OPINIONS OF HON. HARRY M. DAUGHERTY, OF OHIO. APPOINTED MARCH 5, 1921. DRAWBACK ON CIGARETTES. The Commissioner of Internal Revenue is the official charged by the law with the adjudication of claims for an allowance of drawback on cigarettes exported from the continental limits of the United States, although produced in Porto Rico, and he must allow such claims where they are established by satisfactory evidence. DEPARTMENT OF JUSTICE, March 22, 1921. SIR: I beg to acknowledge receipt of your letter of December 4, 1920, requesting an expression of my opinion upon the question whether the Commissioner of Internal Revenue is authorized to allow a claim for drawback of taxes paid in Porto Rico on cigarettes forward to the United States and afterwards exported. Revised Statutes section 3386, as amended by section 16 of the Act of March 1, 1879 (20 Stat. 347), provides, so far as material here, that "There shall be an allowance of drawback on tobacco, snuff, and cigars on which the tax has been paid by suitable stamps affixed thereto before removal from the place of manufacture, when the same are exported, equal in amount to the value of the stamps found to have been so affixed; the evidence that the stamps were so affixed, and the amount of tax so paid, and of subsequent exportation of the said tobacco, snuff, and cigars, to be ascertained. under such regulations as shall be prescribed by the Commissioner of Internal Revenue, and approved by the Secretary of the Treasury. Any sums found to be due under the pro 89836-22-VOL 32-34 487 visions of this section shall be paid by the warrant of the Secretary of the Treasury on the Treasurer of the United States, out of any money arising from internal duties not otherwise appropriated." Treasury Regulations 29 provide (arts. 173 and 174) that the evidence in support of a claim for drawback shall be transmitted by the collector to the Commissioner of Internal Revenue, who, if he finds the evidence satisfactory, will award the amount due the claimant. Revised Statutes section 3386, as amended, has always been construed by the Treasury Department as authorizing the allowance of a drawback on cigarettes, although it does not specifically mention them. I think it is clear, therefore, that the Commissioner of Internal Revenue is the official charged by the law with the adjudication of claims for an allowance of drawback on cigarettes exported from the continental limits of the United States, although produced in Porto Rico, and that he must allow such claims where they are established by satisfactory evidence. Respectfully, HARRY M. DAUGHERTY. To the SECRETARY OF THE TREASURY. DISPOSITION OF ABANDONED LIGHTHOUSE SITES. The Department of Commerce is authorized under the Act of March 4, 1913 (37 Stat. 1017), to sell in the manner prescribed thereby lands reserved for lighthouse sites whenever for administrative reasons it is determined the same can not be profitably used in the work of the Lighthouse Service. DEPARTMENT OF JUSTICE, SIR: By your letter of April 19, 1920, you requested the opinion of this Department as to whether the Department of Commerce has the power under the Act of March 4, 1913 (37 Stat. 1017), to make disposition of abandoned lighthouse sites reserved there for by executive order out of the public domain. The Secretary of the Interior, by letter of February 7, 1921, joined in your request. The inquiry has special reference to the proposed sale by the Department of Commerce of the Grand Marais (Keweenaw Point) Lighthouse Reservation in the State of Michigan which, for administrative reasons, is to be abandoned as a lighthouse site. The Department of the Interior, as I gather from the papers transmitted by the Secretary, seriously questions the right of the Department of Commerce to make disposition of the tract referred to under the Act specified. The view of the former on the broad question of respective jurisdiction seems to be that when public land reserved for lighthouse purposes is abandoned and no longer used for the purposes for which reserved, it acquires the status of public land and becomes subject to disposition as such by the Land Department. It appears from the papers presented that this land was reserved for "public purposes" by Executive order dated April 3, 1847. By like order dated December 9, 1852, the tract was again reserved, but this time for lighthouse purposes. January 25, 1854, this same tract was by description included in a patent issued to one John Griswold on a private cash entry made by him. The Act of March 4, 1913, provides: "Hereafter when any condemned supplies, materials, equipment, or land can not be profitably used in the work of the Lighthouse Service the same shall be appraised and sold, either by sealed proposals for the purchase of the same or by public auction after advertisement of the sale for such time as in the judgment of the Secretary of Commerce and Labor the public interests require, the proceeds of such sales, after the payment therefrom of the expenses of making the sales, to be deposited and covered into the Treasury as miscellaneous receipts as now provided for by law in like cases." (37 Stat. 1019.) By its terms this Act confers authority upon the Secretary of Commerce and Labor to sell land that "can not be profitably used in the work of the Lighthouse Service." It has been suggested that the word "land" as used in this section of the Act refers to land purchased by the Government for lighthouse sites, but not to land reserved for those purposes out of the public domain. This proposition seems to be predicated on the theory that reserved land is automatically restored to the public domain upon the termination of the use for which it was reserved, or at least that such land may be restored to the public domain by Executive order not based on an Act of Congress. It has been repeatedly held by this Department that lands reserved out of the public domain for specific Government purposes can thereafter be disposed of only as directed by Congress. (10 Op. 359; 16 Op. 121, 123; 17 Op. 168; 21 Op. 120; 28 Op. 143.) In the opinion last cited the question was as to the right of the President to transfer land which had been used as a military post from the War Department to the Department of Agriculture. After referring to the fact that the power of the President to make reservations had long been recognized, the opinion continues (p. 144): "The power to thus reserve public lands and appropriate them to military purposes does not necessarily include the power to either restore them to the general public domain or transfer them to another department. This department has repeatedly held that lands reserved for military purposes can not be restored to the public domain without an Act of Congress. (10 Op. 359; 16 Op. 121; 17 Op. 168.) It would also seem that they can not be transferred to another department." That this lack of power in the Executive to dispose of reserved lands is constantly recognized by Congress the following Acts may be referred to as illustrative: The Act of July 5, 1884 (ch. 214, 23 Stat. 103), providing for the disposition of abandoned military reservations; by various Acts regarding Indian reservations; by Act giving the President specific authority to revoke or modify orders or proclamations creating national forests; the Act of June 25, 1910 (ch. 421, 36 Stat. 847), authorizing the revocation of withdrawals or reservations made for power sites, irrigation, and other public uses. I think the proposition is too clear to admit of doubt that Congress is possessed of the exclusive power to dispose of lands reserved out of the public domain for specific Government purposes, and having provided by the Act of March 4, 1913, for the disposition of abandoned lighthouse sites by the Secretary of Commerce and Labor (now the Secretary of Commerce), its will must prevail. It is my opinion, therefore, that the Department of Commerce is authorized under the Act of March 4, 1913, to sell in the manner prescribed thereby lands reserved for lighthouse sites whenever for administrative reasons it is determined the same can not be profitably used in the work of the Lighthouse Service. Should the Department of Commerce encounter serious difficulty in procuring voluntary removal of the cloud arising from the Griswold patent, I will, upon receiving the usual request therefor, direct that proper action be taken by this Department. Very respectfully, HARRY M. DAUGHERTY. To the SECRETARY OF COMMERCE. MODIFICATION AND READJUSTMENT OF CERTAIN CONTRACTS FOR RIVER AND HARBOR IMPROVEMENTS. Under section 8 of the Act of July 18, 1918 (40 Stat. 912), the authority of the Secretary of War to modify and readjust certain contracts for river and harbor improvements is contractual and when he has exercised that authority the rights of any contractor interested become a question of law, and it is the function of the accounting officers of the Treasury Department to construe the terms of any such contract which may have been modified or readjusted and to audit any account submitted for payment thereunder. DEPARTMENT OF JUSTICE, SIR: I have the honor to reply to a letter dated November 16, 1920, from the Secretary of War, in which my opinion is requested as to the proper construction to be placed upon section 8, of the Rivers and Harbors Act, approved July 18, 1918 (40 Stat. 912). The provision of said Act which is the subject of your inquiry is as follows: "That if the Secretary of War shall determine that any of the contracts for work of river and harbor improvements entered into but not completed prior to April sixth, |