This tax is on beer stored or removed by the brewer and not by the wholesale or retail dealer. The warehouse is that of the brewer and not the place where the dealer has it stored. DEPARTMENT OF JUSTICE, September 13, 1900. SIR: I have the honor to reply to your note of July 24, 1900, requesting my official opinion upon a case stated, in substance, thus: The Robert Smith Ale Brewing Company, a corporation, is, at the same time, a brewer or manufacturer of malt liquors, ale, beer, lager-beer, and porter, a wholesale and retail dealer in, and also a bottler of, such liquors. Shortly before the passage of the act of June 13, 1898 (the warrevenue act, 30 Stat., 448), this brewing company transferred to itself, as a wholesale and retail dealer in such malt liquors, 616 barrels of beer. This beer was bottled at the bottling works of this company, in the regular course of its business and was thus held by it as a wholesale and retail dealer when the act of June 13, 1898, took effect. The company had paid the tax of $1 per barrel upon this beer imposed by the law previous to that of 1898, and had paid also the special tax as wholesale and as retail dealers in malt liquors. After the passage of the act of 1898, the additional tax of $1 per barrel, imposed by that act, was assessed and paid upon this beer; and the company now claims the refunding thereof, as having been illegally assessed and collected; and you ask whether "wholesale and retail dealers in fermented liquors, who had large stocks of beer in warehouse at the time of the passage of the act of June 13, 1898, are liable for the additional tax of $1 per barrel on this beer stored therein." The words in your question, which I have italicized, make the question present a case different from that made in your statement of facts, in that it states the beer, the subject of the tax, as stored in a warehouse, while the statement of facts places it in the hands of the company as a wholesale and retail dealer, for sale and not for storage merely. But I shall consider the question as referring to the case stated. So far as is important here, the only change in the pre vious law made by the act of 1898 is in the increase of the tax from $1 to $2 per barrel and in making the tax applicable to such liquors stored in warehouse," while under the previous law it applied only to such liquors "brewed or manufactured and sold or removed for consumption or sale." So that the tax imposed by the first section of the act of 1898 is one upon such liquors "brewed or manufactured and sold or stored in warehouse; or removed for consumption or sale;" and if the beer here in question is subject to this tax, it is so because "stored in warehouse," for it does not come within either of the other classes. 66 In my opinion to your Department dated December 27, 1898, I held, in substance, that under these acts the tax imposed on fermented liquors was to be paid by the brewer; that the reference to such liquors stored in warehouse meant those so stored by the brewer and not by those to whom he had sold them; and that this included not only the technical bonded warehouse of the brewer where such liquors might be stored without affixing the stamps, but also those in their agencies in the different cities from which such liquors were distributed to retail dealers. The same may be said also as to such liquors removed for consumption or sale." As the tax is to be paid by the brewer, it is therefore upon that which is removed by him and not by one to whom he has sold it after it has passed into the hands of the purchaser. I also held that the tax imposed by section 1 of the act of 1898 was not imposed upon retail dealers nor upon their stock in hand for sale. The same is equally true of wholesale dealers. This section no more taxes one than the other, and does not profess or undertake to tax either, or their stock in hand for sale. Wholesale and retail dealers are taxed as such by other provisions of the act, but not by this. As the statute has required that the whole tax that is imposed upon fermented liquors shall be paid by the brewer before it is sold by him, such liquors come to the wholesale or retail dealer free of the tax, as it is already paid; and the only remaining imposition is upon the wholesale or retail dealer as such, and on account of his business, and not on account of his stock. I further held in that opinion that the usual place of a retail dealer's business in his retail trade was not a warehouse within the meaning of section 1 of the war-revenue act. The same may be said of a wholesale dealer; the place where he transacts his usual business of buying and selling, and where he keeps simply such stock as is there for immediate sale in the usual course of his business, is not a warehouse in the sense in which that word is used in this section. But it is not necessary to this opinion to mention this as to either wholesale or retail dealers, for, as already said, the warehouse contemplated by this section is that of the brewer and in which he has stored the liquors, and not that of the wholesale or retail dealer to whom the brewer has sold them. The whole matter may be stated more briefly another way. As the tax assessed is one upon the brewer and to be paid by him, and, as the United States does not, in this section, tax one person for or on account of the property of another, it follows that what is thus taxed is the property of the brewer, and while it is so. It equally follows that the tax upon beer, etc., "stored in warehouse, or removed. for consumption or sale," must be upon that so stored or removed by the brewer, and not by some other who, after he has acquired it, stores or removes it on his own account. Again, as this section taxes only the beer, etc., of brewers, and does not attempt to tax that of wholesale or retail dealers, it again follows that this beer in the hands of such dealers is not subject to the tax. I have, therefore, to advise you that, under the facts stated, the beer here in question was not subject to the additional tax imposed by section 1 of the war revenueact of 1898. Respectfully, JOHN W. GRIGGS, The SECRETARY OF THE TREASURY. ATTORNEY-GENERAL-OPINION. The Attorney-General can not determine questions of fact. He can only aid in an application of the law to facts already ascertained. DEPARTMENT OF JUSTICE, September 21, 1900. SIR: In your communication of the 10th instant you transmit the original papers in the matter of the application of the Arlington Mills, of Lawrence, Mass., for the establishment of a rate of drawback on so-called "extract of wool" produced in the cleaning of imported wool, and say: "The application was originally denied, following your opinion in the camel's hair noils case (21 Opin., 159), and Department's decisions of January 28, 1893 (T. D. 14127), and April 19, 1895 (T. D. 15920); but subsequently the drawback was allowed upon the representation made by the applicant that the wool extract was subjected to an independent process of cleaning and refining, which brought it within the scope of the decision in the linseed oil and cake case (T. D. 19323 of May 9, 1898). "The question now arises as to whether this final action. of the Department is warranted by the facts, and the matter is, therefore, submitted to you for your consideration and an expression of your views as to whether the said extract of wool is an article of manufacture within the meaning of section 30 of the act of July 24, 1897." You thus submit to me not a question of law upon a statement of facts formulated and presented, upon which alone the Attorney-General can properly be asked to pass (22 Opin., 342, 498), but either a mixed question of law and fact or a question of fact alone, to be determined from a consideration of the original papers you inclose. It would seem that what you really desire me to do is to review your action in the determination of a question of fact arising in the administration of your Department, the question being whether the representation made by the applicant. for the drawback, that the so-called "extract of wool" was subjected to an independent process of cleaning and refining, is or is not true. You determined, after investigation and report by your special agents, that this representation was true and allowed the drawback. You now wish me to decide whether your action is warranted by the facts, shown by the papers you transmit. This, of course, I can not do. You must yourself determine questions of fact. I can only aid you in the application of the law to the facts as ascertained. The service of officers of the United States Army who were formerly officers of State volunteer organizations called into the service of the United States under the act of April 22, 1898 (30 Stat., 361), began on the day of their enrollment and joining for service. The service of officers of the ten volunteer regiments organized under section 1 of the act of May 11, 1898 (30 Stat., 405), began at the time each organized company reported at rendezvous for service and such officers personally appeared for duty. In fixing relative rank between officers of the same grade, section 1219, Revised Statutes, does not in terms require that the officer shall be a commissioned officer, but only that he has "served as a commissioned officer." An officer of the Army may be such and be in the service of the United States without any formal commission from the President, and his grade and rank are those of a commissioned officer. DEPARTMENT OF JUSTICE, SIR: I have the honor to reply to your note of September 12, 1900, requesting my official opinion upon facts there stated, affecting the relative rank of certain officers of the Army, under section 1219, Revised Statutes, which reads as follows: "In fixing relative rank between officers of the same grade and date of appointment and commission, the time which |