands, with appurtenances, upon which to maintain such institutions, and it seems indisputable that they come within the category of other needful buildings,' the language of the clause of the Constitution under discussion."

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State Courts also have adopted this liberal view, as evidenced by the following excerpt from the opinion of the Supreme Court of Tennessee in State ex rel. Lyle v. Willett, 117 Tenn. 334, 341:

"We think the power to purchase a place for a Soldier's Home was within the intent and meaning of the section quoted, and falls directly under the clause and other needful buildings.' As said in the Ohio case referred to, such institutions are erected by the Government, under its war power, since the wounding and disablement of its soldiers are a necessary incident of war, and it is as proper an exercise of the functions of government to care for such persons, after they have been disabled, as to enlist them and place them in line of duty in the service of the country where such results will necessarily follow."

The United States District Court for the District of New Jersey, in United States v. Mayor and Council of City of

Hoboken, 29 F. (2d) 935, 942, found no merit in the contention made in that case that the New Jersey statute did not evidence consent to the acquisition by the United States of a steamship pier.

Considering the foregoing, it is my opinion that the State of New Jersey has consented to the acquisition by the United States of the sites of the Naval Air Stations at Lakehurst and Cape May, New Jersey, and that the United States has thereby acquired exclusive jurisdiction over such sites, as provided in the Constitution (Art. I, Sec. 8, Cl. 17).

Respectfully,

To the SECRETARY OF THE NAVY.

HOMER CUMMINGS.

REMISSION OR MITIGATION OF FINES, PENALTIES, AND FORFEITURES IN CONNECTION WITH THE SALE OF A VESSEL IN VIOLATION OF SECTION 9 OF THE SHIPPING ACT, 1916, AS AMENDED

The Secretary of Commerce has authority to remit or mitigate the forfeiture of a vessel provided for in section 9 of the Shipping Act, 1916, as amended. The Secretary does not have authority to exercise the power of remission or mitigation with respect to the fine provided for the misdemeanor declared by the statute, unless and until the fine is imposed.

DEPARTMENT OF JUSTICE,

January 30, 1935.

SIR: I have your letter of January 8, from which it appears that a yacht, documented under the navigation laws of the United States, was sold through a broker to a citizen of a foreign country without the approval of the Secretary of Commerce. It is stated, however, that the former owners relied upon the broker to conform to all necessary requirements and did not knowingly or intentionally violate the law.

The following provisions are applicable:

U. S. C., Title 46, section 808: "It shall be unlawful to sell, transfer or mortgage, or, except under regulations prescribed by the board, to charter, any vessel purchased from the board or documented under the laws of the United States

to any person not a citizen of the United States, or to put the same under a foreign registry or flag, without first obtaining the board's approval.

"Any vessel chartered, sold, transferred or mortgaged to a person not a citizen of the United States or placed under a foreign registry or flag, or operated, in violation of any provision of this section shall be forfeited to the United States, and whoever violates any provision of this section shall be guilty of a misdemeanor and subject to a fine of not more than $5,000, or to imprisonment for not more than five years, or both. (Sept. 7, 1916, c. 451, Sec. 9, 39 Stat. 730; July 15, 1918, c. 152, Sec. 3, 40 Stat. 900; June 5, 1920, c. 250, Sec. 18, 41 Stat. 994.)"

U. S. C., Title 18, section 642: "The Secretary of the Treasury may, upon application therefor, remit or mitigate any fine, penalty, or forfeiture provided for in laws relating to vessels or discontinue any prosecution to recover penalties or relating to forfeitures denounced in such laws, excepting the penalty of imprisonment or of removal from office, upon such terms as he, in his discretion, shall think proper; and all rights granted to informers by such laws shall be held subject to the Secretary's powers of remission, except in cases where the claims of any informer to the share of any penalty shall have been determined by a court of competent jurisdiction prior to the application for the remission of the penalty or forfeiture; and the Secretary shall have authority to ascertain the facts upon all such applications in such manner and under such regulations as he may deem proper. (R. S. Sec. 5294; Dec. 15, 1894, c. 7, 28 Stat. 595; Mar. 2, 1896, c. 37, 29 Stat. 39.)"

U. S. C., Title 5, section 600: "All duties, power, authority and jurisdiction, whether supervisory, appellate, or otherwise, formerly imposed or conferred upon the Secretary of the Treasury by acts of Congress relating to merchant vessels or yachts, their measurement, numbers, names, registers, enrollments, licenses, commissions, records, mortgages, bills of sale, transfers, are transferred to and imposed and conferred upon the Secretary of Commerce from and after the time of the transfer of the Bureau of Navigation, the Shipping Commissioners and the Steamboat Inspection

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Service to the Department of Commerce. (Feb. 14, 1903, c. 552, Sec. 10, 32 Stat. 829.)"

Executive Order, June 10, 1933: "The functions of the United States Shipping Board, including those over and in respect to the United States Shipping Board Merchant Fleet Corporation, are transferred to the Department of Commerce, and the United States Shipping Board is abolished."

The matter has been referred to you by the Director of the United States Shipping Board Bureau with the following recommendations:

"In view of the foregoing it is recommended that the power of the Secretary of Commerce to remit or mitigate fines and penalties for violations of Sections 9 and 41 of the Shipping Act, 1916, as amended, be exercised in this instance, and that there be a remission of the forfeiture of the vessel and mitigation of the personal fines provided by Section 9 be made if the sum of $200.00 be paid by the former owners and/or their agent and/or anyone on their behalf.

"It is further recommended that the files in this case be not referred to the Attorney General for his consideration and action as he may deem appropriate with reference to the imprisonment provisions of the law for the reason that the facts developed indicate that the violation was without any wilful intent on the part of the owners, and the violation seems to fall clearly within that class of cases in which the Attorney General heretofore has decided the facts did not warrant prosecution."

You state that you are disposed to take favorable action upon the recommendation of the Director, and request my opinion upon the following questions:

"(1) Whether Section 5294 R. S., supra, authorizing the Secretary of Commerce to remit or mitigate fines, penalties or forfeitures in certain cases would apply to the forfeiture of the vessel provided for in Section 9 of the Shipping Act as amended:

"(2) Whether the authority contained in said Section 5294 would also apply to the fine provided in said Section 9 of the Shipping Act, as amended, for a violation thereof

denounced therein as a misdemeanor and punishable by fine or imprisonment."

The above quoted provisions of the Act of September 7, 1916, as amended, are "laws relating to vessels," within the meaning of Section 5294 R. S., as amended. Furthermore, by the Act of February 14, 1903, and the Executive Order of June 10, 1933, the power to approve a sale, and the power to remit or mitigate fines, penalties and forfeitures incurred in connection with such a sale, are now vested in the Department of Commerce. (35 Op. 81.) I therefore concur in the views expressed in the Legal Division of the Shipping Board Bureau and by the Solicitor of your Department that you are authorized to remit or mitigate the forfeiture of the vessel.

In addition to imposing the forfeiture, the statute makes the act of the parties a misdemeanor, punishable by fine or imprisonment, or both. It is beyond question that no action by you could affect the possible penalty of imprisonment because this is expressly excepted in Section 5294 R. S. As to your power to remit or mitigate the fine authorized to be imposed upon conviction for the misdemeanor, concerning which your Solicitor expresses doubt, a question arises whether there can be any such thing as remission or mitigation of a fine which has not yet been imposed, and may never be imposed, dependent upon factors wholly beyond your control. If you could mitigate a possible fine in this manner, nevertheless it could not be said that the crime had been expiated without prosecution and judicial determination of the mete punishment, which might be, or include, imprisonment. Your Solicitor states that it has been long practice in your Department not to remit or mitigate fines in penal cases, and I am satisfied that this practice correctly reflects the law, at least insofar as it bears upon the only phase now before me. I therefore conclude that you are not authorized to exercise the power of remission or mitigation with respect to the fine for the misdemeanor, authorized by the statute but not imposed.

Of course, it is not the purpose of this Department to prosecute criminally in every case of minor and unintentional violation of a federal statute. In a somewhat simi144790°-37-vol. 38-16