Immigrant Fund-Secretary of the Treasury-Ellis Island. It is well known that Ellis Island is property of the United States, and that it has been practically dedicated to the uses of the immigration service.

April 11, 1890 (26 Stat., 670), Congress by a joint resolution directed the Secretary of the Navy to remove the naval magazine from that island, appropriating $75,000 for the establishment of the magazine elsewhere.

Said joint resolution concludes as follows:

"And the further sum of seventy-five thousand dollars, or so much thereof as may be necessary, is hereby appropriated, to enable the Secretary of the Treasury to improve said Ellis Island for immigration purposes."

The "sundry civil" appropriation act of 1890 (26 Stat., 372), carries the following item:

"For Ellis Island, New York: For improvements upon the island for the business of the immigration service, seventyfive thousand dollars."

The "deficiency act" of March 3, 1890 (26 Stat., 867), makes an appropriation for furniture for the "immigration buildings, Ellis Island, New York."

And the "sundry civil" appropriation act of 1891 (26 Stat., 949) contains the following paragraph:

"For Ellis Island, New York: For completing the building and other improvements on Ellis Island, and for procuring the necessary transportation facilities to and from said island, the sum of one hundred thousand dollars, or so much thereof as may be necessary in addition to the head-money heretofore or hereafter applied to that purpose, be, and the same is hereby, appropriated and made immediately available, and the said sum shall be reimbursed, in installments of twentyfive thousand dollars per annum, from the head-money, license privileges, and rentals received at the port of New York."

It will be seen that Ellis Island was, under the direction of Congress, relieved from its former public charge and turned over to the Secretary of the Treasury to improve for immigration purposes. Appropriations were made from the miscellaneous moneys in the Treasury for the contemplated improvements which were necessary to fit the island for the "business of the immigration service," and, in addition to these appropriations of $150,000 (besides the furniture pro

Immigrant Fund-Secretary of the Treasury-Ellis Island. vision), there was loaned to the immigration fund for completing the building and other improvements and to procure transportation facilities $100,000, which is to be paid back in four annual installments out of the head-money and other receipts of the immigration business. (26 Stat., 949.)

It is quite significant that Congress loans this $100,000 for the purposes designated "in addition to the head-money heretofore or hereafter applied to that purpose."

Not only is the separate and special character of the immigrant fund made plain, but the previous application of its moneys and their contemplated future use by the Secretary of the Treasury in providing the improvements is distinctly recognized with apparent approval.

In view of the general scope of the powers given by law to the Secretary of the Treasury in immigration affairs, and of the control given to that officer over the immigrant fund, and in view of the statutory provisions for improving Ellis Island and completing its buildings and appurtenances for the governmental use to which the island is now devoted, and especially in view of the statute last cited, which not only, as above, sanctions such use, but distinctly treats the head-money as the primary fund available for making such improvements by requiring the $100,000 appropriated and loaned for that purpose to be repaid out of such headmoneys, it is my opinion that the Secretary is authorized to expend from the immigrant fund such moneys as are required to properly complete the necessary improvements.

As the following opinions, heretofore transmitted to the Secretary of the Treasury, relate in part to the powers possessed by him by virtue of the immigration laws, and have an important bearing upon the question now considered, I beg to call them to your attention, as follows:

Opinion, dated February 8, 1890 (19 Opin., 486); Opinion, dated April 15, 1891; id., dated July 28, 1891; id., dated October 19, 1891.

Very respectfully,

W. H. H. MILLER.

The SECRETARY OF THE TREASURY.

Attorney-General.

ATTORNEY-GENERAL.

An opinion will not be given by the Attorney-General where it does not appear that some question exists calling for the action of the Department requesting it.

DEPARTMENT OF JUSTICE,

April 28, 1892.

SIR: Your communication of April 23 instant, asking an opinion as to the proper construction of certain railroad land grants made by Congress to the State of Minnesota, has received my consideration.

I do not perceive that the questions presented relate to any matter that calls for the action of the Department of the Interior. On the contrary, it seems quite evident, from your letter, that those questions relate to a matter which is now before Congress, and that action with reference to it is contemplated by Congress, and not by the Department of the Interior.

If I correctly understand your relation to the matter in question, it seems quite clear that I can not pass upon the questions submitted without stepping outside of the limits. which the law has thrown around me.

Section 356, Revised Statutes of the United States, provides that "the head of any Executive Department may require the opinion of the Attorney-General on any questions of law arising in the administration of his Department.

Accordingly, where the head of a Department, at the request of a Senator, asked the opinion of Attorney-General Brewster upon a certain Senate bill, the Attorney-General declined to give an opinion on several grounds, one of which was that no question of law was presented that had arisen in the administration of the Department by whose head the opinion had been requested. (17 Opin., 357. See also 6 Opin., 24; 18 Opin., 77, 107; 19 Opin., 7, 331, 695.)

Furthermore, the questions propounded are judicial in character, and must be decided by the courts, if decided at all, and therefore an expression of opinion on them by me would have no more weight than the opinions of any unofficial person (19 Opin., 56; 13 Opin., 160). But the law intended. that the opinions of the Attorney-General should have authority, and this object can only be accomplished by con

Attorney-General-Question of Fact.

fining them to questions strictly appertaining to executive administration. It is true the law does not say what effect shall be given to the opinion of the Attorney-General, yet the general practice of the Government has been to follow it, and this for the reasons stated by Attorney-General Cushing (6 Opin., 334), namely, that an officer going against it "would be subject to the imputation of disregarding the law as officially pronounced," and that, without "the guidance of a single Department of assumed special qualifications and official authority," uniformity and stability in the application of the laws would be hardly attainable.

Very respectfully,

CHARLES H. ALDRICH,

Acting Attorney-General.

The SECRETARY OF THE INTERIOR.

ATTORNEY-GENERAL-QUESTION OF FACT.

The Attorney-General declines to express an opinion to the Postmaster. General on the question whether a certain publication is within the description of matter which the statute denominates second class, upon the ground that it is a pure question of fact, which it is the province of the Postmaster-General to decide.

DEPARTMENT OF JUSTICE,

May 3, 1892.

SIR: Sections 10, 11, and 14 of the act of March 3, 1879 (20 Stat., 359), chapter 180, entitled "An act making appropriations for the service of the Post Office Department for the fiscal year ending June thirtieth, eighteen hundred and eighty, and for other purposes," provide as follows:

"SEC. 10. That mailable matter of the second class shall embrace all newspapers and other periodical publications which are issued at stated intervals, and as frequently as four times a year, and are within the conditions named in section 12 and 14.

"SEC. 11. Publications of the second class, except as provided in section 25, when sent by the publisher thereof, and from the office of publication, including sample copies, or when sent from a news agency to actual subscribers thereto, or to other news agents, shall be entitled to transmission

Attorney-General-Question of Fact.

through the mails at 2 cents a pound or fraction thereof, such postage to be prepaid, as now provided by law.

"SEC. 14. That the conditions upon which a publication shall be admitted to the second class are as follows:

"First. It must regularly be issued at stated intervals, as frequently as four times a year, and bear a date of issue and be numbered consecutively.

"Second. It must be issued from a known office of publication.

"Third. It must be formed of printed paper sheets, without board, cloth, leather, or other substantial binding, such as distinguish printed books for preservation from periodical publications.

"Fourth. It must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry, and having a legitimate list of subscribers: Provided, however, That nothing herein contained shall be so construed as to admit to the second-class rate regular publications designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates."

My opinion is asked upon the point whether a certain publication called Printers' Ink is a publication "designed primarily for advertising purposes or for free circulation or for circulation at nominal rates," and also whether this publication is shown, by the facts stated, to have "a legitimate list of subscribers."

After having given due consideration to your communication submitting these questions, I am unable to perceive that they involve any matter of law.

I do not understand the questions submitted as indicating any doubt in your mind as to the meaning of the several provisions of the statute to which you direct my attention, but your sole difficulty appears to be whether the publication called "Printer's Ink" comes within the description of matter which the statute denominates "second class."

This, in my judgment, is a pure question of fact, upon which I am not at liberty to express an opinion, under the law.

Section 356, Revised Statutes of the United States, provides that "The head of any Executive Department may require the opinion of the Attorney-General on any ques5687-VOL 20- -25