conviction be punished by a fine not to exceed one thousand dollars or by imprisonment for not more than six months, or by both such fine and imprisonment, in the discretion of the court having jurisdiction thereof. Sec. 2, ibid.

contracts not af

Sec. 3, ibid.

1196. The provisions of this act shall not be so construed Present as to in any manner apply to or affect contractors or sub- fected. contractors, or to limit the hours of daily service of laborers or mechanics engaged upon the public works of the United States or of the District of Columbia for which contracts have been entered into prior to the passage of this act. Sec. 3, ibid.

The original statute on this subject-the act of June 25, 1868, incorporated in section 3738, Revised Statutes-merely provided that eight hours should constitute a day's work" for laborers etc., employed by the United States. It has been held by the Supreme Court (U. S. v Martin 94 S. 400), (a) that this enactment was merely a direction by the Government to its agents," "not a contract between the Government and its laborers, that eight hours shall constitute a day's work, and that it did not "prevent the Government from making agreements with them by which their labor may be more (or less) than eight hours a day." The act thus failed of its apparent object. To cure this defect was passed the act of Angust 1. 1892, chapter 352. Held, therefore, that the term "public works of the United States," used in the first section of the later act, should not be narrowly construed. (Dig. Opin. J. A. Gen., 380, par. 1.)

Thus held that the construction of levees on the banks of the Mississippi River, in accordance with the plans of the Mississippi River Commission, was a public work of the United States in the sense of the act of August 1, 1892 chapter 352, section 1, although the United States did not own the land. A proprietorship in or jurisdiction over the thing constructed is not necessary. The United States expends annually more than twenty millions for the improvement of rivers and harbors, but the greater part of this is done without acquiring title or jurisdiction to or over the premises. The question under the act is not in whom is the title or jurisdiction, but who is doing the work. The construction of these levees is a particular work appropriated for by Congress and to be contracted for by the United States. It is therefore one of the public works of the United States, and subject to the provisions of this statute. (b) (Ibid., par. 2.)

Held, that it was not essential that the requirement of the act of August 1, 1892. be embodied in a contract, the law itself being self-acting. The responsibility rests on contractors to comply with it, irrespective of the terms and conditions of their contracts. The officers who enter into contracts on behalf of the United States are not charged with the duty of enforcing the law with reference to those with whom they contract, the latter being directly responsible in the matter. Any construction by the War Department of the requirements of the act would, if erroneous and not sustained by the courts, be no protection to contractors. (Ibid., p. 381, par. 3.) ̧

Inquiry having been made of the War Department by certain contractors whether the men employed on dredges, scows, and tugs, on Lake Erie, under contracts with the United States, were not to be regarded as excepted from the application of the act of 1892, held that it was not the duty or province of this Department to determine such questions, but that the same were for the courts to decide, on trials, under the second section of the act, of persons charged with violations of its provisions. Neither this or other Department of the Government can lay down rules, or make constructions of the law, for contractors, which would effectually protect them were they brought to trial. (e) (Ibid., p. 382, par. 5.)

No provision is contained in the act of 1892 for the suspension of its operation, and the Secretary of War has no power to suspend it as to certain work or places of work on the theory that an emergency" exists as to the same. Nor can he lay down in advance any general rule as to what would be such an emergency as would relieve an officer or contractor from liability, or give him an immunity from prosecution. The question of the existence of an emergency is to be determined, in the first instance, by the person carrying on, or in charge of the work; in the second, by the court, if the case comes before one. It may be said generally that when the emergency can be foreseen it is not extraordinary; that increased expense and inconvenience can not constitute an emergency which can not be foreseen and guarded against. (Ibid., par. 7.)

a And see 19 Opin. Att. Gen., 685.

b In the recent case of U. S. v. Jefferson, 60 Fed. Rep., 736, it is held that seamen employed on a steam snag boat belonging to the War Department, engaged in removing obstructions to navigation, were employed upon a public work of the United States," and that the master of the boat, in exacting from them more than eight hours labor per diem, was indictable under the act of August 1, 1892.

cIn a communication to the Secretary of War of August 29, 1892, the AttorneyGeneral, whose opinion had been asked with regard to the application in general of the act to the "construction of levees on the Mississippi River," declines to give an official opinion with a view to the guidance of persons who may propose to enter into contract relations with the United States, in the absence of a special case requiring the action of the Secretary. (See 20 Opin. Att. Gen., 459.)

Penal bond to include security

BONDS TO SECURE PAYMENT FOR LABOR AND MATERIALS.

1197. That hereafter any person or persons entering into for labor and ma a formal contract with the United States for the construc

terials.

v. 28, p. 278.

Aug. 13, 1894, tion of any public building, or the prosecution and completion of any public work or for repairs upon any public building or public work, shall be required before commencing such work to execute the usual penal bond, with good and sufficient sureties, with the additional obligations that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract; and any person or persons making application therefor, and furnishing affidavit to the Department under the direction of which said work is being, or has been, prosecuted, that labor or materials for the prosecution of such work has been supplied by him or them, and payment for which has not been made, shall be furnished with a certified copy of said contract and bond, upon which said person or persons supplying such labor and materials Action on bond shall have a right of action, and shall be authorized to terials fur- bring suit in the name of the United States for his or their use and benefit agamst said contractor and sureties and to prosecute the same to final judgment and execution: Provided, That such action and its prosecutions shall involve the United States in no expense.' Act of August 13, 1894 (28 Stat. L., 278).

or labor or ma

nished.

Security for

costs.

Sec. 2, ibid.

1198. Provided that in such case the court in which such action is brought is authorized to require proper security for costs in case judgment is for the defendant. Sec. 2, ibid.

When a contract is entered into for the construction of any public building. the prosecution and completion of any public work, or for repairs on any public building or public work the contractor will be required, before entering upon per formance of the same, to include in the bond given for the faithful performance of the contract the further obligation that he will promptly make payments to all persons who supply him with labor and materials for the prosecution of the work provided for in such contract. A certified copy of this contract and bond will be furnished to any person who has supplied such labor or materials upon his appli cation to the War Department, accompanied by an affidavit hat the labor or mate rials have been supplied by him and have not been paid for by the contractor (Par. 565, A. R., 1895.)

1199. All lands belonging to the United States, to which the Indian title has been or may hereafter be extinguished, shall be subject to the right of pre-emption, under the conditions, restrictions, and stipulations provided by law.

Lands subject to pre-emption. June 2. 1862, c. Feb. 11, 1874, c. 25, v. 18, p. 18; Feb. 23, 1875, c. 99, v. 18, p. 334; Apr. 21, 1876, c.

94.8.1, v. 12, p.413;

Lands acquired by the United States for public uses, by purchase with the con- 72, v. 19, p. 35. sent of the legislatures of the States, or acquired by an exercise of the right of emi Shepley et al. v. nent domain are not public lands," that term applying only to such lands as are Cowen et al., 91 subject to sale or other disposition under general laws. Newhall v. Sanger, 92 U. S., U. S., 330. 761: 5 Opin. Att. Gen., 578. Power over such lands is vested in Congress by the Constitution, without limitation, and is the foundation upon which the territorial gov ernments rest. U. S. v. Gratiot, 14 Pet., 526. The power of Congress over the public land and the effect of its grants can not be interfered with by State legislation. Gibson v. Chouteau, 13 Wall., 92.

MILITARY RESERVATIONS.

No specific statutory authority exists empowering the President to reserve public lands; but the right to reserve such lands for public uses is recognized by the courts. 14 Dec. Int. Dep., 426, 607, 628; Wolsey v. Chapman, 101 U. S., 755, 768, Walcott v. Des Moines Co., 5 Wall., 681. Such reservation may be effected by proclamation or by Executive order. 13 Dec. Int. Dep., 426.

A military reservation, being simply territory of the United States withdrawn

Sec. 2257, R. S.

423

ject to pre-emption.

Lands not sub- 1200. The following classes of lands, unless otherwise specially provided for by law, shall not be subject to the 16. s. 10, v. 5, p. rights of pre-emption, to wit:

Sept. 4, 1841, c.

455; Jan. 12, 1877,

c. 18, v. 19, p. 221.

First. Lands included in any reservation by any treaty, Wilcox v. Jack law, or proclamation of the President, for any purpose.1

Josephs v. U. S.,

1 N. and H., 197, from sale, pre-emption, (a) etc. (7 Opin. Att. Gen., 574, 757; 14 ibid., 775), the mere fact of Turner . Amer. the establishing of such a reservation can not affect the power of the State or Territorial authorities (according as it may be located in a State or Territory), to serve ican Baptist Union, 5 Me-civil or criminal process therein, or to attach or levy upon personal property, except Lean, 344; U. S. in so far, of course, as such service may be specially precluded or restricted by law v. Railroad as to military persons in general. (b) Where indeed there has been a cession of exclusive jurisdiction over the land by the State to the United States, the question Bridge Comwhether the State authorities may still serve process within the reservation on pany, McLean, 5:7; Russell v. account of liabilities incurred or crimes committed outside of its limits will depend Beebe, Hemps., upon the terms of the cession. (Dig. J. A. Gen., 510, par. 1.)

704.

Land which has been set apart as a portion of an Indian reservation, under a Sec. 2258, R. S. treaty, can not be occupied as a military reservation; nor can even a military post be maintained thereon, in derogation of the terms of the treaty or against the consent of the Interior Department. (c) Ibid., 512, par. 3.)

Held that the right to the "free and open exploration and purchase" of mineral Under this head fall military and Ind an reservations, the Yellowstone National Park, and the forest reservations in California set apart by the President under the authority conferred by section 24 of the act of March 3, 1891. See the chapter enti tled NATIONAL PARKS.

a The Constitution (Art. IV. sec. 3, § 2) has vested in Congress the exclusive power "to dispose of and make all needful rules and regulations respecting the territory" (held in U. S. e. Gratiot (14 Peters, 537) to mean "lands) or other property belonging to the United States. As a consequence perhaps of the indefiniteness of this grant (see 7 Opin. Att. Gen., 574) no general enactment providing for the setting apart of land for military reservations has ever been made by Congress. In a few cases, indeed, a special authority to establish a military reserve has been conferred upon the President by statute, but the great majority of the military reservations heretofore located or now existing have been made by the President without any such specific authority whatever. But though no general authority has been directly given by Congress for the reserving of lands for military purposes, an authority for the purpose has been deemed to exist, and this authority is found in the usage of the Executive Department of the Government, as indirectly sanctioned by Congress in repeated preemption acts, acts relating to the survey of the public domain, appropriation acts, etc, in which lands reserved for military purposes by the President have been in general terms excepted from sale, exempted from entry, etc., or special provision has been made for the cost of improvements to be erected upon the same. In Grisar v. McDonald (6 Wallace, 381) the United States Supreme Court, by Field, J., observes: "From an early period in the history of the Government it has been the practice of the President to order, from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public uses. Further, "The authority of the President in this respect is recognized in numerous acts of Congress." The court then cites several statutes as containing this recognition, including the preemption acts of May 29, 1830, and September 4, 1841, and adds: "The action of the President in the making the (military) reservations (the title to which was at issue in the particu lar case) was indirectly approved by the legislation of Congress in appropriating moneys for the construction of fortifications and other public works upon them." And see 12 Opin. Att. Gen., 381; 14 ibid, 182; 17 ibid., 253; Wilcox v. Jackson, 13 Peters, 512; U. S. v. Hare, 4 Sawyer, 653; also U. S. v. R. R. Bridge Co. 6 McLean, 517. It is, moreover, to be noted that the provision of the act of 1841, referred to by the Supreme Court, has been incorporated as a general enactment in the Revised Statutes in the chapter (chapter 4 of title 32) on preemptions; section 2258 expressly excepting from the lands of the United States subject to the rights of pre-emption. lands included in any reservation by any treaty, law, or proclamation of the President for any purpose." (And see section 2393, specifically excepting military reservations from the operation of the laws authorizing the establishing of town sites ) The "proclamation of the President reserving lands for military purposes is usually in the form of a military general order issued by the Secretary of War, whose act in this, as in other administrative proceedings pertaining to the military administration, is in legal contemplation the act of the President, whom he represents. But no head of a Department or executive official inferior to the President can of his own authority, make a reservation of public lands. The power is vested only in Congress and the President. United States v. Hare, 4 Sawyer, 653, 669.

In this connection may be noted the ruling of Attorney-General Bates (10 Opins., 359) in opposition to that of Justice McLean, of the Supreme Court (in U. S. . The Railroad Bridge Co., 6 McLean, 517), but apparently concurred in by Attorney General Williams (14 Opins., 246), to the effect that where a tract of land of the United States has once been legally reserved for military purposes the President is not empowered, in the absence of authority from Congress, to relinquish such reservation and restore the land reserved to the general body of the public lands.

bAs by section 1237, Revised Statutes, exempting enlisted men from arrest for certain debts, or by the operation of the provisions of the fifty-ninth article of war as to the form to be observed in making criminal arrests of military persons.

c By Article VI, section 2, of the Constitution, all treaties made under the authority of the United States" are declared to be "the supreme law of the land;" and Indian reservations "have generally been made through the exercise of the treaty-making power, and in fulfillment of treaty obligations." (14 Opin. Att. Gen., 182.) That land can not be reserved or occupied for military purposes to the prejudice of a title previ ously vested in an individual or a corporation, see, further, 9 Opin., 339; 13 ibid., 469.

Second. Lands included within the limits of any incorporated town, or selected as the site of a city or town.

Third. Lands actually settled and occupied for purposes of trade and business, and not for agriculture.

lands, accorded to citizens, etc. by section 2319 Revised Statutes could not authorize an entry, for the purpose of prospecting for mines upon a military reservation once duly defined and established by the President, the mineral lands intended by the statute being clearly such as are included within the public lands' of the United States (Ibid 513 par 5)

Where certain persons had entered unlawfully upon a military reservation and had proceeded to cultivate the soil of the same for their personal benefit and to lead off water, needed for the use of the garrison, in order to irrigate the ground so cultivated -advised that the commandant be instructed to give such person reasonable notice to quit with their property and if they did not comply, to remove them by military force beyond the limits of the reservation (a) (Ibid, par. 6.)

Squatters and other trespassers and intruders may and should be expelled, by military force if necessary, from a military reservation (b). But such persons, when they have been suffered to own and occupy buildings on a reservation, should be allowed reasonable time to remove them If not removed after due notice the same should be removed by the military Material abandoned on a reservation by a trespasser on vacating may lawfully be utilized by the commander for completing roads walks, etc Squatters on United States reservations may be forced therefrom by criminal proceedings had under section 5388, Revised Statutes, or ejected by civil action (Ibid. 516 par 13)

Where squatters have made any considerable improvements upon a reservation, and their value has been duly estimated-as by a board constituted by the depart ment commander and presenting in its report all the evidence on the subject-an award by the Secretary of War, acquiesced in by the claimant, may be sued upon in the Court of Claims, which (in the absence of evidence of fraud or mistake) will accept such award as conclusive (c). (Ibid., par. 14 )

The general principle of the authority to remove trespassers, their structures and property, from land of the United States embraced in a military reservation, held specially applicable where the intrusion was for an injurious purpose as where the object was to lay a sewer intended to discharge into a main sewer constructed by the United States upon and for the use of its own premises. In this instance, as the trespass was committed by the authorities of a municipality advised that reasonable notice be given them to remove their property before resorting to military force for the purpose, and meantime that precautions be taken to prevent a connection between the proposed sewer and the sewers under the control of the United States. (Ibid., p. 517, par. 16.)

The cutting of timber on a military reservation is an offense against the United States, made punishable by section 5388. Revised Statutes, as amended by the acts of June 4, 1888, and of March 3, 1875, chapter 151. So. grass cut on a reservation and removed as hay would be personal property of which the asportation would be larceny under the act of March 3, 1875, chapter 144 And persons coming upon a military reservation for the purpose of cutting wood or grass, or to plow up the soil, or commit other trespass, may be removed as intruders, and the post commander should not hesitate to resort to military force if necessary for the purpose. And he may of course prevent such trespassers from carrying off with them any property of the United States. (Ibid. par. 15.)

In the absence of any statute directly or by necessary implication extending the powers of the local government of the District of Columbia over the military reservation and post at the Arsenal in Washington held (May, 1879) that the health officer appointed by the Commissioners (constituting such government), would not be empowered of his own authority, and without the consent of the military com mander, to enter upon such reservation and remove or abate a nuisance deemed by him to exist thereon. The effect of the legislation in regard to the government of the District is to except therefrom the public buildings and grounds of the United States, which are left to the charge of certain specified officials Even farther removed from such government is the reservation at the Arsenal the same being a military post commanded by the President through a military subordinate, and governed by military orders and regulations (Ibid, p 514, par 7)

The President's power in the matter of military reservations is limited to the setting apart and declaring of the reservation; and, for the purpose of adding to and modifying the boundaries of, the original reserved tract, a reservation may be redeclared by the Executive. But the President can not unreserve duly reserved land, either by revoking the order of reservation or otherwise. After lands have once been reserved for military purposes, the President, in the absence of authority, from Congress, is not empowered to withdraw or restore them. By the authority indeed, of the act of July 5, 1884, he may abandon a useless military reservation and turn the lands over to the Interior Department for disposition and sale. Bu the can not rereserve lands once turned over, they being no longer a part of the public do main, but lands in regard to which Congress has expressed a different will. (Ibid., par. 8.)

Land once duly reserved for a public purpose becomes separated from the mass of

a As to the authority to remove trespassers from military reservations, see 3 Opin. Att. Gen., 268; 9 ibid., 106, 476; G. O. 74, Hdqrs, of Army, 1869. That this authority is not deemed to be affected by the provision of section 15 of the act of June 18, 1878, see chapter entitled EMPLOYMENT OF MILITARY FORCE. See, also, Dig. J. A. Gen., p. 162, par. 6; 165 ibid., par. 9.

b See G. O. 62 of 1869.

c Maddux v. U. S., 20 C. Cls. R., 193, 199.