"to a line designated by the Secretary of the Treasury as a common carrier of bonded merchandise." Section 3 requires the filing of a bond to indemnify the United States for any liabilities resulting from the issue of a special license, though such liabilities would not occur in the case of personal baggage. Section 4 provides especially for the issue of licenses and permits to vessels with goods in transit. None of these provisions are appropriate to either passengers or their personal baggage. But if the meaning of the section, considered both in itself and in relation to its context, were seriously doubtful, the history of the legislation clearly shows that the construction contended for is not the correct one. From almost the beginning of its customs legislation Congress has distinguished carefully between baggage and freight, and for customs purposes it has assimilated the baggage to the passenger and treated it by a separate and distinct system. Section 46 of the act of March 2, 1799 (1 Stat. 627, 661), contained a specific, detailed, and complete plan for the treatment of passengers' baggage, entirely separate from the other sections, which outlined the methods of handling consigned merchandise. Particularly the subject of unlading permits, etc., was specifically covered as to baggage by this special section, different provisions being made in other sections (27 and 28) for the unloading of the ordinary freight. This distinction has continued right on down from 1799. In the Revised Statutes the baggage provisions of section 46 became Revised Statutes, sections 2799 to 2803, and the freight provisions of sections 27 and 28 became Revised Statutes, sections 2869 to 2874. This was clearly explained by the Circuit Court of Appeals for the Second Circuit in U. S. v. One Pearl Necklace (111 Fed. 164, 169). Now, it is indisputable that the act of 1911 descends not from section 46 of the act of 1799 and Revised Statutes, sections 2799 to 2803, but from the other line (secs. 27 and 28 of the act of 1799; R. S., secs. 2869-2874, and the act of June 30, 1906, 34 Stat. 633). This is plain on the face of the acts, and indeed it is conceded. The repealer, for instance (sec. 6, act of 1911), does not refer to the baggage sections, but does refer to the merchandise sections. In my opinion it is clear from this legislative history that the word "cargo" was intended to relate to the subject matter of the series of statutes dealing with freight and was not intended to relate to the subject matter of the separate provisions which deal with baggage. Conclusive confirmation of this view is afforded by the fact that Congress itself recognized the inapplicability to passengers' baggage of Revised Statutes, section 2871 (the section from which particularly section 5 of the act of 1911 descends), by passing the act of December 16, 1902 (32 Stat. 753). This act authorized extra pay for night work to examiners of baggage, and it would have been totally unnecessary if Revised Statutes, section 2871, had already covered that subject. Prior to 1894 there was no occasion for making any such provisions with respect to baggage, because there was no substantial practice of discharging passengers at night. In that year the subject arose before the Treasury Department, the claim being made for the first time that Revised Statutes, section 2871, covered the baggage; but notwithstanding conflicting opinions of the Solicitor of the Treasury on the subject (those of Apr. 3, 1894, and Apr. 14, 1898, sustaining the claim, and that of Apr. 12, 1895, denying it), the administrative practice has been uniformly against it; and, as I have said, it has the recognition of Congress itself contained in the act of 1902. Also it is supported by the advisory opinion, dated September 5, 1911, of the Comptroller of the Treasury construing the present act. It has been argued that even if the word “ cargo" in Revised Statutes, section 2871 (as amended by the act of 1906, supra), did not include passengers' baggage, it was extended to do so by the insertion of the italicized words in the following clause of section 5 of the act of 1911: "That the Secretary of the Treasury shall fix a reasonable rate of extra compensation for night services of inspectors, storekeepers, weighers, and other customs officers and employees in connection with the lading or unlading of cargo at night, * * This addition, however, was intended merely to extend the description of officials engaged in unlading the cargo and not to extend the meaning of the word "cargo" itself. Surely the addition of "storekeepers" or "weighers" can not imply an intention to add "baggage" to the word "cargo;" and obviously no such implication can be drawn from the addition of the words "other customs officers and employees" when those words themselves are specifically limited to workers on "cargo." Why Congress should refuse extra pay to customs employees engaged in night work on passengers' baggage, while granting it to those engaged on cargo, is a question beyond my province to determine, so long as the intent of the statutes to do so is clear. It may be observed, however, that the principal customs work on the baggage is the examination, which occurs after the unloading is complete and is not necessary to the unloading itself. From the point of view of the ship, it might be considered not a part of the discharge, and Congress might therefore have thought there was less reason to make the cost of it a charge against the ship. In the argument many considerations were advanced, based on a practical injustice to the men who have to do extra night work in the unlading of baggage, but such questions, again, are solely for the consideration of Congress, and neither the administrative nor the legal officials of the Government have any power to deal with them or in effect to reinstate the act of December 16, 1902 (32 Stat. 753, supra), which Congress appears, perhaps inadvertently, to have superseded by the act of March 4, 1909 (35 Stat. 1065), without providing any leeway for extra pay in this kind of work. For these reasons, I am of opinion, as above stated, that the word "cargo" in the act referred to does not include "baggage. Very respectfully, WINFRED T. DENISON, The SECRETARY OF THE TREASURY. OPINIONS OF HON. J. C. MCREYNOLDS, OF TENNESSEE. APPOINTED MARCH 6, 1913. DESIGNATION OF DISBURSING CLERK FOR THE DEPART MENT OF LABOR. The Secretary of Labor may, with the concurrence of the Secretary of Commerce, if the public exigencies require it, designate the disbursing clerk of the Department of Commerce to disburse the moneys appropriated for the various bureaus and services of the Department of Labor until a regular disbursing clerk can be appointed, provided he is able and willing to give bond as required by section 3614 of the Revised Statutes. DEPARTMENT OF JUSTICE, March 14, 1913. SIR: I have the honor to acknowledge receipt of your letter of March 8, 1913, in which you request my opinion as to whether you are "authorized to appoint the disbursing clerk of the Department of Commerce as disbursing clerk of the Department of Labor to serve without compensation additional to that provided for in his position as disbursing clerk of the Department of Commerce, to disburse such funds now appropriated for bureaus and services of the Department of Labor, until such time as I can appoint a disbursing clerk authorized by section 2 of the act creating the Department of Labor, approved March 4, 1913 (Public, No. 426)." A disbursing clerk for your Department is authorized by section 2 of the act of March 4, 1913, which provides: "SEC. 2. That there shall be in said Department an Assistant Secretary of Labor, to be appointed by the President, who shall receive a salary of five thousand dollars a 83152°-VOL 30-13-9 129 |