number of sample copies a publisher who was entitled to mail his publication at secondclass rates might send out under those rates to an amount equal to that of the publisher's legitimate subscriptions; the publisher not being entitled under Act Cong. March 3, 1885, ch. 342, 23 Stat. L. 387, prescribing a one-cent per pound second-class rate, "including sample copies," to mail an unlimited number of sample copies at that rate.

Regulations become a part of the law. Under the regulations of the Internal Revenue Department promulgated with the approval of

Vol. III, p. 60, sec. 162.

Every Saturday

Saturday afternoons. after 12 o'clock noon is a holiday for all purposes within the District of Columbia, and is therefore one of the "days declared public holidays by law" within the meaning of the statutes regulating the number of hours

Vol. III, p. 61, sec. 177.

Duties regarding Tariff Act. Under this section and section 61, providing that the head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of the department, and section 245 that "Assistant Secretaries of the Treasury shall perform such . .

duties in the office of the Secretary of the Treasury as may be prescribed by the Secretary or by law," it has been held that the Secretary of the Treasury could require an Assistant Secretary to "ascertain, determine, and declare" the amount of foreign sugar bounties: that being a duty assigned “the Secretary of the Treasury" by Tariff Act of July 24, 1897, ch. 11, sec. 5, 30 Stat. L. 205, 2 Fed. Stat. Annot. 504, and where an Assist

1909 Supp., p. 129, sec. 5.

Construction. The language of this Act imports that the persons to which it applies are actually in the departments at the seat of government, or that the performance of duties away from such departments is by direct orders from and under supervision by those departments. (1907) 26 Op. Atty.-Gen. 254.

This section does not apply to employees and subordinates in post offices, pension agencies, customs houses, ordnance establishments, sub-treasuries, navy yards, and quartermasters' establishments. (1907) 26 ̊ Op. Atty. Gen. 254.

The term "department," as used in laws relating to the civil service, is distinguished from “office," bureau," and "branch; "and subordinates of the several executive departments are distinguished from employees of the last-mentioned governmental agencies. (1907) 28 On. Atty-Gen. 209.

the Secretary of the Treasury, providing that officers of the department "will decline to tes-. tify as to facts contained in the records, or coming to their knowledge in their official capacity; and this prohibition is hereby extended to include also internal revenue storekeepers and gaugers and agents" a storekeeper and gauger stationed at a distillery has no right to divulge information in regard to the business of the distiller obtained by him solely in his official capacity as an internal revenue officer, even when called as a witness in a state court. Stegall v. Thurman, (1910) 175 Fed. 813.

of labor which must be required of all clerks and employees in the executive departments. Consequently, heads of departments are not obliged to require labor of such clerks, etc., after the hour of noon on Saturdays. (1903) 25 Op. Atty.-Gen. 40.

ant Secretary has issued a declaration under said section it will be presumed, in the absence of evidence to the contrary, that he was performing a duty in accordance with law, and that the declaration was properly issued. Franklin Sugar Refining Co. r. U. S., (1910) 178 Fed. 743.

Presumption of authority. In In re Jem Yuen, (1910) 188 Fed. 350, it was held that where an appeal from a deportation order was heard and decided by the acting Secretary of Commerce and Labor, it would be presumed, the contrary not appearing, that the acting secretary was at the time lawfully exercising the secretary's powers, as he was authorized to do by this section.

another independent office or bureau, although such employee may not have served three years in the office or bureau from which he seeks transfer, as is required by section 5 of elerks and employees of the executive departments. (1907) 26 Op. Atty.-Gen. 209.

The "field force" of an executive department that is, its classified employees under its immediate control, as inspectors, examiners, and agents, though employed usually or invariably away from the seat of governmentare governed by the above-mentioned statutory provision with regard to transfers. (1907) 26 Op. Atty. Gen. 209.

Transfer from independent office to a department - it is lawful for the Civil Service Commission to consent to the transfer of a class fed employee from an independent cŜes of the government to a department or

Philippine commission - Isthmian canal commission. The provisions of this section are not aplicable to the Philippine Commission or to the Isthmian Canal Commission. (1907) 28 Op. Atty. Gen. 209.

Employees of forest service. — Classified employees on the rolls of the forest service, Department of Agriculture, in Washington, are required by the terms of this section to serve three years before their transfer to other departments is permissible. (1909) 27 Op. Atty. Gen. 421.

Waiver of three-year limit. - The Civil Service Commission has authority under clause (a), sec. 8, of Civil Service Rule X., within its discretion and in view of all the circumstances of the case, to waive the three

year limit of time required by this section for service of clerks in one executive department before transfer to another. (1908) 27 Op. Atty. Gen. 100.

Vol. III, p. 68, sec. 5270.

Construction of treaties. In the construction and carrying out of extradition treaties the ordinary technicalities of criminal proceedings are applicable only to a limited extent, since an exact correspondence between the laws of the two countries cannot be expected, and the only purpose of extradition is to put the accused on trial under the laws of his own country. U. S. t. Greene, (1906) 146 Fed. 766.

The construction of an extradition treaty, made by the Constitution a part of the supreme law of the land, is for the courts, and they are not bound by the construction placed thereon by the executive or diplomatic branches of the government, or by the construction placed thereon by the foreign country with which the treaty is made. Charlton, (1911) 185 Fed. 880.

Ex P.

This section and an extradition treaty between the United States and a foreign country must be construed together to determine the requisites of a formal demand for the surrender of a fugitive, except that a treaty, when later, controls where it is in irreconcilable conflict with the statute. Ex p. Charlton. (1911) 185 Fed. 880.

In Ex p. Charlton, (1911) 185 Fed. 880, it was held that the court would not declare that the extradition treaty between the United States and Italy, referred to in the preceding note, is abrogated merely because Italy refuses to surrender its subjects committing crimes in the United States and then fleeing to Italy, where the United States has dealt with the treaty as subsisting, and has honored the requisition of the Italian government for the surrender of its citizens, and that the court would not go behind such acts and say that the treaty has been ended. Treaty with Mexico. -The forty days during which a prisoner may be detained under the terms of article X. of the treaty of February 22, 1899, 31 Stat. L. 1825, 7 Fed. Stat. Annot. 716, with Mexico, "to await the production of the documents upon which the claim for extradition is founded," must be considered as meaning forty days prior to the production of the documents to the state department in the United States, or to the corresponding branch of the Mexican government; and if such documents are thus produced within the forty days, the suspected criminal has no absolute right or release under the treaty, but may be detained for a reasonable additional period to afford time for an investigation into his probable guilt or innocence. (1908) 27 Op. Atty.-Gen. 4. Treaty with Great Britain. - The treaty of July 12, 1889, art. 3, 26 Stat. L. 1509, 7 Fed. Stat. Annot. 604, between the United States and Great Britain, provides that no person surrendered by or to either country shall be tried for any offenses committed prior to his extradition other than the offense for which he was surrendered. Article 6 provides that the extradition of fugitives under the treaty and the treaty of 1842 (7 Fed. Stat. Annot. 582) shall be carried out in conformity to the laws regulating extradition in force in the surrendering state. The Canadian Extradition Act is said to provide that it does not authorize the issue of an extradition warrant to any state or country in which the person may be tried after extradition for any other offense than that for which he was extradited, unless assurance is first given that he shall not be so tried. R. S. sec. 5275, 3 Fed. Stat. Annot. 78. provides for the security against lawless violence of persons extradited into this country, until they have been tried for

If one construction of a treaty assures a reasonable opportunity for each government to furnish the other the proofs necessary to justify the continued detention of suspected criminals, while another construction facilitates the escape of fugitives from justice and tends to impede the punishment of crime, the former is to be preferred in the absence of compelling words to the contrary. (1908) 27 Op. Atty.-Gen. 4.

Treaty with Italy. -In Ex p. Fudera, (1908) 162 Fed. 591, it was held that article 1 of the extradition treaty of 1868 between the kingdom of Italy and the United States (Act March 23, 1868, 15 Stat. L. 629, 7 Fed. Stat. Annot. 654), which provides for extradition from one country to the other of persons charged with crime in the demanding country, provided that this shall be done only upon such evidence of criminality as according to the laws of the place where the fugitive or person so charged shall be found would justify his or her apprehension and commitment for trial if the crime had been there committed," does not warrant the return to Italy of a person there charged with murder, where the only evidence presented of his connection with the offense is hearsay.

the offenses for which they have been extradited, etc., and for a reasonable time thereafter. It has been held that one extradited from Canada is not immune from trial for another offense committed after his extradition, and before given opportunity to return to Canada, and that though the Canadian officials might have refused to surrender him without receiving the assurance referred to in the Canadian Act, as, by surrendering him without such assurance, the right of the United States and the state were limited only by the treaty. Ex p. Collins, (1907) 151 Cal. 340, 90 Pac. 827.

Extradition to Porto Rico. - Extradition from a state or territory of the United States to Porto Rico is not authorized by the statute relating to extradition to foreign coun tries. In re Kopel, (1906) 148 Fed. 505. Indictment Description of offense.· An indictment charging a conspiracy to defraud the United States between an officer and agent of the government and his codefendants, which sets out facts showing a corrupt agreement between the defendants and overt acts by means of which the purpose of such agreement was effected and the government defrauded, charges fraud by an agent and participation therein by the other defendants, within the meaning of clauses 4 and 10 of article 1 of the extradition treaty of 1890 (Act March 25, 1890, 26 Stat. L. 1509, 7 Fed. Stat. Annot. 603) between Great Britain and the United States, and is sufficient to warrant their extradition for trial thereunder. U. S. v. Greene, (1906) 146 Fed. 766.

An information in extradition proceedings charging accused with "assault with intent to kill and murder" sufficiently brings the offense within article 10 of the treaty with Great Britain, authorizing extradition of persons charged with "assault with intent to commit murder." U. S. v. Piaza, (1904) 133 Fed. 998.

-

Complaint Technicality. Good faith to the demanding foreign government requires the surrender of the accused in extradition proceedings if there is presented, even in somewhat untechnical form, such reasonable ground to suppose him guilty of crime as to make it proper that he should be tried. Glucksman v. Henkel, (1911) 221 U. S. 508, 31 S. Ct. 704, 55 U. S. (L. ed.) 830.

Under article 10 of the extradition treaty with Great Britain of 1842, a complaint for the arrest and examination of an alleged offender is not required to set out the offense with the particularity of an indictment, but is sufficient if it conforms to the requirements of a preliminary complaint under the local law where the accused is found. In re Herskovitz, (1901) 136 Fed. 713. Of similar effect see Ex p. Zentner, (1910) 188 Fed. 344.

Necessity for incorporation of foreign rec ord in complaint. To give jurisdiction to a United States commissioner of a proceeding to extradite a fugitive from the justice of a foreign state, the record of proceedings before the foreign court, and the depositions of witnesses therein contained, upon which the extradition proceeding is based, need not be attached to the complaint, if they are in

the custody and keeping of the one making the complaint, and the commissioner is possessed of the information which they contain, which is sufficient to satisfy him that the proceeding is based upon real grounds. Yordi r. Nolte, (1909) 215 U. S. 227, 30 S. Ct. 90, 54 U. S. (L. ed.) 170, affirming 166 Fed. 921.

Upon information and belief. The irregularity, if any, in making a complaint in extradition proceedings on information and belief, without attaching thereto the record of the foreign court which is the basis of the proceedings, is cured by the production at the hearing of such record, which is sufficient to justify the detention of the accused. Yordi v. Nolte, (1909) 215 U. S. 227, 30 S. Ct. 90, 54 U. S. (L. ed.) 170, affirming 166 Fed. 921.

Verification. A complaint sworn to upon information and belief is sufficient in proceedings for the extradition of a person to a foreign country, where it is supported by the testimony of witnesses who are stated to have deposed, and who therefore must be presumed to have been sworn. Glucksman r. Henkel, (1911) 221 U. S. 508, 31 S. Ct. 704, 55 U. S. (L. ed.) 830.

Variance. A variance in proceedings for the extradition to a foreign country of a person charged with forgery and uttering forged paper, in that the complaint speaks of bills of exchange, while the evidence shows the forged instruments to have been promissory notes, is not fatal, where the instruments are sufficiently identified. The effect of a variance between the complaint and the evidence in proceedings for the extradition of a person to a foreign country is to be decided on general principles, irrespective of the laws of the state where the proceedings are had. Glucksman r. Henkel, (1911) 221 U. S. 508, 31 S. Ct. 704, 55 U. S. (L. ed.) 830.

In proceedings to extradite petitioner for forgery alleged to have been committed in a foreign country, a variance between the complaint and the evidence as to the dates of the instruments alleged to have been forged is immaterial. Ex p. Zentner, (1910) 188 Fed. 344.

Identity of offense charged. While the extradition of a person from a foreign country for trial in the United States and the indictment on which he is tried must be for the same criminal acts, it does not follow that the crime must have the same name in both countries, but it is sufficient if the acts in question are criminal in both countries and are within the terms of the treaty under which the extradition is granted. The persons surrendered by Canada to the United States, under sections 4 and 10 of article 1 of the extradition treaty of 1890 between Great Britain and the United States, to be tried for the crime of "participation in fraud by an agent or trustee," were tried for such crime where the indictment charged them with conspiracy with a disbursing officer of the government to defraud the United States by presenting false and fraudulent claims to such officer and by his allowance and payment of the same from public money in his hands, the acts and transactions charged and proved before the extradi

tion commissioner and under the indictment being the same. Greene v. U, S., (C. C. A. 1907) 154 Fed. 401, affirming (1906) 146 Fed. 803.

Trial for different offenses Offense com. mitted subsequent to extradition. A person extradited for a particular offense may be tried for a different offense committed subsequent to the time he was extradited without first being given a reasonable time to return to the country from which he was first extradited. Ex p. Collins, (1907) 151 Cal. 340, 90 Pac. 827, wherein it was held that a person extradited on the charge of perjury could be tried on a second indictment for perjury committed on the trial of the charge for which he was extradited. The court, after stating the general rule that a person extradited from a foreign country on one charge could not be indicted for a different offense, said: "But no such considerations apply to the case of an offense committed after the surrender and return of the accused. While it may be the policy of a country in which a person has taken refuge to grant him the right of asylum except as against a specific charge of a crime covered by a treaty of extradition, such country, after it has once extradited him, cannot be concerned in securing for him immunity for new crimes committed after his return to the demanding country. The obligation assumed by the country demanding the surrender is that such surrender will not be used for the purpose of putting the prisoner on trial for any other offense which he may be claimed to have committed before he sought the asylum of the foreign country; but we cannot see that there would be any breach of international faith in compelling him, in common with other persons within the jurisdiction, to assume responsibility for any offense which he may commit after his return. In such case there is no possibility of the extradition proceedings being used as a subterfuge to pursue the accused for an offense other than the one for which he was extradited. In the absence of any authority compelling such conclusion, we are not prepared to hold that a person extradited under a treaty may, after his return, and pending his trial upon the extradition charge, commit any crime, however atrocious, with absolute security against prosecution until he shall have had an opportunity to return to the country from which he was taken."

Where

New indictment for same offense. a petitioner was extradited from Mexico under an indictment charging an extraditable offense, and thereafter the indictment was quashed in the demanding state, it was held that the petitioner was not entitled to a reasonable time to return to Mexico before being called on to answer a new indictment charging the same facts. Ex p. Fischl, (1907) 51 Tex. Crim. 63, 100 S. W. 773.

Imprisonment under prior conviction or offense. The omission of the words "or be punished" from the provision of article 3 of the extradition treaty of July 12, 1889, 26 Stat. L. 1508, 7 Fed. Stat. Annot. 603, with Great Britain, that no person extradited

"shall be triable or be tried" for any crime or offense committed prior to his extradition other than the offense for which he was surrendered until he shall have had an opportunity of returning to the country from which he was surrendered, does not justify the imprisonment, upon a former conviction for another and different offense, of a person extradited from Canada for an offense against the United States, until he has had an opportunity to return to Canada - especially where extradition has been refused for the other offense since this omission is inadequate to overcome the positive provisions of R. S. secs. 5272, 5275, 3 Fed. Stat. Annot. 77, 78, and the otherwise manifest scope and object of the treaty, and the earlier Ashburton treaty of 1842, which are to limit imprisonment as well as the trial to the crime for which extradition has been demanded and granted. Johnson v. Browne, (1907) 205 U. S. 309, 27 S. Ct. 539, 51 U. S. (L. ed.) 816.

Preliminary examination. — Under this section an alleged fugitive may be arrested under a warrant issued by the committing magistrate on the complaint of a representative of the foreign country, and the committing magistrate can only determine whether a certificate from the Secretary of State, attesting that a requisition has been made by the foreign government, has been issued, whether the offense charged against accused is extraditable under any treaty, whether the person brought before him is the one accused of crime, and whether there is probable cause for holding accused for trial, and the evidence in that respect must be such as, according to the law of the state in which accused is apprehended, is sufficient to commit him for trial. Ex p. Charlton, (1911) 185 Fed. 880.

Probable cause. In order to justify a commissioner in issuing a certificate to the executive authority for the surrender of the accused in extradition proceedings, it is sufficient if the accused is held on competent legal evidence, and if probable cause exists for believing him guilty of the offense charged. The evidence need not be conclusive, nor must the commissioner be absolutely convinced of the guilt of accused. U. S. v. Piaza, (1904) 133 Fed. 998.

Sufficiency of evidence. A fugitive from the justice of a foreign government is not entitled to his discharge from arrest in extradition proceedings on habeas corpus for insufficiency of evidence, if the commissioner before whom he was examined had before him competent legal evidence on which to exercise his judgment whether the facts shown sufficiently established petitioner's criminality for purposes of extradition. Ex p. Zentner, (1910) 188 Fed. 344.

Under the treaty of 1852 (7 Fed. Stat. Annot. 771) of the United States with Prussia and other states of the Germanic Confederation for extradition of criminals, providing that they shall be delivered on such evidence of criminality as according to the laws of the place where the fugitive was found would justify his apprehension and commitment for trial, it is not necessary, to justify extradi

tion, to present evidence sufficient to sustain a conviction; evidence justifying a committing magistrate in holding accused by imprisonment or by bail to await subsequent proceedings being sufficient, and the provisions of a state law that conviction cannot be had on the uncorroborated evidence of an accomplice would have no application. Ex p. Glaser, (1910) 176 Fed. 702, 100 C. C. A. 254.

Where, in extradition proceedings for murder, the evidence, though circumstantial, was so strong that, if produced before a committing magistrate in the state where petitioner was arrested and applied for habeas corpus, as proof of an assassination committed there, it would have been the commissioner's duty to hold accused to await subsequent proceedings, it is sufficient to sustain an order for his return. In re Urzua, (1911) 188 Fed. 540.

In Elias v. Ramirez, (1910) 215 U. S. 398, 30 S. Ct. 131, 54 U. S. (L. ed.) 253, reversing (1907) 11 Ariz. 256, 90 Pac. 323, it was held that the evidence was sufficient to justify commitment in extradition proceedings on a charge of forgery of railway wheat certificates purporting to show the true weight of carloads of wheat shipped from the United States to Mexico, where it was shown that the accused was a member of a firm of customs brokers which presented to the Mexi can customs authorities certificates showing weights much less than the true weight; that the Mexican government was thereby defrauded of a large amount of import duties; that the accused was the principal, if not the only, beneficiary of the fraud, and that, instead of reparation or explanation, resort was had to flight.

Sanity of accused. On extradition proceedings for the removal to a foreign country of an alleged fugitive from the justice thereof, evidence of the insanity of accused at the time of the commission of the offense, or of the present sanity of the accused, is improper. Ex p. Charlton, (1911) 185 Fed. 880.

Place. The preliminary examination of a person sought to be extradited under the treaties of Aug. 9, 1842, 8 Stat. L. 572, 576, 7 Fed. Stat. Annot. 582, and July 12, 1889, 26 Stat. L. 1508, 1510, 7 Fed. Stat. Annot. 603, between the United States and Great Britain, on a conviction of murder, must be had in the state where he was found and arrested, in view of the provision of the 10th article of the earlier treaty, that the alleged fugitive criminal shall be arrested and delivered up only upon such evidence of criminality as, according to the laws of the place where he is found, would justify his apprehension and commitment for trial if the crime had there been committed, and of the proviso in the Sundry Civil Appropriation Act of Aug. 18, 1894, 2 Fed. Stat. Annot. 334, 28 Stat. L. 416, ch. 301, by which it is made the duty of a marshal arresting a person charged with any crime or offense to take him before the nearest Circuit Court commissioner or the nearest judicial officer having jurisdiction, for a hearing, commitment, or taking bail for trial-notwithstanding those parts of the Act of Aug. 12, 1818, eh. 167, 9 Stat. L.

302, and of R. S. sec. 5270, 3 Fed. Stat. Annot. 68, which provides for bringing the accused in extradition proceedings before the justice, judge, or commissioner who issued the warrant of arrest. Pettit v. Walshe, (1904) 194 U. S. 205, 24 S. Ct. 657, 48 U. S. (L. ed.) 938, affirming (1903) 125 Fed. 572.

Certified copy of requisition. — Failure to produce a certified copy of a requisition from a foreign country before the commissioner in extradition proceedings was held to be cured, where a properly certified copy of the requisition on file in the office of the Secretary of State was submitted to the court at the hearing of a writ of habeas corpus. In re Urzua, (1911) 188 Fed. 540.

Identity. A finding that the identity of the prisoner with the person whose extradition to a foreign country is sought is made out cannot be said to be erroneous where in addition to a photograph under seal of the foreign magistrate, which represents the prisoner, there are other facts tending to establish such identity. Glucksman r. Henkel, (1911) 221 U. S. 508, 31 S. Ct. 704, 55 U. S. (L. ed.) 830.

Offense not included in treaty. As to offenses not covered by an extradition treaty between two countries, they stand toward each other as though there were no treaty, and either may exercise its discretion as to the surrender of a fugitive on demand of the other; and where such a demand has been acceded to, either under the obligation of a treaty or as an act of comity, the accused is triable in the courts of the country to which he is returned on the charge upon which he was surrendered. Greene . U. S., (C. C. A. 1907) 154 Fed. 401, affirming (1906) 146 Fed. 803.

To warrant the extradition of a person to Italy under section 7, article 2 of the treaty of March 23, 1868, with that country (15 Stat. L. 630, 7 Fed. Stat. Annot. 654), which provides for the extradition of persons charged with "the embezzlement of public moneys committed within the jurisdiction of either party by public officers or depositors," where the accused was charged with having as treasurer of a hospital embezzled its funds, it was held that the proof must show that the hospital was a public institution, that the accused, as its treasurer, was a public officer or depositor, and that the money taken was public money. Ex p. Ronchi, (1908) 164 Fed. 288.

Jurisdiction of commissioner. The commissioner's jurisdiction over the case ends after he has certified the result of his finding to the Secretary of State and committed the prisoner to the proper jail. He has no authority to order a prisoner transported out of the judicial district in which he was arrested. (1909) 27 Op. Atty.-Gen. 128.

Demand by foreign government. - No prior demand by a foreign government is necessary before the arrest of a fugitive from the justice of such government in extradition proceedings. Ex p. Zentner, (1910) 188 Fed. 344. Request" equivalent to a "demand." Where an extradition treaty, providing for the surrender of persons committing enumer