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and proximately in view in the contract as specifically appropriated to and destined for the Government use. To determine what class of work is covered by this definition must be largely a matter of administration, but, in my opinion, the general work done by the contractor or a subcontractor in his plant, which is applicable and destined to the fulfillment of his contracts with all persons generally, does not fall within the law. Only that portion of the work which can be regarded as directed specifically to the fulfillment of the Government contract, and to nothing else, falls within the provisions of the act.
3. Your third question is as to the meaning of the words ** supplies * whether manufactured to conform to particular specifications or not” and “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," in section 2 of the act, and more specifically, whether projectiles, or shells, and smokeless powder fall within the class referred to.
The two phrases above quoted appear to be practically synonymous. “ Supplies” are things which are had in store or in stock. Such articles are, of course, usually sold in the open market, while materials or articles which are usually to be bought in the open market are necessarily, as a rule, those which are had in stock or in store. Generally speaking, whether a particular article or material falls within the above exception in section 2 is a matter of administration, and the decision of an administrative officer thereon would certainly not be lightly overruled.
As to the projectiles or shells, you make the following statement:
“ The Government purchases projectiles or shell in large numbers. None are manufactured by either the Navy or the War Department at the present time, with the possible exception of a few 1-pounder target shell manufactured by the Ordnance Department of the Army for training purposes. The shell are manufactured by a large number of companies, many of which carry on the work in connection with their regular commercial business. There is no market
for them in this country except to the Government, and they are not usually kept in stock, but are furnished only in accordance with particular specifications under special contracts let after opportunity for competitive bidding. In these respects, however, they are not different from armor and armor plate, which are manufactured by but three companies, and which the Congress, by excepting them therefrom, would seem to have considered to be among such materials or articles as may usually be bought in open market.' Armor-piercing shell are made ordinarily by the crucible process, while target shell are cast. In a sense a projectile is simply a treated steel forging or casting conforming to certain prescribed dimensions. It has certain attachments, such as rotating bands, wind shields, and caps, all of which, including the forging or casting itself, are procurable in the open market, the service required of the contractor when the parts are so obtained being to assemble, treat, and finally machine the projectile. Hence, although in a measure a special article, it is, as delivered to the Government, nothing more than a finished treated forging or casting that must be fused and loaded with explosive to place it in an effective condition for service.”
This statement seems to carry its own answer. Since there is no market for these shells in this country except to the United States Government, they necessarily do not fall within the exception of articles usually to be bought in the open market. In my opinion, however, under the facts stated by you in regard to the manufacture of projectiles, only the work done in assembling the parts, treating the forging or casting, and machining the projectile would be “ work contemplated by the contract,” as defined in my answer to your second question, unless the casting and other parts were manufactured solely and exclusively for the purpose of making the projectile.
As to smokeless powder, you state:
“All the smokeless powder used by the Government, except that which it itself manufactures, is obtained from the Du Pont Powder Company. Military smokeless powder is not an ordinary supply, material, or article such as can usually be bought without special contract or without being
manufactured specially for the Government. Up to a certain point the manufacture of military smokeless powder by the company is commingled with the manufacture of commercial smokeless powder,' but beyond that point, which differs somewhat at the three plants of the company where Government powder is made, the processes in the manufacture of military smokeless powder are differentiated and are separate from those involved in the completion of powder for commercial purposes
*" From this statement it appears that military smokeless powder is manufactured through a large part of the process by the same methods as commercial smokeless powder, the difference beginning at the point of dehydration, and that commercial smokeless powder can be usually bought in the open market. If, therefore, military smokeless powder be simply a form of commercial smokeless powder, so that it can be fairly said that military smokeless powder is nothing more than commercial smokeless powder manufactured to conform to particular specifications, it would, in my opinion, fall within the exceptions. If, however, military smokeless powder be a distinct species of powder, then, since it can not be bought as such in the open market, it would not fall within the exception. Whether it is the one or the other appears to be a question of fact which you should determine for yourself.
In regard, however, to smokeless powder another serious question appears to be involved. You state that the Government maintains two establishments for the manufacture of smokeless powder; that this manufacture is in no sense experimental or spasmodic, but is carried on as a wellestablished Government industry; and that the product of these two plants represents about 30 per cent of the total amount of powder required by the Government during a year. Upon these circumstances the case of the smokeless powder appears to fall within the proviso to the exceptions in section 2, which reads:
“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, or corporations for or on behalf of the United States or any of
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the Territories or the District of Columbia, be performed in accordance with the terms and provisions of section one of this act."
In my opinion to the Secretary of War of August 19, 1912 (29 Op. 513), I said in reference to this proviso that it“ must be construed as referring to work which, up to the time of the making of the contract therefor, has ordinarily been performed by the Government, and not merely occasionally or to a limited extent.”
I can not regard a manufacture which continuously turns out 30 per cent of the Government's requirements as being occasional or limited. If this be not a case intended to be covered by the proviso, I can hardly conceive of a case which would. The manufacture of powder is expressly referred to in the debates in the House as being one of the things which the proviso was intended to cover, and it seems to be a case similar in all respects to the construction of battleships to which Congress has steadily of late manifested a purpose to extend the 8-hour day. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF THE NAVY.
POSTAL-SAVINGS SYSTEM-IMPROVEMENT BONDS OF
WEST END AND TUSCALOOSA, ALA.
Certain improvement bonds of the city of Tuscaloosa, Ala., which
purport to bind that city without any reservation, are public bonds supported by the taxing power within the meaning of section 9
of the postal-savings depositories act of June 25, 1910 (36 Stat. 816). Certain other improvement bonds of the city of West End, Ala.,
which are not payable out of the general taxes of the municipality, but merely out of a special fund, are not acceptable as security for postal-savings deposits.
DEPARTMENT OF JUSTICE,
October 3, 1912. Sir: I have the honor to acknowledge the receipt of your letter of the 20th ultimo, in which you state that the Treasurer of the United States has held that certain improvement bonds issued by the cities of West End and
Tuscaloosa, Ala., are not acceptable as security for deposits of postal-savings funds on the ground that they are payable in each case from assessments levied against property in only a portion of the city. You request my opinion as to whether the bonds, copies of which you inclose, are“ public bonds or other securities, supported by the taxing power," within the meaning of section 9 of the act of June 25, 1910 (36 Stat. 816).
As to the bonds of the city of Tuscaloosa, I assume that this city has a population of 6,000 or more. (Ryan v. The Mayor, etc., of Tuscaloosa, 155 Ala. 479.) Such being the case, the constitution of Alabama of 1901 provides, in section 225:
All towns and cities having a population of six thousand or more,
are hereby authorized to become indebted in an amount including present indebtedness, not exceeding seven per centum of the assessed valuation of the property therein, provided that there shall not be included in the limitation of the indebtedness of such last described cities and towns the following classes of indebtedness, to wit:
bonds or other obligations already issued, or which may hereafter be issued for the purpose of acquiring, providing or constructing school houses, water works and sewers; and obligations incurred and bonds issued for street or sidewalk improvements, where the cost of the same, in whole or in part, is to be assessed against the property abutting said improvements;
16 * * *
Section 1339 of the Code of Alabama of 1907, as amended by the act of April 12, 1911 (Laws of Alabama, 1911, p. 371), grants power to all the cities and towns of the State to contract for and to construct or cause to be constructed both main and lateral sewers, and section 1409 of the code of 1907 authorizes the cities and towns to issue bonds, within the limitations prescribed by the constitution, for the purpose of providing funds to pay the cost of any improvement authorized to be made under the provisions of section 1359 aforesaid. Section 1410 of the code provides that the said bonds shall be negotiable and payable to bearer and may be payable in lawful money, or gold coin