66 Being the ministers of the law to enforce its commands, they can only be summoned by the law-making power to act within the extent of its jurisdiction, and in the manner prescribed by the Constitution. They can not consequently, be used to invade the territory of a neighboring country, or to enforce any public rights abroad. * * * "The militia of the States restricted to domestic purposes alone, are to be distinguished therefore from the Army proper of the United States, which, whether in the form of regular troops or volunteers, may be used to invade a foreign country as well as to repel the attack of foreign enemies." And Von Holtz, Constitutional Law, page 170, it is said, "the militia can not be taken out of the country." In Kneedler v. Lane (45 Pa. St. 238, 276), Judge Strong, speaking for the court, said: "Apart from the obligations assumed by treaty, it was well known that there are many cases where the rights of a nation and of its citizens can not be protected or vindicated within its own boundaries. But the power conferred upon Congress over the militia is insufficient to enable the fulfillment of the demands of such treaties, or to protect the rights of the Government, or its citizens, in those cases in which protection must be sought beyond the territorial limits of the country." And see Houston v. Moore (5 Wheat. 1), and Martin v. Mott (12 Wheat. 19, 27). It is true that the act of January 21, 1903, as amended by the act of Mar. 27, 1908 (35 Stat. 400), provides: "That whenever the President calls forth the organized militia of any State, Territory, or of the District of Columbia, to be employed in the service of the United States, he may specify in his call the period for which such service is required, and the militia so called shall continue to serve during the term so specified, either within or without the territory of the United States, unless sooner relieved by order of the President." But this must be read in view of the constitutional power of Congress to call forth the militia only to suppress insurrection, repel invasions, or to execute the laws of the Union. Congress can not, by its own enactment, enlarge the power conferred upon it by the Constitution; and if this provision were construed to authorize Congress to use the Organized Militia for any other than the three purposes specified, it would be unconstitutional. This provision applies only to cases where, under the Constitution, said militia may be used outside of our own borders, and was, doubtless, inserted as a matter of precaution and to prevent the possible recurrence of what took place in our last war with Great Britain, when portions of the militia refused to obey orders to cross the Canadian frontier. I think that the constitutional provision here considered not only 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, but, by its careful enumeration of the three occasions or purposes for which the militia may be used, it forbids such use for any other purpose; and your question is answered in the negative. Respectfully, GEORGE W. WICKERSHAM. The SECRETARY OF WAR. PUBLIC PRINTER-ACCEPTANCE OF ESTIMATES FOR SUPPLIES SUBSEQUENT TO FINAL DATE FOR THE RECEIPT OF PROPOSALS. Estimates furnished by the Public Printer, as provided for by DEPARTMENT OF JUSTICE, SIR: I have the honor to acknowledge receipt of your letter of the 10th instant, with inclosures, in which my opinion is requested as to whether you can lawfully ac cept an estimate submitted by the Public Printer subsequent to the date advertised as the final day on which proposals would be received for supplying the moneyorder service with forms and blank books for the period beginning March 1, 1912, and ending November 30, 1915. In your advertisement of December 18, 1911, requesting proposals for supplying the money-order service, you proceeded in accordance with the provision of section 2 of the act of March 3, 1883 (22 Stat. 527), the pertinent part of which enacts as follows: "And all blanks, blank books, and printed or engraved matter supplied to postmasters by the Postmaster General or used in his department for the transaction of the moneyorder business shall be obtained from the lowest responsible bidders for furnishing printed and engraved matter, respectively, under separate advertisements calling for proposals to furnish the same for a period of four years, upon such conditions as the Postmaster General may prescribe: Provided, That the Public Printer and the Chief of the Bureau of Engraving and Printing of the Treasury Department shall submit, respectively, estimates of the cost of furnishing such printed and engraved matter as may be required for use in the money-order business, and they shall furnish such printed and engraved matter whenever upon their estimates of cost the expenditure therefor will be less than upon proposals made as above provided for." Your advertisement contained the following language: "All bids received in response to the advertisement of September 13, 1911, for supplying the money-order service with domestic, international, and reissued money-order forms and certain record books during a term of four years beginning December 1, 1911, having been rejected, sealed proposals for furnishing such supplies during a term beginning March 1, 1912, and ending November 30, 1915, will be received at the office of the purchasing agent for this department until 2 o'clock p. m. January 19, 1912. Specifications may be obtained upon application to the purchasing agent." Following this and immediately preceding the proposal form appears a warning couched in the following language: 66 NOTE.-Proposals, and the required samples of the papers and books, to receive consideration, must reach the office of the purchasing agent, Post Office Department, not later than 2 o'clock p. m., January 19, 1912, and the department will not give consideration to any bids which are received at a later hour or date, whatever may be the cause of the delay." On January 19, 1912, the Public Printer submitted an estimate, as provided by the statute, in response to your advertisement, stating in his letter of transmittal that should the actual cost of the paper, which must be purchased by the Public Printer as the result of public advertising, be less than the quoted prices, or should the cost of producing the work in the Government Printing Office be less than the prices given in his estimate, the difference between the prices quoted and the actual cost would be rebated to the Post Office Department. On January 20, 1912, subsequent to the opening of bids, the Public Printer submitted a supplemental estimate, quoting an aggregate reduction of $34,275 on his estimate of the previous day, because he received a lower quotation on paper, which he claimed reached him too late to form a basis for his original estimate. On February 2, 1912, the Public Printer submitted a second supplemental estimate, quoting an aggregate increase of $7,841.40 over his estimate of January 20. 66 The Assistant Attorney General for the Post Office Department, to whom the matter was submitted, expressed the opinion that the estimate furnished by the Public Printer was not a "bid," but an estimate" required by law, and was not governed by the principles of law applicable to proposals of private bidders; and that it was, therefore, legally competent for the Postmaster General to accept the revised estimate of the Public Printer if, as provided by the statute, the prices given therein were lower than those contained in private bids. In this opinion I entirely concur. The Government maintains at a large expense a Public Printing Office and a Bureau of Engraving and Printing. Generally speaking, its maintenance of these establish ments can only be justified by their use. But in order that the work may be done on the best terms for the public interest the statute authorizes the Postmaster General to call for proposals from private bidders and requires him to procure these supplies " from the lowest responsible bidders," unless the Public Printer and the Chief of the Bureau of Engraving and Printing, respectively, shall submit estimates of the cost of furnishing the same supplies for prices less than those proposed by the lowest "bidder," in which event the statute requires that the materials shall be furnished or the work done by those Government establishments. The statute draws a clear distinction between "proposals" to be made by private bidders and "estimates" of the cost of furnishing the printed and engraved matter to be submitted by the Government establishments. The proposal made by the lowest bidder is to be accepted unless the estimate of cost made by the head of the Government establishment shall be lower. The proposals are required to be made by responsible bidders pursuant to " separate advertisements calling for proposals to furnish the (i. e., the supplies described in the act) "for a period of four years, upon such conditions as the Postmaster General may prescribe." There is no requirement in the statute that the Government Printing Office and Bureau of Engraving and Printing shall make or submit their "estimates" of the cost of doing the work before or at the same time the proposals of outside bidders are made. Nor are those estimates to be regarded in the same light as bids or proposals from outsiders. The statute gives to the head of the Post Office Department, in the public interest, the advantage of securing a bid or proposal from private manufacturers and dealers, and then, if the Government offices can better that price, the work is to be done by them. In this manner the Government is assured of obtaining the supplies on the best possible terms. same 66 I have, therefore, to answer your question whether or not the revised estimates of the Public Printer may be legally accepted in the affirmative. Respectfully, GEORGE W. WICKERSHAM. The POSTMASTER GENERAL. |