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in a bid for a contract does not make him such “agent,” and section 412 does not apply.
Referring to Revised Statutes, section 1783, you do not state in your letter the exact nature of Mr. Machen's duties, except that he is General Superintendent of the Free-Delivery System. I assume, for the purposes of this opinion, that he has no official relation with the purchase of coal for the use of the Department, and if this be the fact, section 1783 is inapplicable, for Mr. Machen as such superintendent does not "act as an officer or agent of the United States" with reference to such purchase of coal.
The general question as to the right of executive officers to contract as principals with the Government was discussed by Attorney-General Williams in an opinion (14 Opin., 483) in which, after referring to sections 1781 and 1782, he says (p. 484):
But there is not in the statutes any general prohibition which prevents executive officers from contracting directly with the Government, as principals, in matters entirely separate from their offices and in no way connected with the performance of their duties as officers of the Government; nor are they forbidden to be connected with such contracts, after they are procured, by acquiring an interest in them. And here there is a marked difference made in the legislation of Congress between the members of that body and the executive officers of the Government. Both classes come under the prohibition of the laws above cited. But in the act of 1808 (2 Stat., 484; Rev. Stats., sec. 3739), which strictly prohibits all interest in, and all connection, as principals, with Government contracts, Members of Congress and Delegates only are mentioned as coming within the intention.
"From this statement it is clear that it has not been the purpose of Congress to prohibit executive officers in general from being, as principals, connected with Government contracts, nor, except as above pointed out, from acquiring interests in them. There is not in the statutes any such prohibition applying to United States pension agents."
While I am, for the reasons stated, of the opinion that you are not forbidden by any statute from awarding the
contract under consideration to the lowest bidder, I must not be understood as advising you that you are under any legal obligation to do so. I know of no law which requires you to award a contract of this character to the lowest bidder. The acceptance of any bid is a matter of administrative judgment and discretion, and you are at liberty, for any reason that in your judgment is to the public interest, to disregard any bid. The matter is one of administrative judgment and discretion, and as such I am without either authority or obligation to express any opinion with reference to it.
P. C. KNOX.
STATUTORY CONSTRUCTION-CHINESE EXCLUSION LAWS. Section 2 of the act of April 29, 1902 (32 Stat., 176), which empowers the Secretary of the Treasury, with the approval of the President, to appoint such agents as he may deem necessary for the efficient execution of the Chinese treaty and Chinese exclusion laws, does not repeal by implication the provisions of the various previous acts in relation to the exclusion of Chinese, vesting in the collector of customs and his deputies the power to enforce the provisions of those laws, but is to be regarded as additional legislation on the subject and in harmony therewith.
The agents to be appointed by the Secretary of the Treasury under the above-named act are not to supersede the collectors in the performance of their duties regarding the admission of Chinese, but constitute an additional force to act in co-operation with them in securing an effective enforcement of the law.
Repeals by implication are never favored. There must be a positive repugnancy between the old and the new law to work an implied repeal. If possible, the two laws should stand together.
DEPARTMENT OF JUSTICE,
January 21, 1903.
SIR: In your letter of December 4, 1902, you state that various provisions of the Chinese exclusion laws designate the collectors of customs at the ports of entry as the administrative officers responsible for the enforcement of law respecting the admission of Chinese persons into the United States. For instance, sections 3 and 4 of the act of 19219-03—36
1882, as amended by the act of 1884, impose certain duties. upon collectors of customs acting in person or by deputy, and section 12 of the act of September 13, 1888 (25 Stat., 478), provides
"That before any Chinese passengers are landed from any such vessel, the collector, or his deputy, shall proceed to examine such passengers, etc.; and no passenger shall be allowed to land in the United States from such vessel in violation of law; and the collector shall in person decide all questions in dispute with regard to the right of any Chinese passenger to enter the United States."
You also refer to section 2 of the act of April 29, 1902 (32 Stat., 176), providing—
"That the Secretary of the Treasury is hereby authorized and empowered, with the approval of the Presi dent, to appoint such agents as he may deem necessary for the efficient execution of said treaty and said acts."
You ask for an expression of my opinion on the question whether the language last quoted can properly be considered such a repeal of the provisions of the various acts in relation to the exclusion of Chinese, of which section 12 of the act of 1888 is an example, as to authorize the appointment by you, with the approval of the President, of agents to perform the duties assigned heretofore under authority of law to collectors of customs.
The principle upon which the question depends is that of repeal by implication, which is never favored. The rule of construction is that there must be a positive repugnancy between the old and new law to work an implied repeal, and that if possible the two laws should stand together.
Applying these tests to the act of 1902, it seems to me that section 2 of that act is not intended to take the place of section 12 of the act of 1888 and similar provisions, but is to be regarded as additional legislation on the subject. in harmony with and complementing the earlier provisions of law. There is nothing repugnant between the terms of the new act and those of former acts; the agents to be appointed by the Secretary of the Treasury are not to supersede the collectors of customs in the performance of their duties regarding the admission of Chinese. They
constitute an addition to your force, and are to act in cooperation with the collectors and other officers dealing with this subject, in order to secure effective enforcement of the law. My answer to your inquiry must accordingly be in the negative.
The SECRETARY OF THE TREASURY.
P. C. KNOX.
LOTTERY-GIFT ENTERPRISE-SCHEME OF CHANCE.
The contracts issued by the Home Co-operative Company of Kansas City, Mo., provide for the payment of a membership fee of $3, and succeeding monthly payments of $1.35, $1 of which is to be credited to the party paying the same and applied on the installment purchase of a home, the company agreeing that whenever the sum of $50 shall have accumulated from these monthly payments, and from such payments on each like contract subsequently issued, the contract having the lowest number not then matured shall be deemed to have matured, and the owner thereof shall be entitled to an installment of $50 per month to be applied on the payment of a home for such owner, until $1,000 has been paid, when such contract shall be deemed to be fully performed. After the maturity of a contract, the monthly payments are increased to $5.35, $5 of which is to be placed to the credit of the party purchasing the home; and when the amounts so paid aggregate $1,000, less the amount such owner has to his credit at the maturity thereof, then the lien of the company on the property is discharged and the title thereto vests in the owner of the contract. Each con
tract is to be numbered in the order of its acceptance and given the number next higher than the contract last made, the benefits of each contract beginning in numerical order after the fulfillment of the contracts of lower number.
Held, That the plan is a "gift enterprise or scheme for the distribution of money by chance," within the meaning of section 3894, Revised Statutes, as amended September 19, 1890 (26 Stat., 465), and, as such, the Postmaster-General is authorized, under sections 3929 and 4041, Revised Statutes, to exclude from the mails all matter connected with such business.
As the number given a contract when issued, and not the date of issue, determines its value, a contract bearing a low number will be much more valuable than one bearing a high number; and it being largely a matter of chance which contract will receive the lowest number, and consequently be of greater value, the elements of a lottery are clearly discernible in the scheme.
DEPARTMENT OF JUSTICE,
January 22, 1903.
SIR: I have the honor to acknowledge the receipt of your letter of May 9, 1902, with its inclosures, in which you request my opinion whether the plan and methods of business of the Home Co-operative Company, of Kansas City, Mo., are such as to authorize the Postmaster-General to forbid the use of the mails in such business, as provided in Revised Statutes, sections 3929 and 4041, as amended (26 Stat., 465).
These sections, with section 3894, as amended, forbid the use of the mails for mail matter "conveying any lottery, socalled gift concert, or similar enterprise offering prizes dependent upon lot or chance, or conveying schemes devised for the purpose of obtaining money or property by false pretenses," or "any lottery, gift enterprise, or scheme for the distribution of money or any real or personal property by lot, chance, or drawing of any kind," or "covering any other scheme or device for obtaining money or property of any kind through the mails by means of false or fraudulent pretenses, representations, or promises," and sections 3929 and 4041 authorize the Postmaster-General to prevent the delivery of any registered letter or the payment of money orders to persons engaged in such business, and the question submitted is whether the business of this company is of the character here described.
The Home Co-operative Company is a copartnership. In the contract issued by the company it is provided that—
"The parties of the first part (the company) shall number this contract in the order of its acceptance, which shall be the next number higher than the contract last made by the parties of the first part of like kind with anyone, and the benefits of this contract shall begin in its numerical order after the fulfillment of the contracts of lower number and according to the plan of co-operation of the party of the first part, as further described herein.
"The party of the second part shall pay to the parties of the first part the sum of three dollars ($3.00) as a membership fee, and shall pay on this contract the sum of one dollar