Lapas attēli
PDF
ePub

and then, to buy another $1 stamp under the new régime, less the 74 per centum discount, would cost him 92 cents, thus making his tax upon his barrel of beer $1.924, when the tax upon others under the new law was only $1.85. The plan of collecting by assessment, therefore, the additional tax upon beer which had already paid the anterior tax was adopted in order that the tax might be uniform upon all beer going upon the market at the same time.

It is stated by the Commissioner of Internal Revenue, in, his letter inclosed with yours, that owing to the failure of the Government to furnish the stamps which became necessary under the new law for use upon barrels of beer, certain of the brewers who had already paid the $1 tax were permitted by the Government to attach to each barrel another $1 stamp of the old series, which stamp cost the brewer $1, having been sold to him without discount. In such case it is evident that the Government received a dollar tax, when under the law it was entitled to receive only 85 cents. There is no express authority for the use of the old stamps to pay the additional tax upon beer already tax-paid at the rate of $1 per barrel found in the warehouses when the new law went into effect, for the provision in section one quoted, is that this tax shall be assessed and collected in the manner provided by law for the collection of taxes not paid by stamps. So these old stamps could not have been used by the brewers under the new law without the consent of the collecting officers of the Government. These officers must bave induced, or at least permitted, the use of such stamps; otherwise the barrels of beer to which they were attached would have gone upon the market liable to seizure because of being improperly stamped.

It seems to me, under such circumstances, that it would be applying a very harsh rule to hold that, hy reason of the failure of the Government to provide suitable stamps and by permitting the use of other stamps, the taxpayer should be the sufferer and should bear the burden of 15 cents more on each barrel of his beer than by law he was required to pay.

I therefore advise you that, under the war-revenue act, the whole tax upon a barrel of not more than 31 gallons of beer, lager beer, ale, porter, and other similar fermented liquors

is not $2, but $1.85, to be paid by stamps attached to the barrel, though, under the law, the stamp or stamps attached to such barrel indicate the tax to be $2.

I am further of the opinion that in all cases where the collecting officers of the United States have collected by stamp, assessment, or otherwise, more than 85 cents per barrel additional upon beer which had theretofore paid the $1 tax, whatever sum was so collected over and above the 85 cents per barrel was erroneous. Respectfully,

JAS. E. BOYD,

Assistant Attorney-General. Approved:

JOHN W. GRIGGS.
The SECRETARY OF THE TREASURY.

CONTRACTS — NAVAL VESSELS.

The act of August 13, 1894 (28 Stat., 278), entitled "An act for the pro

tection of persons furnishing materials and labor for the construction of public works,” relates to contracts for the construction of public buildings, fortifications, river and harbor improvements, etc., which can only be erected upon land, and are commonly understood under the designation public works." The act does not refer to contracts for the construction of naval vessels.

[ocr errors]

DEPARTMENT OF JUSTICE,

June 21, 1900. Sir: I have the honor to acknowledge receipt of your letter of June 11, in which you request my opinion as to whether the provisions of the act entitled "An act for the protection of persons furnishing materials and labor for the construction of public works," approved August 13, 1894 (28 Stat., 278), apply to contracts about to be made by the Navy Department for the construction of certain naval vessels recently authorized by act of Congress.

The act in question provides as follows:

" That hereafter any person or persons entering into a formal contract with the United States for the construction of any public building, or the prosecution and completion of any public work, or for repairs upon any public building or public work, shall be required before commencing such work to execute the usual penal bond, with good and sufficient sureties, with the additional obligations that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract," etc.

Accompanying your letter is the form of a contract used by the Navy Department in making contracts for the construction of naval vessels, which form has remained in use substantially unchanged since 1883. By the terms of this contract, the contractor undertakes, at his own risk and expense, to construct, in conformity with drawings, plans, and specifications, the required vessel and to deliver the same at a specified place to such person as the Secretary of the Nary may designate. It is further provided in various clauses of the contract that the vessel shall not be accepted until after a specific trial, which can only be had after her full completion, and even then such preliminary acceptance is only conditional, the final acceptance being postponed to await the result of what is called a "final trial.” The contract further provides that whenever a payment under it is to be made, as a condition precedent thereto, the Secretary of the Navy may, in his discretion, require evidence satisfactory to him, to be furnished by the contractor, that no liens or rights in rem of any kind against said vessel or her machinery, fittings, or equipment, or the material on hand for use in the construction thereof, have been or can be acquired for or on account of any work done or material already incorporated as a part of said vessel or on band for

that purpose.

I do not think the contract for the construction of a naval Vessel, made in such form as I have referred to, is within the act of August 13, 1894. The contracts there referred to relate to the construction of public buildings and the prosecution and completion of public works, and to repairs upon public buildings or public works. The object of the act was to afford a better method for enforcing against the contractor the claims of laborers and material men who had done work or furnished material upon property actually belonging to the United States, such as public buildings, which could only be erected upon land to which the United States had acquired a complete title-fortifications, river and harbor improvements, and such other things as are commonly understood under the designation of “public works.” Of course, no mechanic's or laborer's lien would attach, by operation of any State statute, to property belonging to the United States on account of work done or materials furnished for improvements thereon. The statute of 1894 intended, in a measure, to remedy the defect in the means of collection at the disposal of laborers and material men against contractors upon such works. No such reason applies to cases of the construction of a specific article not attached to soil, the title of which is in the United States, but which is a mere movable article, the whole title to which remains in the contractor until its completion and acceptance by the Government. I assume it to be correct to say that if a State law authorized a lien for labor or materials furnished in the construction of a vessel under this form of contract, it would not be void or unenforcible because the vessel was in process of construction for the United States, the property to the same not yet having passed to the Government, and such liens could therefore be effectively enforced. The clause of the contract referred to making it optional with the Secretary of the Navy to require'evidence that no liens or rights in rem of any kind exist against said vessel imports that such is the opinion of the Navy Department. The fact that your Department, ever since the act of 1894, has construed the statute as inapplicable to the construction of naval vessels, is also of importance.

I therefore have the honor to advise you that you are not required to take from the contractor a bond with the special condition required by said statute. Very respectfully,

JOHN W. GRIGGS. The SECRETARY OF THE Navy.

HAWAII-NATIONAL BANKS.

The act of April 30, 1900 (31 Stat., 141), extended the national banking laws of the United States to the Territory of Hawaii, and the Comptroller of the Currency is authorized to grant permission for the organization of national banks therein. Sections 5154 and 5155, Revised Statutes, do not apply to banks existing

in Hawaii prior to the passage of the act of April 30, 1900, but refer exclusively to banks organized under special or general laws of a State.

· DEPARTMENT OF JUSTICE,

June 23, 1900. Sir: I have the honor to acknowledge receipt of your letter of June 5, in which you request my opinion as to the authority of the Comptroller of the Currency to permit the organization of national banks in Hawaii, and the conversion of banks incorporated under the laws of Hawaii into national banking associations, under the provisions of section 515+ of the Revised Statutes.

By the act of April 30, 1900, providing a government for the Territory of Hawaii, it was enacted that all laws of the United States not locally inapplicable should have the same force and effect within the said Territory as elsewhere in the United States. This extended the national banking acts to the Territory of Hawaii, and would authorize the Comptroller to grant permission for the organization of national hanks therein. See my opinion of June 2, 1900, relative to the same question as applied to Porto Rico.

But I do not think the provisions of section 5154 apply to banks existing in Hawaii prior to the passage of the act of April 30, 1900. Sections 5154 and 5155 seem, by their special terms, to refer only to banking institutions organized under special or general law of a State, and do not seem to apply at all to banks organized under the law of any Territory. I think the object of those two sections was to enable banks that were previously strictly State institutions to become national corporations, and the operation of the act in that respect is to be so restricted. Very respectfully,

JOHN W. GRIGGS. The SECRETARY OF THE TREASURY.

19395—VOL 23-02-12

« iepriekšējāTurpināt »