But this question constitutionally considered has been determined by the Department of Justice in a well considered opinion by the Attorney General in which a Virginia statute relating to the storage and shipment of powder was held to have no application to the Federal Government. (25 Ops. Atty. Gen. 234.) In the course of that opinion it was said:

"It is not open to question that such a law is the legitimate exercise by the State of its police power, so far as the provisions do not affect the agencies of the Federal Government, or impair their efficiency in performing the functions which they are designed to perform. No police regulation of a State, however, can be permitted to interfere with the instrumentalities of the Federal Government. These agencies are exempt from State control by police regulation, so far only as that legislation may interfere with or impair their efficiency in performing the functions by which they are designed to serve the Government. ** If such a police regulation is applicable to a Federal agency, then what is to prevent the States from inspecting and fumigating the mails for the purpose of preventing contagion? Can it be successfully maintained that this could be done? To state the proposition is to answer it.

"If the State may control the transfer of powder belonging to the Government, it may inspect a regiment of cavalry under a police regulation providing for the inspection of all horses coming within its borders. If one State may inspect a regiment of cavalry and impose a charge therefor it follows that every other State may do the same. If a regiment of cavalry may be inspected and turned back, for of course the power to inspect includes the power to stop, an army of cavalry and artillery may be inspected and stopped at the borders of a State. As Chief Justice Marshall said, 'This is a Government of all and for all,' and it is therefore to be presumed that the Government, in the preparation for and shipment of explosives, will exercise that degree of care and prudence necessary for the protection of the lives and property of its citizens within the States through which such explosives are sent.

"If the State of Virginia has authority to control the shipment through the State of powder belonging to the Government and impose a charge therefor, it may stop such powder at its borders, on the ground that it is improperly boxed, or that it is not boxed in accordance with the regulations of the State. It is obvious that such a proceeding would seriously interfere with and impede an agency of the Government. If Virginia may make and enforce such a police regulation, it follows that every other State may do the same."

I am of the opinion, in view of the facts here submitted that the agreements and undertakings of the T. A. Gillespie Co. are such as to make its functions in the premises those of the United States Government.

I therefore advise you that in my opinion the act of New Jersey relating to the use and storage of explosives, supra, does not apply to the Federal Government; that its application as a police regulation would interfere with the instrumentalities of the United States to such an extent as to interfere with and impair their efficiency and deny to the Government the exercise of its funetions which it is its duty in time of war as a sovereign State to perform for all in providing for the common defense.

UNIFORM: Right of Reserve Officer to Wear.

An officer of the Reserve Corps who is honorably discharged from the service of the United States before having reached the age limit for appointment or reappointment in the corps in which he is commissioned, or if in a corps having no age limit, before the completion of five years of service therein, is not entitled to wear the uniform of the highest grade he shall have held in the Officers' Reserve Corps on occasions of ceremony or when visiting an Army post or cantonment or at any other time, nor has he the right to wear any part of the uniform. (National defense act of June 3, 1916, sec. 125, 39 Stat. 166, 216.)

421.

War Department. J. A. G. O., January 15, 1918.-To The Adjutant General. 1. The Adjutant General refers to this office for remark a letter from Frank E. Webb, dated January 7, 1918, submitting the questions: (a) What is the status of an officer of the Reserve Corps, who is honorably discharged? (b) Has he the right to wear the uniform of the past rank he has had, at func

tions? (c) When visiting at an Army post, or a cantonment, has he the right to wear the uniform of his highest rank; and, if so, what designation should he remove from his collar? (d) Has he the right to wear any part of the uniform either for horseback riding, or other purposes?

The writer states that he was carried in general orders as lieutenant colonel and was on January 9, 1917, commissioned as major in the Quartermaster General's Office, Reserve Corps, and on September 6, was honorably discharged therefrom.

2. The questions propounded will be answered as they are stated: (a) What is the status of an officer of the Reserve Corps, who is honorably discharged? Answer: Section 37 of the national defense act approved June 3, 1916 (39 Stat. 166, 190), provides inter alia: " When an officer in the Reserve Corps shall reach the age limit for appointment or reappointment in the corps in which commissioned, he shall be honorably discharged from the service of the United States and be entitled to retain his official title and, on occasions of ceremony, to wear the uniform of the highest grade he shall have held in the Officers' Reserve Corps." This is the only provision dealing with the right of a former officer in the Reserve Corps to wear a uniform.

A strict construction of this provision only permits an officer who continues in the Reserve Corps until he reaches the age limit fixed for appointment and is no longer eligible for reappointment, and is honorably discharged, to wear his uniform on occasions of ceremony after he has been separated from the corps. The age limit fixed by the act for officers in the Reserve Corps does not apply to the Quartermaster Corps. A liberal construction of this section would be that a person commissioned in the Reserve Corps who continues to serve therein for five years, the period of his commission, and receives an honorable discharge, is entitled to the benefits of this particular provision. In the instant case Mr. Webb, not having served out the term of his commission, does not come within the letter or spirit of the provision and his status is that of any other citizen who has an honorable discharge from the service of the United States.

(b) Has he the right to wear the uniform of the past rank he has had, at functions?

Answer: No.

(c) When visiting at an Army post, or a cantonment, has he the right to wear the uniform of his highest rank, and if so, what designation should he remove from his collar?

Answer: No.

(d) Has he the right to wear any part of the uniform, either for horseback riding, or other purposes?

Answer: Section 125 of the national defense act approved June 3, 1916, makes it unlawful for any person not an officer or enlisted man of the United States Army, Navy, or Marine Corps to wear the duly prescribed uniform of the United States Army, Navy, or Marine Corps, or any distinctive part of such uniform, or a uniform any part of which is similar to a distinctive part of the duly prescribed uniform of the United States Army, Navy, or Marine Corps. And any person who offends against the provision of this section on conviction shall be punished by fine not exceeding $300, or imprisonment not exceeding six months or by both fine and imprisonment. This question must also be answered in the negative.

POLICE POWER: Regulation of Lighthouse in Canal Zone.

The maintenance of a lighthouse being a public function, whatever rights heretofore belonged to the Republic of Colombia with respect to the Toro Lighthouse at Colon, in the Canal Zone, now belong to the United States by virtue of article 3 of the treaty of 1903 with Panama. (Malloy's Treaties, Vol. II, p. 1350.) The right to extinguish the light in war time is based, not upon the quasi-public nature of the business, but upon the necessities of war. Such action is not a taking for public use within the fifth amendment to the Constitution of the United States, but is simply an exercise of police power for public safety; and an exercise of the police power does not give rise to a right to compensation.

386.

War Department. J. A. G. O., January 15, 1918.-To The Adjutant General. 1. These papers deal with the Toro Lighthouse at Colon, the chief questions asked being whether the lighthouse should be taken over by the United States,

or whether, on the other hand, it already belongs to the United States through the terms of the franchise and contract under which the lighthouse was built. The facts are not fully disclosed by the accompanying papers; and for additional facts examination has been made of papers in the Panama Canal Office, Washington, D. C., and of the report of the Isthmian Canal Commission, 1899-1901. A subordinate question is whether the persons claiming to own the lighthouse are now entitled to compensation from the United States because the light has been extinguished by order of the military authorities of the Canal Zone.

2. The documents are not clear regarding time and other details. As nearly as can be made out the facts are as follows: On October 7, 1891, the Republic of Colombia granted to Ramon B. Jimeno and his successors the exclusive privilege of establishing and maintaining a lighthouse in the port of Colon until the conclusion of the work of the Inter-Oceanic Canal Co., from which date the Inter-Oceanic Canal Co. should have the right to establish a lighthouse. In case the concessions for the construction of the InterOceanic Canal should be forfeited, the lighthouse concession to Jimeno and his successors was to endure for twenty years after such forfeitures. See seventh condition of the grant. It appears that the concession for the construction of the canal was never forfeited, but was extended. By the lighthouse concession every merchant vessel entering the port of Colon was to pay dues for the benefit of Jimeno and his successors. By a contract between the Republic of Colombia and Jimeno, dated October 14, 1891, as soon as the twenty years of the privilege should expire, Jimeno was to cede and deliver the lighthouse to the government without remuneration. See article 2 of the contract. This contract, see article 6, was not to have effect until approved by the Congress of Colombia, and such approval is not shown. Jimeno transferred the franchise to the Lighthouse Co. of Colon. The lighthouse is in the Canal Zoue.

3. According to international law, as the lighthouse is in the Canal Zone, and as the maintaining of a lighthouse is a public function, the rights heretofore belonging to the Republic of Colombia regarding the lighthouse now belong to the United States; for the United States now has in the Canal Zone "the rights, power and authority" which it "would possess and exercise if it were the sovereign." (Treaty of 1903 with Panama, art. 3, Malloy's Treaties, Vol. II. p. 1350.)

4. Thus far the regulation of the lighthouse seems to have been confined to extinguishing the light in war time. This measure is based, not upon the quasi-public nature of the business, but upon the necessities of war. Although, according to the fifth amendment to the Constitution of the United States, the Government can not deprive anyone of life, liberty, or property without due process of law, and can not take private property for public use without just compensation, the putting out of the light of this lighthouse is not a taking for public use but is simply an exercise of police power for public safety; and an exercise of the police power does not give rise to a right to compensation. (Bartemeyer v. Iowa, 18 Wall. 129; Burbier v. Connolly, 113 U. S. 27; Mugler v. Kansas, 123 U. S. 623.)

5. If the Government of the United States wishes to obtain title to the lighthouse, undoubtedly it has the right to proceed under the doctrine of eminent domain. This right is granted to the United States by the second, third and seventh articles of the treaty with Panama negotiated in 1903. (Malloy's Treaties, Vol. II, pages 1350, 1351.)

6. Attention will now be directed to the question whether resort to condemnation is necessary.

7. A suggestion has sometimes been made to the effect that, as the maintaining of a lighthouse is a public function, the grant of the right to maintain a lighthouse was an impairment of sovereignty, and hence void. This, however, is a too extreme view. From the quasi-public nature of the lighthouse it merely follows that the business is more clearly subject to public regulation than is business in general.

8. A suggestion is sometimes made that, as one limit of the lighthouse concession was dependent upon the completion of the canal, a failure to complete the canal at the time originally fixed would prevent the lighthouse concession from being extended, even though an extension were granted for the canal concession itself. The suggestion is based upon the civil code of Colombia. The suggestion is untenable; for it neglects to notice that the holders of the lighthouse concession were in no way responsible for the failure of prompt performance by the owners of the canal concession.

9. The words of the lighthouse concession and of the contract regarding it give the only possible basis for contending that the title is now in the United States. The concession was for a limited period. Yet, whether the limit be referred to provisions regarding the former Inter-Oceanic Canal Co. or to the provision regarding the period of 20 years, it is not clear that the title has been forfeited. The present state of the title can not be ascertained definitely from the accompanying papers nor from the papers in the Panama Canal Office, Washington, D. C., nor from the report of the Isthmian Canal Commission, 1899, 1901. It seems that the canal concession was never forfeited, and it seems also that the so called contract, which was almost simultaneous with the lighthouse concession, was never approved by the Congress of Colombia, as required by its sixth article. Until the facts are fully ascertained, it is necessary to consider that title can not be obtained without resort to condemnation proceedings.

10. For the reasons given, compensation should not be paid for extinguishing the light, and copies of these papers should be filed with the Panama Canal Office, Washington, D. C., as a basis for determining whether it is good policy to begin condemnation proceedings at the present time.

CLAIMS: United States not Liable for Loss or Theft of Registered Letter by Mail Orderly.

A registered letter addressed to a soldier stationed at Fort Logan was correctly delivered by the postal service to a mail orderly duly authorized by the military authorities to receive such mail, and was either lost or stolen by such orderly. Held, that there is no liability on the part of either the postal authorities or the War Department for the loss of such letter. Under the postal rules and regulations registered mail, the delivery of which has not been restricted by the sender or addressee, is properly deliverable to any responsible person to whom ordinarily mail for such person is customarily delivered.

311.17.

[Memorandum for the Secretary of War.]

JANUARY 16, 1918.

Subject: Whether if the Postal Service makes a correct delivery of a registered letter to a mail orderly duly authorized to receive such mail by the military authorities there is any liability on the part of either the military or postal service in case such letter is lost.

1. By the papers in reference it appears that Mrs. J. H. Woodward of Medicine Lodge, Kans., registered and duly delivered to the postal authorities a letter, dated November 6, 1916, containing a $5 bill, and addressed to Richard K. Woodward, Fort Logan, Colo. The letter was received at Fort Logan and delivered, as the postal records show, to Frank A. Tiborsky, who was the duly appointed mail orderly at this time, and, as it appears, he received and receipted for the registered letter. It appears that he was subsequently, on or about April 23, 1917, convicted in the United States Court at Denver, Colo., charged with forging certain material indorsements on postal money orders; and that by reason of his conviction he was dishonorably discharged from the United States Army.

It is presumed, as was stated by Col. D. L. Howell and others in authority, that Pvt. Tiborsky converted this letter and its inclosure to his own use. The question is, therefore, presented who, if any one, is liable for the loss which admittedly occurred.

2. In discussing the liability, if any, of the postal and military authorities it may serve a good purpose to call attention to the exact duty which these governmental agencies assume to discharge in this and similar cases. Broadly speaking, the Post Office Department undertakes to deliver a letter to the custody of the addressee, and when so delivered the duty of the Federal Government ceases. Congress only intended to secure the sanctity of the mail while it was in the custody of the Postal Department en route from the sender to the person to whom it was directed. The right of the Federal Government to impose penalties for interference with mail in its custody or possession is but an incident to the power to establish post offices and post roads; and in the discharge of this function it has the clear right to protect such mail from the depredations of its own employees, as well as from the unlawful aggressions of others. It would be reprehensible to assume that Congress would make a

pretext of its power to establish rules of good conduct and to punish violations of them, after its postal undertaking had been performed, and its obligations were functus officio. Such matters are clearly of local concern and are amenable to State law. The post office is merely an agent for the delivery of mail, and has the right to protect itself only while performing such agreement. So, when a letter has been delivered at the residence or place of business of the addressee, the Federal Government has performed its undertaking and exhausted its entire power and control over such letter. The letter, having been delivered into the manual or constructive possession of the person for whom it was intended, the duty of the postal authorities is fully discharged. This must be true, because there has been a full compliance with the instructions of the sender, when the letter or other mail matter has been delivered to the addressee at the place designated in the address. Clearly, if an offense is subsequently committed in connection with the letter, it is a violation of the State law and is not within Federal cognizance. The mere fact that the Federal Government has undertaken to deliver a letter can not change the character of the letter as private property and by any principle of transmutation subject it exclusively to Federal control.

3. The courts have uniformly held that a letter addressed to John Smith, in care of John Jones, and delivered to John Jones, can not be made the subject of Federal control if it is thereafter stolen or unlawfully opened. Likewise, if a letter is delivered to the desk of the addressee, or is placed there by the letter carrier in the absence of anyone to receive it, it is not within the protection of the Federal statutes relating to the obstruction and interference with the mails. The same reasoning was applied to the case of a letter directed to the addressee in care of the Brown House. It was delivered to the clerk at the office of the hotel and this was held to be a delivery to the addressee within the meaning of the Federal statutes. In other words, these rules proceed upon the theory that the Postal Department undertakes to deliver a letter, according to the address, to the addressee at his residence or place of business, and that its duty is performed by such delivery, either by depositing the letter in either place or leaving it with some person authorized to receive the same. 4. By way of summary, in the light of the foregoing discussion, it may be said: That ordinarily under the postal rules and regulations, registered mail, the delivery of which has not been restricted by the sender or addressee, is properly deliverable to any responsible person to whom ordinary mail for that person is customarily delivered. In the case of persons in the military service of the United States the commanding officer usually designates a mail orderly for the several military units, to whom postmasters are requested and allowed, by the Department of War, to deliver any such mail, and any such orderly is permitted to receipt for the addressee on the delivery of registered, insured, or C. O. D. mail. There is no reason why a mail orderly so selected and authorized can not be permitted to receive and receipt for mail, the same as a stenographer, office boy, or a servant, at the office or the residence of the addressee, who would be, and in fact is, permitted and expected so to do; and clearly a delivery to any such person would be a proper delivery to the addressee, and a full and complete discharge by the Postal Department of its obligations and functions in the premises.

5. In view of the foregoing it is apparent that the postal authorities, as well as the War Department, each exercised the highest degree of care in the transportation, handling, and delivery of this letter. The letter was delivered to the mail orderly authorized by proper military authority to receive the mail of the military unit to which the addressee of this letter was then attached. It must be, and it will be, assumed that Private Tiborsky stole this letter and such theft was not due to any neglect or omission of duty on the part of either the Post Office Department or the military authorities. Neither department of the Government in the absence of neglect or omission of duty is liable for the torts or criminal acts of its agents.

6. I am, therefore, of the opinion that there is no liability on the part of either the Post Office or War Departments to reimburse Mrs. Woodward for the loss of the $5 stolen from the registered letter which was duly delivered to the mail orderly at Fort Logan, Colo.; and that the sole responsibility for the loss of this letter and its contents, as well as liability for the same, is upon Pvt. Frank A. Tiborsky, the mail orderly who received this letter and converted its contents to his own use.

116749°-19-3