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The statute in question does not expressly authorize the Postmaster General to insert such qualifications or conditions as these paragraphs contain in the advertisements for carrying the ocean mails, which he is required by section 2 of the act to make. That section provides:
“SEC. 2. That before making any contract for carrying ocean mails in accordance with this act the Postmaster General shall give public notice by advertising once a week, for three months, in such daily papers as he shall select in each of the cities of Boston, New York, Philadelphia, Baltimore, New Orleans, St. Louis, Charleston, Norfolk, Savannah, Galveston, and Mobile, and when the proposed service is to be on the Pacific Ocean, then in San Francisco, Tacoma, and Portland. Such notice shall describe the route, the time when such contract will be made, the duration of the same, the size of the steamers to be used, the number of trips a year, the times of sailing, and the time when the service shall commence, which shall not be more than three years after the contract shall be let. The details of the mode of advertising and letting such contracts shall be conducted in the manner prescribed in chapter eight of title forty-six of the Revised Statutes for the letting of inland mail contracts so far as the same shall be applicable to the ocean mail service.'
Section 1 of the act, however, authorizes the Postmaster General to enter into contracts of the character specified "as in his judgment will best subserve and promote the postal and commercial interests of the United States.” It further provides that "said contracts shall be made with the lowest responsible bidder for the performance of said service on each route, and the Postmaster General shall have the right to reject all bids not in his opinion reasonable for the attaining of the purposes named.” It is evident from these provisions that the promotion of the commercial interests of the United States was an important object of the statute, and that the Postmaster General is expressly authorized to reject any bid not in his opinion reasonable for attaining such purpose. Having authority to reject a bid upon such grounds, he would necessarily have authority to notify prospective bidders in advance of his purpose not
to entertain such bids, and to reserve the right to rescind the contract if a material condition thereof were disregarded by the contractors. The paragraphs of the instructions to bidders above quoted manifestly have a direct relation to the commercial interests of the United States in the proposed service. They are in accord with the general policy of the Government as illustrated in the interstate commerce and antitrust legislation, and are, in my judgment, fully authorized by the act. The situation in this respect is analogous to that in United States v. Mora, 97 U. S. 413, 421, where it was said that a collector of customs, having authority to refuse the clearance of a vessel, might exact a bond differing materially from that specifically authorized by the statute for the purpose of accomplishing the object thereof. Respectfully,
GEORGE W. WICKERSHAM. The PosTMASTER GENERAL.
EXECUTION OF CONTRACT FOR PRINTED FACING SLIPS FOR
GOVERNMENT BY EMPLOYEE OF POSTAL SERVICE:
An employee of the postal service who merely executes a contract with
the United States, or a department thereof, on behalf of a corporation of which he is president, can not be said to be an agent for the corporation "in any business before the department” within the meaning of section 226 of the Criminal Code, and a contract thus executed may be legally entered into by the Postmaster General for what are known as “printed facing slips” to be used as labels on packages of letters.
DEPARTMENT OF JUSTICE,
July 13, 1911. SIR: I beg to acknowledge the receipt of your letter of the 3d instant, in which you request my opinion as to whether the Post Office Department may legally enter into a contract with the Feist Printing Co. for what are known as “printed facing slips,” to be used as labels on packages of letters. You state that the lowest bidder for this contract is the “Feist Printing Co., by W. A. Feist, president;" that this company is a corporation organized under the laws of the State of Pennsylvania, and doing business at
White Haven in that State; and that W. A. Feist, president of the company, who signed the contract on its behalf, is postmaster of that city, having served in that capacity since 1900, under presidential appointment.
You further state that protest has been made against awarding this contract to the Feist Printing Co. on the ground that “it is not permissible for an employee of the Government to be interested in any contract with the Government.”
Section 3850 of the Revised Statutes provides:
“No postmaster, assistant postmaster, or clerk employed in any post office shall be a contractor, or concerned in any contract, for carrying the mail.”
Section 226 of the Criminal Code, passed March 4, 1909, C. 321, 35 Stat. 1088, 1134, provides:
“Whoever, being a person employed in the postal service, shall become interested in any contract for carrying the mail, or act as agent, with or without compensation, for any contractor or person offering to become a contractor in any business before the Department, shall be immediately dismissed from office, and shall be fined not more than five thousand dollars, or imprisoned not more than one year, or both.”
These two sections are the only ones I have been able to discover having any reference to an employee of the postal service “being interested” in a contract with the Government, or prohibiting such interest. As these two sections only prohibit such employee from becoming “interested in” or “concerned in” a contract for carrying the mails, and as the proposed contract with the Feist Printing Co., referred to in your letter, is not a contract for carrying the mail, but a contract for supplies, it is apparent that no objection can be made to this contract merely upon the broad ground that an employee of the postal service is "interested" therein, or that a postmaster is concerned” therewith.
It becomes necessary, therefore, to consider whether this contract with the Feist Printing Co. is prohibited by the latter clause of section 226 of the Criminal Code referred to
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above, in that W. A. Feist, “being a person employed in the postal service," did, in signing this contract on behalf of the Feist Printing Co., “act as agent contractor
* in any business before the department.” For, if W. A. Feist was so employed and so acted, within the meaning of said section, then, it would seem clear, the Postmaster General would have no power to enter into the contract proposed with the Feist Printing Co., when the agent, who executed it on behalf of said company, committed a crime against the United States in the very act of so doing.
I am satisfied, and for the purposes of this opinion I assume, that W. A. Feist was “a person employed in the postal service,” within the meaning of section 226 aforesaid. Without elaborating the point, I may say that this section is taken from section 412 of the Revised Statutes, which was limited to persons "employed in the Post Office Department.” In incorporating it in the Code Congress changed it so as to apply to all persons in the postal service.
The power, therefore, of the Postmaster General to enter into the contract referred to with the Feist Printing Co. depends upon the answer to the second question mentioned, namely, was W. A. Feist the “agent” “for any contractor or person offering to become a contractor in any business before the department.”
In the Machen case, 24 Op. 557, Machen Bros. entered into a contract to furnish coal to the Post Office Department, and A. W. Machen, superintendent of free delivery, was a member of that firm. Interpreting section 412, Revised Statutes, for which section 226 of the Criminal Code has been substituted, Attorney General Knox advised that Machen was not an “agent,” but a principal. He said, p. 559:
“The statute is in derogation of common right, and is quasi penal in character. It provides for the immediate dismissal of any post-office employee who does act as such agent, * * * It must, therefore, be strictly construed. Under such construction a partner can not be
* * *
held to be an “agent,' for he is a principal, at least in making a joint bid for a contract.”
Section 226 of the Criminal Code is even a more fit subject for a strict construction than section 412 of the Revised Statutes, since section 226 provides that the offending employee “shall be immediately dismissed from office, and shall be fined not more than five thousand dollars, or imprisoned not more than one year, or both.'
To reach a proper construction of section 226, it should be read in connection with certain other sections of the Criminal Code relating to similar offenses. These sections are contained in chapter 5 of the code, under the heading “Offenses relating to official duties," and are as follows:
“SEC. 109. Whoever, being an officer of the United States, or a person holding any place of trust or profit, or discharging any official function under, or in connection with, any Executive Department of the Government of the United States, * shall act as an agent or attorney for prosecuting any claim against the United
tes, or in any manner, or by any means, otherwise than in discharge of his proper official duties, shall aid or assist in the prosecution or support of any such claim, shall be fined not more than five thousand dollars, or imprisoned not more than one year, or both.
“SEC. 112. Whoever, * * * being an officer or agent of the United States, shall directly or indirectly take, receive, or agree to receive, from any person, any money, property, or other valuable consideration whatever, for procuring, or aiding to procure, any contract, appointive office, or place, from the United States or from any officer, or department thereof, for any person whatever,
shall be fined not more than ten thousand dollars and imprisoned not more than two years,
“SEC. 113. Whoever, * * * being the head of a department, or other officer or clerk in the employ of the United States, shall, directly or indirectly, receive, or agree to receive, any compensation whatever for any services rendered or to be rendered to any person, either by himself or another, in relation to any proceeding, contract, claim,