« AnteriorContinuar »
into its possession. The accomplishment of this object was imposed upon the Postmaster-General, who was to co-operate with the military commander in the territory thus occupied for that purpose. As to the domestic postal service in such territory, no such co-operation was required. The continuance and extension of that service was committed exclusively to the charge of the military commander. Thus the delimitation of the Postmaster-General's authority under this order was clearly marked, and any conflict between him and the Secretary of War as to the management of affairs in such territory avoided.
It follows from what has been said, that the postal service in the Philippine Islands is not subject to the general laws of the United States regulating the mails under your administration. It therefore becomes unnecessary to inquire whether act No. 179 of the Philippine Commission, which relates simply to the official mail of insular and provincial officials "carried from one point in the Philippine Islands to another," is in harmony with the regulations prescribed by the laws of the United States on that subject.
Official mail matter coming from the Philippines through the service under your control should, however, comply with the laws of the United States relating thereto; and the question is suggested as to the endorsement which such matter should bear.
Section 5 of the act of Congress of March 3, 1877 (19 Stat., 335), provides that it shall be lawful to transmit through the mail, free of postage, any letters, packages, or other matters relating exclusively to the business of the Government, "provided, that every such letter or package to entitle it to pass free shall bear over the words 'Official Business' an endorsement showing also the name of the Department, and, if from a bureau or office, the names of the Department and bureau or office, as the case may be, whence transmitted." (By section 6 the penalty for the unlawful use of such envelopes is also required to be stated.)
It is to be observed that, under the instructions to the Philippine Commission of April 7, 1900, and the Executive Order of June 21, 1901, the powers and duties thereby con
ferred upon the commission and the civil governor were to be exercised under the direction and control of the Secretary of War; and that by the act of July 1, 1902, ratifying and confirming the instructions and order referred to, Congress continued this relation. It is also to be noted, in this connection, that by section 86 of the Philippine act, the commission are required to make annual report of all their receipts and expenditures to the Secretary of War; while section 87 continues, until otherwise provided, the division of insular affairs of the War Department organized by the Secretary of War, and provides that "the business assigned to said bureau shall embrace all matters pertaining to civil government in the island possessions of the United States subject to the jurisdiction of the War Department."
In view of these provisions, it seems to me a reasonable inference that, until otherwise provided, Congress intended that the government for the Philippine Islands, authorized and approved by the act of July 1, 1902, should be regarded as a branch of the War Department. The penalty envelopes used by its officers should therefore be endorsed accordingly.
Where a person who has contracted with the Government to carry the mails over several routes enters into an agreement with a third person, without the consent of the Postmaster-General, to perform the whole service he has contracted to perform with regard to one of the routes, and is to receive the whole compensation allowed therefor, such agreement is a sub-contract within the meaning of the act of May 17, 1878 (20 Stat., 62), and the regulations of the Post-Office Department thereunder.
DEPARTMENT OF JUSTICE,
SIR: I have the honor to reply to your note of August 19, 1902, with its inclosures, in which you request my opinion
upon the question whether the agreement of John R. Carter with Moses Landry, which you submit, is a sub-contract within the meaning of the law forbidding the sub-letting or transfer of contracts for carrying the mails.
The situation is this: On January 1, 1902, the Post-Office Department, having advertised according to law for proposals for carrying the mails on certain routes, accepted the proposals of John R. Carter to carry the mails on four separate routes at the same time, including the route here in question, and a contract was accordingly made with him for that route.
The act of May 17, 1878 (20 Stat., 62), forbids the "subletting or transfer of any mail contracts without the consent, in writing, of the Postmaster-General," and provides that in case of such sub-letting or transfer without such consent the contract shall be considered as violated and the service may be again advertised. The advertisement for proposals, the proposal of Carter in this case and his contract also forbid such sub-letting or transfer of the contract, and provide that the contractor shall reside upon or contiguous to the route for which he contracts and give his personal supervision to the performance of the service; and the question submitted is whether this contract with Landry is a sub-letting or transfer of Carter's contract with the Government.
The original contract between Carter and the Government is for the carrying of mail over a certain route, upon certain conditions, during a certain period, and with a specified compensation for the service. By the contract between Carter and Landry the latter agrees to perform in whole the service for which Carter had contracted. Every stipulation respecting the actual execution of the work in Carter's contract with the Government is to be found in the Landry contract, and the same compensation allowed to Carter is agreed to be paid to Landry. The Landry contract, therefore, seems to come fairly within the meaning of the term sub-contract as defined by the authorities.
But it does not seem to me necessary to investigate the learning on the distinctions between a dependent or independent contractor and the mere servant relation, growing
chiefly out of cases of liability for damages or injuries to third parties, for I think the law before us plainly disposes of the present question by its terms.
Section 3 of the act of 1878 provides that when any person shall lawfully sub-let a mail contract, or lawfully employ any other person to perform the service or any part thereof, he shall file a copy of his contract, etc. By this it is, I think, intended that any employment beyond the mere casual and temporary hiring of vehicles, etc., calls for a formal agreement to be filed, and constitutes a subordinate arrangement which falls under the head of a sub-contract, and as such must receive the consent of the PostmasterGeneral in order to be lawful. To sub-let a contract and to employ another to perform the entire service or some substantial and integral part thereof, are in effect synonymous acts in the contemplation of this law. Even if there were an abstract doubt whether Carter had sub-let" his contract, the instructions to bidders, based upon the established executive construction of the law, sustain the view just stated. Paragraphs 68 and 70 show that in order to delegate his duty to another, or before making a sub-contract, a contractor must secure the permission of the PostmasterGeneral. There can be no reasonable doubt that Carter's arrangement with Landry is fairly typical of the subordinate relations included in the intent of Congress. If this is not a sub-contract" within the meaning of the act, whether it is or is not the "sub-letting" of a contract, it is difficult to say what the scheme of Congress does mean and include.
It appears to me to be the manifest policy and intention of Congress to commit to the Post-Office Department full control of all manner of subordinate arrangements and employments for carrying the mails, without respect to highly technical terms and distinctions of law. I therefore think that Carter's agreement with Landry was such a sub-letting of the service as is forbidden by the law and his contract thereunder, except upon the consent which was not obtained. That Carter himself understood it in that light is evident from the language used in his various communications, quoted by you. I am of opinion, therefore, that the agreement thus entered into is a sub-contract within the meaning
of the statute and the regulations of the Post-Office Department thereunder.
P. C. KNOX.
CHINESE LABORER-RETURN CERTIFICATE.
The act of April 29, 1902 (32 Stat., 176), extending the provisions of the Chinese-exclusion laws, and expressly reenacting section 7 of the act of September 13, 1888 (25 Stat., 477), continued existing laws only "so far as the same are not inconsistent with treaty obligations." As heretofore held by this Department (21 Opin., 357; 23 Opin., 545), Article II of the treaty with China of 1894 displaced the provisions of section 7 of the act of 1888 with regard to the certificate of disability which must be presented by a registered Chinese laborer returning to the United States after an absence of more than one year.
DEPARTMENT OF JUSTICE,
December 4, 1902.
SIR: I have the honor to acknowledge the receipt of your letter of November 3, with its inclosures, in which you ask me relative to certain cases actually arising, whether the act of April 29, 1902 (32 Stat., 176), extending the provisions of the Chinese exclusion laws, and expressly reenacting section 7 of the act of September 13, 1888, revived said section so as to make its provisions the controlling legislation respecting the certificate of disability which must be presented by a registered Chinese laborer returning to the United States after an absence of more than one year.
Article II of the treaty of 1894 provided that the facts showing disability, by reason of sickness or other cause, preventing a laborer from returning within one year from the date of leaving the United States, should be certified by the Chinese consul at the port of departure," which has been held to be the proper consul of China in this country. (21 Opin., 357; 23 Opin., 545.) Section 7 of the act of 1888 made the consular representative of the United States at the port of departure in China the proper authority to certify the facts as to disability. In 23 Opin., 545, I held that the rule of the treaty on this point had displaced the rule of section 7.