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to give to the Government more, better, or cheaper work, nor was it to better the condition of any foreign people.
The act itself contemplates that substantially all of this ammunition shall be of American manufacture, and provides expressly that all material purchased under the provisions of this act shall be of American manufacture, except in cases when, in the judgment of the Secretary of War, it is to the manifest interest of the United States to make purchases in limited quantities abroad.” And the Chief of Ordnance points out in this case:
* It is often advantageous and sometimes necessary for this department to purchase artillery ammunition and parts thereof abroad. The articles thus purchased are usually small lots, embodying the latest improvments which it is desired to examine and test, or larger quantities of articles which can not be produced in this country of the quality or at the rate of delivery desired. If this proviso be held to apply to such purchases, it will be practically impossible to make them, and the Government will be deprived of an important advantage without any adequate compensation therefor.”
There would seem to be no possible reason why Congress should intend to extend this requirement to the few such purchases as are or may, under this act, be made abroad. On the contrary, such a requirement would be very disadvantageous to the Government and would amount to a practical prohibition of any such purchases, and would, in no sense, tend to subserve the only purpose of this proviso.
Here, too, in construing this proviso and its application, we must consider, as in each of the previous questions, that this provision is in derogation of the common right of the Government itself to go into the open market and purchase its necessary supplies upon the most favorable terms which such market offers. Such a restriction has an important purpose, or it would not be there. It would seem unreasonable to suppose that such a restriction was intended to apply to purchases made abroad and where its observance would not in the slightest degree serve a single purpose of such requirement.
It is needless here to recall the very many instances in which language quite as plain and imperative as this has given way to a construction based upon the manifest purpose, object and intention of the whole act.
For these reasons I am of the opinion that the requirement referred to does not extend to purchases made abroad. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF WAR.
FOOD AND DRUGS ACT-AUTHORITY TO MAKE RULES AND
REGULATIONS AND REVIEW FINDINGS OF FACT.
The Secretaries of the Treasury, Agriculture, and Commerce and
Labor are restricted to the making of rules and regulations for carrying out the provisions of the food and drugs act of June 30, 1906 (34 Stat. 768), and have no authority to review findings of
fact and reports made to the Secretary of Agriculture. The findings of the Referee Board of the Department of Agriculture
are not conclusive on the courts or the Secretary of Agriculture,
but are simply for the information of the latter. The approval of the Secretary of Agriculture of a finding of the
Referee Board is notice to the public that in subsequent examinations of food samples such finding will be followed.
DEPARTMENT OF JUSTICE,
July 8, 1912. Sirs: I beg to acknowledge the receipt of your letter of the 14th of May, propounding certain questions which have arisen in the enforcement of the food and drugs act of June 30, 1906 (34 Stat. 768).
You state that the referee board of consulting scientific experts of the Department of Agriculture has lately completed an investigation on the use in foods of copper salts, “ the results of which investigation show that foods containing copper salts are adulterated under the food and drugs act, and articles greened with copper salts must therefore be refused entry into the United States and excluded from interstate commerce.”
You then state that doubts have arisen whether the announcement of the conclusions of the board shall be
The Secretaries of the Treasury, of Agriculture, etc. 495 made by the three Secretaries in conformity with the practice which has existed heretofore, or by the Secretary of Agriculture alone, and I am specifically asked:
1. Are the three Secretaries restricted to the making of rules and regulations, or have they any authority to review findings of fact and reports made to the Secretary of Agriculture?
2. If the findings of fact and reports have been approved, should the three Secretaries participate in the announcement, or does the law contemplate that the announcement shall be made by the Secretary of Agriculture alone?
Section 3 of the food and drugs act provides that the three Secretaries “shall make uniform rules and regulations for carrying out the provisions of this act.”
Under the provisions of section 4, the examination of specimens of foods and drugs collected under the rules made by the three Secretaries is to be made in the Bureau of Chemistry of the Department of Agriculture or under the direction and supervision of that bureau; if such examination shows a violation of the law, a hearing is given to the party from whom the sample was obtained. Regulation 5 provides that this hearing may be had before the Secretary of Agriculture, or such other official connected with the food and drug inspection service as may be commissioned by him for that purpose. In practice I understand the hearing is had before the board of food and drug inspection in Washington, or such officer of the Bureau of Chemistry throughout the country as may be most convenient in each case.
Under the provisions of sections 4 and 5 of the act, when it is made to appear on such hearing that the law has been violated, the papers are to be certified by the Secretary of Agriculture to the proper officer of this Department for prosecution.
By section 11, in the case of imports the Secretary of the Treasury is to deliver samples to the Secretary of Agriculture, upon the latter's request, and opportunity for a hearing before the Secretary of Agriculture is to be accorded to the owner or consignee. If it appears from such examination that such articles are adulterated or misbranded, then they are refused admission into this country.
It clearly appears from this brief statement that the direct and active enforcement of the statute is cast upon the Department of Agriculture and upon that Department alone. The sole duty of the three Secretaries in connection with the law is the making of rules and regulations for carrying out its provisions.
With this understanding of the law, I think the answer to your questions is plain.
The referee board was established by the Secretary of Agriculture and is a board of his Department. By letter to me of March 23, 1909, the Secretary stated that the members of the board are charged with the duty of considering and reporting to him upon the wholesomeness or the deleterious character of such foods, or articles used in foods, as might be referred to them, their sole function being to investigate and report (27 Op. 300—305).
This board has, at the direction of the Secretary of Agriculture, investigated the effect of copper salts as a preservative of foods and has reported that copper salts are an added deleterious ingredient, which may render injurious to health the articles to which added.
I understand that in similar investigations made by this board the report has been submitted to the three Secretaries, and, if approved by them, a rule has been promulgated to the effect that the preservative investigated will, or will not, constitute an adulteration, as the case may be.
I take it that such rules have been made under a misapprehension of the true meaning of the statute. I understand that the finding of the referee board is not conclusive upon the courts should the question of the correctness of such finding properly arise in a case. On the contrary, I understand that the report of the referee board is no more than the statement of the board in each case that, in the opinion of the eminent chemists composing it, the use of the preservative in question is, or is not, deleterious to the human system.
This report is not binding upon the Secretary of Agriculture, but is simply for his information and guidance. Should he approve the finding of the board, and so announce to the public, I understand that this announcement
is merely a statement that in the subsequent examinations of samples of foods collected under the food and drugs act the decision thus made will be followed. To take the present case as an illustration, it is a statement to the public that the Department of Agriculture regards the addition of copper salts to articles of food as an adulteration and will report all such cases to this Department for prosecution.
I am, therefore, of the opinion that the three Secretaries are restricted to the making of rules and regulations and have no authority to review findings of fact and reports made to the Secretary of Agriculture. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARIES OF THE TREASURY, OF
AGRICULTURE, AND OF COMMERCE AND LABOR.
PORTO RICO-LEGALITY OF BOND ISSUE.
The issuance of bonds by the government of Porto Rico for port
improvements at San Juan, as provided by an act of the legislative assembly of Porto Rico, approved March 7, 1912, not being in excess of 7 per centum of the aggregate tax valuation of its property and complying in every other respect with the terms of
the organic act, is legal. The form of the proposed bond appears to comply with the provi
sions of section 2 of said act of March 7, 1912, the relevant section upon this matter.
DEPARTMENT OF JUSTICE,
July 11, 1912. SIR: I have the honor to acknowledge the receipt of your letter of the 8th instant, inclosing a copy of an act of the legislative assembly of Porto Rico, approved March 7, 1912, authorizing the treasurer of Porto Rico to issue bonds of the people of Porto Rico to the amount of $500,000 for the purpose of constructing a permanent bulkhead in San Juan Harbor, and making other improvements therein, together with a draft of the form of bond proposed to be issued under the authority of the said act. You request my opinion on the legality of this issue of bonds and as to the correctness of the proposed form.
89760°— VOL 29—13-32