port, for even a part of the voyage, while it might plausibly be claimed that section 4347, as amended, did not go so far.

The discovery of gold in Alaska made this defect in the law a matter of practical moment, for, as Alaska is separated from the United States proper by a great stretch of country belonging to Canada, a port in Alaska could, perhaps, not be deemed a "port in the United States on such frontiers" within the meaning of section 3110, Revised Statutes. To meet this situation the act of February 17, 1898, supra, was passed, which, while formally it supersedes section 4347, Revised Statutes, in substance amends it by adding the words "by water" after the word "transported," and the words "or for any part of the voyage,' after the words "via a foreign port."

The act of February 17, 1898, was Senate bill No. 3580 (55th Cong., 2d sess.), Senator Frye, chairman of the comnittee reporting it, said in explanation of the necessity for its enactment (55th Cong. Rec., p. 1610):

* It is rendered necessary for this reason: Inquiries have just been made at the Treasury Department as to whether an American vessel could not take a cargo at Seattle and land it at Vancouver, ship it at Vancouver on an English vessel and the English vessel carry it up the rivers. That would be an evasion of the law, and this is to make it certain that it would also be a violation.

Mr. Payne, in explaining the provisions of the act to the House, made a similar statement (ibid. 1730), and the House report consisted entirely of a letter from the Secretary of the Treasury from which the following is quoted (ibid., pp. 1729, 1730):

The essential amendment is in the words " or for any part of the voyage." The question has recently been put to the Treasury whether American goods consigned to Alaskan ports from Seattle can be carried in American vessels to Victoria, a distance of only 72 miles, and at Victoria be put on British vessels to be carried to Dyea, a distance of about 900 miles, or to St. Michael, a distance of about 2,000 miles. The Treasury Department has ruled that this is a violation of the laws reserving the coasting trade to American vessels. It is a palpable evasion of those laws, but in some quarters doubt is expressed whether the courts will not

decide, as they did in the case of a shipment of a cargo of nails from New York to Antwerp by a foreign vessel, and thence to San Francisco by another foreign vessel, that the law had been successfully evaded, not violated. That decision led to the amendment of Revised Statutes, section 4347, by the act of February 15, 1893, prohibiting shipment "via a foreign port." That amendment, however, does not, perhaps, fully cover the transaction here referred to. The policy of the United States is to confine carrying by water for the whole voyage between American ports to American vessels. It is believed that section 1 explicitly affirms that policy and removes all doubt.

During the debate in the House this colloquy occurred (ibid. 1730):

Mr. MOODY. Does this bill in any way affect the bonding privilege?

Mr. PAYNE. You mean with reference to the railroadcarrying trade? No; it refers entirely to goods brought in vessels and transferred to other vessels.

Mr. MOODY. Would it indirectly affect the bonding privilege?

Mr. PAYNE. I can not see how it would affect it in any

way.

Mr. SIMPKINS, of Massachusetts. As I understand, this bill simply secures to American vessels the American coastwise trade of Alaska?

Mr. PAYNE. That is the purpose of it, and that is all there is in it, as I understand it.

In addition, and for similar reasons, the act of June 19, 1886, supra, was reenacted as section 2 of the act of February 17, 1898, with an increase in the penalty from $2 per passenger to $200; a provision was inserted as section 3. dealing with the transshipment of goods at the mouth of the Yukon and other rivers; and section 3109 of the Revised Statutes was amended so as to apply to Alaska.

This account of the history of this legislation makes it clear that Congress did not have in mind in the act of February 17, 1898, anything further than the regulation of the coasting trade of the United States so as to prohibit the use of foreign bottoms for either passenger or freight traffic on a voyage or on any part of a voyage, by water, between ports of the United States. There is not a sign that anything further was thought of.

The subject being

dealt with, namely, the coasting trade of the United States. the evasion of law sought to be forestalled, namely, the shipment to Victoria or Vancouver by vessel, and the transshipment there in another vessel to an American port, the addition to the former act of the words "by water" and "for any part of the voyage," the reenactment, as section 2, of an act providing for the transportation of passengers between ports or places in the United States by a foreign vessel, all show clearly that Congress had in mind a transportation which should be entirely by water, in vessels, and was simply endeavoring to prevent evasions of the coasting laws, by double billing through foreign ports, or by transshipment at such ports.

I have the honor, therefore, to advise you that the transportation to which you refer would not, in my judgment. violate the provisions of section 1 of the act of February 17, 1898.

Respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF COMMERCE AND LABOR.

AIR RIFLES-ARMS AND MUNITIONS OF WAR.

Whether certain air rifles are "arms or munitions of war" within the meaning of the joint resolution of Congress passed March 14. 1912, and the President's proclamation of the same date issued in pursuance thereof, is purely a question of fact which the Attorney General does not feel qualified to decide.

DEPARTMENT OF JUSTICE,
January 6, 1913.

SIR: I am in receipt of your letter of 4th instant, transmitting correspondence referred to in it, and asking whether I am of opinion that air rifles are munitions of war within the meaning of the joint resolution of Congress, passed March 14, 1912, and the proclamation issued by the President in pursuance thereof.

In an opinion rendered you November 18, 1912 (29 Op. 570), while stating that, in my opinion, "paper caps for toy cap pistols could hardly be regarded as weapons of any

species used for the destruction of life," I suggested that "air rifles might well be employed for that purpose."

The Daisy Manufacturing Co., of Plymouth, Mich., objects to this suggestion, saying:

66* * * Our rifles should be classed as toys, as they do not shoot with enough force to break the skin, and we have never heard of a single instance where a person habeen killed with an air rifle of any kind, and we have been giving the subject very close attention ever since we began the manufacture of air rifles, some 24 years ago."

This raises a question of fact which I do not feel qualified to decide. The practical definition of the term "arms and munitions of war," which I suggested in my letter to the President of March 25, 1912 (29 Op. 375), was "articles primarily and ordinarily used for military purposes in time of war, such as weapons of every species used for the destruction of life * * *." If air rifles of the character sought to be exported by the Daisy Manufacturing Co. are wholly inocuous and can not be used for the destruction of life, obviously they do not fall within the definition given. This, however, is, as I say, purely a question of fact, which I do not undertake to decide."

Respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF STATE.

CIVIL SERVICE PROMOTION OF MESSENGER BOY TO

LABORER.

Promotion from the position of messenger boy, in the classified nonapportioned service, to the position of laborer with classified duties, which is subject to the rule of apportionment, is prohibited by section 6 of Rule XI of the civil service rules.

An applicant by passing the civil-service examination does not acquire a vested right to promotion in accordance with the rules in force at the time the examination is held.

DEPARTMENT OF JUSTICE,

January 10, 1913.

SIR: I have the honor to acknowledge the receipt of your letter of November 15, 1912, requesting my opinion

apon certain questions arising in connection with the promotion of a messenger boy in your department. After stating that a disagreement has arisen between the Civil Service Commission and the Commissioner of Patents as to the authority of the latter to promote certain messenger boys, you say:

"The case in point is that of William N. Fisher, jr., who was appointed a messenger boy at $360, in the Patent Office on December 27, 1909, and was promoted to the position of laborer at $480 on June 17, 1912. To this promotion the Civil Service Commission takes exception. holding that Fisher was not eligible for promotion. The holding of the commission is based on section 6 of Rule XI of the Regulations of the Civil Service Commission. adopted September 18, 1909, and promulgated September 24, 1909.

* * *

"Fisher was certified for appointment after the date of the promulgation of the said rule, and contends that when he took the civil-service examination, on December 5, 1908, for the position of messenger boy the rule in question was not in existence, and, further, that he took the examination with a distinct understanding, obtained from information furnished by the Civil Service Commission, that he could be promoted from the subclerical position which he was then seeking to other subclerical positions; and after two years' service in a subclerical capacity, would be allowed to take a promotion examination which, if he passed, would make him eligible for promotion to the clerical service, under rules of the commission existing then and now. The amended rule as promulgated on September 24, 1909, which was subsequent to the date of the examination taken by Fisher, is thought to be in the nature of an ex post facto regulation, and the reduction in his salary called for by the Civil Service Commission is apparently an illegal requirement. Fisher took the examination in good faith, being induced to do so by the opportunities offered for his advancement, and he should not now be deprived of his right by a rule adopted after he had complied with all of the regulations of the commission governing the admission of candidates for examination. It is believed that