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steamers to be used, the number of trips a year, the times of sailing,” etc., corresponding in this respect to the provisions of the Revised Statutes in respect to letting inland mail contracts (chap. 8 of Title XLVI), which it is said shall govern the details of advertising and letting ocean mail service contracts. So, also, section 5 of the act fixes the rate of compensation to ships of each class for such service at so much per mile,“ by the shortest practicable route, for each outward voyage.”
Looking at proposed schedule No. 81, for vessels of the second class, it will be seen that it provides for ocean mail service (1) between New York and Colon, calling at Key West, (2) between New Orleans and Colon, and (3) between San Francisco and Panama, calling at San Pedro and San Diego, at the election of your Department. Here are three separate and distinct lines of service, the third separated from the first two by a whole continent, which it is proposed by mere designation to include in one route.' If this could be done the service specified in route No. 82, for vessels of the third class, might also be included, the difference in the class of the vessels merely affecting the matter of compensation. In fact, upon this theory, the entire ocean mail service between the United States and foreign countries, from both Atlantic and Pacific ports, might be let under one contract, and thus a complete monopoly with respect to such service established.
There is nothing in the language or purpose of the act that justifies this construction. In fact, it is plainly inhibited by the requirement of section 1, that “ said contracts shall be made with the lowest responsible bidder for the performance of said service on each route,” which is intended to avoid monopoly by securing the fullest competition. Furthermore, the provision of section 2 that notice of the service desired shall be given by advertisement in daily papers of certain cities located in the eastern part of the United States, but“ when the proposed service is to be on the Pacific Ocean, then in San Francisco, Tacoma, and Portland,” shows that Congress contemplated that the service on the Atlantic and Pacific Oceans would be the subject of separate contracts.
I may add that my attention has been called to nothing in other statutes in relation either to the ocean or the inland mail service or the practice of the Post Office Department thereunder which justifies the construction sought to be placed upon the act of March 3, 1891. I have the honor, therefore, to advise you that, in my opinion, the proposed method of advertising and contracting for ocean mail service under that statute is illegal. Respectfully,
GEORGE W. WICKERSHAM. The POSTMASTER GENERAL.
EXPORTATION OF SADDLES, BRIDLES, CANTEENS AND
CARBINE SCABBARDS TO MEXICO.
The exportation of saddles, bridles, canteens, and carbine scabbards
by merchants in the United States to other merchants in Mexico falls within the purview of the President's proclamation of March 14, 1912, prohibiting the export of arms or munitions of war to that country.
DEPARTMENT OF JUSTICE,
April 20, 1912. Sir: You have referred to me for my opinion a letter from the Secretary of the Treasury asking whether the exportation of saddles, bridles, canteens, and carbine scabbards by merchants in the United States to other merchants in Mexico falls within the purview of your proclamation of the 14th of March.
The articles mentioned are clearly articles of military equipment. As said in my opinion to you of the 25th of March, the object of the joint resolution is to forbid the exportation“ of such arms or munitions of war as are used in promoting conditions of domestic violence.” While saddles and bridles are also used in peaceful pursuits, they, as well as canteens and carbine scabbards, are among the munitions of war which are now being used in promoting the disturbances in Mexico.
I think, therefore, that the question should be answered in the affirmative. Respectfully,
GEORGE W. WICKERSHAM. THE PRESIDENT.
EIGHT-HOUR LAW-REPAIRS TO GOVERNMENT VESSELS.
The employment of laborers and mechanics in making repairs to
Government vessels is employment upon a public work of the Unitel States, and is therefore subject to the restrictions of the eight-hour law of August 1, 1892 (27 Stat. 340).
DEPARTMENT OF JUSTICE,
May 10, 1912. Sir: I have the honor to acknowledge the receipt of your letter of the 6th instant, in which you request my opinion as to whether the act of August 1, 1892 (27 Stat. 340), is applicable to contracts for repairs to light vessel No. 81 and the tender Magnolia, which are owned by the Government.
That act limits and restricts the service and employment of all laborers and mechanics who may be employed by any contractor or subcontractor “
upon any of the public works of the United States” to eight hours in anyone calendar day. In Ellis v. United States (206 U. S. 246, 258, 259) the Supreme Court in construing the act said:
The words “upon' and “any of the,' and the plural 'works' import that the objects of labor referred to have some kind of permanent existence and structural unity, and are severally capable of being regarded as complete wholes.
The language of the acts is 'public works of the United States. As the works are things upon which the labor is expended, the most natural meaning of 'of the United States' is belonging to the United States."
It was held in that case that persons employed by a contractor with the Government upon vessels and scows in dredging a harbor “ were not laborers and mechanics and were not employed upon any of the public works of the United States within the meaning of the act.” This holding, as well as other language of the opinion in that case, indicates that the majority of the court did not regard dredging work as having “permanent existence," or
structural unity,” or “ capable of being regarded as com
plete wholes,” or as “ belonging to the United States.” A Government vessel is manifestly not subject to these objections.
The act of August 13, 1894, whose title was "An act for the protection of persons furnishing materials and labor for the construction of public works,” as amended February 24, 1905 (33 Stat. 811), provides that any person or persons entering into a formal contract with the United States for the construction of any public building, or the prosecution and completion of any public work, shall be required to give bond with certain conditions.
In Title Guaranty & Trust Co. v. Crane Company (219 U. S. 24), the Supreme Court held that a vessel being constructed for the United States under contract, where title passed to the United States as the vessel was completed,
a public work” within the meaning of the lastmentioned act. The court said (p. 33):
The argument that the vessel was not a public work loses most of its force when it appears that the title was in the United States as soon as the first payment was made. Of course public works usually are of a permanent nature and that fact leads to a certain degree of association between the notion of permanence and the phrase. But the association is only empirical, not one of logic. Whether a work is public or not does not depend upon its being attached to the soil; if it belongs to the representative of the public it is public, and we do not think that the arbitrary association that we have mentioned amounts to a coalescence of the more limited idea with speech, so absolute that we are bound to read any public work'as confined to work on land. It is not necessary to discuss in detail some opinions from the Attorney General's office in cases where the title to the vessel did not pass that looked rather in the opposite direction. It is enough to say that there has been no such clear and established construction as to cause us to yield our own view. On the other hand, the decision of some other courts has been in accord with the judgment below and with what we now decide.” (United States v. Perth Amboy Shipbuilding & Engineering Co., 137 Fed. Rep. 689,693. Ameri
can Surety Co. v. Lawrenceville Cement Co., 110 Fed. Rep. 717, 719. United States v. Aetna Indem. Co., 40 Washington, 87.)
In view of these decisions of the Supreme Court, I am of the opinion that the employment of laborers and mechanics in making repairs to Government vessels is employment upon a public work of the United States, and is therefore subject to the restrictions of the act of August 1, 1892. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF COMMERCE AND LABOR.
RETIRED OFFICERS OF ARMY AND MARINE CORPS ARE
OFFICERS IN THE EMPLOY OF THE GOVERNMENT.
An officer of the Unitel States Army or of the Marine Corps, re
tired from active service only, and not wholly retired from serrice, is an officer in the employ of the Government, and so within the prohibition of section 1782 of the Revised Statutes.
DEPARTMENT OF JUSTICE,
May 17, 1912. Sir: The Attorney General has referred to me yours of the 13th to him, transmitting the letter of Maj. Henry Leonard, United States Marine Corps, to you of date May 9, in which Maj. Leonard requests that the opinion of the Attorney General be obtained “as to the status of à retired officer with relation to section 1782, Revised Statutes of the United States."
The section in question is as follows:
“ No Senator, Representative, or Delegate, after his election and during his continuance in office, and no head of a Department, or other officer or clerk in the employ of the Government, shall receive or agree to receive any compensation whatever, directly or indirectly, for any services rendered, or to be rendered, to any person, either by himself or another, in relation to any proceeding, contract, claim, 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,