out words expressly designed to include employees of the municipal corporation.

If these limitations to the scope of the act were less doubtful than they are, I should still be inclined to think that the long-continued administrative practice should be decisive. It appears always to have been considered that the act does not extend to the employees under the local government of the District, and for many years both the Commissioners of the District and the Civil Service Commission have annually requested Congress to extend the act to cover these employees. Congress seems itself to have recognized the inapplicability of the statutes by expressly providing that the medical inspectors of the District should be appointed by competitive examination. (32 Stat. 969.)

The administrative practice has been to the same effect in the analogous case of Territorial employees. These employees have not been regarded as within the service of the United States (11 Comp. Dec. 702), and on July 30, 1910, the Civil Service Commission, acting upon an unreported opinion of the Comptroller of the Treasury, dated July 23, 1910, declined to assume jurisdiction over the appointment of clerks in the office of the secretary of the Territory of Arizona.

Aside from the civil-service act, the only possible source of legal authority for the suggested classification is section 1753 of the Revised Statutes, but that contains substantially the same restrictive phrases and can hardly be construed as of wider scope than the civil-service act. Furthermore, there appears to be no appropriation under which that section, even if otherwise sufficient, could be availed of.

For these reasons, as well as for the reasons stated in the opinion of Mr. Attorney General Griggs, above referred to, I concur with his conclusion that under the existing laws the classified service of the United States can not be extended to the officers and employees of the District of Columbia.

Respect fully,

GEORGE W. WICKERSHAM.

THE PRESIDENT.

EXPORTATION OF GUN GREASE TO MEXICO.

Gun grease is within the prohibition of the President's proclamation of March 14, 1912, issued pursuant to the joint resolution of the same date, forbidding the exportation of arms or munitions of war to Mexico.

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DEPARTMENT OF JUSTICE,

May 20, 1912.

SIR: Replying to yours of the 17th instant in the opinion which I rendered to the President on March 25 (29 Op. 375), concerning the scope of the meaning of the words arms or munitions of war," after reviewing the authorities, I suggested the following as embracing all that is within the practical purpose of the joint resolution of Congress, approved by the President March 14, 1912, and the proclamation issued by him pursuant thereto on the same date, viz:

"Articles primarily and ordinarily used for military purposes in time of war, such as weapons of every species used for the destruction of life, and projectiles, cartridges, ammunition of all sorts, and other supplies used or useful in connection therewith, including parts used for the repair or manufacture of such arms, and raw material employed in the manufacture of such ammunition

You now inquire whether gun grease comes within the meaning of the proclamation as so interpreted. Without any further information as to the nature of that article, except that it is a grease prepared expressly for use in connection with guns of some sort, and that it is sought to be exported from the United States into Mexico for use in connection with guns, I should say that it was directly within the definition of "supplies used or useful in connection" with weapons of some species used for the destruction of life, and in that case within the prohibition of the proclamation. I have the honor to be

Yours, respectfully,

GEORGE W. WICKERSHAM.

THE SECRETARY OF STATE.

COMPENSATION FOR ACCIDENT TO WORKMEN.

Where a laborer employed by the United States in the construction of river and harbor work, while off duty, went upon a bin to talk with the man emptying gravel about going home the following Sunday, and in the act of leaving, voluntarily and with no emergency for immediate action, attempted to empty a box of gravel and in so doing fell overboard and was drowned, the accident is deemed not to have arisen within the course of his employment, and compensation therefor is unauthorized under the act of May 30, 1908 (35 Stat. 556).

DEPARTMENT OF JUSTICE,

May 22, 1912.

SIR: I have the honor to reply to your letter of the 19th ultimo requesting my opinion in the matter of the claim for compensation arising under the act of May 30, 1908, chapter 236 (35 Stat. 556), on account of the death of H. G. Simpson, who was employed as a laborer on the river and harbor work at Lock No. 5 of the Kentucky River, and who was killed August 22, 1911.

Sections 1 and 2 of the act of May 30, 1908, provide:

"That when, on or after August first, nineteen hundred and eight, any person employed by the United States as an artisan or laborer in any of its manufacturing establishments, arsenals, or navy-yards, or in the construction of river and harbor or fortification work or in hazardous employment on construction work in the reclamation of arid lands or the management and control of the same, or in hazardous employment under the Isthmian Canal Commission, is injured in the course of such employment, such employee shall be entitled to receive for one year thereafter, unless such employee, in the opinion of the Secretary of Commerce and Labor, be sooner able to resume work, the same pay as if he continued to be employed, such payment to be made under such regulations as the Secretary of Commerce and Labor may prescribe: Provided, That no compensation shall be paid under this act where the injury is due to the negligence or misconduct of the employee injured, nor unless said injury shall continue for more than fifteen

days. All questions of negligence or misconduct shall be determined by the Secretary of Commerce and Labor.

SEC. 2. That if any artisan or laborer so employed shall die during the said year by reason of such injury received in the course of such employement, leaving a widow, or a child or children under sixteen years of age, or a dependent parent, such widow and child or children and dependent parent shall be entitled to receive, in such portions and under such regulations as the Secretary of Commerce and Labor may prescribe, the same amount, for the remainder of the said year, that said artisan or laborer would be entitled to receive as pay if such employee were alive and continued to be employed: Provided, That if the widow shall die at any time during the said year her portion of said amount shall be added to the amount to be paid to the remaining beneficiaries under the provisions of this section, if there be any."

The facts of this case as found by you are as follows:

"Decedent, who was off duty at that hour, went up on the bin to talk with the man working there about going home on the following Sunday. As he was in the act of leaving the bin a box of gravel was raised for the purpose of being emptied by the man to whom decedent had been talking. Instead of passing on and allowing the man on duty to empty the box, claimant took hold of it for that purpose, and in so doing he fell overboard and was drowned. The question therefore arises whether the death occurred in the course of the employment, and the answer must be reached from the facts in the case as above stated.

"In the first place, it is admitted that the decedent was employed by the United States, and at the time of the death he was upon the work or premises of the Government; but, in the second place, it is reported that he did not meet with the accident in the course of his employment, because it was not his duty to perform any work at that particular time. The assistant engineer, in his letter before referred to, says that the particular act of the dece

dent at the time of the accident was not the one usually performed by him during his working hours, but that he had on two or three occasions performed this work, and that the men took turn about in dumping the box. He further says that no emergency existed at the time requiring immediate action, which fact is clear, as the man whose duty it was to dump the box was there ready to perform the work and would have done so had not the decedent intervened."

Simpson, it appears, was unmarried, and compensation is claimed on account of his dependent parents.

As I have said in former opinions, the act of May 30, 1908, is remedial and should be generously construed (28 Op. 254, 258) and the "purpose of the law was not to set in motion an interminable series of technical inquiries, such as would puzzle the minds of learned and profound judges" (27 Op. 346, 354). Under the broadest possible construction of the act, however, I am unable to hold that this case comes within it. Compensation is only authorized when a person employed by the United States as an artisan or laborer on the classes of work specified is injured "in the course of such employment," and it is expressly provided "that no compensation shall be paid under this act where the injury is due to negligence or misconduct of the employee injured."

The accident to Simpson did not occur in the course of his employment, since, according to the facts stated, he was off duty at the time, went up on the bin for his own purposes without direction from anyone in authority, and the service performed by him was wholly unnecessary, as there was another man present whose duty it was to perform the very act which resulted in his death. The fact that the service was one which he was occasionally required to perform when on duty is not sufficient to justify the payment of compensation. The provision "that no compensation shall be paid under this act where the injury is due to negligence or misconduct of the employee injured" forbids such a construction of the statute as will

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