to recommend that in this bill motor boats be subjected to many of the statutory requirements now prescribed for steam vessels. On the other hand it has been urged to recommend that steam vessels be exempted in this bill from many requirements of law not now applicable to motor boats. While much may be urged by special interests for or against either of these propositions the Department is opposed to the use of this bill as a vehicle to carry such propositions into law. Such propositions may well be considered separately on their merits by Congress.

Under existing law, only motor boats above 15 gross tons carrying freight or passengers for hire, but not engaged in fishing as a regular business, are made subject to the provisions of section 4426 of the Revised Statutes relating to the inspection of hulls and boilers. All other motor boats are exempt from such inspection. On the other hand, section 4426 requires the inspection of every steam vessel referred to therein without regard to its size. In the act of June 9, 1910, notwithstanding the objection of your department, Congress seems to have intended to remedy this discrimination to some extent by placing certain steam vessels within the motor-boat class, and providing for the inspection, etc., of such only as were over 40 feet in length.

In my opinion, therefore, the act of June 9, 1910, repeals by implication so much of section 4426 of the Revised Statutes as requires the inspection of small steam vessels of the motor-boat class as defined in the act of 1910, and such vessels are now subject to inspection by the local inspectors of steam vessels only to the extent prescribed by that act.

I adhere, however, to the view expressed in the department's letter of March 14, 1911, to the United States attorney for the district of Maryland, to the effect that the act of June 9, 1910, did not repeal prior laws relating to the inspection of motor boats propelled otherwise than by steam. The act of June 9, 1910, contains no provision whatever as to the inspection of this class of motor boats, and it provides that "all laws and parts of laws only in so far as they are in conflict herewith are hereby repealed."

Respectfully,

GEORGE W. WICKERSHAM. The SECRETARY OF COMMERCE AND LABOR.

APPOINTMENTS IN THE DEPARTMENT OF COMMERCE AND LABOR.

The deputy commissioner of fisheries must be appointed by the President, by and with the advice and consent of the Senate, and where such appointment is made by the head of the department it is illegal and the incumbent's status is that of a de facto officer. A new appointment is not made necessary, however, merely by reason of the increase of the salary of the office.

The Chief of the Division of Alaska Fisheries, in the Bureau of Fisheries, the character of whose duties is not unlike that of the chiefs of divisions generally in the several executive departments, should be appointed by the Secretary of Commerce and Labor.

The agents in the Alaska fur-seal fisheries service and the agents and inspector in the Alaska salmon fisheries service, whose positions were placed in the Division of Alaska Fisheries by the act of March 4, 1911 (36 Stat. 1439), need not be reappointed, since the mere creation of a new administrative division in which such positions are placed does not establish new offices; the new positions of agent, Alaska salmon fisheries and of warden and deputy wardens, Alaska service, in the Division of Alaska Fisheries, should be filled by appointments made by the President, by and with the advice and consent of the Senate, as the duties of these officers are manifestly not clerical. The naturalist, fur-seal fisheries, and the two physicans, Pribilof Islands, placed in the Division of Alaska Fisheries by the act of March 4, 1911 (36 Stat. 1439), should be appointed by the Secretary of Commerce and Labor, but as the Secretary has already made these appointments there is no necessity for their reappointment if the present incumbents are to be retained.

The positions of engraver and electrotyper or photographer in the Bureau of Coast and Geodetic Survey, and the positions of associate physicist, assistant physicist, assistant chemist, laboratory assistant, aid, and superintendent of mechanical plant, in the Bureau of Standards, fall within the provisions of section 169 of the Revised Statutes and should be filled by appointments made by the Secretary of Commerce and Labor.

The position of local agent, Seattle, Wash., in the Bureau of Fisheries, the duties of which are strictly clerical, is within the meaning of section 169 of the Revised Statutes and the appointment should be made by the Secretary of Commerce and Labor.

DEPARTMENT OF JUSTICE,

June 1, 1911.

SIR: Under date of April 20, 1911, you wrote that, "by reason of certain provisions of the sundry civil appropriation act for the ensuing fiscal year, considered in connection with other legislation and with corresponding provisions of

the current appropriation act, this department is called upon to determine whether in the case of certain positions the reappointment or new appointment of present incumbents is necessary, and whether, where new appointments are required in any case, they must be made by the President by and with the advice and consent of the Senate or may be made by the Secretary of Commerce and Labor."

You therefore request my opinion upon the several questions set forth below.

1. The office of Deputy Commissioner of Fisheries was created by an item in the sundry civil appropriation act of 1903 (32 Stat. 1102), appropriating $3,000 for the annual salary of such an officer. The act failed to specify how or by whom the appointment should be made, and the place was filled by the appointment of the present incumbent by the head of the Department of Commerce and Labor. The salary of $3,000 has been continued regularly in subsequent appropriation acts, and by the sundry civil appropriation act of March 4, 1911 (36 Stat. 1363, 1435), the compensation is increased to $3,500 per annum, effective July 1, 1911. Upon this state of facts, you inquire:

"Should the position of Deputy Commissioner of Fisheries be filled by appointment or reappointment, effective July 1, 1911, assuming the intention to be to retain the present incumbent? If such appointment is necessary, must it be made by the President by and with the advice and consent of the Senate or may it be made by the head of the department? If it may not be made by the head of the department, is the existing appointment of the present incumbent a valid one?"

The Constitution provides (Art. II, sec. 2) that all officers of the United States shall be appointed by the President by and with the advice and consent of the Senate, except where, in case of inferior officers, Congress shall otherwise provide by law. The general rule deducible from this provision is that, in the absence of an express enactment to the contrary, the appointment of any officer of the United States belongs to the President by and with the advice and consent of the Senate. (6 Op. 1; 15 ib. 3, 449; 17 ib. 532; 18 ib. 98. 298; 26 ib. 627.)

There being no specific statutory authority given you to appoint the Deputy Commissioner of Fisheries, it is clear that you do not possess such authority unless the position comes within the scope of section 169 of the Revised Statutes, which provides that "each head of a Department is authorized to employ in his Department such number of clerks of the several classes recognized by law, and such messengers, assistant messengers, copyists, watchmen, laborers, and other employés, and at such rates of compensation, respectively, as may be appropriated for by Congress from year to year."

It was held by Attorney General Pierrepont, in 15 Op. 3, that a Deputy Comptroller of the Treasury, a deputy commissioner of customs, a Deputy Auditor of the Treasury, and a Deputy Register of the Treasury did not come within the scope of section 169 of the Revised Statutes so as thereby to vest their appointment in the head of the Treasury Department. There being no express statutory provision for the appointment of such officers, it was held that they could only be appointed by the President by and with the advice and consent of the Senate.

Likewise, in 26 Op. 627, Attorney General Bonaparte held that a Second Deputy Comptroller of the Treasury was not a clerk within the meaning of section 169 of the Revised Statutes, and must be appointed by the President by and with the advice and consent of the Senate, there being no express statutory provision for the appointment of such officer.

The office of Deputy Commissioner of Fisheries is of like grade to those offices just mentioned. While his duties are not prescribed by statute, the title of the office necessarily implies a power to perform all the duties which might be performed by the Commissioner of Fisheries, the nature of whose office is defined by sections 4395 and 4396 of the Revised Statutes, and whose appointment is vested in the President by and with the advice and consent of the Senate.

This case is parallel to that of the Second Deputy Comptroller of the Treasury, above cited, the office of such

deputy having been created merely by an appropriation, as in the present case, without prescribing his duties. As said in that opinion (26 Op. 630):

"Generally speaking, a deputy has power to do every act which his principal may do, and is not restrained to some particulars of his office. (Throop on Public Officers, sec. 583; Mechem on Public Officers, sec. 570; Erwin v. United States, 37 Fed. Rep. 470.) Doubtless it was on account of this general rule and with the intention that there should be no restriction that Congress did not deem it necessary to prescribe specifically the duties of the additional Deputy Comptroller."

Following with approval the ruling in the cases cited, I beg to advise you that the present incumbent of the office of Deputy Commissioner of Fisheries is not legally appointed, his present status being a de facto officer. The appointment must be made by the President by and with the advice and consent of the Senate. A new appointment of the Deputy Commissioner of Fisheries, effective July 1, 1911, is not made necessary, however, merely by reason of the increase of the salary of the office. (1 Comp. Dec. 267; ib. 313; 3 ib. 336.)

2. The position of Chief of the Division of Alaska Fisheries, in the Bureau of Fisheries, at a salary of $3,500, is provided for for the first time by the sundry civil appropriation act of March 4, 1911, and the act is silent as to how or by whom the position shall be filled. Under the circumstances, you request my opinion as to whether the appointment must be made by the President by and with the advice and consent of the Senate, or whether it may be made by the head of the department.

I am not advised that the duties of this officer are defined by statute, and infer that the general character of his duties is not unlike that of chiefs of division generally in the several executive departments. It seems to be the practice to regard such chiefs of division as clerks, within the meaning of section 169 of the Revised Statutes, to be appointed by the heads of departments in the absence of express statutory provisions to the contrary.