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Held, the modified bid, if authentic, would, upon acceptance before withdrawal, bind the bidder. (22 Op. A. G. 45, March 15, 1898.)

28-60. Government power to regulate commerce includes improvement of harbors.

The authorites of the city of Chicago have no legal power to prohibit the Government contractors from dumping material dredged from the harbor at Chicago within the limits selected and designated by the Secretary of War, in accordance with the authority conferred upon him by law.

The power of the United States to regulate commerce is general, absolute, and without limit, either as to the time, place, or detail of its exercise, except as to waters whose entire navigability for commerce is limited to the confines of a single State.

This power includes the right to regulate the use of all the means and instrumentalities used in commerce, whether on sea, river, harbor, or land, and entirely irrespective of whether a State has attempted to regulate the same matter or not.

Commerce is not restricted to the purchase, sale, and barter of commodities, but it includes navigation, intercourse, and the reception and transportation and delivery of passengers and freight by land and water, and also the means or instrumentalities used in such commerce.

Congress has power to regulate and improve the harbors of the navigable waters of the United States, and this carries with it the right to deposit the material removed in making the improvements in any other part of the harbor or navigable waters or other place within its control. (22 Op. A. G. 646, December 4, 1899.)

Refer to 24 Op. A. G. 50, May 15, 1902, par. 28-63.

28-61. Power given by statute implies everything for making it effectual. Whenever a power is given by statute, everything for the making of it effectual, or requisite to attain the end, is implied.

The act of March 3, 1899, making an appropriation for "transportation of the Army and its supplies," impliedly authorizes the Secretary of War to purchase for the United States such land as in his judgment may be necessary for the erection of the wharf or wharves as contemplated by the appropriation, and the land so purchased can be paid for out of said appropriation. (22 Op. A. G. 665, December 18, 1899.) Refer to 15 Op. A. G. 235, Apr. 27, 1877, par. 28–16.

28-62. State toll on Government property; wharfage charges payable. The State harbor commissioners of California are charged by the laws of that State with the supervision and control of the wharves and landings of the harbor of San Francisco, with the right to collect dockage, wharfage, rent, or toll.

The imposition of a toll or charge by such commissioners on merchandise, being the property of the United States, passing to or over the wharves at San Francisco, is constitutional and valid; the charge being for a service rendered, the Government is not entitled to such service free of toll.

The same rule would apply to the charge of the Southern Pacific Co., called a "State toll," if this charge was in fact an authorized charge for the use of any part of the State's terminal system, including the transfer railroad along the water front to the wharves.

Such toll or charge is not a tax upon or in respect of interstate traffic, nor a tax upon the instrumentalities and agencies of the General Government, within the prohibi

tions of the Constitution, but is a charge for the use of property and facilities furnished the Government by the State of California. (23 Op. A. G. 299, October 17, 1900.) Refer to 1 Op. A. G. 620, Sept. 8, 1823, par. 28-03.

18 Op. A. G. 491, Oct. 21, 1887, par. 28-31.

28-63. State harbor commissioners without jurisdiction over Government works; Norfolk harbor.

The State of Virginia, through its legislature, having duly relinquished jurisdiction over the lands belonging to the United States at the navy yard at Norfolk upon which it is proposed to construct a dry dock, the State board of harbor commissioners for the port of Norfolk and Portsmouth is without authority to require the submission to and approval by it of the plans of the contemplated improvement, although such improvement be within the harbor line established by that board. The authority of the United States over that harbor is paramount and absolute. (24 Op. A. G. 50, May 15, 1902.)

Refer to 22 Op. A. G. 646, Dec. 4, 1899, par. 28-60.

28-64. Dry dock contract; interpretation regarding shoring.

A contract for the building of a dry dock contained the provision that "the excavation shall be shored and protected from caving and injury in a manner which shall be safe and sufficient, in the opinion of the engineer in charge." Held: The Government has a right to require that the land adjacent to the excavation, lying between the dry dock and a quay wall, be protected from caving and injury. (24 Op. A. G. 82, July 2, 1902.)

28-65. Permissible reservations in State cessions of lands to the United States.

The settled construction of the Department of Justice is that the "consent" of the legislature of a State to the purchase of lands therein by the United States, required by section 355 Revised Statutes, must be free from any conditions or reservations inconsistent with the exercise by Congress of "exclusive legislation" thereover; but the reservation by a State of the right to serve and execute its civil and criminal process in the place ceded has always been held permissible. (24 Op. A. G. 617, April 16, 1903.)

Refer to 20 Op. A. G. 611, June 7, 1893, par. 28-42.

28-66. Description of borings in contract specification not a guaranty; Interpretation.

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In the specifications upon which certain contracts were made for the construction of a sea wall, etc., at Annapolis, Md., information was given as the result of test borings by the Government engineer officers, and a notation was placed upon the profile of the borings that the drawing was made to give to the bidder "a graphic illustration of the conditions which it is believed will be found in doing the work"; that "the conditions existing between and around the borings can not, therefore, be definitely known, and the architect or owner is not to be held responsible for the accuracy of the profile lines and levels of the various materials thereon shown"; * * * and that "if the bidder wishes, he may make such further borings as he may desire." Held, That no warranty or guaranty was given by the Government that the conditions represented therein existed, and that the drawings and phraseology of the notation are not expressive of any such contract. (25 Op. A. G. 33, August 5, 1903.)

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28-67. Guantanamo naval station: Proof of title.

The provisions of section 355, Revised Statutes, are not applicable to the expenditures authorized by the act of March 3, 1903 (32 Stat. 1188), for the erection of necessary improvements on lands at Guantanamo, Cuba, leased by the United States from the Republic of Cuba for the purposes of a naval station.

The advance payments of rental to the Government of Cuba provided for in article 1 of the agreement of July 2, 1903, may lawfully be made without further proof of title than the certified copies of the deeds conveying the lands to that Government. (25 Op. A. G. 160, June 13, 1904.)

28-68. Naval reservation, Porto Rico; determination of shore line.

By proclamation of the President of June 26, 1903, the following-described lands were reserved for naval purposes: "All public lands, natural, reclaimed, partly reclaimed, or which may be reclaimed in the island of Porto Rico, embraced within the following boundaries." The boundaries to the north and west are definitely described. On the south it was to be bounded by "the shore of the harbor, and to extend east 2,400 feet, more or less, to include 80 acres." The eastern boundary was not defined.

Held, That this area can not be made up in part of submerged lands or harbor areas which may be reclaimed, but that the southern boundary should run along the present shore of the harbor, extending as far easterly as is necessary to include 80 acres within the area described.

The word "shore," in Spanish law, means that space of land which the waters in the movement of the tide alternately cover and uncover, the limit of the inner or land line being at the point of the highest equinoctial tides. Where the tides are perceptible, the shore line begins on the land side at the line reached by the waters in storms.

The "seashore," in the United States, is that space of land on the border of the sea which is alternately covered and left dry by the rising and falling of the tide; the space of land between high and low water mark. (25 Op. A. G. 172, June 28, 1904.) 28-69. Transfer of land from one executive department to another. The Secretary of the Navy has authority to transfer control of certain land at San Juan, P. R., reserved by Executive order for naval purposes, to the Department of Commerce and Labor, for the extension of the lighthouse reservation at that place. (25 Op. A. G. 269, November 3, 1904.)

Refer to 28 Op. A. G. 262, Apr. 29, 1910, par. 28-86.

28-70. Testimony in suits between private parties; department records quasi-confidential.

The head of an executive department is not legally bound, in obedience to a subpoena of a court, to appear in a suit between private parties and testify to facts which have come to his knowledge officially; but he may appear and give such testimony as he shall deem proper.

The head of an executive department may properly decline to furnish official records of his department, or copies thereof, or to give testimony in a cause pending in court between private parties, respecting facts which have come to his knowledge officially, whenever in his judgment the production of such papers or the giving of such testimony might prove prejudicial, for any reason, to the Government or to the public interest.

The head of an executive department may legally prohibit the chief of a bureau from producing in court any official records of the department, or certified copies thereof, in obedience to a subpoena duces tecum, and from making or certifying copies of such official records.

The records of executive departments are quasi-confidential in their nature, and must be classed as privileged communications whose production can not be compelled by a court without express authority of law. (25 Op. A. G. 326, January 9, 1905.)

28-71. Naval hospital, Yokohama: Title to land.

The money appropriated by the act of June 29, 1906 (34 Stat. 568), for the purchase for the naval hospital at Yokohama, Japan, of land adjoining its grounds, may properly be expended for the purchase of a lease in perpetuity to said land subject to an annual rental to the Japanese Government, that being the tenure by which the land is now held and the only title that can be obtained, and the Imperial Government having indicated that it has no objection to the transfer for the purpose named.

The purchase of the leasehold with the consent of the Japanese Government would, for all practical purposes, be equivalent to a purchase of the land itself.

Laws should be given a reasonable construction and application to further the object of the lawmaker.

The word "State," as used in section 355, Revised Statutes, regarding the acquisition of land for the erection thereon of any armory, arsenal, etc., or any other public building of any kind whatsoever, signifies a State of the Union. (26 Op. A. G. 12, July 18, 1906.)

28-72. Eight-hour law of 1892: Naval vessels; public works.

The act of August 1, 1892 (27 Stat. 340), limiting the hours of service of laborers and mechanics employed on the public works of the United States, does not apply to vessels under construction for the Navy by contract with builders at private establishments.

Materials for such vessels, such as armor, guns, and other articles obtained under special contracts are, a fortiori, not within the statute.

Suggested, however, that the words "public works" can not be restricted to the conception of fixed things, such as land and structures thereon. The expression is used in river and harbor acts which provide for repairs to breakwaters and for improving rivers according to projects submitted, including, probably, dredging and deepening of channels, the interest of the United States therein being akin in permanence and completeness to title to real estate and ownership of fixed structures.

Suggested, also, that there is a difference between "public work" and "public works," the former being the broader term and including the progress or activity and the latter the product or completed thing. (26 Op. A. G. 30, August 3, 1906.) Refer to 20 Op. A. G. 445, Aug. 19, 1892, par. 28-37.

20 Op. A. G. 454, Aug. 24, 1892, par. 28–38.

28 Op. A. G. 358, July 8, 1910, par. 28-87.
28 Op. A. G. 534, Dec. 14, 1910, par. 28-91.

28-73. Eight-hour law of 1892: Status of certain classes of employees; violations.

The eight-hour law contemplated by the act of August 1, 1892 (27 Stat. 340), means eight hours of effective labor.

The blasting, cleaning of tracks, repair of machinery, and all other similar matters incident to the reclamation work, essential to prompt and continuous service in the regular day, may legally be done before and after regular hours. The law does not prescribe in what hours of the day the labor shall be done.

Blacksmiths and their helpers, firemen, and pumpmen are either mechanics or laborers within the meaning of the eight-hour law.

The status of teamsters, cooks, and flunkies not determined.

It is the duty of the engineers of the Reclamation Service to see that the eight-hour law is observed by the contractors and to report violations of that law. (26 Op. A. G. 64, October 11, 1906.)

Refer to 20 Op. A. G. 459, Aug. 27, 1892, par. 28–39.

26 Op. A. G. 605, May 11, 1908, par. 28-78.

26 Op. A. G. 623, June 17, 1908, par. 28-80.

28-74. Withholding salary of Government clerk when a judgment debtor. Section 1766, Revised Statutes, which provides that no compensation shall be paid to any person who is in arrears to the United States, does not apply to a clerk in the Government service (a pension agency) who is a judgment debtor of the United States. The expression "until he has accounted for and paid into the Treasury all sums for which he may be liable," found in section 1766, does not refer to mere indebtedness, but clearly applies to one who has received Government moneys to be disbursed or covered into the Treasury. (26 Op. A. G. 77, November 7, 1906.)

Refer to 13 Op. A. G. 566, Jan. 7, 1872, par. 28-13.

28-75. Eight-hour law of 1892: Jetty work, Columbia River; extraordinary emergency.

The act of August 1, 1892 (27 Stat. 340), known as the eight-hour law, applies to the jetty work at the mouth of the Columbia River, which is being conducted directly by the Government, and those employed upon that work who come fairly within the meaning of the words "laborers and mechanics" should be restricted to eight hours of effective labor in any one calendar day, irrespective of enforced idleness on other days, except in case of a sudden emergency requiring prompt action.

The exception, in section 1 of that act, of cases of extraordinary emergency, was designed to excuse overtime work which must be rendered to avert some sudden unusual emergency, unexpectedly arising and calling for prompt action. (26 Op. A. G. 278, June 17, 1907.)

Refer to 20 Op. A. G. 459, Aug. 27, 1892, par. 28-39.

26 Op. A. G. 64, Oct. 11, 1906, par. 28-73.

26 Op. A. G. 605, May 11, 1908, par. 28-78.

26 Op. A. G. 623, June 17, 1908, par. 28-80.

28-76. Coal Imported for use of the Navy is subject to the duties prescribed · by paragraph 415 of the act of July 24, 1897 (30 Stat. 190), notwithstanding the coal is imported by the Navy Department, and the duties will have to be paid from the appropriations of that Department. (26 Op. A. G. 466, January 2, 1908.)

28-77. Affixing corporate seals to bonds; acknowledgment of bond unnecessary.

A corporation may adopt for the purpose and use a seal other than its corporate seal on a bond so as to make the bond a corporate deed of the corporation.

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