The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1907-10-29

foreign vessels, i transmit Tor your
guidance a copy of an opinion by the
Attorney General on the subject, dat
ed the 3rd instant.
Respectfully,
E. T. CHAMBERLAIN,
Commissioner.
Department Of Justice.
Washington. October 8. 1907.
The Honorable, the Secretary of the
Navy.
Sir: l have the honor to acknowl-
edge receipt of your letter of October
{ 1st. In this you ask my opinion upon
the questions whether the prohibitions
of Section 4347, r. s., and the Act of
February II, 1895, go Stats. 24S), refer
TO property owned by the government,
and whether. under existing laws, coal
for the use of the Navy may be trans
ported by sea from ports on the At
lantic to ports on the Pacific coast of
the United States in vessels of foreign
registry, provided it appears, as a
matter OF fact, that sufficient Amer
lean vessels to transport such coal
cannot be had, or that the charges
]
and unreasonable. Section 4347 of the
United States Revised Statutes, as far
as material to the foregoing questions,
is as follows:
NO merchandise shall be Qmported)
(transported) under penalty of forfeit
ture thereof, from one port of the Uni
ted States to another port of the Uni
ted States, in q vessel belonging who'll
~ or in part to a subject of any for
eign power
BY the Act approved February Il,
1895. $50 Stats, 24S). this portion Of the
above mentioned section was amend
ed so as to read as follows:
That no merchandise shall be trans
ported by water under penalty of for
fixture thereof from one port of the
United States to another port of the
United States, either directly or via
a foreign port, or for any part of the
voyage, in any other vessel than a
vessel of the United States"
THE KING CAN DO NO WRONG.
You ask whether the prohibition
contained in this statutory provision
extends TO merchandise which consti-
tutes property owned by the govern
ment." 1t is a we'll settled principle
of statutory construction that a pro-
hibition of this character does not ex-
tend TO, or affect, the sovereign, I'M
less its language requires that such
a meaning shall be given to it. This
rule is thus stated in Bacon's alb
Judgement, title ''prerogative," 3-5:
Where statute is general and there
by any prerogative, right, title or in
terest is Invested or taken from the
King, in such case he shall not be
bound unless the statute is made by
express words to extend to him" This
rule has been fully adopted with re-
spect TO the United states, CU. S. VS..
knight, II Peters, BOD, CU. S. VS.. Her
ron, 20 Wallace, 25D. In the last men,
toned case the Supreme Court says it
is 1.-The settled rule of construction that
the sovereign authority of the coun-
try is not bound by the words of
statute, unless named therein If,
the language of this statute to indi-
cate whether it was or was not intend
ed to apply to merchandise owned by
the United States, the rule of construc-
ton, to which 1 have referred, would
require that it be held not to have
such application. There is, however,
in the statute itself language which,
in my opinion, is decisive of this ques-
ton. Both Section 4347 and the Act
of 1898 prohibit the transportation Of
merchandise from one domestic port
10 another in vessels owned by for
eigners under penalty of forfeiture |
thereof" a forfeiture in such case
divests the title of the owner of the |
property forfeited, and vests this title |
in the government. If the merchan-
disc subject to forfeiture already be-
ongs to the government, it is obvious |
that the proceeding would be altogeth-
er nugatory and futile. The govern
nent would acquire by it title to
something which it already owned, and
he offender, that is to say, the Uni
ed States itself, would be in precisely
he same position in which it was
orior to the infiiction of the penalty.
Under these circumstances, it seems
lutte clear to me that, even without
! resort TO the rule of construction to
which I have referred, the provisions
f this law must be construed as in
lpplicable to merchandise owned by
he United States. 1 answer, there
ore, your first question in the mega
i've, and advise you that, in my opin-
on. the provisions of Section 4347, L.
!. r s, and Of the Act approved Feb