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on the other, and to imply that the latter only are subject to the provisions of the act of January 4, 1889. If this were not the meaning of the first section of the act of July 1, 1902, the natural language would have been “the Supervising Surgeon General and the other officers,” etc.
For the reasons stated, I am of the opinion that the law does not restrict the President in selecting a Surgeon General of the Public Health and Marine-Hospital Service to the list of commissioned officers in the Medical Corps of that service. Respectfully, WILLIAM R. HARR,
Acting Attorney General. THE SECRETARY OF THE TREASURY.
RETURN OF GOVERNMENT CONTRACT-DISCLOSURE OF
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. In making the return of a contract on behalf of the Government, as
provided for in sections 3744 and 3745 of the Revise:l 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.
DEPARTMENT OF JUSTICE,
January 17, 1912. SIR: Sections 3744 and 3745 of 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 thirty 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 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."" In your
letter of the 12th instant you request my opinion whether the following affidavit by the Assistant Secretary of the Navy, in relation to a certain contract with the Midvale Steel Co., which has been sent you for filing, is in compliance with the law:
“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 the Midvale Steel Company, represented by Chas. J. Harrah, as president, that I made the same fairly; without any benefit or advantage to myself, or allowing any such benefit or advantage corruptly to the said The Midvale Steel Company, Chas. J. Harrah, or any other person; and that the papers accompanying
; that I
include all those relating to the said contract, as required by the statute in such case made and provided, with the exception of certain plans that are confidential and can not be divulged at this time without detriment to the public interests, and of the proposals for said forgings, which were filed with contract dated October 17, 1911, with the Crucible Steel Company of America, for furnishing 5-inch gun forgings.”
The sufficiency of the return of a contract under the above sections is not a question of law arising in the administration of your department, and therefore is not one upon which the Attorney General is required by section 356 of the Revised Statutes to render an opinion. The duty of reducing to writing and making a proper return to the Returns Office of the Department of the Interior of all contracts made by the heads of departments referred to in section 3744 rests upon each with respect to his own contracts, and the Secretary of the Interior has no jurisdiction over the contracts entered into by the Secretary of War or the Secretary of the Navy because of the fact that returns are to be made to an office in his department.
Section 3746 of the Revised Statutes, however, makes it a misdemeanor, punishable by fine and imprisonment, for an officer who makes any contract to fail or neglect to make return of the same according to the provisions of the two preceding sections, unless from unavoidable accident or causes not within his control. It is therefore your duty to call apparent violations of this statute to the attention of this department, in order that, if the law has been violated, appropriate criminal proceedings may be instituted for its enforcement. This being so, it is proper that I should advise you whether the case submitted presents a violation of the statute, in order that you may know how to proceed in this respect in the future.
It appears from the affidavit of the Assistant Secretary of the Navy that all the papers relating to the contract with the Midvale Steel Co. have been sent to the Returns Office of your department, “ with the exception of certain plans that are confidential and can not be divulged at
this time without detriment to the public interests.” The question presented is whether this exception is permissible under the statute.
It will be observed that section 3744 does not specifically mention plans and specifications among the papers required to be returned with the contract. It is usual, however, for such contracts to provide that the plans and specifications shall form a part thereof, and the contract with the Midvale Steel Co. contains such a stipulation. But, assuming that ordinarily where plans and specifications are made a part of the contract, section 3744 requires a return thereof, I am of the opinion that, considering the purpose and effect of the statute, it should not be construed as requiring the disclosure of plans that are confidential and can not be divulged without detriment to the public interests, upon the principle that although within the letter of the statute, it is not within its spirit, and therefore not within the statute (Church of the Holy Trinity v. United States, 143 U. S. 457).
The provisions of the Revised Statutes referred to were taken from the act of June 2, 1862 (12 Stat. 411), entitled “An act to prevent and punish fraud on the part of officers intrusted with making of contracts for the Government.” The first three sections of that act were embodied in sections 3744, 3745, and 3746 of the Revised Statutes. The fourth section established the “ Returns Office " in the Department of the Interior, and made it the duty of the clerk authorized to be appointed to attend the same to “ file all returns made to said office, so that the same may be of easy access ” ; to keep an index book, with the names of the contracting parties and the number of each contract; to “ submit the said index book and returns to any person desiring to inspect the same,” and also to furnish copies of said returns to any person paying for said copies to said clerk, at the rate of 5 cents for every 100 words, to which said copies certificates shall be appended in every case by the clerk making the same, attesting their correctness, and that each copy so certified is a full and
complete copy of said return.”
of said return." These provisions are now embraced in sections 512 to 515 of the Revised Statutes.
It is manifest from the provisions quoted that if the Secretary of War and the Secretary of the Navy are required, in making returns of contracts made by them for the construction of things authorized for the national defense, such as vessels of war, fortifications, armor, and armament, to accompany such contracts with copies of the plans and specifications, secrets pertaining to the national defense will be exposed to public view. Clearly, Congress could have had no such intention. Moreover, such a view would be contrary to the policy expressed by Congress in the act of March 3, 1911 (36 Stat. 1084), entitled “An act to prevent the disclosure of national defense secrets," which penalizes the unauthorized disclosure of information of this character.
The purpose of the statute with reference to making returns was, as the title thereof stated, “ to prevent and punish fraud on the part of officers intrusted with making of contracts for the Government.” This object Congress aimed to accomplish by requiring the data with respect to the making of such contracts—bids, offers, proposals, and advertisement—to be filed with the contract, and making the whole of it open to public inspection. Such an inspection would show whether the provisions of law governing the making of any such contract had been complied with. But there is nothing in the purpose to be subserved that requires the disclosure of details respecting the subject matter of the contract which the interests of the Government demand should be kept secret.
I have the honor to advise you, therefore, that in my judgment the return of the Secretary of the Navy as to the contract of the Midvale Steel Co. is a sufficient compliance with the law. Respectfully,
GEORGE W. WICKERSHAM.
The SECRETARY OF THE INTERIOR.