It is not necessary to decide this question at this time, for if the first contention of the Government be sound and the process used by the Carnegie Company in hardening these plates is not the process covered by the Harvey patents, then it would not be the subject of the agreement of March 24, 1897, and the Carnegie Company was not "required" to pay royalties thereunder. This is the very question at issue in the pending litigation between the United States and the Harvey Company, behind which latter company the Carnegie Company stands as beneficial plaintiff to the extent of the royalties paid by it, for the Carnegie Company is "subrogated to the rights of the Harvey Steel Company for the amount of such royalties," and the Harvey Company "on the written request, and at the expense of the Carnegie Steel Company, Limited," must commence and prosecute with due diligence a suit against the United States to recover the royalty due under the said Government license, and must pay over the royalties thus recovered to the Carnegie Company. Whether recovery is sought in the pending case in the Court of Claims for the particular royalties, for which you are now asked to approve a voucher, is not important. The question involved is the same, and if the Harvey Company be successful in this suit, and the royalties comprised in the disputed voucher be not recoverable in the pending suit, the Harvey Company is obliged to bring a new suit for such royalties for the benefit of the Carnegie Company, and the prior decision would unquestionably be controling. It is obvious, therefore, that to pay these royalties is not merely to prejudge the question at issue in the present litigation, but in effect to concede the entire claim. In my judgment, therefore, you are justified in withholding your approval of this voucher. It is evident that the Government desires to have the question of the validity of the Harvey patents, and the exact process covered by them, judicially determined, and it should not be defeated in this purpose by the ingenious agreement into which its contractors and the Harvey Company entered. I, therefore, adhere to the opinion previously expressed that you are justified in withholding such approval, to the end that the questions involved may be judicially determined. This conclusion is not affected by the act of June 3, 1899, which appropriates certain money for armor plates, and inter alia, for "royalty for steel face-hardening process not to exceed one-half cent per pound, and which can not be made use of without the payment of royalty." The attorney for the claimants contends that this is a specific direction on the part of Congress to pay these royalties without regard to the pending litigation. I can not concur in this view. On the contrary, it seems to me that Congress has explicitly confined the appropriation for royalties for the use of such process as "can not be made use of without the payment of royalty." In view of the dispute between the Government and the Harvey Company, which was presumably known to Congress, the conclusion is reasonable that by the use of these words Congress intended to appropriate moneys for the payment of royalties, if it were determined that the process could not be used without the payment of such royalties. There is no reason to believe that Congress intended to prejudge the controversy then pending in the Court of Claims, or to pay royalties which the Executive Department did not regard as due. The claim of the Bethlehem Company arises under similar contracts, and upon a similar state of facts. For the reasons already given in disposing of the Carnegie Company's claim, I also advise you that you are justified in withholding your approval of its voucher. Very respectfully, JAMES M. BECK, Acting Attorney-General. The SECRETARY OF THE NAVY. SECRETARY OF WAR-POWER TO SUSPEND HARBOR IM PROVEMENTS The Secretary of War has discretionary authority, under the act of June 3, 1896 (29 Stat., 213), and subsequent acts making appropriations for the construction of a tidal canal in Oakland Harbor, California, to suspend the work on such improvement when the suspension will best inure to its ultimate completion; but he would not be justified in suspending the work if the only purpose was to delay its completion with the intention of abandoning it. A mere doubt as to the wisdom of carrying out a public work authorized by Congress, does not justify its suspension and a refusal to complete it. Until such act is repealed, it must be assumed to be the deliberate and continuing expression of the will of Congress, and respected as such. DEPARTMENT OF JUSTICE, SIR: I have the honor to acknowledge the receipt of your letter of the 21st instant, in which you ask me to advise you with reference to your power to suspend the prosecution of certain public work in Oakland Harbor, California, which work had been authorized under the act of June 3, 1896 (29) Stat., 202, 213), and subsequent legislation. It appears from your letter that by the act in question Congress provided: "Improving harbor at Oakland, California: Continuing improvement, under existing project, twenty thousand dollars: Provided, That contracts may be entered into by the Secretary of War for such materials and work as may be necessary to complete said improvement, to be paid for as appropriations may from time to time be made by law, not to exceed in the aggregate six hundred and sixty-six thousand dollars, exclusive of the amounts herein and heretofore appropriated." It being impracticable to complete the work within the limit fixed, the sundry civil act of June 4, 1897 (30 Stat., 11), modified the above legislation by providing that contracts could be made to prosecute the improvement under existing project." .. You state that the existing project, at the date of the legislation of 1896, included the construction of a tidal canal connecting San Antonio Creek (Oakland Harbor) and San Leandro Bay. This project had been recommended by a board of engineers in 1874. It also appears that Congress, in making further appropriations in 1898 and 1900 for the improvement of Oakland Harbor, specifically referred to the "existing project" as the object of such appropriation, and your Department has already expended upon this tidal canal the sum of $480,000, and a contract for its further prosecution under existing appropriations is now awaiting your approval, which provides for work estimated to cost about $270,000. On June 24, 1901, the Chief of Engineers received the following dispatch from Hon. T. E. Burton, chairman of the River and Harbor Committee of the House: "SAN FRANCISCO, CAL., June 21, 1901. "GENERAL GILLESPIE, "Chief of Engineers, Washington, D. C. "Twelve members of committee (river and harbor) after examination of proposed tidal canal, Oakland Harbor, unanimously and earnestly recommend that approval of contract signed here last Monday be withheld. It seems a wasteful and probably dangerous expenditure. Whole subject should be reconsidered by Congress with the assistance of more adequate information. Local engineers agree Will write more fully * * * * * "T. E. BURTON." * Upon these facts you ask me the following question: "Under the act of June 3, 1896, herein before cited, making appropriations for the construction of works of riverand harbor improvement, has the Secretary of War authority to further suspend the prosecution of the work therein provided for, of completing Oakland Harbor under existing project?"" An appropriation for a public improvement carries with it as a necessary implication a direction that the work shall be done, and the executive department has no power, in the absence of statutory provisions giving it discretionary authority, to decline to execute such work. Except where otherwise provided, the time for the commencement of such work and that required for its completion are necessarily committed to the sound discretion of the executive department of the Government, and in the exercise of such discretion, work once commenced may be suspended if in the judgment of the executive department such suspension will best insure the ultimate completion of the work. The suspension of the work for a legitimate object connected with its ultimate completion must not be confounded with such suspension whose purpose is a refusal to carry on the work further. A mere doubt as to the wisdom of carrying out a public work authorized by Congress would not justify its suspension and a refusal to complete it. Replying, therefore, to your question, I do not disaffirm your authority to suspend the prosecution of the public work authorized by the act of June 3, 1896, if in your judgment the ultimate completion of the work requires such suspension at this time, but I do not think that you would be justified in thus suspending it if your only purpose was to delay its completion until Congress should have the opportunity to reconsider its own deliberate act and possibly repeal it. Until such act is repealed, it must be assumed to be the deliberate and continuing expression of the will of Congress, and respected as such. Respectfully, The SECRETARY OF WAR. JAMES M. BECK, Acting Attorney-General. SECRETARY OF THE TREASURY-COMPROMISE. The Secretary of the Treasury has no power to compromise a suit brought against a collector of internal revenue for the recovery of taxes claimed to have been illegally collected. The power given the Secretary by section 3229, Revised Statutes, to com- DEPARTMENT OF JUSTICE, SIR: I have the honor to acknowledge the receipt of your letter of July 22 with reference to the offer of compromise which the plaintiffs have made in the case of the Coca-Cola Company v. II. A. Rucker, Collector of Internal Revenue, which you request me to advise you as to your power to accept or decline such offer. |