the provisions of section 1222 of the Revised Statutes. Whether the acceptance by an officer of the Army of an office in the National Guard of a State would be inconsistent with the policy expressed in the Constitution and laws of the United States with respect to these two establishments, and whether there are not reasons other than those contained in section 1222 of the Revised Statutes, which would make it illegal or improper for an officer of the Army to subject himself to conflicting State jurisdiction, are matters upon which I express no opinion.

Respectfully,

GEORGE W. WICKERSHAM.

THE SECRETARY OF WAR.

FOREST RESERVES-AUTHORITY TO GRANT RIGHTS OF WAY FOR ELECTRICAL, TELEPHONE AND TELEGRAPH PURPOSES.

The authority to grant easements for rights of way for electrical, telephone and telegraph purposes, as contemplated by the agricultural appropriation act of March 4, 1911 (36 Stat. 1253), is vested in the Secretary of Agriculture when and in so far as the lands to be affected constitute portions of the national forests.

DEPARTMENT OF JUSTICE,

February 3, 1912.

SIRS: The agricultural appropriation act of March 4, 1911 (ch. 238, 36 Stat. 1253), provides:

"That the head of the Department having jurisdiction over the lands be, and he hereby is, authorized and empowered, under general regulations to be fixed by him, to grant an easement for rights of way, for a period not exceeding fifty years from the date of the issuance of such grant, over, across, and upon the public lands, national forests, and reservations of the United States for electrical poles and lines for the transmission and distribution of electrical power, and for poles and lines for telephone and telegraph purposes, to the extent of twenty feet on each side of the center line of such electrical, telephone and telegraph lines and poles, to any citizen, association, or corporation of the United States, where it is intended by

such to exercise the right of way herein granted for any one or more of the purposes herein named: Provided, That such right of way shall be allowed within or through any national park, national forest, military, Indian, or any other reservation only upon the approval of the chief officer of the Department under whose supervision or control such reservation falls, and upon a finding by him that the same is not incompatible with the public interest: Provided, That all or any part of such right of way may be forfeited and annulled by declaration of the head of the Department having jurisdiction over the lands for nonuse for a period of two years or for abandonment.

"That any citizen, association, or corporation of the United States to whom there has heretofore been issued a permit for any of the purposes specified herein under any existing law, may obtain the benefit of this Act upon the same terms and conditions as shall be required of citizens, associations, or corporations hereafter making application under the provisions of this statute."

You have joined in requesting to be advised whether upon a proper construction of this provision the function of granting the rights of way devolves upon the Secretary of the Interior or the Secretary of Agriculture, when the lands to be affected lie within the confines of forest reservations.

The question involves primarily the construction of the words, "the head of the Department having jurisdiction over the lands," in which the term "jurisdiction" is to be taken, of course, in a sense in which it is loosely but not uncommonly employed as denoting in a general way executive authority under the laws applicable to the subject matter in mind.

At the time of the passage of this act such a jurisdiction in respect of forest lands existed in the Secretary of Agriculture for certain purposes, and also in the Secretary of the Interior for certain other purposes. This division of jurisdiction was brought about by the act of February 1, 1905 (ch. 288, 33 Stat. 628), prior to which the execution of the laws relating to established forest reservations, as of the laws relating to the unreserved public lands, was

confided to the Secretary of the Interior. That act, however, declared that thereafter the Secretary of Agriculture should execute, or cause to be executed, all laws affecting the public lands, reserved or to be reserved as forest reservations, "excepting such laws as affect the surveying, prospecting, locating, appropriating, entering, relinquishing, reconveying, certifying, or patenting of any such lands."

Construing this statute, the Secretary of the Interior, in a letter to the Secretary of Agriculture of June 8, 1905, observed:

"I have to advise you that it is believed the respective jurisdictions of the two departments over applications for rights and privileges within forest reserves may be safely defined as follows, namely, that your department is invested with jurisdiction to pass upon all applications under any law of the United States providing for the granting of a permission to occupy and use lands in a forest reserve which occupation or use is temporary in character, and which, if granted, will in nowise affect the fee or cloud the title of the United States should the reserve be discontinued, but that this department retains jurisdiction over all applications affecting lands within a forest reserve the granting of which amounts to an easement running with the land, with the further understanding that any permission or license granted by your department is subject to any later disposal of the land by this department. Within the limits of the separate jurisdictions herein defined, it is believed that the actions of the two departments will proceed harmoniously. (33 L. D. 609, 610.)"

The view thus set forth seems to have received the express approval of the Secretary of Agriculture. It was at once accepted, and has since been consistently acted upon by both departments.

In 28 Op. it was said (p. 524) that:

*

"The jurisdiction conferred upon the Secretary of Agriculture by the act of February 1, 1905, * * is essentially a jurisdiction to care for, supervise, and manage the national forests as distinct instrumentalities of the Government—as 'going concerns'—and to execute certain laws relating to them."

89760° VOL 29-13-20

And that (p. 525):

"The laws which the Secretary [of Agriculture] is to execute are manifestly the laws which declare the general policy respecting forest reservations and govern their administration and use as such apart from the general mass of public lands."

Without attempting to review those laws in detail, as they were when the act now under consideration was passed, it seems enough for present purposes to observe that, while they cast upon the Secretary of Agriculture the duty of protecting and fostering the forests and empowered him to regulate their use and occupation and to sell and in other ways dispose of the timber, they did not authorize through his action the granting or conveying of any estate or interest affecting the title to the lands themselves. On the other hand, where title might be acquired to lands within such reservations, as under the general mining laws, and where rights of way in the nature of easements might be obtained, as for wagon roads and railroads (act of Mar. 3, 1899, 30 Stat. 1233), it was the Secretary of the Interior who, by plain intent of the act of February 1, 1905, supra, was to officiate for the Government in the transaction. Thus while the revocable concessions or permits, in the nature of licenses, to use lands for the various purposes specified in the act of February 15, 1901 (ch. 372, 31 Stat. 790), were to be passed upon and given or withheld by the Secretary of Agriculture where forest reservations were concerned, the act of February 1, 1905 (the same which gave him that authority), itself provided that "rights of way "within and across the forest reserves for the construction and maintenance of reservoirs, canals, etc., for municipal or mining purposes, and for the milling and reduction of ores, might be granted, "during the period of their beneficial use," by the Secretary of the Interior.

On the part of the Secretary of the Interior it is therefore urged that, as the legislation now in question provides for the granting of easements-incorporeal estates, though of limited duration and as the " jurisdiction " to which it refers was a jurisdiction already existent when the legisla

tion was passed, Congress, by the expression "head of the department having jurisdiction over the lands," must have intended to designate the head of the Department of the Interior to grant the new easements as well within the forest (and all other) reservations as over the unreserved public lands, since the contrary view would involve a departure from the consistent policy of Congress which, for very many years, has entrusted to the Secretary of the Interior, not only the guardianship over the public lands generally, but also, and peculiarly, execution of all general laws which enable individuals and corporations to acquire under various conditions titles and vested interests in lands from the United States. Furthermore, it is said, a division of this disposing authority, by distributing the records of transactions dealing with title among two or more departments of the Government, would occasion needless uncertainty and inconvenience, particularly in regard to land passing from one status to another by inclusion within or exclusion from a reservation.

These suggestions would be very persuasive if the statute did not expressly undertake to assign the new authority to any department; but logically followed out in the case before us they reduce the descriptive phrase, “head of the department having jurisdiction over the lands," to mere synonymity with "Secretary of the Interior," and the question at once occurs: If Congress had in mind a quality of jurisdiction which only the Secretary of the Interior was then enjoying and purposed to vest the new jurisdiction in him alone, why did it not simply say, "Secretary of the Interior," instead of resorting to a doubtful and wholly unnecessary circumlocution? Upon their face the words suggest a generic application; indeed, unless we are prepared to believe that Congress did not understand the existing powers of the Secretary of the Interior, or took no care whatever to express itself in natural and direct language, it seems impossible to confine this expression specifically to that official in the face of the fact that the heads of other departments also may not unreasonably be included. Leaving out of view the peculiar authority to pass title, and without attempting a complete