Alien Soldiers Attorney General's Department. Button, Chief of Department of Mines. Opinion to Seward E. Hargest, Deputy Attorney General, March 5, 1919. Your favor of the 26th ult., is at hand. You ask whether the opinion of this Department given August 29, 1916, in reference to the application of Section 14 of Article 4 of the Bituminous Mine Code of June 9, 1911, P. L. 756, may be modified so as to hold that this section should apply only to mines that are gaseous in character. In support of your request you quote the letter of Inspector T. A. Mather, which indicates that it is difficult to enforce the provisions of this Section of the law in mines in the Broadtop Coal Field which are not gaseous. The opinion to which you refer was prepared and promulgated after careful consideration by this Department. We cannot recede from the views therein expressed. It often happens that legislation, general in its character, may work hardship in particular instances, and that its enforcement in special cases is difficult and impracticable. The remedy for such a situation is with the Legislature. The courts cannot construe legislation so as to make it applicable or inapplicable, according to the case or difficulty with which it may be enforced, and the Attorney General is bound by the same rule of construction that apply to the courts. I am, therefore, compelled to advise you that notwithstanding the abnormal conditions in the Broadtop Coal Field, and the difficulty of enforcing the provisions of the law as heretofore construed, this Department is unable to place any other construction upon it than that indicated in the opinion of Deputy Attorney General Collins, dated August 29, 1916. Alien Soldiers Alien Soldiers-Naturalization-Right to Carry Guns Within six months after an alien is honorably discharged from the United States Army, he may file his declaration and petition and be immediately naturalized, but until he has done this, he is still an unnaturalized foreign-born resident, and is prohibited by the Act of May 8, 1909, P. L. 466, from carrying a shot gun or a rifle. Attorney General's Department. Opinion to Joseph Kalbfus, Secretary of the Game Commission. Swoope, Deputy Attorney General, February 12, 1919. Your letter of the 10th inst., in regard to a gun belonging to an unnaturalized alien, discharged soldier, duly received. State Highway Department. In reply to inquiry, as to the status of the unnaturalized discharged soldier, would say that the Statutes of the United States, Section 4 of the Act of Congress of May 5, 1918, provide that within six months after an alien is honorably discharged from the U. S. Army, he may file his declaration and petition, and may be immediately naturalized. But until he has done that, by the plain meaning of the Act of Congress, he is still an unnaturalized, foreign-born resident, and therefore is prohibited by the Act of May 8, 1909, P. L. 466, Section 1, from carrying a shot-gun or rifle. State Highway Department. State Highway Department-Refunds-Money forfeited on road contracts-Labor and materials furnished other departments. Money received by the State Highway Department, in the nature of a refund in diminution of the original payment made by the department for a specific purpose, is not money collected on behalf of the Commonwealth within the meaning of the Act of May 25, 1907, P. L. 259. The fiscal officers should apply money thus collected to the credit of the State Highway Department on the books. If the State Highway Department collects from a wrongdoer the costs of repairing a state highway, made necessary by his acts, the money belongs to the Commonwealth generally. Money forfeited by a contractor who failed to execute a road contract belongs to the Commonwealth generally, not to the State Highway Department. If the State Highway Department furnishes labor or materials, or both, to another department, it cannot collect the money from the oher departmen and have it credited to the State Highway Department funds. Money paid out of the funds of the State Highway Department for labor or materials thus furnished is lost to the department. Attorney General's Department. Opinion to W. R. Main, Auditor, State Highway Department. Gawthrop, Deputy Attorney General, March 19, 1919. This Department has received your letter of the 12th instant, asking to be advised "whether or not the State Highway Department is justified in considering cash refunds received by it, which are in nature credits against a former payment and not receipts of cash on behalf of the Commonwealth, as a proper deposit to its advance account and ultimate expenditure for the purpose for which originally appropriated." As a basis for this request for an opinion you state the facts in eight separate cases in which money has been received by the State Highway Department and paid into the Treasury of the Commonwealth. State Highway Department. Because we entertain the view that the facts in some of these cases require an opinion which would not be applicable to, or controlling under, the facts in the other cases, and in order to enable us to indicate more clearly the reasons for our conclusions and the effect thereof, we briefly state the facts of each case as follows: No. 1 was a payment of $316.50 by Coxe Brothers and Company, representing the expense to the State Highway Department in repairing a depression in State Highway Route No. 170, caused by a mining operation of Coxe Brothers and Company. No. 2 was a refund of $22.58, representing an overpayment to an employe of your Department. No. 3 was a refund of $60.75, representing the value of certain road materials purchased by your Department and lost in railroad transit. No. 4 was a refund of $103.75, representing an overpayment for road materials which were short in weight. No. 5 was a refund of $25.00 for demurrage charges which were paid twice. No. 6 was a cash receipt of $52.80 from the sale of empty sacks which had contained cement bought for road work. No. 7 was a forfeiture of $2,000.00 received from a contractor who failed to execute a road contract awarded to him. No. 8 was a payment of $453.38 to the State Highway Department by the Board of Commissioners of Public Grounds. and Buildings, representing the cost of labor and material furnished at the request of said Board on work which said Board was required to perform on the approaches of an interstate bridge at Morrirsville. Nos. 2, 3, 4, 5 and 6 are cases in which the money received by your Department was strictly in the nature of a refund. in diminution of an original payment made by the Department for a specific purpose. In all of these cases when the money was paid back to the Highway Department it came back as it went out, as money which in fact never had been used for the purpose for which it was appropriated to the Department. The transaction in each case involved the repayment, as well as the original payment, and was not completed until the refund was made. Then, only, it was that the actual cost to the Commonwealth and the proper charge against the funds of the Department could be determined. When your Department received these refunds the money was not collected on behalf of the Commonwealth within the meaning of the Act of May 25, 1907, P. L. 259, entitled: State Highway Department. "An act providing that the Secretary of the Commonwealth, * * * State Highway Commissioner, (and other officers) shall pay daily into the State Treasury, for the use of the Commonwealth, all fees, licenses, fines, penalties, commissions, costs, and all money received or collected, on behalf of the Commonwealth, from any source whatever, and providing for a settlement between each officer and the Auditor General and State Treasurer in reference thereto." With no disposition to limit the scope of this most salutary statute, we are satisfied, however, that the statute does not apply to the cases above referred to, and does not operate to make the money refunded into the Highway Department in these cases money of the Commonwealth generally. This money was received by the Highway Department and paid into the Treasury ear-marked for the definite purpose for which it was originally appropriated. To hold otherwise would result in depriving unjustly the Department of the use of part of the money appropriated to it. The Act above referred to was never intended to become the means of unjustly depleting an appropriation made to any Department or of depriving that Department of the use of all of the money appropriated to it. The fiscal officers should therefore apply this money to the credit of the State Highway Department on the books. Otherwise, by mere bookkeeping the Department will be deprived of what belongs to it. This opinion must not be understood as applying to any case in which the money received by the Department and paid into the Treasury is not in the strictest sense a part of an original payment which has been returned or refunded to the Department. The facts of cases Nos. 1, 7 and 8 clearly distinguish these cases from the others. In them the money received by your Department and paid into the State Treasury was not part of the original payment which had been returned or refunded. It was not in diminution of an original price or charge. In No. 1 the Department performed on a State Highway certain repair work made necessary by a wrongdoer. It is the duty of the Department to repair the State Highways whenever they require it. If the Commonwealth has a cause of action against one who causes damage to a highway and recovers the money, or if the Highway Department collects it, the money belongs to the Commonwealth generally. It is in no sense a refund. In No. 7 where a contractor deposited $2,000.00 with his bid, and forfeited the same as liquidated damages because of Superintendent of Public Instruction failure to execute a contract with the Commonwealth, the repayment belongs to the Commonwealth generally. It never was part of the money appropriated to the Department, is not in diminution of any original payment by the Department, and to ear-mark such money as State Highway money would have the effect of increasing the appropriation to the Department to the amount of the money thus received. The facts of case No. 8 bring it clearly within the principle applicable to Nos. 1 and 7. If your Department performs work or furnishes material, or does both, for another Department, and pays the bill, it can not collect the money from the other Department and have it credited by the fiscal officers to the Department funds. There was no obligation upon your Department to perform this work for the Board of Commissioners of Public Grounds and Buildings, and if officers of your Department in their discretion authorized the work, they should have required the Department for which it was done to pay the cost thereof. Any money paid out of the funds of your Department on account of such work is lost to the Department, and upon no principle can the money repaid by the other Department be credited to your account. The conclusions thus reached accord with the application of sound business methods, and a strict interpretation of the Act of 1907, supra. The effect is that appropriations to a Department shall not be unjustly decreased by mere bookkeeping nor increased by the credit of payments clearly covered by the Act of 1907. A careful following of the advice herein contained should enable you to differentiate easily cases falling within the two classes of cases of which you state the facts. You are advised, therefore, that in cases Nos. 2, 3, 4, 5 and 6 you are entitled to have the fiscal officers of the Commonwealth give your Department credit for the moneys paid into the State Treasury; you are further advised that in cases Nos. 1, 7 and 8 the collections by your Department and the payments into the State Treasury were strictly within the letter and spirit of the Act of 1907, that the money was collected by your Deparment on behalf of the Commonwealth, and on payment over became part of its general funds. Superintendent of Public Instruction. Superintendent of Public Instruction-Vacancy in office-Appointment of acting superintendent during vacancy. In the case of a vacancy in the office of Superintendent of Public Instruction, the Deputy Superintendent designated by the Governor is authorized to act as Superintendent and perform the duties of the |