time that this clause remained unrepealed as a part of the acts of 1862 and 1864, a construction was put upon it by the Revenue Bureau which limited its application to goods exported by vessels engaged in the foreign trade, is very cogent and conclusive testimony as to the scope and effect the same clause was intended to have by the Congress which passed the war-revenue act of 1898.

What is known as departmental construction of a statute is, in proper instances, a very important method of determining the true legal construction to be placed upon acts of Congress. As was said by Mr. Justice Brown in Schell's Executors v. Fauche (138 U. S., 562-572): "In all cases of ambiguity the contemporaneous construction, not only of the courts, but of the departments, and even of the officers whose duties it is to carry the laws into effect, is universally held to be controlling."

When there is added to this departmental construction the subsequent readoption of the same language by Congress in another act, it is conclusive that Congress, in the absence of language to the contrary, intended the same construction and effect to be given to the words in the latter as in the former instance.

In this connection, it is to be noted that the proviso F, exempting from stamp duties manifests, bills of lading, and passage tickets issued by steamboats and other vessels plying between ports of the United States and ports in British North America, was also contained in the act of 1862. It thus appears that Congress, in both instances, had in view the policy of exempting from taxation bills of lading on vessels engaged in the foreign trade with ports of British North America, leaving the duties to be paid upon business of that nature transacted by vessels going to other foreign ports.

3. To hold that Clause A covered bills of lading or manifests issued by railroad companies for goods received by them for transportation by rail from points in the United States to Canada would be to hold in effect that Congress intended to make a manifestly unjust discrimination against that particular class of traffic. This will appear from a comparison of freight rates by railroad to Canada and by

vessel to Liverpool. The minimum rate for merchandise weighing less than 100 pounds from Boston to Montreal is 45 cents. A stamp tax of 10 cents upon such shipment would equal 22 per cent of the gross freight, but inasmuch as the American railroads which would have to pay this tax receive only a portion of the total freight charge, the percentage of tax to the freight received by the American road would be much greater.

The minimum rate of freight for merchandise from Boston to Liverpool on similar quantities is 21 shillings; the tax of 10 cents on such a shipment would amount to only 2 per cent of the total freight, but by the proviso of the act all shipments by vessel to Canadian ports are required to pay no stamp tax whatever. It is not probable that it was the intention of Congress to make so serious a discrimination against the railroad carriers. No reason for such a discrimination is suggested or in any way appears, and in the absence of explicit language requiring such a construction it will not be presumed that Congress intended so to discriminate.

I therefore advise you that upon bills of lading, receipts, manifests, and other similar documents issued by railroad companies for the receipt of goods to be transported by rail from any place in the United States to Canada, a stamp tax of 1 cent is payable under the clause headed "Express and freight," and that no tax is payable thereon under the clause relating to goods exported from a port or place in the United States to any foreign port or place. The same rule should be applied to shipments by rail to Mexico.

Very respectfully,

JOHN W. GRIGGS.

The SECRETARY OF THE TREASURY.

CONTRACT-REPATRIATION OF SPANISH PRISONERS.

The treaty of Paris of December 10, 1898 (30 Stat., 1756), contemplates and provides for the repatriation by the United States of all Spanish prisoners captured and held by them, or held and released by the insurgents in Cuba and the Philippines-soldiers and civilians—men, women, and children, and whether their detention was originally voluntary as to them or otherwise.

To carry out the provisions of that treaty the War Department entered into a contract with Ceballos & Co., by which that company agreed to transport to Spain "such number of prisoners of war and persons as may be designated by the Secretary of War." Under that contract the authorities of the United States only were authorized to decide what persons came within the classes described in the treaty and the contract, and the company was bound to receive and transport all who were thus tendered.

The United States had the right to adopt, as against itself, as liberal a construction of that treaty as it chose; and the company having in good faith performed its part of the contract, the payment therefor can not be affected by the fact that the agent of the United States exceeded his authority by tendering for transportation some persons who, as afterwards decided, did not come within the purview of that treaty.

The contract being for the transportation of prisoners only was not ultra vires the Secretary of War. The most that can be said is that the United States made a mistake in tendering for transportation, some persons not within the purview of the contract.

The word "officers" used in the contract, includes as well civil, as military officers; and the term "other persons" includes all persons other than officers.

DEPARTMENT OF JUSTICE,
January 6, 1900.

SIR: I have the honor to acknowledge the receipt of your note of December 21, 1899, with its inclosures, in which you again ask my official opinion as to the propriety of a certain claim of J. M. Ceballos & Co., against your department arising out of a contract between the Secretary of War and J. M. Ceballos & Co. for the transportation of Spanish prisoners of war and others from the Philippines to Spain, in pursuance of the treaty of Paris.

In my note of the 20th ultimo, in reply to yours of the 13th, making a similar request for my opinion upon the same matter, I pointed out that, under certain rulings of my official predecessors, such questions as you present are, since the act of July 31, 1894 (chap. 174, sec. 8,) properly addressed to the Comptroller of the Treasury, and should not be submitted to the Attorney-General, except in cases of great importance.

Your present note points out that this is a case of importance, and, further, that the questions involved a construction of the treaty of Paris, and the extent of the obligations resting upon the United States under that treaty, and which,

if decided one way, may become the subject of diplomatic discussion between this country and Spain.

Accepting this as presenting a case exceptional to the general rule referred to, of my predecessors, and one coming within the exception stated in that rule, I willingly comply with your request for an opinion.

The questions presented in your notes have relation, chiefly, to the propriety of paying J. M. Ceballos & Co. for the transportation from the Philippines to Spain of certain noncombatants-wives and children of Spanish officers and soldiers, certain Spanish civilians, and their wives and children and may be considered with reference to both the treaty with Spain and the contract of the War Department with J. M. Ceballos & Co.

The treaty of Paris, of December 10, 1898, Article V, paragraph 1, provides that

"The United States will, upon the signature of the present treaty, send back to Spain, at its own cost, the Spanish soldiers taken as prisoners of war on the capture of Manila by the American forces. The arms of the soldiers in question shall be restored to them."

Article VI, paragraphs 2 and 3, are as follows:

"Reciprocally, the United States will release all persons made prisoners of war by the American forces, and will undertake to obtain the release of all Spanish prisoners in the hands of the insurgents in Cuba and the Philippines."

"The Government of the United States will at its own cost return to Spain, and the Government of Spain will at its own cost return to the United States, Cuba, Porto Rico, and the Philippines, according to the situation of their respective homes, prisoners released, or caused to be released by them, respectively, under the article."

Strictly, there are three classes of persons for whose repatriation provision is thus made in this treaty, viz: First. "Spanish soldiers taken as prisoners of war on the capture of Manila by the American forces."

Second. "All persons made prisoners of war by the American forces."

Third. "Spanish prisoners in the hands of the insurgents in Cuba and the Philippines," when released.

But, so far as the treaty controls it, all these, and all for whom any such provision is made, must have been, in some proper sense, prisoners-that is, held or deprived of their liberty by either the United States or the insurgents-for provision is made for no other. But, passing for the moment the expression "prisoners of war," it is not at all necessary, in order to their being prisoners within the meaning of this treaty stipulation, that these should have been combatants in any form. Our civil war, and most wars afford numerous examples of civilians taken and held as prisoners on account of war, and they are no less such, because noncombatants and unarmed.

Nor is it always necessary to their being such prisoners that their capture or detention be involuntary as to them. A wife or child may prefer to, and may follow the husband or father into captivity, and may share his imprisonment, to either its full or a partial extent; still, while held and deprived of liberty by the opposing force, they may well be held to be prisoners, however voluntary may have been the original submission, just as voluntary hostages are prisoners.

And civilians, non-combatant, and unarmed persons may be, and often are, taken and held as prisoners in a war and because of it, and not for any other offense, and these are among the persons referred to in these treaty stipulations.

It will be noticed that the treaty, as above quoted, twice uses the term "prisoners of war." There are definitions, notably that in the Standard Dictionary, which limit the meaning of this phrase, "prisoner of war," to "a combatant or person in arms taken by the enemy, either by capture or surrender during a time of war." But I think this is too narrow a definition to express the modern meaning of the term, or its meaning as used in the treaty of Paris, in that it excludes one who, though taking no actual part in the combat, and bearing no arms, may have been the directing head and governing hand of the whole conflict. Such a definition would make Jefferson Davis less a prisoner of war after his capture, than was General Lee after his surrender.

Certainly the term was not used in this narrow sense in this treaty. This is obvious, for Article V, paragraph 1, provides that the United States shall send back to Spain all