was assigned to duty at a place where he received quarters in kind heated and lighted at Government expense, is wholly immaterial so far as the principle and application of the above-quoted law is concerned.

The quarters furnished Capt. Bispham being suitable for the commanding officer of the yard-probably consist of seven or more rooms, but even if they consist of only four rooms (the authorized allowance of a lieutenant, senior grade), having received these allowances in kind (the money value of which must be regarded as $55.88, at least), the payment to him of any sum in excess of $280 per month as pay would result in his receiving "greater pay and allowances than the pay and allowances provided by law for a lieutenant, senior grade, on the active list of like length of service." This is clearly prohibited by the first proviso of the law above quoted.

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You are advised, therefore, that Capt. Bispham is not entitled to pay at the rate of $312.50 per month while on active duty and occupying public quarters, heated and lighted at Government expense.

PAYMENT TO TERRITORY OF ALASKA OF A PERCENTAGE OF RECEIPTS FROM HER NATIONAL FORESTS.

Alaska is and was during the fiscal years 1906-1912, inclusive, an organized Territory of the United States within the meaning and intent of the acts of June 30, 1906 (34 Stat., 684), March 4, 1907 (34 Stat., 1270), and May 23, 1908 (35 Stat., 260), and was and is entitled to the percentages of moneys received from forest reserves provided for in said acts.

Decision by Comptroller Downey, July 30, 1914:

W. G. Smith, treasurer of the Territory of Alaska, applied June 8, 1914, for a revision of the action of the Auditor for the State and Other Departments in disallowing, by settlement No. 8591, dated April 25, 1914, a claim on behalf of the Territory amounting to $31,803.04 for the statutory percentage of receipts from forest reserves in Alaska for the fiscal years 1906 to 1912, inclusive, alleged to be due and payable to the Territory for the benefit of the public schools and public roads of the Territory.

The act of June 30, 1906 (34 Stat., 684), provides:

"That ten per centum of all money received from each forest reserve during any fiscal year, including the year ending June thirtieth, nineteen hundred and six, shall be paid at the end thereof by the Secretary of the Treasury to the State or Territory in which said reserve is situated, to be expended as the State or Territorial legislature may prescribe for the benefit of the public schools and public roads of the county or counties in which the forest reserve is situated: Provided, That when any forest reserve is in more than one State or Territory or county the distributive share to each from the

proceeds of said reserve shall be proportional to its area therein: And provided further, That there shall not be paid to any State or Territory for any county an amount equal to more than forty per centum of the total income of such county from all other sources.

This provision was reenacted, verbatim, in the act of March 4, 1907 (34 Stat., 1256, 1270), which act discontinued the special forest reserve fund created by the act of February 1, 1905 (33 Stat., 628), and provided that receipts from forest reserves thereafter should be covered into the Treasury as a miscellaneous receipt.

The provision appears again in the act of May 23, 1908 (35 Stat., 251, 260), which increases the percentage to 25 per cent instead of 10 per cent, from and including the fiscal year 1908, and drops the limitation of 40 per cent of any county's income from other sources. The Auditor for the State and Other Departments submitted to the Comptroller of the Treasury an original construction of the act of 1906, supra, holding, inter alia, that

"The act applies only to the States and organized Territories, including Hawaii, but does not apply to Alaska, Porto Rico, or the Philippines."

This conclusion of the auditor was concurred in by the Comptroller on September 14, 1908, without discussion or comment (13 Comp. Dec., 219).

The act of August 24, 1912 (37 Stat., 512), entitled "An act to create a legislative assembly in the Territory of Alaska, to confer legislative power thereon, and for other purposes," provides:

"That the territory ceded to the United States by Russia by the treaty of March thirtieth, eighteen hundred and sixty-seven, and known as Alaska, shall be and constitute the Territory of Alaska, under the laws of the United States, the government of which shall be organized and administered as provided by said laws."

Section 3 of said act provided:

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that all the laws of the United States heretofore passed establishing the executive and judicial departments in Alaska shall continue in full force and effect until amended or repealed by act of Congress."

Section 4 of the act provided for a legislature for the Territory and defined the number, term, and qualifications of its members.

Under date of April 30, 1913, the Territorial legislature passed an act directing and authorizing the treasurer of the Territory of Alaska to apply for and receive moneys in the United States Treasury due the Territory on account of sales of timber in national forests in the Territory, in accordance with the Federal laws of 1906 and 1908, supra.

The statutory percentage of receipts from national forests in Alaska for the fiscal year 1913 has been paid to the Territory, but

the claim of the Territorial treasurer for said percentage for the fiscal years 1906 to 1912, inclusive, has been disallowed by the auditor, who cites the decision in 13 Comp. Dec., 219, as authority for this action. It is from this disallowance that the treasurer now appeals to this office.

If the decision referred to was based upon the conclusion that Alaska was not an "organized Territory," said conclusion must rest upon one or both of two premises, namely: That it had no organized government or that it was not a Territory within the meaning of the act under construction. I do not think that decision must necessarily be regarded as holding that Alaska was not an "organized Territory." The auditor's holding was that the act "did not apply to Alaska," and the Comptroller's approval may be regarded as holding that Congress did not intend the act so to apply.

The wording of the act of August 24, 1912, supra, may seem to indicate that Alaska was being organized for the first time. Such is not the fact, though it had never before been specifically designated the "Territory of Alaska."

Alaska remained unorganized territory of the United States from the time of its acquisition to May 17, 1884, when it was organized as a "civil and judicial district" under an act entitled "An act providing a civil government for Alaska." Executive and judicial branches of government were provided, but no provision was made for a local legislative body. The general laws of the State of Oregon then in force were declared to be the law of the District, so far as applicable, and not in conflict with the law of the United States. Congress continued to exercise exclusively the function of legislating for Alaska (23 Stat., 24).

The act of March 3, 1899 (30 Stat., 1253), enacted a criminal code for the "District of Alaska."

The act of June 6, 1900 (31 Stat., 321), entitled "An act making further provisions for a civil government for Alaska, and for other purposes," enacted a civil code and again provided for the executive and judicial branches of government but made no provision for a local legislature.

Thus stood the law at the time of the passage of the acts of 1906, 1907, and 1908, supra, and down to the passage of the act of 1912, supra.

During the fiscal years 1906 to 1912, inclusive, Alaska had an organized local government, and was equipped with a complete code of laws of its own with local machinery for administering and enforcing said laws. That her codes were enacted by Congress and that she had no local legislature does not impair her status as an organized territory (Interstate Commerce Commission v. United States, 224 U. S., 474, 480).

In each of the organizing acts prior to that of 1912 Alaska was designated the "District of Alaska" and not the "Territory of Alaska," but that fact does not necessarily exclude her from the operation of general statutes relating to the States and Territories of the United States (Steamer Coquitlam v. United States, 163 U. S., 346, 352; Binns v. United States, 194 U. S., 486, 490; Rasmussen v. United States, 197 U. S., 516, 524; Interstate Commerce Commission v. United States, 224 U. S., 474, 481).

The case of the steamer Coquitlam involved a construction of the word "Territories" as it is used in the act of March 3, 1891 (26 Stat., 1103), relating to writs of error or appeals from the "supreme courts of the several Territories" as applied to district courts for the District of Alaska. The court has held that said district courts were to be regarded as the Supreme Court of the Territory of Alaska within the meaning of the statute. Alaska had been assigned by the court to the ninth circuit, and the court says:

"Alaska is one of the Territories of the United States. It was so designated in that order and has always been so regarded. And the court established by the act of 1884 is the court of last resort within the limits of that Territory. It is therefore in every substantial sense the supreme court of that Territory. No reason can be suggested why a Territory of the United States in which the court of last resort is called a supreme court, should be assigned to some circuit established by Congress that does not apply with full force to the Territory of Alaska, in which the court of last resort is designated as the District Court of Alaska. The title of the Territorial court is not so material as its character."

In Binns v. United States (194 U. S., 486), after quoting with approval from the steamer Coquitlam case, the court said:

"Nor can it be doubted that it is an organized Territory, for the act of May 17, 1884 (23 Stat., 24), entitled 'An act providing a civil government for Alaska,' provided "That the territory ceded to the United States by Russia by the treaty of March thirtieth, eighteen hundred and sixty-seven, and known as Alaska, shall constitute a civil and judicial district, the government of which shall be organized and administered as hereinafter provided.'

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"It must be remembered that Congress in the government of the Territories *has plenary power, save as controlled by the provisions of the Constitution, that the form of government it shall establish is not prescribed and may not necessarily be the same in all the Territories. We are accustomed to that generally adopted for the Territories, of a quasi State government, with executive, legislative, and judicial officers, and a legislature endowed with the power of local taxation and local expenditures, but Congress is not limited to this form. * * It may legislate directly in respect to the local affairs of a Territory or transfer the power of such legislation to a legislature elected by the citizens of the Territory.

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For

Alaska, Congress has established a government of a different form. It has provided no legislative body but only executive and judicial officers. It has enacted a penal and civil code

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And in the same opinion reference is made to the Congressional Record and particularly to the statement in the Senate of the chairman of the Committee on Territories, beginning:

"The Committee on Territories have thoroughly investigated the condition of affairs in Alaska and have prepared certain licenses, which in their judgment will create a revenue sufficient to defray all the expenses of the government of the Territory of Alaska

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In Rasmussen v. United States (197 U. S., 516), in which the opinions in the above cases are quoted from, it is said:

"Indeed, both before and since the decision in Downes v. Bidwell, the status of Alaska as an incorporated Territory was and has been recognized by the action and decisions of this court.".

In the case of Interstate Commerce Commission v. United States (224 U. S., 474) the court held that Alaska is a Territory of the United States within the meaning of the interstate commerce act regulating commerce between the States and Territories of the United States and quotes with approval the above language from the steamer Coquitlam case.

Section 24 of the act of March 3, 1891 (26 Stat., 1103), provides:

"That the President of the United States may, from time to time, set apart and reserve, in any State or Territory having public land bearing forests, any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations, and the President shall, by public proclamation, declare the establishment of such reservations and the limits thereof."

It is under this authorization that Presidents have from time to time set apart and proclaimed forest reserves in Alaska.

If the word "Territories" as used in the act under which forest reserves in Alaska were created is broad enough to cover the "District of Alaska," the same word is certainly broad enough to cover that District when used in a statute disposing of proceeds of reserves created under said act.

The construction put upon the word by the President is fully sustained by the authorities hereinbefore cited, from all of which the conclusion is forced that during the period in question Alaska was an "organized territory." If evidence of concurrence by Congress in this construction is needed it may be found in the act of May 7, 1906, just preceding the acts in question, in which act provision is made for the representation of "the people of the Territory of Alaska" by a Delegate in the House of Representatives.