main an officer, but that rule was not applied to retired officers in the matter of holding a civil office."

This language shows that the Supreme Court considered the "civil office" of Revised Statutes, section 1222, as the same in kind, though differing in certain legal results, as the diplomatic or consular appointment of section 1223. And Attorney General Akerman, in an opinion rendered immediately after the passage of the act (13 Op. 310), declares the "manifest purport" of section 1222 to be "to disencumber Army officers of every species of official duty not belonging to their military profession." The same view is evidently implied in the opinion of Chief Justice Nott (Geddes v. United States, 38 Ct. Cls. 428, 446), by Attorney General Devens (15 Op. 306, 407, where he speaks of "a purely civil office"), by the Senate Committee on the Judiciary (S. Report No. 429, 47th Cong., 1st sess.), and by the State courts (State v. Clarke, 21 Nev. 333).

The above considerations and authorities seem ample to justify the conclusion that the term "civil office" in Revised Statutes 1222 means an office, whether State or Federal, whose sphere is in the ordinary peaceful government of the country, which is subject to the ordinary customs, rules, and laws, of that government, as distinguished from a "military office," engaged with the arts of war and governed, under courts-martial, by the Articles of War.

It is true that, on May 26, 1879, Gen. W. M. Dunn, then Judge Advocate General of the Army, having before him the question whether or not a lieutenant in the Regular Army could accept a command of a batallion of militia, rendered the following decision:

"Under the provisions of section 1222 Revised Statutes this officer can not legally be appointed to the civil office within mentioned; and, moreover, that he could not exercise the functions of the same without vacating his commission in the Army. Of course, any office (State or Federal) other than an office in the military or naval service of the United States, is a 'civil office' in the sense of the statute ".

and that this decision of Gen. Dunn has been uniformly followed and enforced by the War Department from that

time to the present, a period of over 32 years. Nevertheless, while such a contemporaneous, and long-continued departmental construction is entitled to very great weight, where the law is ambiguous (Schell v. Fauché, 138 U. S. 562, 572; Pennoyer v. McConnaughy, 140 U. S. 1, 23), it is quite otherwise where, the law being clear, there is no need for the assistance derived from this source. (Swift Co. v. United States, 105 U. S. 691, 695; United States v. Graham, 110 U. S. 219, 221; Studebaker v. Perry, 184 U. S. 258, 269; Cooley, Constitutional Limitations, 6th ed., p. 84.) In my opinion, there can not fairly be said to be any ambiguity in section 1222, Revised Statutes, and, therefore, the construction placed thereon by the War Department, while entitled to respectful consideration, is not controlling, and, in this case, should not be followed.

It would be unjustifiable to argue at length that the office of colonel in the National Guard of Massachusetts is not a "civil office" in the sense indicated above. The Organized Militia has a twofold relation, the one to the National, the other to the State government. In the former aspect, its functions, as stated in the Constitution, article 1, section 8, are "to execute the laws of the Union, suppress insurrections, and repel invasions." As a national force, it is now governed by the act of January 21, 1903 (32 Stat. 775), and the briefest inspection of that act shows that the Organized Militia provided for therein, in organization, equipment, discipline, and functions, does not differ in any essential respect from any other military force. Nor is the case different as to the relation of the militia to the States. For example, in Massachusetts, its functions, as set out in section 15 of the militia act of June 11, 1908, are "to resist invasion, to quell insurrections, and to aid civil officers in the suppression of riots, in the execution of the laws, or in time of public danger." It is governed by the Articles of War (ib. sec. 190), is subject to courts-martial (ib. secs. 179-190), and, in general, is a force whose whole end and purpose is military, as distinguished from civil.

I have the honor, therefore, to advise you that, in my opinion, an officer on the active list of the Regular Army may accept the office to which you refer without violating

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 agri cultural 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:

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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 "

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