here, modified so that Mr. Clarke was to furnish all the land for the sum of $66,666.66; but with the same stipulation as to condemnation, if necessary.

On September 7, 1889, in accordance with this arrangement, Mr. Clarke and wife conveyed to the United States all the land included in the above proposition, except the "Zucker" tract of 43.08 acres, for the consideration expressed in the deed of $61,400; but, in accordance with the understanding of the parties, he excepted the buildings from the conveyance; and, in pursuance of the agreement between the Secretary of War and Mr. Clarke, as stated in the above proposition, the "Zucker" tract was condemned in proceedings instituted by the United States for that purpose, and the title to the land was thus acquired by the United States; but, in accordance with the understanding, all the condemnation money for the land thus condemned, and the buildings thereon and the costs, amounting in all to $8,657.48, was paid by the United States and deducted from the $66,666.66, for which Mr. Clarke had agreed to obtain the whole land, leaving but $58,009.18, which was the total amount in fact paid to Mr. Clarke, instead of the $61,400 stated in the deed.

The question thus arises, who is the legal and equitable owner of the buildings on this "Zucker" tract, after these condemnation proceedings?

This proposition, when accepted, was, in legal effect, the agreement of Mr. Clarke to procure for the United States. all the lands referred to for the sum of $66,666.66, with the stipulation, as to a portion thereof, that if it could not be purchased at a fair price, then the United States should condemn it and Mr. Clarke would pay what this cost; but, with the further stipulation, as to all the tracts, that the land only, and not the buildings, was to pass to the United States.

The effect of this, as to the lands which Mr. Clarke himself owned, was to leave the title to the buildings thereon in Mr. Clarke as before; and this was the effect of the reservation in his deed. The title to the buildings did not pass. But, as to the "Zucker" land, Mr. Clarke did not own the buildings, and no exception or reservation of them was

made in the proceedings, but the title to the land, including buildings of a permanent character, passed to the United States. This was the necessary legal effect of the proceedings, leaving the question whether the United States thus took the title to the buildings absolutely and for its own benefit, or for the benefit of Mr. Clarke, to be determined by matters outside of those proceedings. And, when we consider the facts disclosed in this case and the acts of the parties under the agreement evidently reached by the Secretary and Mr. Clarke, there is little room to doubt that the legal title to the buildings, thus acquired, was held for Mr. Clarke.

There appears to be no dispute, and there would seem to be no room for any, that these proceedings were instituted and carried on by the United States, in compliance with the understanding to that effect, between the Secretary of War and Mr. Clarke, and as stated in his proposition, and for the purpose of obtaining the title in the manner and upon the terms therein stated. Upon no other ground could any portion of the amount involved in that condemnation have been charged to Mr. Clarke or deducted from the amount to be paid to him, as he would have had no concern with it. But, as there is no controversy as to this, the point need not be elaborated.

But for this agreement with Mr. Clarke, the condemnation and appropriation of this "Zucker" tract would have given to the United States both the legal and equitable title to all the buildings thereon which were permanent, or fixtures. Even with this agreement, they did so as to all the world except Mr. Clarke. As to him, the United States took the naked legal title to the buildings, but, under this arrangement, the whole equitable and beneficial ownership was in Mr. Clarke, and the naked legal title of the United States was held in trust for him. For, it is quite clear that whether the title to this tract should ultimately be acquired directly from Mr. Clarke, or by the condemnation proceedings, the buildings were not to pass.

Assuming that the condemnation proceedings were such as to vest in the United States a valid legal title to the land, and, therefore, to the buildings, then the purchase of this outstanding equity would vest the whole estate and title. And, if the United States desires to acquire this full title, I

see no reason why it may not do so in the manner suggested. I do not think the fact that the legal title to these buildings is already in the United States constitutes any objection to its purchase of the equitable and beneficial title of Mr. Clarke.

But, while this is so, it is proper to add that this right of Mr. Clarke to the buildings is but the right to remove or sell them. He can not occupy them by himself or by a tenant, for this would be to occupy lands of the Government, to which he has no right. He was bound to remove the buildings whenever required to do so, and their value to him was, for these reasons, much less than it would have been had they been situated where he could occupy or lease them.

What effect these considerations should have upon the price to be paid in case the Government desires to purchase, is left to your Department.

The remaining question is, whether these buildings may be purchased and paid for from the current appropriation for "Barracks and Quarters" in the act of May 26, 1900.

I quite agree with the Comptroller of the Treasury, to whose letter you refer me, that, waiving the question of title, the act warrants such purchase. I am of opinion that the first portion of the clause of that act, making an appropriation for "Barracks and Quarters," authorizes not only the construction of the buildings therein mentioned, but also the purchase instead, when it can be done, of suitable buildings already constructed in a suitable place. And this question is answered in the affirmative.

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

Respectfully,

The SECRETary of War.

JOHN W. GRIGGS.

DRAWBACK-LINSEED.

Linseed, which was imported into the United States while the act of October 1, 1890 (26 Stat., 567), was in force, but was not withdrawn from warehouse until the act of August 27, 1894 (28 Stat., 509), went into effect, duties being paid under the later act, and the linseed

manufactured into oil cake and exported while the act of 1894 was still in force, is entitled to drawback under the provisions of section 22 of the act of 1894 (28 Stat., 551).

DEPARTMENT OF JUSTICE,

February 16, 1901.

SIR: On June 6, 1894, the National Lead Company imported into New York, by the steamship Armenia, a cargo of linseed, which was entered for warehousing, but not withdrawn for consumption until the act of August 27, 1894, went into effect. Accordingly, duties were levied and collected under the following paragraph of that act (28 Stat., 523):

"206. Flaxseed or linseed, poppy seed and other oil seeds, not specially provided for in this act, twenty cents per bushel of fifty-six pounds."

The act under which the duties were paid contained the following provision respecting drawback (28 Stat., 551):

"SEC. 22. That where imported materials on which duties have been paid are used in the manufacture of articles manufactured or produced in the United States, there shall be allowed on the exportation of such articles a drawback equal in amount to the duties paid on the materials used, less one per centum of such duties."

While the act of 1894 was in force, the imported linseed was used in the manufacture of oil cake, which was exported, and a claim for drawback made under the provision just quoted.

The question you submit is, whether the National Lead Company is entitled to the drawback claimed, in view of the fact that the act of October 1, 1890, which was in force when the linseed was brought into the port of New York, contained the following provision in the paragraph prescribing the duties on linseed (26 Stat., 586):

"285. Flaxseed or linseed, poppy seed and other oil seeds, not specially provided for in this act, thirty cents per bushel of fifty-six pounds; but no drawback shall be allowed on oil cake made from imported seed.”

Did the prohibition of this proviso attach to the linseed when it arrived in the port of New York, so as to prevent an allowance of the drawback under the succeeding act of 1894?

While it may be true that, in a certain sense, the linseed

was imported on June 6, 1894, the day the vessel reached port, it is certain it was not imported on that day so as to subject it to the duties imposed by the act of October 1, 1890, which was then in force.

The linseed was in the custom-house and under the control of the officers of the Government until after the act of October 1, 1890, was repealed and the act of August 28, 1894, went into effect, and duties were, therefore, properly leviable under the latter act. (Hartranft v. Oliver, 125 U. S., 525, 528; United States v. Goodsell Company, 78 Fed. Rep., 806.) There is manifest justice in the rule that imported goods shall be subject only to such duties as are leviable by the law in force when the owner or importer takes possession of them. The existing rule that duties shall be leviable at the time when the goods are withdrawn for consumption but follows the doctrine laid down by Chief Justice Marshall in the early case of Pennington v. Core, 2 Cranch, 33, in which it was held that internal-revenue taxes on refined sugar accrued not at the time when the sugar was produced, but when it was sent out from the factory.

The duties on the imported linseed were not levied under paragraph 285 of the act of 1890, but under paragraph 206 of the act of 1894, and I am unable to perceive how a limitation which was a part of the former paragraph can, after its repeal, operate to defeat a claim for a drawback of duties paid under the latter paragraph.

The act of 1894 changed the policy of the Government with respect to drawback on oil cake made from imported linseed. It repealed the act of 1890, and paragraph 285 thereof, and the prohibition of that paragraph, and in lieu thereof provided, in paragraph 206, for new rates of duty on imported linseed, and inferentially, in section 22, for drawback on exported oil cake made therefrom. Such being the case, is it a fair presumption that the act of 1894 recognizes two classes of linseed dutiable under the act, one entitled to drawback and the other not, dependent upon the time of arrival in port, although such time neither gave possession to the importer nor determined the rate of duties to be paid? I can see no just ground for such discrimination. It seems to me clear that by the act of 1894, Congress intended to grant the right to a drawback to all who, hav