Public Domain-Removal of Timber.

within the primary limits of the grant and in removing lumber therefrom, are judicial questions to be determined by the courts, and I recommend that measures, to be initiated by you, be promptly taken to fully test and determine the same, and to protect the Government.

Very respectfully,

W. H. H. MILLER.

The SECRETARY OF THE INTERIOR.

OPINIONS

OF

HON. RICHARD OLNEY, OF MASSACHUSETTS.

APPOINTED MARCH 6, 1893.

RIGHT OF APPEAL-STIPULATION.

While no legal objection would exist if the right of appeal from judg ments of the Court of Claims in the direct-tax cases be waived by both parties by stipulations on the record to the payment of such claims prior to the expiration of the ninety days within which appeals may be taken, the Department of Justice deems it unwise to adopt any general rule of giving such stipulations.

DEPARTMENT OF JUSTICE,

March 17, 1893.

SIR: I have the honor to acknowledge the receipt of your letter of the 13th instant, inclosing a communication from. Hon. William Elliott, of March 7, 1893, which is herewith returned.

You are right in the suggestion, that if the right of appeal from judgments of the Court of Claims in the direct-tax cases be waived by both parties by stipulations on record, no legal objection would exist to the payment of such claims prior to the expiration of the ninety days within which appeals must be taken. An opinion to that effect, in a somewhat analogous case, was given by this Department in 1889, Mr. Attorney-General Miller adding: "The question remains of administration, and is so referred to the Secretary of the Treasury."

Since that time, however, it has not been the practice of this Department to make such stipulations. For the purpose of enabling the Secretary of the Treasury, in his estimates for appropriations, to place before Congress the amount of judgments by the Court of Claims against the

547

Right of Appeal-Stipulation.

Government, the only certificate given has been to the effect that it was not the present intention of the Attorney-General to take appeals from such judgments. And the appropriation bills of recent years have expressly provided that judgments of the Court of Claims therein provided for shall not be paid until the right of appeal shall have expired.

It is true that the appropriation for the refunding of the direct tax is made under the act of March 2, 1891 (26 Stat. L., 822), and not in a general appropriation bill, and that this statute does not contain the restrictive clause above referred to. The direct-tax cases are transmitted to the Court of Claims by the Secretary of the Treasury under section 1063 of the Revised Statutes, and section 707 of the Revised Statutes specifically provides for an appeal to the Supreme Court without reference to the amount involved.

In my judgment, however, this Department should pursue with reference to the direct-tax cases the policy indicated in the general appropriation bills above referred to. Ninety days is not an unreasonable length of time for the Government to take in determining whether or not a judgment of the Court of Claims should be appealed from, especially as after rendition of judgment by that court and consideration of the grounds upon which such judgment is founded, new aspects of the law are not infrequently presented.

The suggestion that all matters of law arising in the directtax cases have been already adjudicated is not correct. Various important questions have been argued in cases now pending and have not yet been decided.

On these grounds it does not seem to me wise for this Department to adopt any other general rule in the direct-tax cases than the one now in force. Of course there may be exceptional cases in which, for special reasons, the application of the general rule might work peculiar hardship, and in which it would be proper that the rule should be waived on application by the claimant and recommendation by the Secretary of the Treasury. But such cases must be rare and each should be considered on its own facts and decided on its own special merits.

Very respectfully,

RICHARD OLNEY.

The SECRETARY OF THE TREASURY.

1

Bridge-Duty of Secretary of War.

BRIDGE-DUTY OF SECRETARY OF WAR.

By the act of February 28, 1891, chapter 382, it is made the duty of the Secretary of War not to select or approve of the exact location of the bridge to be built, but to approve the plans, specifications, and materials used and the manner of construction. If in his opinion the place designated by the company for the location of the bridge is, under all the circumstances, a reasonable compliance with the terms of the act, he has authority to relocate it there if requested to do so.

DEPARTMENT OF JUSTICE,

March 18, 1893.

SIR: Your letter of March 16, 1893, requests my opinion upon the following points connected with the location of a bridge of the Washington and Arlington Railway Company across the Potomac River:

"1. As to whether it devolves upon the Secretary of War at all to select or approve the exact location on which the said bridge shall be built.

"2. If it does, whether he may relocate it, as requested.

"3. If it does not, whether the company has authority to build it at the said terminus of M street without the approval of the Secretary of War as to exact location, but on plans approved by him."

An act to incorporate the Washington and Arlington Railway Company was enacted February 28, 1891 (26 Stat., 789). By its terms the company was authorized "to construct and lay down a single or double track railway * * by the following route, namely: Beginning on Sixth street near B street northwest; along B street and Virginia avenue northwest to Twenty-sixth street; along Twenty-sixth street to M street; along M street and Canal road to a point on the Potomac River at or near the point known as 'The Three Sisters,' where the said company is hereby authorized to construct and maintain a bridge across the Potomac River on such plans as the Secretary of War may approve; and from thence by, on, and over such lines as may be selected by the said company, with the approval of the Secretary of War, to the northwest entrance of the Arlington Cemetery, and thence through the Arlington estate outside of the cemetery grounds to the south or west line thereof, in the State of Virginia: Provided, That said road shall cross the Chesapeake and

Ohio Canal on a bridge that shall be so constructed as not to interfere with the use of the bed or towpath of the canal as a waterway or as a railway, and in a manner satisfactory to the Secretary of War.

"And provided, That no work shall be done on said road in the District of Columbia, until the plans and specifications for the proposed bridge on the Potomac River at or near 'The Three Sisters' shall have been approved by the Secretary of War, and the construction of said bridge actually commenced.

"And said company is hereby authorized to run its said railway through the United States reservation known as Fort Myer and such other land of the United States in the State of Virginia, excepting the Arlington Cemetery grounds, as may be necessary to construct the railway between the points named in this bill; only if the Secretary of War shall deem the same promotive of the public interest and always subject to such conditions and regulations as the Secretary of War may from time to time impose.

"SEC. 2. That the railway hereby authorized and lying in the District of Columbia and on the bridge shall be constructed by said company of good materials, and in a substantial manner, with grooved rails of the best pattern, and of a suitable gauge, all to be approved by the Commisioners of the District of Columbia and the Secretary of War jointly." By the act of July 29, 1892 (27 Stat., 327), it is provided that

"All acts or parts of acts granting the use of the surface of the Canal road, or any part thereof, for laying railway tracks thereon and operating cars thereon are hereby repealed."

It also appears from your communication and the inclosures transmitted therewith that "The Three Sisters," so called, are three groups of rocks in the Potomac River, the lower one being 2,600 feet above the Aqueduct bridge, and the upper one being 3,100 feet above the same point.

The subsequent act of July 29, 1892, only affects the question by withdrawing the authority to use any portion of