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Section 3744 provides:
“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.
Section 3745 makes it the duty of the officer executing such a contract to affix to his return thereof an affidavit to the effect that he has no interest in the contract, and that all the papers relating to the contract accompany the return. Section 3746 provides that any officer who makes such a contract and fails or neglects to make return thereof as required by the preceding sections, unless from unavoidable accident or causes not within his control, shall be deemed guilty of a misdemeanor and punished by fine and imprisonment.
Section 4 of the Carey Act provides (28 Stat. 372, 422):
“SEC. 4. That to aid the public-land States in the reclamation of the desert lands therein, and the settlement, cultivation and sale thereof in small tracts to actual settlers, the Secretary of the Interior with the approval of the President, be, and hereby is, authorized and empowered, upon proper application of the State to contract and agree, from time to time, with each of the States in which there may be situated desert lands as defined by the act entitled “An act to provide for the sale of desert land in certain States and Territories,” approved March third, eighteen hundred and seventy-seven, and the act amendatory thereof, approved March third, eighteen hundred and ninety-one, binding the United States to donate, grant and patent to the State free of cost for survey or price such
desert lands, not exceeding one million acres in each State, as the State may cause to be irigated, reclaimed, occupied, and not less than twenty acres of each one hundred and sixty-acre tract cultivated by actual settlers, within ten years next after the passage of this act, as thoroughly as is required of citizens who may enter under the said desertland law.
“Before the application of any State is allowed or any contract or agreement is executed or any segregation of any of the land from the public domain is ordered by the Secretary of the Interior, the State shall file a map of the said land proposed to be irrigated which shall exhibit a plan showing the mode of the contemplated irrigation and which plan shall be sufficient to thoroughly irrigate and reclaim said land and prepare it to raise ordinary agricultural crops and shall also show the source of the water to be used for irrigation and reclamation, and the Secretary of the Interior may make necessary regulations for the reservation of the lands applied for by the States to date from the date of the filing of the map and plan of irrigation, but such reservation shall be of no force whatever if such map and plan of irrigation shall not be approved. That any State contracting under this section is hereby authorized to make all necessary contracts to cause the said lands to be reclaimed, and to induce their settlement and cultivation in accordance with and subject to the provisions of this section; but the State shall not be authorized to lease any of said lands or to use or dispose of the same in any way whatever, except to secure their reclamation, cultivation and settlement.
“As fast as any State may furnish satisfactory proof according to such rules and regulations as may be prescribed by the Secretary of the Interior, that any lands are irrigated, reclaimed and occupied by actual settlers, patents shall be issued to the State or its assigns for said lands so reclaimed and settled : Provided, That said States shall not sell or dispose of more than one hundred and sixty acres of said lands to any one person, and any surplus of money derived by any State from the sale of said lands in excess of the cost of their reclamation, shall
be held as a trust fund for and be applied to the reclamation of other desert lands in such State. That to enable the Secretary of the Interior to examine any of the lands that may be selected under the provisions of this section, there is hereby appropriated out of any moneys in the Treasury, not otherwise appropriated, one thousand dollars."
The purpose of sections 3744, 3745 and 3746 of the Revised Statutes, as stated in the title to the act of June 2, 1862 (12 Stat. 411), is “to prevent and punish fraud on the part of officers intrusted with making of contracts for the Government.” This purpose Congress sought to accomplish by requiring “ every contract” made by or under the authority of the three heads of Departments mentioned to be in writing, and a copy thereof returned to the Returns Office established in the Department of the Interior, together with all the data with respect to the making of such contracts—bids, offers, proposals, and advertisement and by making the papers returned open to public inspection.
As held in my opinion of November 8, 1909 (28 Op. 66), with reference to contracts entered into under your authority with certain users of water furnished for irrigation purposes by the Reclamation Service, the mere fact that a contract is not made by advertisement and bids is not sufficient to take it out of the scope of the statute. On the other hand, in my opinion of January 17, 1912 (29 Op. 293), I held that there was nothing in the purpose to be subserved by the statute which required that a contract returned by the Secretary of the Navy should be accompanied by certain plans which were confidential and could not be divulged at the time without detriment to the public interests.
In my opinion, the so-called contract referred to in section 4 of the Carey Act is not within the purview of these sections of the Revised Statutes. Since such an agreement does not bind the State to do anything looking to the reclamation of the lands referred to, it is hardly a contract at all, as that term, properly speaking, is confined to agreements that are obligatory upon the parties. (Pollock, Contracts,
7; Anson, Contracts, 11; Washington, J., in Dartmouth College v. Woodward, 4 Wheat. 518, 656.) So, until the State acts, the United States would not be bound by the agreement, except for the declaration of Congress that it should be bound. In other words, the agreement is only a pledge by the United States to make a free grant of certain lands to the State upon specified conditions, and a pledge by the State to abide by those conditions if it chooses to accept the grant.
It appears from the regulations issued by your Department for the purpose of carrying the Carey Act into effect that these agreements are made and executed in writing, and that the approval of the President is also indorsed thereon in writing. I understand that when executed and approved they form a part of the records of the General Land Office, where it would seem they naturally belong. There appears to be no real necessity therefore for filing a copy thereof in the Returns Office.
You say that these agreements have never been regarded by your predecessors as falling within the purview of sections 3744–3746, “because of the fact that such contracts involve neither the present nor future expenditure of moneys by or on behalf of the United States or involve any claim against it, but simply constitute an agreement by the States to reclaim arid lands in a manner very analogous to the undertaking of an individual under the desert-land laws of March 3, 1877 (19 Stat. 377), and March 3, 1891 (26 Stat. 1095).” You also say that “the requirement that such contract or agreement must be approved by the President of the United States seems to have been held sufficient of itself to take the matter out of the purview of said sections of the Revised Statutes."
Whether or not they are to be regarded as contracts, I do not think such agreements fall within the purpose or scope
of the Returns Act. The fact that they may come within the letter of the statute is not sufficient to bring them within its scope. (Church of the Holy Trinity v. United States, 143 U. S. 457.) So, in Dartmouth College v. Woodward (4 Wheat. 518, 627), Chief Justice Marshall,
delivering the opinion of the court, held that the word “contract," as used in the constitutional provision prohibiting a State from passing any law impairing the obligation of contracts, should not be construed to include marriage contracts, but should be confined to cases within the mischief which that provision was intended to remedy.
The Carey Act agreements are merely a method of effectuating a free grant of public land, are necessarily matters of public record in the General Land Office, and, under the circumstances, do not lend themselves to the opportunity of fraud which the Returns Act was designed to prevent. I see no reason, therefore, for changing the practice of your Department in respect to the execution and return of these agreements. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF THE INTERIOR.
PHILIPPINE ISLANDS—IMPORTATION OF GOODS FOR THE
USE OF THE ARMY.
Goods imported into the Philippine Islands for the use of the Army
of the United States are not subject to the stamp tax imposed by section 284 of act No. 355 of the Philippine Commission as amended, as it is beyond the competency of the Philippine Government to levy a tax on articles imported for the use of the United States Government.
DEPARTMENT OF JUSTICE,
June 8, 1912. Sir: I have the honor to acknowledge the receipt of your letter of the 21st ultimo, in which you refer me to section 284 of act No. 355 of the Philippine Commission as amended (section 1660 of the Compiled Acts of the Philippine Commission of 1907), and request my opinion on the legality of the said law in so far as regards its application to original import entries on goods belonging to the United States and imported into the islands for the use of the United States Army.