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OPINIONS OF THE ATTORNEY GENERAL.

CONTRACTS: Modifications of and payment of damages.

The Secretary of the Navy may insert in the contracts for vessels constructed under authority of the act of March 4, 1911 (36 Stat., 1265), a provision for making changes in said contracts and for determining the amount of increased of diminished compensation arising therefrom, whether such compensation be of the nature of liquidated or unliquidated damages.

(29 Óp. Atty. Gen., 285, Dec. 21, 1911.)

CONTRACTS: Return of, for filing; disclosure of confidential plans.

The Revised Statutes of the United States provide :

"SEC. 3744. It shall be the duty of the Secretary of War, of the Secretary of the Navy, and of the Secretary of the Interior to cause and require every contract made by them severally on behalf of the Government, or by their officers under them appointed to make such contracts, to be reduced to writing, and signed by the contracting parties with their names at the end thereof, a copy of which shall be filed by the officer making and signing the contract in the Returns Office of the Department of the Interior, as soon after the contract is made as possible, and within 30 days, together with all bids, offers, and proposals to him made by persons to obtain the same, and with a copy of any advertisement he may have published inviting bids, offers, or proposals for the same. All the copies and papers in relation to each contract shall be attached together by a ribbon and seal, and marked by numbers in regular order, according to the number of papers composing the whole return.

SEC. 3745. It shall be the further duty of the officer before making his return, according to the preceding section, to affix to the same his affidavit in the following form, sworn to before some magistrate having authority to administer oaths: 'I do solemnly swear (or affirm) that the copy of contract hereto annexed is an exact copy of a contract made by me personally with ; that I made the same fairly without any benefit or advantage to myself, or allowing any such benefit or advantage corruptly to the said or any other person; and that the papers accompanying include all those relating to the said contract, as required by the statute in such case made and provided.'

On application of the Secretary of the Interior for opinion as to whether a certain affidavit annexed to a contract sent to him for filing, and containing the statement that the accompanying papers included all those relating to said contract except certain plans which were confidential and could not be divulged without detriment to the public interests, was in compliance with the law.

Held, that while the sufficiency of the return of a contract by the Secretary of the Navy is not a question of law arising in the administration of the Department of the Interior, and therefore is not one upon which the Attorney General is required to render an opinion, it is proper that the Secretary of the Interior should be advised whether the case submitted presents a violation of the statute, since it is his duty to call apparent violations of the statute to the attention of the Department of Justice. Held further, that in making the return of a contract on behalf of the Government, as provided for in sections 3744 and 3745 of the Revised Statutes, it is not required to accompany such contract with copies of plans that are confidential and can not be divulged without detriment to the public interests, and the affidavit may except such plans from the return.

(29 Op. Atty. Gen., 293, Jan. 17, 1912.)

EIGHT-HOUR DAY: Subcontractors.

The naval appropriation act of March 4, 1911 (36 Stat., 1287-88), makes appropriation for submarine torpedo boats and for the construction and machinery of vessels, and provides that no part of said

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appropriations shall be expended for the construction of any boat or for the construction of any battleship by any person, firm, or corporation which has not, at the time of the commencement and during the construction of said vessels, established an eight-hour working day for all employees, laborers, and mechanics engaged or to be engaged in the construction of the vessels named herein."

Held that

The provisions in the naval appropriation act of March 4, 1911 (36 Stat., 1288), relating to an eight-hour workday for employees engaged in the construction of the vessels therein authorized, are not limited to the employees of contractors, but apply to employees of subcontractors engaged in the actual construction of said vessels.

Under the eight-hour restrictions of said act, the person, firm, or corporation actually constructing any of the vessels therein specified must establish an eight-hour workday for all of its employees engaged in making any of the parts of the vessels and in assembling those parts upon their completion.

These eight-hour restrictions prohibit the working of employees more than eight hours a day in the construction of said vessels and their machinery, and they can not be nullified by permitting the employees by contract with their employers to work overtime for additional compensation.

(29 Op. Atty. Gen., 279, Dec. 21, 1911.)

MILITIA: Acceptance of office in National Guard of a State by an officer on the active list of the Regular Army.

Section 1222, Revised Statutes, provides:

"No officer of the Army on the active list shall hold any civil office, whether by election or appointment, and every such officer who accepts or exercises the functions of a civil office shall thereby cease to be an officer of the Army, and his commission shall be thereby vacated."

Upon an application by the Secretary of War for an opinion upon the question, Whether an officer on the active list of the Regular Army may accept the office of colonel in the National Guard of the State of Massachusetts without violating the provisions of section 1222 of the Revised Statutes, and without incurring the penalties named thereinHeld, that an officer on the active list of the Regular Army may accept the office of colonel in the National Guard of a State without violating the provisions of section 1222 of the Revised Statutes. But added, that 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 he expresses no opinion.

(29 Op. Atty. Gen., 298, Jan. 31, 1912.)

MILITIA: Authority of the President to send outside of the United States.

The Constitution, which enumerates the exclusive purposes for which the militia may be called into the service of the United States, affords no warrant for the use of the militia by the General Government except to suppress insurrection, repel invasions, or to execute the laws of the Union, and hence the President has no authority to call forth the organized militia of the States and send it into a foreign country with the Regular Army as a part of an army of occupation. (29 Op. Atty. Gen., 322, Feb. 17, 1912.)

OFFICERS OF THE ARMY: Appointment; commission issued in the name of a deceased person.

Capt. John T. Haines became entitled by seniority to promotion to the grade of major of cavalry March 3, 1911, was nominated to the Senate by the President on May 4, 1911, for promotion, and the nomi

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nation was confirmed May 15, 1911. He had died May 11, 1911. Held, that a commission as major of cavalry can not be lawfully issued in the name of an officer of the Army whose death occurred after he was nominated to that grade by the President but prior to the time the nomination was confirmed by the Senate. It is essential to the creation of such office that there should be an appointment by the President, in addition to a nomination to, and consent by, the Senate.

(29 Op. Atty. Gen., 254, Sept. 22, 1911.)

TAXATION: Philippine customs stamp tax; Government property.

Section 284 of act No. 355 of the Philippine Commission, as amended (Sec. 1660 of the Compiled Acts of the Philippine Commission of 1907), provides that certain shipping documents relating to goods imported into said islands shall not be issued, received, granted, or recognized unless there shall be attached thereto certain customs stamps, as specified in the act, of denominations of from 40 cents to $4, Philippine currency, according to the character of the instrument, the size of the vessel, or the value of the goods involved. This stamp was demanded for the entry of certain goods belonging to the United States imported into the Philippine Islands for the use of the Army. Held, that the stamp is a tax and not a reimbursement for services performed, and that so far as the act in question covers goods of the United States imported into the islands, it is illegal and void as being beyond the competency of the Philippine Government. (Op. Atty. Gen., June 8, 1912.)

WAR: Neutrality; importation of arms and ammunition; words and phrases. The words " arms or munitions of war," within the meaning of the joint resolution of March 14, 1912, authorizing the President by proclamation to prohibit the export of arms or munitions of war to any American country in which conditions of domestic violence are found to exist, embrace weapons used for the destruction of life, together with ammunition and equipment useful in connection with them, and explosives and other equipment of a military character, or articles used for the construction of such equipment. (29 Op. Atty. Gen., 375, Mar. 25, 1912.)

DECISIONS OF THE COURTS.

CONTRACTS: Acceptance of bids; alternative bids.

The Government advertised for bids to be submitted upon two alternative plans for the construction of certain public works and notified the bidder upon both plans that it would accept its bid, with the proviso that six months should elapse within which to decide between the two plans. The bidder had given the usual bond conditioned for entering into the contract within 60 days after the opening of the bids. After the expiration of said period of 60 days the Government notified the bidder that it would accept the bid upon one of the plans specified, but the bidder refused to enter into a contract. Held, that the Government having accepted a bond limiting the period of acceptance to 60 days, it can not now claim that it had more than 60 days in which to elect to accept or reject the bid, and that the acceptance, with the proviso that it would take six months within which to decide which of the two plans it would adopt, was not such an acceptance of the bid as required.

(Judge Lacombe on motion to dismiss complaint in the case of United States v. Carlin Construction Co., and the Illinois Surety Co., United States District Court, Southern District of New York, May, 1912.)

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CONTRACTS: Cost of work; extra work.

The Secretary of the Interior entered into a contract for the construction of a dam and irrigation works for the Huntley reclamation project in the State of Wyoming, said contract providing for payment for certain extra work at the necessary cost thereof plus 15 per cent. The contractor, in the performance of such work, incurred expenses for the insurance of employees against liability for accidents and claimed this as a part of the necessary cost of the work, together with the depreciation of his plant. Held, that while ordinarily expenses for the insurance of men and the depreciation of a plant are included in a contractor's bid, and, as respects the work covered by the specifications, apply in this contract, the cost of the work not so included should include such expenses as a part of the "actual necessary cost thereof."

(Lovell v. United States, Court of Claims, Apr. 8, 1912, No. 30359. Reversing 14 Comp. Dec., 297.)

CONTRACTS: Warranty of existing conditions; excuses for delay in completing contract.

A contract providing for the repair of a dam required the excavation of material immediately above the dam. The printed specifications stated that the dam was "backed up for about 50 feet with broken stone, sawdust, and sediment to a height of within 2 or 3 feet of the crest." The specifications further stated that each bidder was expected to visit the site of the work and ascertain the nature thereof and obtain information necessary to enable him to make an intelligent proposal. After work was begun it developed that the space above the dam was occupied by the cribwork of an old dam, instead of by the material stated in the specifications. Held, that the cost of additional inspections for the period of delay occa sioned by the extra time required for removing the cribwork of the old dam should be charged against the contractor, since the statement in the specifications of the character of the material back of the dam did not amount to a warranty, because the bidder had been invited to inspect the work before submitting his proposal.

(Hollerbach & May v. United States, Court of Claims, No. 29952, Feb. 12, 1912.)

INDIANS: Introducing intoxicating liquors into the country formerly com prising the Indian Territory.

Before the admission of Oklahoma as a State, the act of March 1, 1895 (28 Stat., 697), forbade the manufacture or sale in or the introduction into the Indian Territory of intoxicating liquors. General statutes forbade the introduction of any such liquors into the Indian country or the sale thereof to the Indians. The enabling act under which the State constitution of Oklahoma was formed and the State admitted into the Union provided also against the introduction of such liquors into the original limits of the Indian Territory from other points within the State, and preserved the jurisdiction of Congress over the Indians and their lands. Held, that the act of March 1, 1895, is still in force as a Federal statute, and a person who ships intoxicating liquors from an adjoining State into the limits of the Indian Territory, as it formerly existed, although to that portion of it where the Indian title has been extinguished. violates the provisions of said act, and the district court of the United States has jurisdiction to punish him for such violation.

(In re Webb, Decision of U. S. Supreme Court, June 10, 1912.)

PATENTED INVENTIONS: Use of by United States.

On June 8, 1907, the Fried Krupp Co., a corporation, organized under the laws of the German Empire, brought suit in the Supreme Court of the District of Columbia against the Chief of the Ordnance Department of the United States Army to enjoin him from manufac

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turing and using certain improvements in guns and gun carriages, which the complainant claimed were covered by United States patents owned by it. It was admitted that the defendant was the Chief of Ordnance of the United States Army; that field guns and gun carriages embracing the improvements in question were being manufactured and would continue to be manufactured for the use of the Ordnance Department of the United States; and that the defendant derived no profits therefrom. A demurrer to the bill was sustained and the same dismissed, but the Court of Appeals reversed the decision and remanded the case for further proceedings, and the case was then removed by certiorari to the Supreme Court of the United States. Held, that since the act of June 25, 1910 (36 Stat., 851), providing that when an invention secured by letters patent is used by the United States without the license of the owner the latter may recover reasonable compensation therefor in the Court of Claims, a suit for an injunction will not lie against an officer of the United States manufacturing or using such patented invention for the Government, the law having thus provided a method whereby the owner may obtain compensation. (Fried Krupp Co. v. Crozier, U. S. Supreme Court, Apr. 8, 1912.)

TRANSPORTATION: Government bill of lading; loss occasioned by unprecedented flood.

A quantity of books were shipped on a Government bill of lading and destroyed by the unprecedented floods of 1903 in Kansas City, Mo., while in possession of the transportation company. Their value was deducted, in making settlement, from sums admitted to be due to said company. The bill of lading contained no special contract of exemption of the carrier from its general liability, and the usual freight rate was charged. Held, that the loss was occasioned by one of the two instrumentalities excepting common carriers from their general liability as insurers of goods while in transit, to wit, the act of God and the public enemy, and that the company was not responsible for the loss and is entitled to judgment for the amount retained. (Missouri Pacific Railway Co. r. United States, Court of Claims, No. 30040, Feb. 12, 1912.)

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