You are advised therefore that the one hundred and twenty-second article of war does not operate to give to officers of the Marine Corps any authority to exercise command in the Army unless they have been detached for service with the Army by order of the President and are still serving with the Army under that order.

All charges improperly or excessively imposed and erroneously or illegally collected on foreign-built yachts, pleasure boats, and vessels not used or intended to be used for trade, under section 37 of the act of August 5, 1909 (36 Stat. 112), may be refunded under the provisions of section 26 of the act of June 26, 1884 (23 Stat. 59).

Section 26 of the act of June 26, 1884, in regard to remission of fines penalties, and forfeitures, and section 3 of the act of July 5, 1884 (23 Stat. 119), imposing upon the Commissioner of Navigation the supervision of the laws relating to the admeasurement of vesvels and the interpretation of all questions relating to the collection of tonnage taxes and the refund of such taxes, are still in force.

Should the provision of section 37 of the act of August 5, 1909, imposing a duty of $7 per gross ton on the vessels therein named, be declared invalid, such duty would be an improper or illegal charge within the meaning of the acts of June 26, 1884, and July 5, 1884, and if collected, should be refunded.

DEPARTMENT OF JUSTICE,

October 15, 1909.

SIR: I have the honor to acknowledge receipt of your letter of the 7th instant, in which you inquire:

1. Should protests against the payment of the tax of $7 per gross ton imposed upon the use of foreign-built yachts, pleasure boats and vessels not used or intended to be used

for trade, by section 37 of the tariff act of 1909, be now received with a view to refund the same if illegally imposed and collected?

2. In the event that a yacht has been incorrectly measured and the tax of $7 per ton collected on a greater gross tonnage than is found to be correct by the Commissioner of Navigation, can the excess be refunded in the manner that illegal tonnage taxes are refunded?

3. In the event of a decision by the courts that so much of section 37 as imposes a tax of $7 per gross ton is unconstitutional, should a refund of the amount collected be authorized?

The paragraph in question of section 37 of the tariff act of 1909 (36 Stat. 112) reads as follows:

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There shall be levied and collected annually on the first day of September by the collector of customs of the district nearest the residence of the managing owner, upon the use of every foreign-built yacht, pleasure boat or vessel, not used or intended to be used for trade, now or hereafter owned or chartered for more than six months by any citizen or citizens of the United States, a sum equivalent to a tonnage tax of seven dollars per gross ton."

Section 26 of the act of June 26, 1884 (23 Stat. 59), provides:

"That whenever any fine, penalty, forfeiture, exaction, or charge arising under the laws relating to vessels or seamen has been paid to any collector of customs or consular officer, and application has been made within one year from such payment for the refunding or remission of the same, the Secretary of the Treasury, if on investigation he finds that such fine, penalty, forfeiture, exaction, or charge was illegally, improperly, or excessively imposed, shall have the power, either before or after the same has been covered into the Treasury, to refund so much of such fine, penalty, forfeiture, exaction, or charge as he may think proper, from any moneys in the Treasury not otherwise appropriated."

By section 3 of the act of July 5, 1884 (23 Stat. 119), the Commissioner of Navigation was charged with the supervision of the laws relating to the admeasurement of vessels, and it was further provided that as to all questions

of interpretation growing out of the execution of the laws relating to the collection of tonnage taxes and the refund of such taxes when collected erroneously or illegally his decision should be final.

By section 10 of the act of February 14, 1903 (32 Stat. 829), the duties, power, authority and jurisdiction imposed or conferred upon the Secretary of the Treasury by acts of Congress relating to merchant vessels or yachts, their measurement, tonnage tax imposed upon them, the remission or refund of fines, penalties, forfeitures, exactions or charges incurred for violation of any provision of law relating to vessels or seamen, etc., was transferred to and imposed and conferred upon the Secretary of Commerce and Labor.

Section 41 of the tariff act of 1909 (36 Stat. 118), contains the general provision that "All acts and parts of acts inconsistent with the provisions of this act, are hereby repealed," and nowhere does said tariff act by specific terms repeal the above-mentioned acts relating to the refund of fines, exactions, etc., illegally, improperly or excessively imposed and collected. It is obvious that there is no inconsistency between a statute which fixes the amount of charges for the use of a vessel, and prior statutes which provide for the refund of an illegal charge or an overcharge thereon.

It follows, therefore, that section 26 of the act of June 26, 1884, and section 3 of the act of July 5, 1884, are still in force as to charges on vessels of the character mentioned in section 37 of the tariff act of 1909, and that all charges improperly or excessively imposed and erroneously or illegally collected may be refunded, and for that purpose all steps may be taken which are required by said statutes.

It is equally clear that should the statute imposing a duty of $7 per gross ton upon such vessels be declared. invalid, such duty would be an improper charge, and if collected, would be an erroneous or illegal collection within the meaning of said acts, and should be refunded.

Respectfully,

GEORGE W. WICKERSHAM. The SECRETARY OF COMMERCE AND LABOR.

HOMICIDE COMMITTED ON HOSPITAL SHIP STATIONED AT OLONGAPO, P. I.-JURISDICTION.

A homicide committed on board of the hospital ship Relief while stationed at Olongapo, P. I., by the acting master of the vessel, who committed this act by order of the commanding officer of the ship, occurred "out of the jurisdiction of any particular State or district," within the meaning of section 730, Revised Statutes, and the parties accused may be tried in any judicial district either in a State or a Territory of the United States into which they shall be first brought.

The word "district," as used in section 730, Revised Statutes, includes every Territory within which there are courts regularly organized and having jurisdiction over offenses against the United States; that is, such courts as are mentioned in section 1910, Revised Statutes. The courts of the Philippine Islands are not vested with jurisdiction in cases arising under the Constitution and laws of the United States, as prescribed by section 1910, Revised Statutes.

DEPARTMENT OF JUSTICE,

October 20, 1909.

SIR: I have the honor to acknowledge the receipt of your communication of the 11th instant, in which the material facts stated are as follows:

The Relief is a United States vessel, regularly placed in the naval service as a hospital ship and stationed at the naval station of Olongapo, P. I. On September 24, 1909, Asst. Surg. G. B. Trible, the commanding officer of the Relief, ordered Heinke, the acting master, to arrest, alive or dead, Ransom, a fireman, who was drunk and threatening to kill anyone who might approach him. In the attempt to make the arrest, Trible being present, Heinke shot and killed Ransom.

You ask my opinion as to what course should be pursued in order that it may be determined by the proper tribunal whether Trible and Heinke, or either of them, is guilty of murder or manslaughter, or the killing was a justifiable homicide.

Rear-Admiral Harber, who is in charge of the station at Olongapo, and who transmitted to you the information with reference to the homicide, assumes that article 6 for the government of the navy (Revised Statutes, sec. 1624, art. 6) has. no application. This article reads as follows:

"If any person belonging to any public vessel of the United States commits the crime of murder without the territorial jurisdiction thereof, he may be tried by courtmartial and punished with death."

It does not appear upon what grounds the assumption that this article does not apply rests. But since there is reasonable doubt as to the applicability of this article to the offense charged, such doubt should be resolved against a trial before a court-martial, inasmuch as a court-martial is a special court of limited jurisdiction, and—

"To give effect to its sentences it must appear affirmatively and unequivocally that the court was legally constituted; that it had jurisdiction; that all the statutory regulations governing its proceedings had been complied with, and that its sentence was conformable to law." (Runkle v. United States, 122 U. S. 543, 556; 12 U. S. 556.)

Furthermore, said article does not undertake to vest exclusive jurisdiction of the offense of murder, when committed as described therein, in a court-martial. In construing an article in the Army Regulations containing much stronger language than that here used, the Supreme Court of the United States said:

"With the known hostility of the American people to any interference by the military with the regular administration of justice in the civil courts, no such intention (to confer exclusive jurisdiction upon a court-martial) should be ascribed to Congress in the absence of clear and direct language to that effect." (Coleman v. Tennessee, 97 U. S. 509, 514.)

The general rule is that the jurisdiction of civil courts is concurrent as to offenses triable before courts-martial. (6 Op. A. G. 413; United States v. Clark, 31 Fed. 710.)

From the facts stated, if the homicide was not justifiable, it was clearly an offense against the United States, and cognizable in the United States courts. In section 5339, Revised Statutes, and the second clause thereof, it is provided that every person who commits murder"upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay within the admiralty