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these matters. If the statute under consideration was ambiguous, and if it were clear that such promotion of officers who are capable of only shore duty was seriously detrimental to the service, this might be a reason for giving another construction, if possible, to these sections. But the statute is not ambiguous; and no rule of interpretation permits us to do violence to its plain terms, in order to avoid what is, at best, only a remote possibility, and one which Congress could not have overlooked in framing these sections; and one which has not been a serious menace to the service in the thirty and more years since this legislation was enacted.

But, all these considerations are exclusively in the discretion of Congress. If it shall be found that, under existing laws and practice, the number of officers of a certain grade, fit for sea duty, is not adequate to the requirements of that branch of the service, Congress may correct the evil by either increasing the number or requiring full qualification in order to promotion.

But there are various duties other, and no less important, than those on shipboard; and these, under existing regulations, must be performed by officers of various grades. This being so Congress may well fill these places from meritorious officers whose wounds received in the service have incapacitated them for active duty at sea, and provide for their promotion, in due course, as it has done. There is no reason why an officer, wounded in the service, should not be promoted, as well as his more fortunate brother, if there are duties in the higher grade which he can satisfactorily and sufficiently perform; and this is recognized in the sections under consideration.

Your question is therefore answered in the affirmative. Mr. Mullison is, under the facts stated, eligible for promotion.

As requested, I return herewith the memorandum transmitted with your note. Respectfully,

JOHN W. GRIGGS. The SECRETARY OF THE Navy.

SCHOOL-HOUSES-PORTO RICO.

The act of April 12, 1900 (31 Stat., 77), entitled “An act temporarily to

provide revenues and a civil government for Porto Rico," etc., does not repeal, either expressly or by implication, and is not inconsistent with, the act of March 24, 1900 (31 Stat., 51), which appropriates, for the benefit and government of Porto Rico, the revenues collected on importations therefrom prior to January 1, 1900. The President may lawfully direct that a portion of the latter appro

priation be used for the purpose of erecting and equipping schoolhouses in that island.

DEPARTMENT OF JUSTICE,

December 5, 1900. Sir: I have the honor to acknowledge receipt of your request that I would examine the communication addressed to you by the commissioner of education of Porto Rico, under date of November 24, 1900, and the request of the governor of Porto Rico and other officers of that government, of the same date, that you allot from the fund provided for in the act of March 24, 1900, the sum of $200,000 for the extension of public education in Porto Rico, to be made available for the purpose of building and equipping school-houses in different sections of the Island, and in accordance with your request that I advise you as to the legality of such desired action on your part, I have the honor to report:

The act of March 24, 1900, above referred to, directed that the sum of $2,095,455.88 should be placed at the disposal of the President, to be used for the government then existing or which might thereafter be established in Porto Rico, and for the aid and relief of the people thereof, and for public education and public works and other governmental and public purposes therein, until otherwise provided by law.

Subsequently to the passage of the act referred to, Congress passed the act of April 12, 1900, entitled “An act temporarily to provide revenues and a civil government for Porto Rico, and for other purposes.

There is nothing contained in the latter act which, expressly or by implication, repeals the appropriation made by the act of March 24, nor is there anything in the temporary government act inconsistent with the provisions of the prior act. Indeed,

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the act of March 2+ looked forward to a time when another form of government should be established in Porto Rico, as was subsequently done, and expressly provided that the money appropriated should be used for such government thereafter to be established.

The object of the present requisition is within the terms of the act of March 24. It is for public education, which is one of the specific purposes enumerated. In my judg. ment, it is lawful for you to make an order appropriating and disposing of money out of this appropriation for the purpose of building and equipping school-houses in the Island of Porto Rico. Such appropriation would be paid over to the treasurer of the Island, and then be expended in conformity to the local laws of Porto Rico governing the building and equipping of school-houses. Very respectfully,

JOHN W. GRIGGS. The PRESIDENT.

ATTORNEY-GENERAL-OPINION.

Under the rules regulating the opinions of the Attorney-General, it is

necessary that the question of law presented should rest upon some case actually arising in the administration of a Department, and that it should be accompanied by a statement or finding of the facts involved.

DEPARTMENT OF JUSTICE,

December 6, 1900. Sir: Your letter of December 3 brings to my attention the apparent conflict between section 3074, Revised Statutes, and section 13 of the act of June 10, 1890, so far as affecting the proper method of appraisal of merchandise duly entered and subsequently seized as subject to forfeiture for violation of section 32 of the act of July 24, 1897, at ports where there is but one United States appraiser; and thereupon you request my opinion upon the question whether at such ports it is necessary to appraise merchandise seized under section 32 aforesaid in accordance with the provisions of section 307+, Revised Statutes, notwithstanding the directions of section 13 of the act of June 10, 1890.

I regret that I am obliged to decline compliance with your request, for the reason that under the rules regulating the opinions of the Attorney-General it is necessary that the question of law presented should rest upon some case actually arising in the administration of a Department, and that it should be accompanied by a statement or finding of the facts involved. (9 Opin., 421; 13 Opin., 531; 19 Opin., 332; 21 Opin., 506, 510; 22 Opin., 77.) Very respectfully,

JOHN W. GRIGGS. The SECRETARY OF THE TREASURY.

CONSTRUCTIVE MUSTER.

rank.

66

The first proviso of the act of February 24, 1897 (29 Stat., 593), which

provides for the constructive muster into the service of the United States of certain persons who were appointed or commissioned to be officers in the volunteer service during the rebellion, requires as a basis of favorabie action that there should have existed at the date from which such person was to take rank a vacancy to which he could legally have been appointed. No provision was made for the case of å vacancy occurring after the date from which an officer was to take The word "vacancy” means a legal vacancy, one “to which he could

appointed or commissioned" in accordance with the then existing The rank of an officer constructively mustered into the service under the provisions of this act does not fluctuate with the changed conditions of his command. He is such an officer de facto and de jure, without limitation of time or condition, and is to be recognized as such until he is promoted, dies, or is disposed of in some other manner The third proviso requires that the command must not have been below

its minimum strength on the date from which he was to take rank by The second proviso requires that a vacancy in the grade to which he

appointed must have existed at the time of his appointment or

be
law and regulations.

provided by law.

the terms of his appointment.

was

commission.

DEPARTMENT OF JUSTICE,

December 10, 1900. SIR: I am in receipt of the note of the Acting Secretary of War, of November 26, 1900, with its inclosures, request

ing my opinion upon certain questions therein referred to, and have the honor to reply.

The questions submitted have relation, mainly, to the construction to be given to the act of February 24, 1897 (29 Stat., 593), and to the recognition to be extended to certain army officers constructively mustered into the service under the provisions of that act, and are as follows:

(1) Does the first proviso of the act require that, as a basis for favorable action in all cases, a vacancy should have existed at the date from which a person was to take rank by the terms of his appointment or commission, or will the occurrence of a vacancy on some subsequent date satisfy the requirements of the law?

(2) Does the word “vacancy" as used throughout the act mean a legal vacancy, i. e., one to which a person could have been appointed under then existing law and regulations; or does it mean a numerical vacancy, i. e., an official position which was vacant but which could not be filled at the time under existing law and regulations?

(3) Does the act require that a vacancy should have been continuous, i. e., that it should have remained unfilled from the date on which an officer is recognized as having been mustered into it until that officer was actually promoted to a higher grade, was discharged from service, died, or was otherwise disposed of as he would have been if he had actually been mustered into service as of the grade in question? Or does the act permit the recognition of a person for the period of a temporary vacancy, or for the combined periods of two or more disconnected vacancies? For instance, can a sergeant who was appointed and commissioned a second lieutenant but not mustered as such, although he performed the duties of the office from July 1 to 30, 1862, and January 1 to 30, 1863, be recognized as a second lieutenant for those periods, and as an enlisted man before, between, and after those periods?

(4) Does the act require, in the case of a person appointed after June 20, 1863, that the command shall have had the minimum strength on the date from which such person was to take rank by the terms of his appointment? Or can a person so appointed be recognized from the date on which

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