controversy, charge, accusation, arrest, or other matter or thing in which the United States is a party or directly or indirectly interested, before any department, court-martial, bureau, officer, or any civil, military, or naval commission whatever, shall be fined not more than ten thousand dollars and imprisoned not more than two years,

*

Reading section 226 of the Criminal Code in connection with and in the light of these previous sections of the same code, relating to offenses of a very similar character, the question arises whether 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 be said to be an agent for the corporation "in any business before the department," and to have rendered himself subject to the severe penalties prescribed by section 226.

It seems obvious that the provisions of the statutes referred to above, including section 226, were aimed, to speak generally, at the evil arising from the use, by a public officer or employee, of his official position to procure contracts, favors, or benefits from the Government of which he is a member. These statutes all seem to have in view an act by the employee which shall enter into the procuring of some favor from the Government and be influential to that end. Of course, the act of the public official need not be the entire moving cause of the awarding of a contract with the Government, or the procuring of a favor or benefit therefrom, but it must be influential to that end and concerned therewith.

Thus, section 109 of the code refers to the prosecution of a claim against the Government by an officer, etc. Section 112 refers to the procuring of a contract or office from the Government by the public official. Section 113 refers to services rendered by the public official in relation to proceedings and controversies before a department, or a bureau, or a court, or things of that character.

These statutes all contemplate some active work done by the public officer, directed to influence official action in some way, before some department, or board, or officer, of

the United States Government. And especially section 113, which describes an offense very similar to that described in section 226, evidently does not refer to any mere clerical or formal acts, such as writing or signing contracts, making out statements, or the like; but refers plainly to some action taken by the public official within the immediate jurisdiction and scope of the department or bureau, and connected intimately, in some way, with the action of the department or bureau.

I think section 226 should have a similar construction and that the word "agent" in that section should be considered limited and qualified by the succeeding words, "in any business before the department," and that, therefore, a person employed in the postal service becomes liable to the penalties of that section only when his action, as agent of the contractor, comes, in a fair sense, within the scope and jurisdiction of the department; when it is done, as it were, in the presence of the department, in a legal sense, and when it is directed, to some extent or to some degree, at any rate, to procuring action from the department, either in the negotiation and execution of a contract or in the settlement thereof or in making some claim thereon. Thus limited, the term seems to me to be extended as far as the legislature intended, in view of the evils it evidently meant to combat and in view of the penalties prescribed by the act.

My opinion, therefore, is that W. A. Feist was not the agent of the Feist Printing Co. within the meaning of section 226 of the Criminal Code, so far as the contract referred to in your letter of the 3d instant is concerned, provided the only part he took in the execution and negotiation of the contract was the signing thereof; and that, assuming this to be the fact, the Postmaster General may legally enter into the contract with the Feist Printing Co. as proposed. Respectfully,

GEORGE W. WICKERSHAM.

The POSTMASTER GENERAL.

PORTO RICO-TRANSFER OF NAVAL STATIONS.

Any part of the naval stations in Porto Rico may be transferred to the Government of Porto Rico under the act of June 14, 1910 (36 Stat. 467), provided it was reserved under the authority conferred by the act of July 1, 1902 (32 Stat. 731), is adjacent to the city of San Juan, and is no longer needed for purposes of the United States. The portions of that tract of land on the Caguas Road in the city of San Juan which were not included in the President's proclamation of August 4, 1908 (35 Stat. 2197), may be now conveyed to Porto Rico. The land, however, which was ceded to the United States by the insular government of Porto Rico in return for the portions of said tract of land conveyed by the proclamation of August 4, 1908, not having been reserved under the act of July 1, 1902, may not now be conveyed to the people of Porto Rico under the act of June 14, 1910. While the transfer to the insular government may be made by the Secretary of the Navy, since in contemplation of law the acts of the heads of the executive departments are the acts of the President, yet it would be preferable to have the formal transfer effected by presidential proclamation.

As to those parts of the naval stations which are not adjacent to the city of San Juan, or are otherwise not within the provisions of the act of 1910, there is no warrant of law for their formal transfer or cession. Permission, however, may be given to the Porto Rican government through a letter or instrument in the nature of a revocable license for the use of these parts of the stations and the buildings thereon and for the construction of improvements temporary in nature. But it should not be attempted to transfer their permanent control to the insular government, nor would it be proper to permit the erection of improvements that would in fact be permanent.

Any part or parts of the naval stations in Porto Rico no longer needed for the purposes of the Navy Department may be transferred to the control of the War Department or of any other department, either by formal Executive order or by arrangement between the Secretary of the Navy and the head of the other department.

DEPARTMENT OF JUSTICE,

July 17, 1911.

SIR: I have the honor to respond to the questions presented to me by your letter of June 14, 1911, with respect to the proposed transfer of the naval stations in Porto Rico. You ask whether you have "the authority to transfer by revocable licenses or otherwise the stations as a whole to the War Department or to the insular government or the people of Porto Rico," and also whether you may "grant revocable licenses to the insular government

or the people of Porto Rico for the erection of buildings and improvements permanent in their nature," or whether you are "limited to the granting of revocable licenses for the use of existing buildings and improvements temporary in nature.”

I am of the opinion that certain parts of the naval stations may be transferred outright to the government of Porto Rico. By the act of June 14, 1910, chapter 290, it was enacted:

"That the President is hereby authorized, in his discretion, to convey to the people of Porto Rico such lands and buildings, or interests therein, adjacent to the city of San Juan, reserved for public uses under the authority conferred by the act approved July first, nineteen hundred and two (Thirty-second Statutes at Large, page seven hundred and thirty-one), as in his opinion are no longer needed for purposes of the United States." of the United States." (36 Stat. 467.) Here is a statute clear and unambiguous in terms. Resort therefore to extraneous matter to determine its meaning is not necessary nor would it be proper. I am quite satisfied that authority exists-simply as the statute declares to transfer to the government of Porto Rico any part of the naval stations, provided it was reserved under the authority conferred by the act of July 1, 1902, is adjacent to the city of San Juan, and is no longer needed for purposes of the United States.

It may be mentioned that the lands reserved for naval purposes under the act of July 1, 1902, are described in the proclamation of June 26, 1903. (33 Stat. 2314.) Whether the other conditions in the act of 1910 as above explained are fulfilled may be determined by yourself in each case. A factor to be observed here is the act of March 4, 1907, chapter 2927. (34 Stat. 1410.) In pursuance of authority therein granted the President, by proclamation of August 4, 1908 (35 Stat. 2197), transferred to the insular government certain portions of an 80-acre parcel of land on the Caguas Road in the city of San Juan. The portions of that parcel not included in this proclamation may, of course, be now conveyed to Porto Rico, since they are within the scope of the authority under discussion. In return, however, for

this conveyance of 1908 and in pursuance of the act of 1907 the insular government ceded to the United States certain other specified tracts; and it is to be borne in mind that these tracts, not having been reserved under the act of 1902, may not now be conveyed to the people of Porto Rico under the act of 1910.

I think it proper to say that while the transfer to the insular government may be made by yourself, since in contemplation of law the acts of the heads of the executive departments are the acts of the President (Wilcox v. McConnel, 13 Pet. 498, 513; Wood v. Beach, 156 U. S. 548), yet I believe it would be preferable to have the formal transfer effected by presidential proclamation, as was done in the case of the two former acts of Congress relating to these lands.

As to those parts of the naval stations which are not adjacent to the city of San Juan, or are otherwise not within the provisions of the act of 1910, but which it may be desirable that the insular government should use, other considerations must be observed. For their formal transfer or cession there is no warrant of law. I believe, however, that under a doctrine sanctioned by long-continued observance permission may be given to the Porto Rican government through a letter or instrument in the nature of a revocable license for the use of these parts of the stations and the buildings thereon and for the construction of improvements temporary in nature. But it should not be attempted to transfer their permanent control to the insular government. Nor would it be proper, even under the broadest limits of this doctrine, to permit the erection of improvements that would in fact be permanent. The principles underlying this doctrine have been considered and defined at different times by my predecessors. (See 21 Op. 537; id. 565; 22 id. 240; id. 544.) Thus Attorney General Griggs, in advising the Secretary of War that he might grant a revocable license to a railway company to lay a single track on the aqueduct reservation near Cabin John Bridge, used the following language:

"Long-continued exercise of a power of this kind by the Secretary of War, and the open and notorious use of Gov