neers were peculiarly the subject of the legislation, and that it was inspired chiefly by the opinion that their nonmilitary activities tended to cripple their corps. (Cong. Globe, 25th Cong. 2d sess., vol. 6, p. 133 passim, and see the history fully stated in the Judge Advocate General's opinion of March 31, 1913, paragraph 7.) It is true that on this point the opinion of my predecessor reported in 28 Op. 270 looks the other way in its ultimate result, but his attention was not called to this section 1224 R. S., but only to the relation between section 1158 R. S. and section 9 of the act of March 4, 1909 (35 Stat. 1027), and he wrote exclusively in answer to a specific question as to that relation.

The only other question is whether the kind of work proposed is covered by the section-that is, whether it is employment on "civil works or internal improvements.'

No doubt, as may be urged, these words are susceptible of a construction which would limit them to work on fixed physical structures and so exclude this case, but this would be an excessively strict construction, not required by the language, and not in accord with the spirit and purpose of the act, which, as stated, was to keep the engineers on military duty with their corps. I perceive no reason for assuming that Congress intended to draw a distinction between civil work of building and the particular kind of civil work here proposed, which is plainly no less inconsistent with the desired presence of the officers with their corps and upon military duty. In fact, Congress itself assumed the application of the section to civil work other than that of physical construction by making express provision for such details (to act as Indian agents under the Secretary of the Interior, 30 Stat. 573; for "special duty with reference to Indian education." 21 Stat. 35; for service on the California Débris Commission, 27 Stai. 507).

This was the conclusion reached by Attorney General Devens, who held that the section precluded detail of an officer to aid in the Geological Survey (16 Op. 499), a duty which can not be distinguished from this.

It might be urged that the express specification of employment "as acting paymaster or disbursing agent of the

Indian Department" indicates that this type of employment would not have been covered by the general clauses; but the real occasion for this specification was the prior existence of a provision passed in 1834 (4 Stat. 735-7) that the President might require any military officers of the United States to execute the duties of an Indian agent. The express clause was necessary to create an exception to this existing special provision, and it was ruled to have had this effect by one of my predecessors, 14 Op. 573, 574.

In coming to this conclusion I have not overlooked the controversy over the meaning of a somewhat similar phrase ("public works of the United States ") in the lien and eight-hour laws. In the latest decision on this subject the Supreme Court held that the phrase is not limited to fixed works on land, but includes naval vessels, Title Guaranty and Trust Company v. Crane Company, 219 U. S. 24; and it has even been held that seamen engaged on a Government vessel in removing snags and obstructions from rivers and harbors are employed upon "public works of the United States" within the meaning of the eighthour law. (United States v. Jefferson, 60 Fed. 736.)

In any event, as the Supreme Court indicated in the Title Guaranty and Trust Company's case, great weight must be given the policy of the statute, and in this instance that seems to be very clear.

For these reasons and for the reasons exhaustively given to the same result in the Judge Advocate General's opinion, dated March 31, 1913, I am of opinion, as above stated, that you have not the authority suggested.

Very respect fully,

TO THE SECRETARY OF WAR.

J. C. McREYNOLDS.

AUTHORITY TO CONTRACT FOR STAR-ROUTE SERVICE. As the Postmaster General is expressly authorized by law to enter into contracts for carrying the mail for a term not exceeding four years without regard to the appropriations therefor. and as the Post Office appropriation act of March 4. 1913 (37 Stat. 791) does not undertake to limit that authority, he may contract for star-route service for the current fiscal year in excess of the appropriation therefor contained in that particular act.

DEPARTMENT OF JUSTICE,

July 18, 1913.

SIR: The Department has given careful consideration to your several communications with reference to your authority to contract for star-route service in excess of the appropriation therefor contained in the act of March 4, 1913 (37 Stat. 800), making appropriations for the service of the Post Office Department for the fiscal year ending June 30, 1914, which provides:

"For inland transportation by star routes (excepting service in Alaska), including temporary service to newly established offices, $7,105,000: Provided, That no part of this appropriation shall be expended for continuance of any star-route service the patronage of which shall be served entirely by the extension of Rural Delivery Service, nor shall any of said sum be expended for the establishment of new star-route service for a patronage which is already entirely served by Rural Delivery Service."

You say that before the passage of the act it was found, for reasons stated by you but unnecessary to repeat here, that the appropriation would be insufficient, and that you therefore submitted a request to each House of Congress that the appropriation be increased to $7,400,000, but that such increase was not authorized.

The following provisions of the Revised Statutes, you say, affect the establishment of star-route service:

"SEC. 3956. No contract for carrying the mail shall be made for a longer term than four years,

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"SEC. 3965. The Postmaster General shall provide for carrying the mail on all post-roads established by law, as often as he, having due regard to productiveness and other circumstances, may think proper.

"SEC. 3968. The Postmaster General may contract for carrying the mail on any plank-road in the United States, when the public interest or convenience requires it.

"SEC. 3975. The Postmaster General may, when he deems it advisable, contract for the transportation of the mails to and from any post office;

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Attention is also called to the act of July 26, 1892 (27 Stat. 268), which provides that

"after providing by general advertisement for the transportation of the mails in any State or Territory as authorized by law, the Postmaster General may secure any mail service that may become necessary before the next general advertisement for said State or Territory by posting notices, etc."

But this statute does not appear to have any particular bearing on the question presented.

Express prohibitions upon the expenditure of money by an executive department in excess of appropriations, as well as upon involving the United States in any contract or obligation for the payment of money unless the same is authorized by law, are contained in the following provisions of the Revised Statutes:

Section 3679, as amended by the act of February 27, (34 Stat. 27, 49):

1906

"No Executive Department or other Government establishment of the United States shall expend, in any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract or other obligation for the future payment of money in excess of such appropriations unless such contract or obligation is authorized by law. Nor shall any Department or any officer of the Government accept voluntary service for the Government or employ personal service in excess of that authorized by law, except in cases of sudden emergency involving the loss of human life or the destruction of property. All appropriations made for contingent expenses or other general purposes, except appropriations made in fulfillment of contract obligations expressly authorized by law, or for objects required or authorized by law without reference to the amounts annually appropri ated therefor, shall, on or before the beginning of each fiscal year, be so apportioned by monthly or other allotments as to prevent expenditures in one portion of the year which may necessitate deficiency or additional appropriations to complete the service of the fiscal year for which said appropriations are made; and all such apportionments shall be adhered to and shall not be waived or modified except upon the happening of some extraordinary emer

gency or unusual circumstance which could not be anticipated at the time of making such apportionment, but this provision shall not apply to the contingent appropriations of the Senate or House of Representatives; and in case said apportionments are waived or modified as herein provided, the same shall be waived or modified in writing by the head of such Executive Department or other Government establishment having control of the expenditure, and the reasons therefor shall be fully set forth in each particular case and communicated to Congress in connection with estimates for any additional appropriations required on account thereof. Any person violating any provision of this section shall be summarily removed from office and may also be punished by a fine of not less than one hundred dollars or by imprisonment for not less than one month.

"SEC. 3732. No contract or purchase on behalf of the United States shall be made, unless the same is authorized by law or is under an appropriation adequate to its fulfillment, except in the War and Navy Departments, for clothing, subsistence, forage, fuel, quarters, or transportation, which, however, shall not exceed the necessities of the current year."

It appears that sections 3956, 3965, 3968, and 3975 of the Revised Statutes expressly authorize you to contract for carrying the mail for a term not exceeding four years without regard to the appropriations therefor. A contract of that kind, therefore, would be "authorized by law" within the meaning of sections 3679 and 3732, Revised Statutes, unless the appropriations made by Congress for the service of the Post Office Department for the fiscal year ending June 30, 1914, contained in the act of March 4, 1913, supra, are to be taken as limiting the power to contract for the transportation of the mail for that fiscal year. In view of the detailed way in which Congress, in its annual appropriations acts, now provides for the various kinds of mail service, it may be contended that the appropriations are intended as a limitation upon your general power to contract for that fiscal year. On the other hand, considering the nature of the subject matter dealt with, the fact that the amount of mail necessary to be carried can