The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-10-26
Department of Justice.

The Honorable, the Secretary of the
Navy.
Sir: l have the honor to acknoWl-
edge receipt of your letter of October
LIST. In this you ask my opinion upon
the questions whether the prohibitions
of Section 4347, r. S., and the Acc of
February l., 1898, go Stats, 248), 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
matter of fact, that sufficient Amer
lean vessels to transport such coal
cannot be had, or that the charges
made by such vessels are excessive
and unreasonable. Section 4347 of the
United States Revised Statutes, as far
as material to the foregoing questions,
is as follows:
mo merchandise shall be Gmported)
(transported) under penalty of forfeit
ture thereof, from one port of the Uni
ted States to another port of the Uni
ted States, in vessel belonging who'll
ly or in part to a subject of any for
eign power
BY the Act approved February II,
1898, GO 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 well settled principle
of statutory construction that pro-
hibition of this character does not ex-
tend to, or affect, the sovereign, I'M
less its language requires that such
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
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, Gu. S. VS..
Knight, IA Peters, 301), GU. 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 a
statute, unless named therein" If,
therefore, there had been nothing in
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
to 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-
longs to the government, it is obvious
that the proceeding would be altogeth-
er nugatory and futile. The govern
ment would acquire by it title to
something which it already owned, and
the offender, that is to say, the Uni
ted States itself, would be in precisely
the same position in which it was
prior to the inhiction of the penalty
Under these circumstances, it seems
quite clear to me that, even without
a resort to the rule of construction to
which 1 have referred, the provisions
of this law must be construed as in
applicable to merchandise owned by
the United States. 1 answer, there
fore, your first question in the mega
tive, and advise you that, in my opin-
ion, the provisions of Section 4347, Z.
S. r. S.. and of the Act approved Feb
ruary l., 1898, do not apply to prop
erty owned by the government.
THE GOVERNMENT MUST NOT BE
HELD UP.
In reply to your second question, I
advise you that its subject matter APP
pears to be covered by the Act APP
proved April 2s 1904. (33 Stats. 51s),
the relevant portion of this statute is
as follows:
THAT vessels of the United States.
or belonging to the United States,
and no others. shall be employed in
the transportation by sea, of coal,
provisions, fodder, or supplies of any
description, purchased pursuant to law,
for the use of the Army or Navy,
unless the President shall find that
the rates of freight charges by said
vessels are excessive and unrea bic,
in which case contracts shall be made
under the law as it now exists: Pro-
vided, That no greater charges be