« AnteriorContinuar »
It is my opinion that the law as passed by Congress ought not to be altered by a printer's error. “ Where there is a discrepancy between the printed statute and an enrolled act all the authorities agree that the latter controls." Lewis' Sutherland on Statutory Construction (sec. 74) and cases there cited. See also Bishop on the Written Laws (sec. 37), Clare v. State of Iowa (5 Iowa 509); State v. Marshall (14 Ala. 411); State v. Byrum (60 Neb. 384); Johnson v. Barham (99 Va. 305).
I am, therefore, of the opinion that the indemnity selection for lost mineral lands may be made within 50 miles of the line of the road. Respectfully,
GEORGE W. WICKERSHAM.
The SECRETARY OF THE INTERIOR.
ELIGIBILITY OF RETIRED NAVAL OFFICERS FOR APPOINT
MENT IN THE CLASSIFIED SERVICE.
A retired officer of the Navy whose retired pay amounts to $2,500
per annum is within the prohibition of section 2 of the act of July 31, 1894 (28 Stat. 205), and is ineligible to hold office as clerk of
class 3 under the United States Civil Service Commission. The position of a clerk of class 3 under the United States Civil
Service Commission, the appointment thereto being authorized by the President, is an office within the meaning of section 2 of the act of July 31, 1894.
DEPARTMENT OF JUSTICE,
August 12, 1912. SIR: I have the honor to acknowledge the receipt of your letter of the 31st ultimo, inclosing a letter from the Civil Service Commission in reference to the case of Commander Homer C. Poundstone, United States Navy, retired, and requesting my opinion thereon.
It appears that Commander Poundstone has been retired from active service in the Navy, and as such retired officer is in the receipt of a salary amounting to $2,500 per annum. He has now been placed by order of the President upon the
66 * * *
rolls of the United States Civil Service Commission as a clerk of class 3 under instruction for duty as district secretary
at Philadelphia, and the question is as to the legality of this latter employment.
Section 2 of the act of July 31, 1894, chapter 174 (28 Stat. 205), provides, in part, as follows:
No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law; but this shall not apply to retired officers of the Army or Navy whenever they may be elected to public office or whenever the President shall appoint them to office by and with the advice and consent of the Senate."
It is clear, both on principle and according to the authorities, that a retired officer of the Navy holds an office with a salary or annual compensation attached within the meaning of the above enactment, even if the express language of the exception be not considered. The status of retired Army officers (and in this regard a retired officer of the Navy does not differ from a retired officer of the Army) was considered with great fullness and precision by the Solicitor General in his opinion of May 17 last. (29 Op. 397.) He there discusses the case of United States v. Tyler (105 U. S. 244), and, referring to People v. Duane (121 N. Y. 367), says:
The continuance of honor and emolument to officers retired from active service is in part in consideration of faithful service in the past, but it is also true, and that is the reason of the opinion in the Tyler case, ignored in the Duane case, that honor and emolument are continued to these officers, because they are continued in the service. They may not be always or ever actively engaged, their brothers on the active list may be sufficient for every present need of Government, but, like those brothers, they a re always subject to the call of duty, and it is to be said of them, and was said of them in Tyler's case, that,
“They also serve who only stand and wait.""
66 * * *
The Solicitor General also discusses the case of Goddes (38 Ct. Cl. 428), and, after quoting from the language of ihe majority opinion in the case, he says of it:
“ This reasoning, as the minority hold, is in direct conflict with that of United States v. Tyler, supra, and can not be accepted as a correct statement of the law.”
It follows necessarily from this opinion that Commander Poundstone falls within the prohibition of section 2 of the act of July 31, 1894, supra, and is ineligible to hold office as clerk of class 3 under the United States Civil Service Commission; and this conclusion is rendered irresistible by the proviso to that act excepting retired officers of the Army or Navy in certain cases, of which this is not one.
That the position of a clerk of class 3 under the United States Civil Service Commission, the appointment thereto being authorized by the President, is an office within the ineaning of section 2 of the act of July 31, 1894, supra, is determined by the decision of the Supreme Court in United States v. Hartwell. (6 Wall. 385.) Respectfully,
GEORGE W. WICKERSHAM. The PRESIDENT.
EIGHT-HOUR LAW_CONTRACTS FOR THE PURCHASE OF
SUPPLIES BY THE GOVERNMENT.
The eight-hour workday restriction of the act of June 19, 1912,
known as the eight-hour law, applies to contracts for the purchase of supplies by the Government where the work incident to the manufacture thereof has ordinarily been performed by the Gorernment up to the time of the making of the contract therefor, and not merely occasionally or to a limited extent, and it is immaterial whether the contractor furnishes both materials and labor
or labor only. The said act of June 19, 1912, becomes effective Janaury 1, 1913,
and hence only contracts thereafter made are required to contain the eight-hour restriction and the penalty stipulation provided for therein.
DEPARTMENT OF JUSTICE,
August 19, 1912. SIR: I have the honor to acknowledge the receipt of your letter of the 17th ultimo calling my attention to the eight
hour law enacted June 19 last and submitting several questions regarding its application to contracts about to be let by your Department.
Your questions are specifically:
“1. Do the provisions of section 1 of the act apply to contracts for the purchase of cloth and other supplies manufactured according to specifications required for the use of the United States Army?
“2. Do the provisions of said section 1 apply to contracts for the manufacture of clothing, tents, and other supplies in the manufacture of which the Government may have heretofore engaged on its own account (a) where the manufacturer supplies all materials and labor, and (6) where the Government supplies the materials and contracts for the performance of the labor only?
“3. Should the provision regarding the employment of labor be inserted in contracts now to be awarded for supplies for the entire current fiscal year?”
Your letter further states that “the War Department has from time to time engaged in the manufacture of clothing, tentage, and various equipments for the Army on its own account, using materials purchased for the purpose, but that as a general rule the Government awards contracts for the manufacture of clothing furnishing material therefor," and that “while at various times the Government may have engaged to a limited extent in the manufacture of almost every class of supplies, the greater portion of supplies for immediate consumption is purchased in open market or under contract.”
Looking at the act of June 19, 1912 (37 Stat. 137), in order to ascertain its general scope, it is found that section 1 lays down the rule which is to govern all contracts hereafter entered into by the United States or on its behalf, prescribes the penalty for a violation of its requirements and the mode of redress where the penalty is unjustly exacted, while section 2 states the exceptions to the rule and the qualifications and limitations thereof.
The rule is thus stated in section 1:
" That every contract hereafter made to which the United States, any Territory, or the District of Columbia is a
* * * "
party, and every such contract made for or on behalf of the United States, or any Territory, or said District, which may require or involve the employment of laborers or mechanics shall contain a provision that no laborer or mechanic doing any part of the work contemplated by the contract, in the employ of the contractor or any subcontractor contracting for any part of said work contemplated, shall be required or permitted to work more than eight hours in any one calendar day upon such work; and every such contract shall stipulate a penalty for each violation of such provision in such contract of five dollars for each laborer or mechanic for every calendar day in which he shall be required or permitted to labor more than eight hours upon said work
After thus stating the general rule that an eight-hour day shall be established as to all work done under contract with the United States and involving the employment of laborers or mechanics, section 2 proceeds to formulate exceptions to the general rule, as follows:
“ That nothing in this act shall apply to contracts fo transportation by land or water, or for the transmission of intelligence, or for the purchase of supplies by the Government, whether manufactured to conform to particular specifications or not, or for such materials or articles as may usually be bought in open market, except armor and armor plate, whether made to conform to particular specifications or not, or to the construction or repair of levees or revetments necessary for protection against floods or overflows on the navigable waters of the United States:
The cases mentioned are thus excepted from the operation of the general principle established by section 1 and are left to be governed without reference to the act. But to these exceptions there is attached a proviso, the effect of which under the settled canons of construction must be to limit and narrow the exceptions, to create an exception to the exceptions. That proviso is as follows:
* Provided, That all classes of work which have been, are now, or may hereafter be performed by the Government shall, when done by contract, by individuals, firms,
66 * *