including noncommissioned officers," the Secretary of the Treasury being authorized to contract for the supply of rations for the officers and men of said revenue cutters. (Sec. 98.) The latter section contained a proviso that "the said revenue cutters shall, whenever the President of the United States shall so direct, cooperate with the navy of the United States, during which time, they shall be under the direction of the Secretary of the Navy, and the expenses thereof shall be defrayed by the agents of the Navy Department."

The act of March 2, 1799, further provided "that the officers of the said revenue cutters shall be appointed by the President of the United States, and shall respectively be deemed officers of the customs, and shall be subject to the direction of such collectors of the revenue, or other officers thereof, as from time to time shall be designated for that purpose." The officers of the revenue cutters were further authorized to go on board ships or vessels arriving within the United States, or within four leagues of the coast thereof, if bound for the United States, and search and examine the same, etc., and to "execute and perform such other duties for the collection and security of the revenue, as from time to time shall be enjoined and directed by the Secretary of the Treasury, not contrary to law, and the provisions herein before contained.”

These and other provisions of the act of March 2, 1799, are preserved in Title XXXIV of the Revised Statutes, relating to the "Collection of duties."

Certain acts regulating the Revenue-Cutter Service were passed during the civil war period, which are also embraced in Title XXXIV of the Revised Statutes. Particular reference need only be made to the act of February 4, 1863 (12 Stat. 639), which provided that "the officers of the Revenue-Cutter Service, when serving in accordance with law, as part of the Navy, shall be entitled to relative rank, as follows: Captains, with and next after lieutenants commanding in the navy; first lieutenants, with and next after lieutenants in the navy; second lieutenants, with and next after masters in line in the Navy; third lieutenants, with and next after passed midshipmen in the navy." This

provision was preserved in section 1492 of the Revised Statutes.

The recent legislation with respect to the Revenue-Cutter Service does not purport to amalgamate it with the navy. (Act of April 12, 1902, 32 Stat. 100; act of May 26, 1906, 34 Stat. 200; act of April 16, 1908, 35 Stat. 61.)

By that legislation, commissioned officers in the RevenueCutter Service are given relative rank with certain officers in the Army and Navy, and "the same pay and allowances, except forage," as officers of corresponding rank in the Army (act of April 12, 1902, secs. 2, 3; act of April 16, 1908, sec. 1); officers are to be promoted and retired by means of a retiring board, convened by direction of the Secretary of the Treasury (act of April 12, 1902, secs. 5, 9); persons composing the enlisted force are required to be enlisted for a term not to exceed three years, in the discretion of the Secretary of the Treasury, who is required to "prer are regulations governing such enlistments and for the general government of the service" (act of May 26, 1906, sec. 1); provision is made for the organization of Revenue-Cutter Service courts, by the Secretary of the Treasury, for the purpose of punishing offenses against the discipline of the Revenue-Cutter Service "too grave in character to be adequately dealt with directly by the commanding officer" (ib., sec. 3), and for the apprehension and arrest of deserters from the service, it being provided "that no person who has deserted from the Revenue-Cutter Service shall afterwards be employed in said service, or enlisted in any other military or naval service under the United States, unless," etc. (Ib., sec. 5).

Despite the military character given the Revenue-Cutter Service by the legislation referred to, it is still an organization separate and distinct from the Navy, under the control of the Secretary of the Treasury and assigned to duty in connection with the collection of the customs revenue. Now, as formerly, it can only be regarded as part of the Navy when serving therewith in accordance with law. (Secs. 1492 and 2757, R. S.) The following proviso to section 2 of the act of April 12, 1902, apparently was inserted by Congress for the purpose of preventing any

misapprehension as to the relations of the Revenue-Cutter Service to the Navy arising from its action in conferring military rank and privileges upon the officers of that service:

66* * * Provided further, That no provision of this act shall be construed as giving any officer of the RevenueCutter Service military or other control at any time over any vessel, officer, or man of the naval service. Nor shall any naval officer exercise such military or other control over any vessel, officer, or man of the Revenue-Cutter Service, except by direction of the President."

The view thus expressed is in line with the opinions of the Comptroller of the Treasury (8 Comp. Dec. 852; 15 ib., 807). In the latter case, considering the longevity pay of an officer of the Marine Corps who had served in the Revenue-Cutter Service, and referring to the act of February 24, 1881, which provided that "the actual time of service in the Army or Navy, or both," should be allowed all officers in computing their pay, the comptroller said:

"The service, then, that entitles marine officers to credit in computing longevity pay is the time employed in the volunteer service, and service in the Army or Navy, or both. No other service can be credited in such computation.

"By the act of April 12, 1902 (32 Stat. 100), the pay and allowances of commissioned officers of the RevenueCutter Service were assimilated to those of officers of corresponding rank in the Army, but that law does not make service in that establishment of the Treasury Department 'service in the Army.' Service in the RevenueCutter Service is in no sense service in the Army or Navy."

Furthermore, it appears from the legislation in question that Congress has carefully specified the instances in which officers of the Revenue-Cutter Service shall be entitled to the privileges of officers of the Army.

I therefore answer your question in the negative.

Respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF WAR.

TEN-MILLION-POUND TESTING MACHINE-TRANSFER TO BUREAU OF STANDARDS. ·

Certain equipment, among which is a ten-million-pound testing machine, which was purchased by the Department of the Interior for investigating structural materials, is the property of the United States, and, under existing law, can not be transferred to the Bureau of Mines, but should be transferred to the Bureau of Standards of the Department of Commerce and Labor in order that it may be applied to the specific purpose for which it was authorized.

Express statutory authority is not required for every administrative act.

DEPARTMENT OF JUSTICE,

January 5, 1911.

SIR: Under date of the 24th ultimo you wrote me as follows:

"A difference of opinion having arisen between the Department of Commerce and Labor and the Department of the Interior upon the question of the right of possession to certain equipment, among which is a 'ten-million-pound testing machine,' constructed by Tinius Olsen & Co., of Philadelphia, Pa., at a cost of $32,400, I have to request an opinion whether, under existing law, this equipment is now the property of the Department of the Interior, and whether this department is at liberty to transfer it, or so much of the same as may be necessary, to the Bureau of Mines, for use in its investigations of structural and other materials used in mines, or in support of the roofs of mines, and in mine equipment."

This property, you say, was purchased by the Department of the Interior, under appropriations by Congress reading substantially as follows (33 Stat. 1187; 34 Stat. 728, 1335; 35 Stat. 349, 989):

"For the continuation of the investigation of the structural materials both belonging to and for the use of the United States, such as stone, clays, cement, and so forth, under the supervision of the Director of the United States Geological Survey, to be immediately available, * *

The Bureau of Mines was established in the Department of the Interior by the act of May 16, 1910 (36 Stat. 369). Section 2 of that act provided:

"That it shall be the province and duty of said bureau and its director, under the direction of the Secretary of

the Interior, to make diligent investigation of the methods of mining, especially in relation to the safety of miners, and the appliances best adapted to prevent accidents, the possible improvement of conditions under which mining operations are carried on, the treatment of ores and other mineral substances, the use of explosives and electricity, the prevention of accidents, and other inquiries and technologic investigations pertinent to said industries, and from time to time make such public reports of the work, investigations, and information obtained as the Secretary of said department may direct, with the recommendations of such bureau."

Section 4 read:

"That the Secretary of the Interior is hereby authorized to transfer to the Bureau of Mines from the United States Geological Survey the supervision of the investigations of structural materials and the analyzing and testing of coals, lignites, and other mineral fuel substances and the investigation as to the causes of mine explosions; and the appropriations made for such investigations may be expended under the supervision of the Director of the Bureau of Mines in manner as if the same were so directed in the appropriations acts; and such investigations shall hereafter be within the province of the Bureau of Mines, and shall cease and determine under the organization of the United States Geological Survey; and such experts, employees, property and equipment as are now employed or used by the Geological Survey in connection with the subjects herewith transferred to the Bureau of Mines are directed to be transferred to said bureau."

The sundry civil act approved June 25, 1910 (36 Stat. 743), repealed so much of the Bureau of Mines act as transferred to said bureau the supervision of the investigations of structural materials and equipment therefor by the following provision:

"So much of the act establishing a Bureau of Mines, approved May sixteenth, nineteen hundred and ten, as transfers to said bureau the supervision of the investigations of structural materials and equipment therefor is repealed."