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pensation shall be increased to that minimum rate,” but, “ If the employee is receiving compensation within the range of salary prescribed for the appropriate grade at one of the rates fixed therein, no change shall be made in the existing compensation." For instance, under subsection 2, if we assume that the minimum of a class is not the minimum of a grade, an employee in a grade with a minimum of $900, but in a class with a minimum of $1,080, whose salary is $900, would be increased to $1,080 per annum, but under subsection 3, as his salary is within the range of salary prescribed for his grade, there could be no change in the existing compensation. It must not be assumed that Congress intended to make any such contradictory provisions. It necessarily follows that classes must carry a range of compensation identical with that of the grade in which said classes belong.

I am unable to find any other questions involving an interpretation of the Classification Act of 1923 in the statement of the board. There are certain conclusions as to matters of fact or policy, but same were intrusted by Congress to the sole discretion of said board, and its decisions thereon are final.

I therefore have the honor to advise you that I find nothing in the program adopted by the Personnel Classification Board which contravenes in any particular the Classification Act of 1923.

Respectfully,

A. T. SEYMOUR, Acting Attorney General.

To the PRESIDENT.

IMPORTATION OF SPIRITUOUS AND VINOUS LIQUORS. Whether the existing supply of intoxicating liquor in domestic stock is sufficient to meet the nonbeverage needs is a question of fact, which is left by statute to the determination of the Commissioner of Internal Revenue, and hence it would be improper for the Attorney General to express an opinion thereon. The Commissioner of Internal Revenue in considering applications for the importation of spirituous liquors may take into account only the quantity of existing domestic supplies and not the kind or variety.

Congress intended, as to vinous liquors, to leave an unrestricted field of inquiry for the purpose of maintaining the nice balance between excessive and legitimate importation of foreign wines to the sound discretion of the Commissioner of Internal Revenue.

DEPARTMENT OF JUSTICE,

February 4, 1924.

SIR: I have the honor to comply with your request for my opinion as to whether the Commissioner of Internal Revenue may, under the Act of November 23, 1921, known as An Act Supplemental to the National Prohibition Act, and in view of existing supplies of spirituous and vinous liquors in domestic stock as shown by your letter, (1) authorize importation or manufacture, or both, of any spirituous liquor save the manufacture of alcohol, (2) authorize the importation of any vinous liquor, (3) in considering applications for importation of spirituous or vinous liquors, take into account the existing domestic quantities of different varieties of spirituous and vinous liquors, or shall consider only "spirituous liquor" and "vinous liquor" in general in the language of the statute, and (4) whether the words "vinous liquor" in the Act above referred to include wine for sacramental purposes or like religious rites.

To answer questions (1) and (2) would require that I consider and determine questions of fact which, in conformity with the settled policy of this Department, I must decline to do. (19 Op. 105; 20 Op. 253; 21 Op. 240, and many others.) Whether the existing supply of intoxicating liquor is sufficient to meet the nonbeverage needs, is left by the statute to the determination of the Commissioner of Internal Revenue and, therefore, is a question of fact concerning which it would be improper for me to express an opinion.

To properly answer your inquiry number (3), it should, I believe, be divided into two parts: First, as to spirituous liquor, and, second, as to vinous liquor. The applicable portions of law treat spirituous liquor and vinous liquor separately, the pertinent provisions of section 2 of the Act of November 23, 1921 (42 Stat. 222), reading as follows:

"No spirituous liquor shall be imported into the United States, nor shall any permit be granted authorizing the manufacture of any spirituous liquor, save alcohol, until the

amount of such liquor now in distilleries or other bonded warehouses shall have been reduced to a quantity that in the opinion of the commissioner will, with liquor that may thereafter be manufactured and imported, be sufficient to supply the current need thereafter for all nonbeverage uses: Provided, That no vinous liquor shall be imported into the United States unless it is made to appear to the commissioner that vinous liquor for such nonbeverage use produced in the United States is not sufficient to meet such nonbeverage needs.”

The Act of November 23, 1921, is named "An Act Supplemental to the National Prohibition Act." Before its passage it was known as the "Beer Bill" and its cardinal purpose was to prohibit the use of beer as a medicine. However, its proponents and others included within it by drafting and by amendment, certain other provisions intended to cure defects which had become apparent in the then existing legislation touching the traffic in intoxicating liquor. Its general purpose was to supplement and strengthen the National Prohibition Act. We may look, then, to the National Prohibition Act for aid in arriving at the intent of Congress in enacting the provisions under consideration.

To effectively enforce the Eighteenth Amendment Congress has power to take not only those means which are necessary, but also those which are convenient to that end (Hoke v. U. S., 227 U. S. 308), and in exercising such power, I have no doubt, may prohibit entirely for a temporary period the importation of intoxicating liquor. Whether or not such purpose is to be gathered from the language and history of the above-quoted provisions of law, is our only inquiry.

With regard to spirituous liquor, the Supplemental Act provides that there shall be no importation or manufacture "until the amount of such liquor now in distilleries or other bonded warehouses shall have been reduced to a quantity" that will with liquor thereafter manufactured or imported “be sufficient to supply the current need" for nonbeverage uses. The omission of any words denoting "kind," "quality," ," "variety," or "species" is significant. When Congress desired to refer to "kinds" of liquor for any purposes it did so in apt words. (See sections 6, 10, and 12, Title II,

National Prohibition Act.) When desiring to exempt alcohol from the operation of the provision under consideration it did so in unmistakable language. "Liquor" as defined by the National Prohibition Act covers alcohol, brandy, whiskey, rum, gin, beer, ale, porter, wine, and in addition any spirituous, vinous, malt, or fermented liquor containing more than one-half of one per centum of alcohol. Instead of using this all-embracing word "liquor" or the phrase "intoxicating liquor," having the same definition, Congress qualified its provision to cover only spirituous liquor, and then excluded alcohol from that class. Obviously, then, it had the qualitative distinctions of the various kinds of liquor in mind in passing this legislation and purposely avoided the use of words which would require consideration of quality as well as quantity in passing upon applications to manufacture or import spirituous liquor, and I am constrained, therefore, to conclude that the Commissioner of Internal Revenue in considering applications for the importation of spirituous liquors may take into account only the quantity of existing domestic supplies and not the kind or variety.

The language and the legislative history of the provision applicable to vinous liquor are different. The Senate Committee in recommending the passage of the bill changed its provisions to apply only to spirituous liquor, instead of intoxicating liquor except alcohol, as passed by the House, the Senate Committee thereby leaving the importation of wine for nonbeverage purposes without restriction, stating that this would result in no prejudice to prohibition enforcement and that there exists a demand in greater or less degree for foreign wines for medicinal purposes. Subsequently, the Senate adopted an amendment pertaining to vinous liquors, the reason being advanced by its author that there ought to be some restriction to prevent possible excessive importations of foreign wines. The chairman of the House Committee on being interrogated stated that undoubtedly the commissioner and the courts would construe the language of the amendment so as to permit importation of any particular kind peculiarly necessary for nonbeverage purposes. The words of Congress that "no vinous liquor shall be imported * unless *

vinous liquor produced is not sufficient" standing alone may be construed as meaning that quantity was the only consideration which the Commissioner could look to, but, viewed in the light of the legislative history of this provision, I am of the opinion that Congress intended, as to vinous liquors, to leave an unrestricted field of inquiry for the purpose of maintaining the nice balance between excessive and legitimate importation of foreign wines to the sound discretion of the Commissioner of Internal Revenue. The National Prohibition Act gives broad discretionary powers over permits to the Commissioner of Internal Revenue. The Act Supplemental drastically restricts his discretion in issuing permits to import spirituous liquors (except alcohol) down to the place where in the opinion of the Commissioner there is not a sufficient quantity in this country. The Act Supplemental also undoubtedly restricts the Commissioner's exercise of unlimited discretion in issuing permits for vinous liquor, because he is obliged to inventory and classify stocks on hand. And that is certainly for the purpose of compelling permittees to use from these stocks as far as possible. But Congress, believing that less abuse of the intent of the National Prohibition Act was likely to arise in applications for wine permits than other kinds of liquors, did not take away from the Commissioner the power to look also to the kinds of vinous liquors on hand as well as the quantity when deciding whether permits should be granted. It has been suggested that unless the Commissioner's power to consider "kind" is denied, dire results will flow from the multiplication of new "kinds" of wines in applications for permits to import. That is to assume that the Commissioner if allowed the right to consider kinds will, because the field is enlarged, abandon decisiveness and discretion. I am not unmindful of the perplexing responsibility thus placed upon him, but Congress is obliged, in enacting laws under which permit privileges are to be exercised, to place broad discretionary powers in an administrative officer. When he denies a petition for special privileges under the law, it is presumed that he has done so after due consideration of all the circumstances. If in a particular case he acts arbitrarily, the applicant has recourse to administrative and legal review, But the Gov