clearance could not be refused. It is provided by section. 4197, Revised Statutes, that, on delivery of a sworn manifest to the collector by the master, the former "shall grant a clearance for such vessel and her cargo." The only other general conditions precedent to the grant of clearance which I can find are a manifest from the owners, shippers, or consignors (R. S. sec. 4200), compliance with the State inspection laws (R. S. 4202), and payment of all accrued fees (R. S. 4206). Expressio unius est exclusio alterius. It must be taken that Congress did not intend clearance to depend on the opinion of the collector as to whether the revenue laws had been violated or not, especially in a case where it is expressly provided that the vessel shall not be liable for the penalty claimed by the collector. The opinion of Attorney General MacVeagh of April 28, 1881 (17 Op. 82), affirming the right of the collector to refuse clearance when the master of the vessel was liable to a penalty under Revised Statutes 2809, was based on the assumption that the Government had a lien on the vessel in such a case, an assumption which the above decisions show is not founded in law.

Where the vessel in question is not used by any person or corporation as a common carrier, a lien would exist in favor of the Government by virtue of section 3088, Revised Statutes, supra, and Attorney General MacVeagh's opinion would apply. In that opinion Mr. MacVeagh, to support his opinion that a collector may refuse clearance when he knows the Government has a lien on the vessel. relies solely on Bas v. Steele (3 Wash. C. C. 381, s. c. Peters C. C. 406). It is doubtful, on a reading of the whole case, whether the language of Mr. Justice Washington in that decision quoted and relied on by Mr. MacVeagh did not have application solely to a case where a Federal statute authorized the collector to refuse clearance under given circumstances. However that may be, it appears to be well settled that section 4197, Revised Statutes, supra. requires the collector to grant clearance, unless he has some distinct statutory authority for refusing. (Otis v. Bacon, 7 Cranch 589; Gilchrist v. The Collector, 1 Hall Law J.

429; United States v. Burke, 99 Fed. 895; Hendricks v. Gonzalez, 67 Fed. 351, 353.) In the latter case the Circuit Court of Appeals for the second circuit said:

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The plaintiff having complied with the conditions entitling him to clearance by the law of Congress (Rev. St. sec. 4197), it was the duty of the defendant, as collector of the port, to grant a clearance for the vessel and her cargo, unless he was justified in refusing to do so by some other statutory authority. Neither the Secretary of the Treasury nor the President could nullify the statute and, though the defendant may have thought himself bound to obey the instructions of the former, his mistaken sense of duty could not justify his refusal of the clearance, and these instructions afforded him no protection unless they were authorized by law.

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This statement of the law is reenforced by the fact that Congress has specifically provided for refusing clearance in cases where it thought such a course proper. For example, the act of March 22, 1794 (1 Stat. 349, ch. 11, sec. 3), (persons suspected of engaging in the slave trade); act of July 6, 1812 (2 Stat. 778, ch. 129, sec. 1), (vessels trading with the enemy); act of April 20, 1818 (3 Stat. 450, ch. 88, sec. 11, Rev. Stat. 5290), (violation of neutrality laws); act of May 20, 1862 (12 Stat. 404, ch. 81, sec. 1, Rev. Stat. 5320), (vessels suspected of voyage to insurgent ports); act of March 3, 1903 (32 Stat. 1215, sec. 9), (nonpayment of fine for bringing in diseased immigrants).

I am, therefore, of the opinion that a collector of customs has no right to refuse clearance to a vessel because of nonpayment of a fine imposed for violation of Revised Statutes 2809.

You further request me to advise you whether there is any remedy which the Government has for the collection of the said fine other than a suit against the master of the vessel. Where the vessel is not used by any person or corporation as common carriers in the transaction of their business as such common carriers, the Government has, by virtue of Revised Statutes 3088, a lien on the vessel for the penalty incurred by the master, and may enforce that lien

by libel and seizure. (The Queen, supra; The Missouri, supra.) Where, however, the vessel is so used by common carriers, and the owner or master thereof is not a consenting party to the illegal act or privy thereto, the only remedy appears to be an action against the master.

Respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF THE TREASURY.

POSTAL SAVINGS SYSTEM-ORGANIZATION OF BANKS.

A bank is organized under National or State laws" within the meaning of section 9 of the postal savings depositories act of June 25, 1910 (36 Stat. 816), when it is incorporated, or clothed with the essential attributes of a corporation by virtue of legislative sanction.

The mere authority to transact a banking business, although granted in pursuance of State laws, carries with it no implication of organization under the State laws, irrespective of whether such authority is or is not exercised subject to State supervision and examination.

DEPARTMENT OF JUSTICE,

March 12, 1912.

SIR: I am in receipt of your communication of the 5th instant wherein you present a question for my consideration, as follows:

"Section 9 of the postal savings act of June 25, 1910 (36 Stat. 816), provides in part as follows:

"That postal savings funds received under the provisions of this act shall be deposited in solvent banks, whether organized under National or State laws, being subject to National or State supervision and examination.'

"Under the laws of several States private banking firms are required to obtain authority from the State banking commissioner to engage in business and are made subject to State supervision and examination. Applications to qualify for deposits of postal savings funds have been received from numerous institutions of this character. As an illustrative case I inclose correspondence in regard to the application of Messrs. John Steneck & Sons of Ho

boken, N. J., together with the State laws on the subject, and beg to request your opinion whether that firm may be regarded as organized under * State laws' within

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the meaning of the act of June 25, 1910."

By the act of the General Assembly of New Jersey, approved March 28, 1895 (chap. 368, Session Laws of 1895), it was provided that individuals, associations of individuals, partnerships, or joint-stock associations, should not thereafter engage in the business of banking unless authorized so to do by the commissioner of banking and insurance by his official certificate to that effect, which should issue only after preliminary examination showing the applicant to be solvent and possessed of unincumbered assets of at least $20,000 in excess of outstanding liabilities, and that such individuals, associations of individuals, partnerships, or joint-stock associations engaged in the business of banking should thereafter be subject to the same control, supervision, inspection, and examination to which incorporated banks were then subject.

By the act of the general assembly, approved April 25, 1907 (chap. 106, Session Laws of 1907), it was provided that no person or corporation should thereafter engage in the business of transmitting money to foreign countries, or buying or selling foreign money or receiving money on deposit to be transmitted to foreign countries, without a certificate of authority to transact such business granted by the commissioner of banking and insurance, and that before such certificate should issue the applicant should execute a bond to the commissioner in the sum of $20,000, conditional upon the faithful performance of the obligations imposed by the act.

It appears that John Steneck & Sons, of Hoboken, N. J., is a firm or partnership of individuals, which has complied with these provisions, together with the other laws of the State relating to banks, and has been duly authorized to transact the business of banking in pursuance thereof. It is my judgment, however, that this does not satisfy the requirements of the act of June 25, 1910 (36 Stat. 814), supra.

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The mere authority to transact a banking business, although granted in pursuance of State laws, carries with it no implication of organization under the State laws, irrespective of whether such authority is or is not exercised subject to State supervision and examination.

In Eliot v. Freeman (220 U. S. 178, 186) the Supreme Court used the following language in construing the corporation-tax law:

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"The language of the act* now or hereafter organized under the laws of the United States,' etc., imports an organization deriving power from statutory enactment. The statute does not say under the law of the United States, or a State, or lawful in the United States or in any State, but is made applicable to such as are organized under the laws of the United States, etc. The description of the corporation or joint-stock association as one organized under the laws of a State at once suggests that they are such as are the creation of statutory law, from which they derive their powers and are qualified to carry on their operations."

The question before the court in that case was quite different from the question which is here presented for determination, but I think that it is the plain purport of the language quoted that organization, in its legal sense, must be taken to imply statutory organization. It follows that a bank "organized under National or State laws" within the meaning of the postal-savings act must be a bank which is the creature of statute law.

I am of the opinion that it is necessary that a bank should be incorporated, or clothed with the essential attributes of a corporation by virtue of legislative sanction, in order to come within the intention of the act. The applicant can not, therefore, properly qualify to receive postal savings funds.

Respectfully,

GEORGE W. WICKERSHAM.

The POSTMASTER GENERAL.