a hard matter to deal with. We give to Departments what we think is ample, but they come back with a deficiency. Under the law they can [not] make these deficiencies, and Congress can refuse to allow them; but after they are made. it is very hard to refuse to allow them; seek by this amendment to in some respect, at least, cure that abuse. * (39 Cong. Rec., 58th Cong., 3d sess., pt. 4, p. 3687.)

*

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The same purpose was shown also by the following similar statement made by the chairman of the House conferees on a former occasion, when a substantially identical clause was incorporated in the urgent deficiency act of May 1, 1884 (23 Stat. 15, 17):

"This provision was inserted by the House because, under a practice which has grown up, clerks in the Departments here and perhaps Government employees elsewhere, having been employed, as it may be said, after hours, have demanded additional compensation for service thus rendered. The House conferees hold that cases of this kind ought to have been reached by existing law as contained in the following provision of the legislative, executive, and judicial appropriation act approved March 3, 1883:

"That hereafter it shall be the duty of the heads of the several Executive Departments, in the interest of the public service, to require of all clerks and other employees, of whatever grade or class, in their respective Departments not less than seven hours of labor each day, except Sundays and days declared public holidays by law or executive order: Provided, That the heads of the Departments may by special order, stating the reason, further extend or limit the hours of service of any clerk or employee in their Departments respectively, but in case of an extension it shall be without additional compensation.'

"In the face of that provision claims have been presented for extra services performed here and elsewhere by employees of the Government who had been engaged after hours. Some of these claims arose in connection with the life-saving stations. The House conferees, adopting what they believed to be a fair construction of the law, held that a clerk or other employee of the Government should

be controlled in the same manner as individuals in the employ of a private person or corporation, and when the necessity arises for additional service, or for working outside of regular hours, should render such service without additional pay. Upon this point arose the difficulty. The Senate proposed to strike out the provision adopted by the House. The conferees have reached a compromise by allowing the House provision to stand with the addition of the words 'except in cases of sudden emergency involving the loss of human life or the destruction of property.'

"It was urged that there had been, and might again be, occasions when the life-saving organization of the Government might require the service of persons not regularly provided for by law; and for this reason the clause I have just quoted was added.

"I believe the Secretary of the Treasury in recently assigning clerks to duty in connection with the rebate of the tobacco tax has adopted the construction of the law for which we contended, and which we claim is justified by the terms of the act. When the Secretary of the Treasury or any other officer of the Government has occasion to demand from any clerk or other employee service outside of the usual regulations, the rendering of such service should not, under a proper construction of the law, involve any claim whatever for additional pay." (15 Cong. Rec., 48th Cong., 1st sess., pt. 4, pp. 3410, 3411.)

Thus it is evident that the evil at which Congress was aiming was not appointment or employment for authorized services without compensation, but the acceptance of unauthorized services not intended or agreed to be gratuitous and therefore likely to afford a basis for a future claim upon Congress. The latter class of case has been held to be within the act. (Lee v. United States, 45 Ct. Cl. 57.)

Having regard, therefore, to the particular language used and to the purpose as disclosed also by the legislative history, I am of opinion that Revised Statutes, section 3679, does not prohibit the appointment of a person to an official position, even though it be a condition of the appointment that the service is to be without compensation.

Of course, I do not mean by anything I have said herein to intimate that persons may be appointed without compensation to any position to which Congress has by law attached compensation. (Glavey v. United States, 182 U. S. 595; Miller v. United States, 103 Fed. 413.) The position of superintendent of Indian schools, however, is one of those appropriated for in general lump sums (37 Stat. 518 passim; 35 Stat. 73; 34 Stat. 1020) and to which, therefore, persons may be appointed either without compensation or with any compensation short of the maximum. Very respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF THE INTERIOR.

WITHDRAWAL OF BIDS BEFORE ACCEPTANCE.

A bidder on a Government contract can not withdraw his bid before a reasonable time is allowed the Government for acceptance after the opening of the bids.

Where certain bids for the purchase of copper scrap located on the Isthmus of Panama were to be opened and tabulated at Washington and were then to be referred to the Isthmus for final decision: Held, That a delay of seven days before notice of acceptance was not unreasonable as a matter of law.

DEPARTMENT of Justice,

February 14, 1913.

SIR: I have the honor to acknowledge the receipt of your letter of the 29th ultimo, stating that the general purchasing officer, Isthmian Canal Commission, advertised in the accompanying circular (No. 747) for bids, to be opened January 11, 1913, for a certain number of pounds of copper-bearing scrap material; that the Great Western Smelting & Refining Co. was the highest bidder on certain items, and that on January 18 the bid of the Great Western Co. was accepted, but that, before said acceptance was made, but after the bids were opened, the said Great Western Co. had withdrawn its bid.

Under these circumstances you request my opinion upon the following questions:

"1. Whether in the absence of a stipulation as to the time within which the bid should be accepted the delay of seven days in this case was an unreasonable one so that the bid should be regarded as not remaining open for acceptance?

"2. Whether in the absence of a special agreement that the bid should remain open for any specified period the bidder had the right to withdraw the bid before notice of acceptance, without forfeiting the bond which was submitted with the bid?"

I assume that there is no statute governing the case such as section 3719, Revised Statutes, construed in 21 Op. 56, and relating to proposals for contracts with the Navy Department, as the acts of April 10, 1878 (20 Stat. 36), and March 3, 1883 (22 Stat. 487), relating to the similar subject in connection with the War Department and apparently before the Attorney General in the manuscript opinion to the Secretary of War of May 15, 1908 (see Dig. Judge Adv. Genl's Ops., ed. 1912, p. 336). There was also a statute applying to the matter in Kimball v. Hewitt, Mayor, 2 N. Y. Supp. 697, and in Moffett v. City of Rochester, 33 C. C. A. 319; s. c. 178 U. S. 373.

I likewise assume that there is no departmental regulation applicable to the case and having the force of law as may have been the case in Scott v. United States, 44 Ct. Cls. 524, 529.

The only thing, therefore, to take the present case out of the ordinary rule is the circular inviting bids, the proposal of the Great Western Co., and the terms of the guaranty bond.

The circular has the following stipulation:

"Each bid must be accompanied by a bond in good security in a form hereto attached, or by certified check on, or certificate of deposit in, a bank or trust company of the United States, acceptable to the commission, and made payable to the order of the disbursing officer thereof, in an amount equal to 15 per cent of the amount bid. Such check or certificate may be held, deposited, or collected by the disbursing officer, in his discretion. The same, or their

proceeds, will be returned to unsuccessful bidders on rejection of their bids, and to the successful bidder upon a formal execution of a contract with the commission in conformity with the terms of this invitation, accompanied by a bond in the penal sum of not less than 20 per cent of the amount of the award, with approved security for the faithful performance of such contract.

"Should the successful bidder fail to enter into such contract and furnish such bond within 30 days after receipt. of notice of acceptance of his bid and award of contract by the commission, the check or certificate submitted with the bid, or the proceeds thereof, shall be forfeited, or the bond on his proposal shall become payable in the full amount thereof as liquidated damages for such failure." The proposal concludes as follows:

"If any award should be made to the undersigned, the undersigned will, within thirty (30) days of acceptance of bid, enter into a contract in conformity with the terms and requirements of the aforesaid invitation and this proposal, with approved security, for the purchase of the material covered thereby."

The conditions of the bond are:

"The conditions of the above obligation are such that any award made by the Isthmian Canal Commission to the above-bounden principal, for the purchase of material under circular invitation No. 747, shall be accepted by said principal forthwith, and the said principal shall enter into a contract for the purchase of such material in conformity with said invitation, and the annexed proposal, and give bond in the penal sum of not less than twenty (20) per cent of the amount of the award with good and sufficient sureties, to be approved by the commission, for the faithful performance of said contract. And the undersigned bind themselves, their heirs, executors administrators, and successors to pay to the United States, in case the said principal shall fail to enter into such contract and furnish such bond within thirty (30) days after such award the aforesaid sum of money, as liquidated damages.”

It was held by Attorney General Black in 9 Op. 174, and by Solicitor General Phillips, with the approval of