I do not think that the Government may so agree with persons themselves prohibited by law from so doing-and this because such a contract, for lack of necessary joint legal assent, would be void as to both. L. & N. R. R. v. Kentucky, 161 U. S. 677, 692. Nevertheless, I answer this question in the negative, and for these reasons:

Section 5 of the Act to Regulate Commerce, supra, provides:

"That it shall be unlawful for any common carrier ** to enter into any agreement

* * *

* ** *

with any other common carriers, for the pooling of freights of different and competing railroads, or to divide between them the aggregate or net proceeds of the earnings of such railroads, or any portion thereof; etc."

Having already concluded that rates for troops are not within the purview of the act, it follows that this section can not reach an agreement limited to such movement. Even were the act of broader purpose, it is questionable whether the section could apply since its first clause is limited to "freights" and its second to "earnings" only. Immigration Cases, 10 I. C. C. Rep. 13. Here it may be noted that the question asked is much broader than the provision in that regard of the contract submitted. The latter provides:

"(a) The routing of the business to be left in the hands of the authorized officers of the U. S. Army, U. S. Navy and U. S. Marine Corps, from starting point to final destination, in the understanding that within the territory west of and including Chicago, St. Louis and the Mississippi River, the traffic shall be equitably apportioned according to the routings that may be specified by E. L. Bovington, chairman of the committee."

This provision might well be read as empowering the Government officers themselves to equitably apportion from time to time particular movements, selecting the route therefor from the various routes previously indicated by Chairman Bovington as available for any movement between those points. Thus read, and with each road retaining the earnings for its particular service as ren

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dered-and there is no suggestion in the contract that this will not be done-it would seem free from objection even if it dealt only with a kind of traffic within the purview of the act.

The Sherman Anti-Trust Act (26 Stat. 209) provides: "SECTION 1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal, etc.

"SEC. 2. Every person who shall monopolize, or attempt to monopolize * * ** any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty, etc."

Though for reasons already pointed out this contract may be given a harmless reading in respect to this act also, it may be conceded for argument's sake that if the subject matter of the agreement were ordinary trade or commerce it might involve an unlawful apportionment of business. United States v. Trans-Mississippi Freight Ass'n, 166 U. S. 290, 302, 303, 332, 333, 341, 342; Greenhood on Public Policy, 660, 664; Hadley's Railroad Transportation, 74, 76; Adam's Railroads, 180; Dabney's Public Regulation of Railways, 144; Nimo's Railroad Problems, 14; Peabody's Transportation Theories, 220. Nevertheless I can not regard the military movement of troops as "trade or commerce or a contract therefor as one that may be "in re straint of" or to "monopolize * * * trade or commerce" within the meaning of the Sherman Act. It is hard to see how anyone selling transportation could build up a monopoly or restrain the trade of others in the movement of Federal troops, or how anyone could suffer by any action taken under this contract. It does not appear to be within the mischief at which the act was aimed. Standard Oil Co. v. United States, 221 U. S. 1; United States v. American Tobacco Co., 221 U. S. 106.

To guard against a claim that the contract would be void as interfering with the "war power," it might be well to insert at the end of the routing paragraph, "(a)" supra, a proviso that the apportionment clause should not apply in time of war, or threat of war, or other public emergencies.

IV.

Your fifth and sixth questions are, in substance

Would the proposed agreement be contrary to public policy as judicially construed? And could the proposed agreement, if entered into, be enforced in the courts?

Neither of these questions may be answered because (a) they are too general. They relate to a single-spaced ninepage typewritten agreement without specifying any clause, sentence, or paragraph toward which the inquiry is directed. And (b) the second inquiry involves a speculation as to future judicial action-a matter on which my predecessors have steadily refused to express themselves.

Your seventh question is:

V.

Would the proposed contract, if made, embarrass the Department of Justice in the prosecution of railroads for pooling contracts?

This Department does not so believe.

Respectfully,

TO THE SECRETARY OF THE NAVY.

T. W. GREGORY.

PUBLIC LANDS IN ALASKA-RIGHTS OF WAY.

Revocable licenses under the act of February 15, 1901 (31 Stat. 790), or easements under the act of March 4, 1911 (36 Stat. 1253), may be granted for the development and transmission of electric power upon public lands situate in Alaska.

DEPARTMENT OF JUSTICE,

June 29, 1915.

SIR: You have asked me to advise you whether in my opinion it will be lawful for you to grant revocable licenses under the act of February 15, 1901 (31 Stat. 790), or easements under the act of March 4, 1911 (36 Stat. 1253), for the development and transmission of electric power upon public lands situate in Alaska.

The act of 1901 provides for the issuance of revocable permits for "the use of rights of way through the public lands, forest and other reservations of the United States," and certain national parks in California. The act of 1911 provides for the granting of easements, of limited terms, "for rights of way * ** * over, across, and upon the public lands, national forests, and reservations of the United States." There is nothing in either of these acts indicative of an intention to restrict its operation geographically, but neither is made applicable, by its own terms or by any other act of Congress, to the Alaska lands by mention.

Section 1891 of the Revised Statutes declares:

"The Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within all the organized Territories, and in every Territory hereafter organized as elsewhere within the United States."

Since the approval of the " Act providing a civil government for Alaska," May 17, 1884 (23 Stat. 24), Alaska has been an organized Territory. (Steamer Coquitlam v. United States, 163 U. S. 346, 352; Binns v. United States, 194 U. S. 486, 491), and, generally speaking, the laws of the United States have extended there not only by virtue of that section of the Revised Statutes, but also by virtue of an express provision in the act of 1884 itself declaring that:

"The laws of the United States, not locally inapplicable to said district and not inconsistent with the provisions of this act are hereby extended thereto." (23 Stat. 27, sec. 9.)

But this same organic act of 1884, after expressly extending to Alaska "the laws of the United States relating to mining claims, and the rights incident thereto," provided that:

"Nothing contained in this act shall be construed to put in force in said district the general land laws of the United States." (Id., sec. 8.)

Hence in the mining regulations for Alaska, of July 28, 1885, prescribed under authority of that act by the Secretary of the Interior, with the approval of the President, it

was stated that "no public lands other than specific mincral claims are subject to survey or disposal in said district.” 4 L. D. 128. Consistently, in the case of William R. Weeks, 25 L. D. 290 (decided in September, 1897), it was held by Secretary Bliss that the general railway right of way act of March 3, 1875 (18 Stat. 482), was inapplicable to Alaska. In the opinion it was said:

"The right of way act of March 3, 1875, is a part of the general land laws of the United States, the operation of which has never been extended to the District of Alaska, and it is clear from the portion of the 8th section of the act of 1884, before quoted, it was the intention of Congress that no other means of acquiring a right to use or occupy the lands within the District of Alaska should be construed to apply than those specifically named."

In the case of the Miocene Ditch Company, 35 L. D. 297, decided by Secretary Hitchcock in November, 1906, your Department was confronted with the question whether sections 18 to 21 of the act of March 3, 1891 (26 Stat. 1095), offering rights of way "through the public lands and reservations of the United States" for canals, etc., was in force in Alaska. On behalf of the company it was contended that, as those sections had been uniformly held applicable in the other Territories as well as in the States, and as Alaska had undoubtedly come to be a Territory of the United States (citing the Steamer Coquitlam case, supra), they must be applicable here. But your predecessor, after referring to the provision in the act of May 17, 1884, which I have quoted above, and which negatived any purpose in that act to extend to Alaska the general land laws in existence at its date, and after noticing that in certain other sections (11 to 14) of the act before him there were provisions expressly extending the townsite laws, and granting lands for trade and manufacture, in Alaska, rejected the company's contention.

"This legislation," said he (referring to sections 18 to 21 of the act of 1891), "has general application to the public lands of the United States but was not specifically extended to the lands in the district of Alaska, and while it may be conceded that the lands in the district of Alaska