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

no OlneTSs IOr the transportation OF
coal and other supplies purchased for
the use of the Army or Navy. OF
| course. If the Congress had seen fit
by this statute to prohibit the trans
portation of supplies for the Army or
! Navy in foreign vessels absolutely,
under all circumstances, without ex-
ception, and without regard to the
| consequences, any and all such ship
ments would be illegal: but the law
provides that IL the President shall
find that the rates of freight charges
reasonable, contracts
shall be made under the law as it now
exists" 1t is obvious. therefore, that
the statute contemplates the POSSIBLE
ity that it may be impracticable to
comply with its terms without expos
ing the government to exhorbitant and
unreasonable expense, and 1t Is in
| tended. in such event. that even the
very strict terms of the prohibition
shall not prevent the transportation of
articles evidently necessary for the
maintenance and efficiency Of the ma
| tional forces.
NECESSITY KNOWS NO LAW.
The contingency that there might be
no American vessels obtainable at any
cost. however great. to transport the
| articles in question Is not expressly
covered by the terms Of the exception:
but, in view OF the evident purpose of
the statute, which was plainly to en-
courage the development of American
shipping, and the grave consequences
which might ensue from a failure to
| supply the Army or Navy with fuel,
food or munitions OF war, we are en-
titled and, indeed. obliged. in my opin-
ion. to apply in this case the rule that
a reasonable construction must be ap-
piled to the Interpretation of all legis-
lative acts; and, therefore, that when
no American vessels can be procured,
even by the payment of unreasonable
and exorbitant charges, there is the
same right to employ other means Of
transportation which is expressly
granted when such vessels can be pro-
cured but only at an excessive cost
to the government.
1t remains to be seen what are the
means of transportation open to the
Navy Department, if the President shall
determine that the rates of freight
charges by American vessels are ex-
cessive and unreasonable. The stat
ute saws that contracts shall be made
under the law as it now exists" that
is to say, under the law as it existed
prior to April 2s. 1904. This language,
so far as it affects the Navy, would
seem to refer to Section 371S, Z. S.
Revised Statutes, which is as follows
in so far as relevant:
Gan provisions, clothing, hemp, and
other materials. of every name and
nature, for the use of the Navy, and
the transportation thereof, when time
will permit, shall be furnished by con-
tract, by the lowest bidder
This provision is codifed, with a
slight change of language, from the
Act approved March 3, 1S45 6 Stats,
GID, and it would seem to be the only
provision of law directly applicable to
the transportation of supplies for the
Navy. 1t is obvious that nothing in
the language of this statute restricts
the competition for which it provides to
vessels of American ownership, and /,
therefore. reach the conclusion that
when the President shall find the facts
he is required to pass upon by the terms
of this statute, the Navy Department
is authorized to procure transportation
for coal or other supplies, which it may
purchase for the use of the Navy,
through a free competition, open to
both American and foreign ship owners.
A CONDITIONAL PRIVILEGE.
1t is to be observed. in this connee-
ton, as showing mat the preference to
be accorded American vessels was not
intended to prevent the employment of
ships owned by foreigners, in certain
contingencies, that this preference is
subject to an affirmative condition,
namely, that the vessels claiming it
must not discriminate against the Gov
eminent in their charges, as these are
compared with rates of freight estab-
lished for private shippers; SO that the
statute would not be operative at all
if the American vessels available for
transportation charged less to private
shippers for the like service than they
did to the Government. 1t seems OBJ
vious, therefore, that the preference
granted by this statute is to be con-
strued as privilege to be claimed
by American ship-owners, which is in
operative if not claimed under the con-
ditions prescribed by the law itself
With the above qualifications. l an
swer your second question in the af-
frmative l, therefore, advise you that,
in my opinion, the prohibitions of Sec
ton 4347, Z. S. R. s., and the Act of
February II, 1898, do not refer to prop
arty owned by the Government, and
that, under existing laws, coal for the
Use of the Navy may be transported by
sea from ports on the Atlantic to ports
IN the Pacific coast of the United
States in vessels of foreign registry,
lnder the circumstances stated in your
etter if these shall be found by the
President
l remain, sir,
Yours very respectfully,
CHARLES J. BONAPARTE,
Attorney General
TONNAGE rAy nTrrcrTnAJ 4,