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"unless otherwise directed by Congress, all authorizations heretofore made for the sale of Government land in the District of Columbia, in which conveyances have not been made or contracts entered into, shall be held in abeyance.”
It is quite clear that the act of 1899 makes no provision for the sale of any Government land in the District of Columbia. It contemplated neither contracts nor conveyances. It dealt entirely with the results of uninterrupted occupation of lands for 20 years, and the correction of the War Department records to conform with such results, viz, title in the occupant.
The commission created by the act of 1908, in its investigations, may be called upon to investigate the rights of occupancy of occupants who, having been in actual possession for 20 years, are entitled under the act of 1899 to record title, and it would seem that Congress should have suspended that right pending the investigation directed to be made by the commission as well as the sale of lands pursuant to previous authorization by Congress.
Congress. But Congress did not so act and, indeed, failed afterwards when the commission called its attention to such omission, to take any steps to correct it. It is not competent to supply by administrative construction a clear failure by Congress to legislate in a comprehensive, logical manner upon a subject concerning which a law has been passed.
I have therefore to answer your first question in the negative.
2. Answering your second question, I am of the opinion that the act of March 3, 1899, was not repealed by the act of May 30, 1908. The two statutes are entirely consistent with each other. The first one deals with the effect of 20 years' occupancy of certain lots of land enumerated in a designated report and the correction of records in the War Department so as to conform with the result declared by the statute. The latter act deals with the subject of a general inquiry into titles of the United States to all lands in the District of Columbia, and holds in abeyance all previous authorizations for sales of lands in the District where neither contract nor conveyance has been executed. The
two acts are in pari materia and may each be carried out and given full effect without impairing the obligation of the other. Very respectfully,
GEORGE W. WICKERSHAM. THE SECRETARY OF WAR.
PURCHASE OF STRUCTURAL MATERIAL FROM COMBINA
TIONS OR MONOPOLIES.
The provision of the naval appropriation act of March 4, 1911 (36 Stat.
1289), that no part of the money therein appropriated "shall be expended for the purchase of structural steel, ship plates, armor, armament, or machinery” from any combination or monopoly refers only to purchases made directly by the Navy Department.
DEPARTMENT OF JUSTICE,
April 14, 1911. SIR: I am in receipt of your letter of the 13th instant, in which, referring to my opinion dated the 11th instant, construing the application of the proviso in the naval appropriation act of March 4, 1911 (36 Stat. 1289), concerning the purchase of structural steel, etc., from persons, firms, or corporations who have combined or conspired to monopolize interstate or foreign commerce, you suggest that inasmuch as that provision of law prohibits the expenditure of the appropriation for the purchase of the material affected, it would seem that only purchases made directly by the Navy Department itself are comprehended, and not such purchases as may be made by shipbuilders to carry out contracts for the delivery of vessels; and you
my confirmation or correction of your impression.
The provision of the statute in question only applies to “the purchase of structural steel, ship plates, armor, armament or machinery from any persons, firms or corporations,” etc. The subject being dealt with is the purchase by the Government of structural steel, etc., from persons, firms, or corporations, and, of course, the purchase pursuant to the provision of law. The statute does not concern itself with the purchase of materials, etc., by those
persons, firms, or corporations referred to in the statute from others with whom they may deal. I therefore confirm your impression that it is only purchases made directly by the department itself which are comprehended within this provision.
The principles of an opinion which I rendered you under date of July 8, 1910, respecting the application of the provisions of the naval appropriation act of June 26, 1910 (28 Op. 358) and the cases cited in that opinion confirm this view of the statute at present under consideration. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF THE NAVY.
EMPLOYMENT OF OFFICERS IN THE NAVY OR MARINE CORPS BY PARTY FURNISHING NAVAL SUPPLIES OR WAR MATERIAL TO THE GOVERNMENT PROHIBITED.
The employment of any officer in the Navy or Marine Corps on the active
or retired list by any person or company furnishing naval supplies or war material to the Government is prohibited by a provision in the naval appropriation act of June 10, 1896 (29 Stat. 361).
DEPARTMENT OF JUSTICE,
April 18, 1911. Sir: I am in receipt of your favor of 15th instant, asking for an interpretation of a provision in the naval appropriation act of June 10, 1896 (29 Stat. 361), reading as follows:
That hereafter no payment shall be made from appropriations made by Congress to any officer in the Navy or Marine Corps on the active or retired list while such officer is employed, after June thirtieth, eighteen hundred and ninety-seven, by any person or company furnishing naval supplies or war material to the Government; and such employment is hereby made unlawful after said date
It is quite clear from a reading of that enactment that the employment of any officer in the Navy or Marine Corps on the active or retired list by any person or company furnishing naval supplies or war material to the
Government is prohibited. If the Navy Department, in order to assist in the extension of United States trade and commerce and to carry out the general purposes indicated in the application by the Department of State, thinks fit to send an officer of the Navy, skilled in matters of ordnance, to a South American capital, it is entirely competent for the Secretary of the Navy to direct him to be sent, not as the representative of a private person or company, nor in its employment, but at the expense of the Government as a representative of the Navy Department and for the purpose of assisting all Americans whose interests are such as, in the opinion of the Secretary, to justify that proceeding.
It is believed that this communication answers your inquiries, although, perhaps, not quite in the categorical form in which they are made. I am, Respectfully, yours,
GEORGE W. WICKERSHAM. THE SECRETARY OF THE NAVY.
SECRETARY OF THE NAVY-PARTIAL PAYMENTS UNDER GOVERNMENT CONTRACT-ATTORNEY GENERAL'S OPINION.
The Attorney General declines to answer the question whether the
Navy Department would be justified in continuing to make partial payments under contracts in the event of the repeal of the clause in the naval appropriation act of March 4, 1911 (36 Stat. 1267), which authorizes the Secretary of the Navy to make partial payments on work done under contracts for public purposes, as no case involving
that question is now pending before that department. The general rule would seem to be well recognized that, in the absence
of statutory prohibition, partial payments may be made on account of work done in the construction of vessels for the Navy if (1) title to the vessel shall have passed to the United States at the time of such payments, or (2) a lien shall have been created by law or contract upon the unfinished vessel to the amount of such partial payments.
DEPARTMENT OF JUSTICE,
April 18, 1911. SIR: I am in receipt of your letter of 17th instant, advising me that it is proposed by Joint Resolution No. 1 of the present session of Congress to strike from the naval appro
priation bill of March 4, 1911 (36 Stat. 1267), the clause authorizing the Secretary of the Navy to make partial payments from time to time during the progress of the work under contracts made under the Navy Department for public purposes, not in excess of 90 per cent of the value of work already done, etc.; and asking my opinion as to whether, in the event of the repeal of that clause, the Navy Department would be justified in continuing to make partial payments as provided for in existing contracts made prior to March 4, and in providing for such payments under future contracts for ships, armor plate, and other objects.
It is an old-established rule that where no actually existing case is presented, but the Attorney General is asked for his opinion upon a future hypothetical case, he declines to answer the question. (19 Op. 414; 20 Op. 288; id. 729.) If the joint resolution referred to should pass, and a question should then be presented arising before you for determination, I will then take pleasure in advising you.
It is perhaps proper, however, to state that Attorney General Brewster advised the Secretary of the Navy, by an opinion dated January 22, 1885 (18 Op. 105), that section 3648 of the Revised Statutes does not preclude a payment in any case where the money has been actually earned and the Government has received an equivalent therefor, its object being to prevent payments being made to contractors in advance of the performance of their contracts, whether for services or supplies.
In 1894 Attorney General Olney advised the Secretary of the Treasury that section 3648, Revised Statutes, prevented the making of partial payments on account of work performed in the construction of a revenue cutter where neither the statute under which the work was done nor the contract gave the Government the ownership of the boat before its completion, or a lien on the uncompleted vessel for such part payments. He mentioned the fact that the contracts for building vessels for the Navy Department contained special stipulations giving the United States a lien upon the work done and paid for. (20 Op. 746.) This decision was followed by the Comptroller of the