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pursuance of its authority under the provision of the Constitution above quoted, sees fit to give the sole power of appointment to the President, it does so by language appropriate to that end, such as the unqualified phrase "may appoint" in section 1680 (see also R. S., secs. 88, 555, 677, 1053, 1313, 1411, 2538; sec. 19, act of May 28, 1896, 2 Supp. R. S., 485; act of March 3, 1897, id., 578); and, on the other hand, when Congress means the appointment to an office established by law to be made by and with the advice and consent of the Senate, the intention to that effect is specifically shown by the language used (sec. 2, act of June 11, 1878, 1 Supp. R. S., 174; act of June 4, 1897, 30 Stat., 58; iet of April 12, 1900, secs. 17, 18, 31, 40; act of April 30, 1900, secs. 66, 69, 80, 86).
In the Book of Estimates of Appropriations (House Doc. No. 12, Fifty-sixth Congress, First session, p. 391) are set forth the reasons of the State Department for desiring that the interpreter of the legation to China should be known as "Chinese secretary.” It therefore appears quite conclusively that Congress has authorized the President alone to appoint an interpreter for the legation to China; that the Chinese secretary is merely another name, adopted for good reasons, of such interpreter, and that there is nothing in the appropriation act in question, or in any other provision of law which I can discover, showing a withdrawal by Congress of the right of the President alone to appoint this officer. I am therefore of the opinion that it will be sufficient in this case to have the President sign the commission of the Chinese secretary in the same manner as he does those of other interpreters who are not confirmed by the Senate. Very respectfully,
JOHN W. GRIGGS. The SECRETARY OF STATE.
EXPRESS COMPANIES-BROKERS—WAR REVENUE.
Espress companies issuing money orders and travelers' checks are not
taxable as brokers under the war-revenue act of June 13, 1898 (30
Stat., 418). Money orders and travelers' checks as at present issued by certain express companies do not come within the legal definition of bills of exchange or checks, but possess more of the characteristics of promis
sory notes. The issuing of these orders by express companies upon themselves is not a sale of promissory notes. It is merely an incident to their business as
carriers, and does not constitute them brokers. A broker is one who negotiates purchases or sales, or both purchases and sales, of one or all of the following-named classes of property: Bonds, exchange, bullion, coined money, bank notes, promissory notes, and other securities.
DEPARTMENT OF JUSTICE,
May 14, 1900. SIR: I have the honor to acknowledge the receipt of yours of the 7th of November, 1899, requesting my opinion as to whether certain express companies are liable to tax as brokers under the provisions of the act of June 13, 1898, known as the war-revenue act.
These companies, through their agents at various offices, issue what are known as money orders” and “travelers' checks." The money orders issued by the several companies differ somewhat in form, but are substantially to the effect that the company issuing the same will transmit and pay to the order of the person named in the face of the order the highest printed marginal amount (not exceeding dollars) as per conditions thereon. The order then contains the name of the place at which the same is issued, the date, the name of the officer or agent of the company who issues the same, the name of the place at which payable, and also the name of the remitter. These orders are so drawn that they will be cashed, upon presentation, by the officers or agents of the company issuing the same at the designated place of payment, and it also appears that, in some instances, the banks cash them.
What are called "travelers' checks” differ from the money orders in that they are more simple in form, do not name a place of payment, being in substance as follows: 6. The
Express Company will pay to the order of (name of payee) dollars," and are dated and signed by the treasurer or other authorized agent of the company issuing the same. These checks are paid upon presentation to the agents of the company by which they are issued, in this country or in foreign countries, to suit the convenience of the holders, and are also cashed by the banks in the ordinary course of business.
The express companies charge specified rates for issuing money orders and travelers' checks according to the amounts named severally therein. These rates, together with the amount called for by the orders or checks, are paid by the persons to whom they are issued to the agents of the company from which the orders or checks are obtained.
The question upon these facts is whether or not express companies, by reason of this manner of dealing, are subject to tax as brokers under this provision of the war-revenue act:
“Brokers shall pay fifty dollars. Every person, firm, or company, whose business it is to negotiate purchases or sales of stocks, bonds, exchange, bullion, coined money, bank notes, promissory notes, or other securities, for themselves or others, shall be regarded as a broker: Provided, That any person having paid the special tax as a banker shall not be required to pay the special tax as a broker.”
From the definition of a broker given in the above statute it would seem that the only view in which the transactions of the express companies before described can come within the meaning of the law is to hold that, in issuing the orders and checks referred to, the companies negotiate sales of exchange or of promissory notes.
Mr. Daniels defines a bill of exchange to be "an open letter addressed by one person to a second directing him, in effect, to pay absolutely and at all events a certain sum of money therein named to a third person or to any other to whom the third person may order it to be paid, or it may be payable to bearer or to the drawer himself.” Blackstone's definition is, "An open letter of request from one man to another desiring him to pay a sum of money therein named to a third person on his account.” Mr. Tiedeman describes a bill of exchange as follows: "A bill of exchange is an unconditional written order by one person on another, directing him to pay to a third person or to his order, or to the bearer, the sum of money therein named."
It has been held in the case of Merchants Bank v. State Bank (10 Wall., 604) that “bank checks are not inland bills of exchange, but have many of the properties of such commercial
of the rules of the law merchant are alike applicable to both. Each is for a specific sum payable in money. In both cases there is a drawer, a drawee, and a payee. Without acceptance, no action can be maintained by the holder upon either against the drawee. The chief points of difference are that a check is always drawn on a bank or banker. No days of grace are allowed.”
The instruments issued by the express companies do not come within the legal definition given of either bills of exchange or checks. They are not bills of exchange, because they are not drawn by one person upon another directing the payment of a certain sum of money to a third person, nor do they require acceptance before suit can be maintained against the drawee for nonpayment; and they differ from checks, in that they are not drawn upon a bank. They are simply the promises or obligations of the companies to pay certain sums of money to the persons therein named, and, therefore, possess more the characteristics of promissory notes than otherwise. This is particularly true of travelers' checks, for they are in the usual form of a promissory note.
I readily conclude, therefore, that in issuing money orders and travelers' checks, such as are being considered, the companies do not negotiate sales of exchange either for themselves or others. It then remains to be seen whether or not the companies are liable to tax as brokers on the ground that they negotiate sales of promissory notes.
The broker is understood generally in the law to be an agent and not a principal. He does not have possession of the property, and does not deal in his own name. The addition of the words “ for themselves" in the act has been construed by the courts so as to make one who buys and sells stocks, bonds, etc., for himself a broker. This decision does not, however, affect the character of the business of brokerthat is, the business of negotiating purchases or sales of stocks, bonds, exchange, bullion, coined money, bank notes. promissory notes, and other securities. To constitute a broker, the corporation or person must negotiate purchases or sales, or both purchases and sales, of one or all of the classes of property named. Now, do the express companies negotiate sales or make sales of promissory notes? I think not. A sale of property for a consideration, and the subsequent transfer of ownership is one thing, and the delivery of a contract for the payment of money by the maker to the payee is another. The latter transaction is not a sale.
It appears from the facts and exhibits in this case that money orders and travelers' checks issued by express com panies are practically a substitute for the actual transmission of money from one point to another. Formerly the plan in use was to ship the money delivered to the carrier by the shipper to the consignee at the point of destination. As a more convenient method, in case the proposed shippers desire it, the companies have adopted this system of money orders payable at the place to which, and to the person to whom, the amount is to be sent. This business, since its inception, has greatly enlarged; and in addition to the money orders, travelers' checks are also issued, which are payable at any of the offices of the company by which the same are issued. In the course of time the banks have also begun to handle these orders in some instances, and the checks generally, as they do ordinary commercial paper.
Section 3107 of the Revised Stačutes defines a bank or a banker as “a place of business
where money is advanced or loaned on stocks, bonds, bullion, bills of exchange, or promissory notes, or where stocks, honds, bullion, bills of exchange, or promissory notes are received for discount or for sale.” In construing this section, the Supreme Court, in Selden v. Equitable Trust Company (94 U. S., 419), holds that "A corporation whose business is confined to the investment of its capital in bonds secured by mortgage on real estate, and to the negotiation, sale, or