for the same purpose, and in substantially the same language. The provision for the year 1909-10 is contained in the act making appropriations for the support of the Army (35 Stat. 750), approved March 3, 1909.

For the purpose of carrying out the provision of the above act and of making the regulations therein required, the War Department's order of March 31, 1903, was promulgated, as follows:

"Under authority of the act entitled 'An act making appropriations for the support of the Army for the year ending June 30, 1904,' approved March 2, 1903, the following regulation is hereby prescribed for the test for a national trophy and medals and other prizes for marksmanship provided for by the said act:'

"1. Said tests shall be under the direction of a board of twenty-one members, eight of whom shall be the president and board of trustees of the National Rifle Association, eight of whom shall be selected by the Secretary of War from the country at large, and five of whom shall be selected from the War Department, the Army, Navy, and Marine Corps.

"2. The members of the said board upon its organization are as follows:

"The board will have its first meeting at the War Department in this city on April 16, 1903, at 11 a. m., and will frame and report for approval such further regulations as may be necessary to successfully carry into effect the provisions of law above cited."

Heretofore the traveling expenses of this national board had been met from the appropriations above referred to; but you call my attention to section 9 of the sundry civil appropriation act of March 4, 1909 (35 Stat. 1027), which provides:

"That hereafter no part of the public moneys, or of any appropriation heretofore or hereafter made by Congress, shall be used for the payment of compensation or expenses of any commission, council, board, or other similar body, or any members thereof, or for expenses in connection with any work or the results of any work or action of any commission, council, board, or other similar body,

unless the creation of the same shall be or shall have been authorized by law; nor shall there be employed by detail, hereafter or heretofore made, or otherwise, personal services from any executive department or other government establishment in connection with any such commission, council, board, or other similar body."

And your specific question is:

"Whether, in view of the terms of the section referred to, the above-mentioned appropriation can be used to meet the expenses of the National Board for the Promotion of Rifle Practice."

As far as concerns this question, section 9 above quoted forbids the use of any money appropriated in payment of the compensation or expenses of any commission, council, board, or other similar body, or any members thereof unless the creation of the same " shall be, or shall have been, authorized by law."

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The appropriation of a sum to be expended in the discretion of the Secretary of War for the purpose of furnishing a national trophy and medals and other prizes, to be contested for under such regulations as may be prescribed by the Secretary of War, in my opinion authorizes that official to create a board or committee to supervise the contests and to insure the award of the prizes and trophies in accordance with the intent of Congress, and such board or committee would be "authorized by law " within the meaning of the statute referred to.

The appointment of this board by the departmental order above quoted would seem to be a proper and legitimate exercise of the power to make regulations conferred by the act upon the Secretary of War, and in my opinion the above-mentioned appropriation can be used to meet the expenses of the National Board for the Promotion of Rifle Practice.

Respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF WAR.

CONSTRUCTION OF DAM ACROSS A NAVIGABLE RIVERCOMPENSATION FOR PRIVILEGE.

The Chief of Engineers and the Secretary of War are not authorized by the act of June 21, 1906 (34 Stat. 386), to require, as a condition to a license for the construction of a dam across a navigable river, the payment of a sum or sums by way of compensation for the privilege granted, although they may require such payments or assumption of expenses as are necessary or proper to insure the navigability of the stream. Within the scope of the powers granted by Congress in this regard the discretion of the Chief of Engineers and the Secretary of War is not limited.

DEPARTMENT of Justice,

July 13, 1909.

SIR: On October 29, 1908, there was transmitted to my predecessor an application made by Badger Hydro-Electric Company, of Madison, Wis., for a permit to build a dam in the Wisconsin River near Prairie du Sac, Wis. The granting of the application had been recommended by the Acting Chief of Engineers upon terms set forth in the indorsement to the application, but the matter was referred to my predecessor in accordance with instructions of the President. Subsequently, and under date of February 11, 1909, there was transmitted to my predecessor a copy of an instrument, dated January 26, 1909, executed by the Secretary of War, approving plans for the construction of a dam across Big Bayou Meto, Ark.; on February 15, 1909, a copy of an instrument, dated February 4, 1909, likewise executed, approving the construction of the dam across the Rock River at Grand Detour, Ill.; and on March 9, 1909, a copy of an instrument, dated February 27, 1909, likewise executed, approving the location of a dam across the east fork of White River, at Williams, Ind. The application of the Badger Hydro-Electric Company seems to have remained unacted upon pending its consideration by this Department. On May 21, 1909, you transmitted to me a communication in which that company agreed that in case the permit sought by it should be granted, whenever in the opinion of the War Department the Wisconsin River at Prairie du Sac was needed for commercial purposes the company or

its successors would construct a lock in said dam as prescribed by the War Department, such lock to be complete with its appurtenances and to be donated to the United States, and that that condition should be embodied in the permit.

I understand that these papers were transmitted to this Department for the purpose of determining what, if any, further conditions to those contained in the form of instruments of approval so submitted might lawfully be imposed to the grant of a license by the War Department to the Badger Hydro-Electric Company, and in other cases hereafter arising, particularly with a view to the requirement of some payment by the licensee by way of compensation to the Government for the privilege granted by it. The applications were referred by my predecessor to one of the Assistant Attorneys-General who devoted considerable time and attention to the study of this question, and who has given me the benefit of the result of his researches. In the particular case under consideration the Badger Hydro-Electric Company is a Wisconsin corporation and the transferee of certain rights granted by an act of the legislature of Wisconsin (law of 1907, chap. 189) to certain individuals authorizing them and their assignees to build and maintain a dam across, and to improve the navigation of, the Wisconsin River above the same and for the construction of fishways.

Section 9 of the act of Congress of March 3, 1899 (30 Stat. 1151), enacts" that it shall not be lawful to construct the construction of any

or

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commence

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navigable

dam

river

or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of War: Provided, that such structures may be built under authority of the legislature of a State across rivers and other waterways the navigable portions of which lie wholly within the limits of a single State, provided the location and plans thereof are submitted to and approved by the Chief of Engineers and by

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The portion of the river affected by this case lies wholly within the limits of the State of Wisconsin, and therefore the company is duly empowered by the legislation of the State of Wisconsin above referred to to construct a dam "provided the location and plans thereof are submitted to and approved by the Chief of Engineers and by the Secretary of War before construction is commenced."

The act of Congress of June 21, 1906 (34 Stat. 386), entitled "An act to regulate the construction of dams across navigable waters," after enacting that whenever after its passage authority is granted by Congress to any persons to construct and maintain a dam for water power or other purposes across any of the navigable waters of the United States, such dam shall not be built or commenced until the plans and specifications and the location of such dams and accessory works shall have been approved by the Chief of Engineers and the Secretary of War, contains the following proviso:

"That in approving said plans and locations such conditions and stipulations may be imposed as the Chief of Engineers and the Secretary of War may deem necessary to protect the present and future interests of the United States, which may include the condition that such persons shall construct, maintain, and operate without expense to the United States, in connection with said dam and appurtenant works, a lock or locks, booms, sluices, or any other structures which the Secretary of War and the Chief of Engineers at any time may deem necessary in the interests of navigation, in accordance with such plans as they may approve, and also that whenever Congress shall authorize the construction of a lock, or other structures for navigation purposes, in connection with such dam, the person owning such dam shall convey to the United States, free of cost, title to such land as may be required for such constructions and approaches, and shall grant to the United States a free use of water power for building and operating such constructions."