The portion of section 31 of the act of March 4, 1909 (35) Stat. 1082), here material, reads as follows:

"That during the existence of the American copyright in any book the importation into the United States of any piratical copies thereof or of any copies thereof (although authorized by the author or proprietor) which have not been produced in accordance with the manufacturing provisions specified in section fifteen of this act, or any plates of the same not made from type set within the limits of the United States, or any copies. thereof produced by lithographic or photo-engraving process not performed within the limits of the United States, in accordance with the provisions of section fifteen of this act, shall be, and is hereby, prohibited."

Section 5 of said act provides that the application for registration shall specify to which of the following classes the work in which copyright is claimed belongs: (a) Books, including composite and cyclopædic works, directories, gazetteers, and other compilations; (b) periodicals, including newspapers; and nine other classes are mentioned therein.

Section 15, which is referred to in said section 31, provides that of the printed book or periodical specified in section 5, subsections (a) and (b)—

"except the original text of a book of foreign origin in a language or languages other than English, the text of all copies accorded protection under this act, except as below provided, shall be printed from type set within the limits of the United States, either by hand or by the aid of any kind of typesetting machine, or from plates made within the limits of the United States from type set therein, or, if the text be produced by lithographic process, or photoengraving process, then by a process wholly performed within the limits of the United States, and the printing of the text and binding of the said book shall be performed within the limits of the United States." (35 Stat. 1078.)

My attention has been called to two opinions from this department construing and applying a similar provision in the copyright act of 1891 (26 Stat. 1107), one by SolicitorGeneral Conrad (21 Op. 159) and the other by Attorney

General Griggs (23 Op. 371), which, it is supposed, have some bearing upon the question here presented. By section 3 of said act of 1891 section 4956 of the Revised Statutes was amended so as to read as set forth therein, and one of the necessary prerequisites therein prescribed for securing a copyright was that the applicant should, not later than the date of publication in this or any foreign country, deliver at the office of the Librarian of Congress, at Washington, or deposit in the mail within the United States, addressed to the Librarian of Congress, two copies of the book or thing sought to be copyrighted, which, in the case of a book, should be printed from type set within the limits of the United States; and it was further provided:

"During the existence of such copyright the importation into the United States of any book * * * so copyrighted, or any edition or editions thereof, or any plates of the same not made from type set * * within the limits of the United States, shall be, and it is hereby, prohibited."

*

In the first opinion above mentioned the facts apparently were that American owners of an American copyright obtained on an American literary work before the passage of the act of 1891 were seeking, under that act, to prevent the importation of an unauthorized foreign edition, and Solicitor-General Conrad held that the above-quoted provision was applicable and prohibited their importation, although the copyright was not issued under said act of

1891.

In the latter opinion the facts were that Harper & Bros. were endeavoring to import an eighth edition of Liddel & Scott's Greek-English Lexicon, which had been copyrighted in the United States under the copyright laws existing before the passage of the act of 1891, said importation consisting of the folded and unstitched sheets, designed to be stitched and bound in volumes in this country, but which had not been printed from type set within the limits of the United States; and Attorney-General Griggs held that the prohibition contained in section 4956, Revised Statutes, as amended by said act of 1891, did not prohibit the importation, because the copyright was procured under the copyright law as it existed before said amendment was made.

While there was a difference in the facts presented, yet it is difficult to draw any distinction between the principles involved in these two opinions. The question answered in the first was: "Whether section 3 of said act (of 1891) is applicable to books copyrighted prior to the passage of said act," and precisely the same question was presented and answered in the second opinion. But, although doubt was expressed in the latter as to the correctness of the result reached in the former, yet it was suggested that a distinction arose from the fact that in the former opinion the statute was invoked to protect an American copyright against the importation of a piratical edition, while in the latter the statute, if applied, would prevent an importation sought to be made by the owner himself of the American copyright. The result was, if the opinions were sufficiently consistent to stand together, that the owners of an American copyright obtained under laws existing before the passage of the act of 1891, received the benefits arising from section 3 of said act, while upon them were not imposed the burdens which were made to accompany those benefits. However, the opposite conclusions reached in those opinions was manifestly the result, not of a difference in the principles involved, but a difference in the process of reasoning. In the former opinion it was held in substance that inasmuch as section 3 was an amendment of section 4956, Revised Statutes, it applied to all copyrights procured thereunder, before as well as after the amendment, although it could not have a retroactive effect as to importations of books made before the passage of the amendment; while Attorney-General Griggs based his conclusion upon the peculiar language of section 4956, Revised Statutes, as amended, holding that the language "during the existence of such copyright the importation into the United States of any book, etc., so copyrighted," so restricted the clause in question as to make it apply only to copyrights issued under the act as amended.

I am inclined to think that, in so holding, due consideration was not given to the fact that the words upon which special stress was laid were, by the act, made a part of said section 4956, Revised Statutes, and thus a part of the

general copyright law, and were, therefore, intended to apply to all copyrights issued thereunder, regardless of whether issued before or after the passage of the act of 1891.

But I do not regard either of these opinions as having any special bearing upon the question now in hand, inasmuch as the language of section 31 of the act of March 4, 1909, does not admit of the construction that was placed upon section 3 of the act of 1891 by Attorney-General Griggs. Said section 31 provides that:

"During the existence of the American copyright in any book the importation into the United States of any piratical copies thereof or of any copies thereof (although authorized by the author or proprietor) which have not been produced in accordance with the manufacturing provisions specified in section fifteen of this act,"

is prohibited. This language clearly embraces every American copyright in a book, regardless of whether that copyright was obtained under the copyright laws embodied in the Revised Statutes, or the act of 1891, or the copyright act of 1909. If the statute were otherwise, it would have produced the anomalous condition that books copyrighted prior to March 3, 1891, would not be prohibited from importation by any manufacturing provision; that books copyrighted after March 3, 1891, and prior to July 1, 1909, the date upon which the act of March 4, 1909, became effective, would be prohibited unless printed from type set in the United States or from plates made from type set in the United States, while books copyrighted after July 1, 1909, would be prohibited, if not printed from type set in the United States or from plates made from type set therein, and the printing and binding both performed within the limits of the United States.

Such a result, I think, was never intended by Congress, and I am therefore of the opinion that the appraiser was right in holding that the importation in question was unlawful.

Respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF THE TREASURY.

HEAD OF NAVY DEPARTMENT AND CHIEFS OF BUREAUSVACANCIES-TEMPORARY APPOINTMENTS OF NAVAL

OFFICERS.

Officers of the Navy designated by the Secretary of the Navy to act in an advisory capacity to him, but without executive authority over the other bureaus or officers of the Navy Department, can not be legally designated by the President to act as Secretary of the Navy during the absence or sickness of the Secretary or Assistant Secretary. Such aids, although as rear-admirals and captains and commanders they are officers in the public service of the Government, are not "other officers" in the departments eligible for such temporary appointment under the provisions of section 179, Revised Statutes. Officers of the Navy holding commissions issued by the President, by and with the advice and consent of the Senate, but who do not hold any office in the Navy Department or in a bureau thereof by appointment of the President, can not be legally designated by the President to act as chiefs of bureaus in the absence of the appointed Chiefs o Bureaus of Equipment, Construction and Repair, and Yards and Docks. Such an officer, although assigned to act as an assistant to an officer in the department, did not thereby become an officer in the department within the meaning of section 179, Revised Statutes.

DEPARTMENT OF JUSTICE,

December 15, 1909.

SIR: I have the honor to acknowledge the receipt of your letter of December 9th instant, in which you request my opinion upon the following:

"I. Can the aids or advisers described in paragraph 3 of this letter be legally designated by the President to act as Secretary of the Navy during the absence or sickness of the Secretary and Assistant Secretary?

"II. Can the subordinate officers referred to in paragraph 4, above, be legally designated by the President to act as chiefs of bureaus in the absence of the appointed Chiefs of Bureaus of Equipment, Construction and Repair, and Yards and Docks?"

The aids described in paragraph 3 are officers of the navy designated by the Secretary of the Navy to act in an advisory capacity to him, but without executive authority over the other bureaus or officers of the Navy Department. They are appointed as officers in the navy by the President, by and with the advice and consent of the Senate, "but do not hold any office in the department